Grandparents rights | Family Law in Australia

Do grandparents legally have the right to see grandchildren?

The Family Law Act acknowledges the importance of children having a relationship with their grandparents. The Act does not give grandparents an automatic right to see their grandchild, but it provides them with a right to apply to the court to seek Orders for the child to spend time with them or live with them in certain circumstances.

What do I need to know about the Family Law Act?

The Family Law Act provides a number of protections for children. It applies Australia-wide and focuses primarily on the rights of children to know and be cared for by parents and other people significant to their care, welfare and development – including (but not limited to) grandparents.

However, this does not mean that grandparents have an automatic right to have contact with the child. This is because the ‘best interests of the child’ is the paramount consideration for making a decision about who a child should live with or spend time with.

The factors that determine what is in a child’s best interests are set out at section 60CC of the Family Law Act under the heading ‘Additional Considerations’. Grandparents are specifically mentioned a number of times in this section.  In forming a view as to what is in a child’s best interest, the Court must give consideration to the following factors:

1. The nature of the relationship of the child with a grandparent (or other relative of the child);
2. The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from a grandparent (or other relative) with whom he or she has been living with; and
3. The capacity of a grandparent to provide for the needs of the child.

There are of course other factors under this section that will assist the Court in determining whether it is in a child’s best interests to spend time with or live with a grandparent, even though the word ‘grandparent’ is not specifically mentioned.

For example, the Court must take into consideration the need to protect a child from harm/abuse (or risk of it) – which might result in the Court placing a child in the care of a grandparent if one or both parents has engaged in or failed to protect the child from harm/abuse and a grandparent has made an application to care for that child either temporarily or permanently.

The Court must also consider any views expressed by the child (bearing in mind their age and level of maturity).  If a child has a strong bond or close relationship with a grandparent and expresses their desire (to a family report writer for example) for that to continue, the Court must consider those views in determining whether it is in that child’s best interests for Orders to be made for them to spend time with or live with that grandparent.

Mediation before a court application

Although the Family Law Act provides grandparents with a pathway to making an application to spend time with a grandchild, a court application should only be used as a last resort, when all other options (e.g. direct negotiations and/or family dispute resolution/mediation) have failed.

Unless an exception applies (e.g. urgency or risk of harm), all applicants in children’s matters must evidence to the Court that they have attempted to resolve the matter at a family dispute resolution conference/mediation with the other party/s first before making their application.

A large number of matters successfully resolve without litigation becoming necessary, particularly where the parties to the matter have obtained legal advice beforehand.

Applying to the Court for time with a grandchild

In some circumstances, for example, where one or both parents have refused to allow a grandparent to see or spend time with a grandchild at all, an application is made by a grandparent simply for the purposes of being able to communicate with and spend some defined amount of time with their grandchild.

In other circumstances, for example, where one or both parents are unable, unwilling or lack the ability to care for the child (e.g. due to drug/alcohol issues) or where the child is at risk in their parents’ care (e.g. due to domestic violence, drug/alcohol abuse, etc), a grandparent’s application to the Court might request that a child live with that grandparent, either temporarily (on an interim basis – e.g. until a parent regains their capacity to care for the child) or permanently (i.e. on a final basis).

Again, in assessing what arrangements are in the child’s best interests at that time, the Court will be required to give consideration to the section 60CC factors – and for the latter application in particular, the Court will have to weigh up the Primary Considerations against one another in determining whether a child should live with a grandparent over a parent – that is, by giving consideration to the need to protect the child from actual harm/abuse or risk of harm/abuse verses the benefit to the child of having a meaningful relationship with both parents.