When parents separate, grandparents can lose contact with grandchildren they once saw every week. That can be hard on everyone, including the children. Australian family law does make room for grandparents. It does not, however, give them an automatic right to see their grandchildren.
This article explains where grandparents stand under the Family Law Act 1975 (Cth). It covers who can apply for parenting orders and why family dispute resolution usually comes first. It also explains how the court decides what is best for a child. The aim is general information, so you know what questions to ask.
Do grandparents have rights to see their grandchildren?
The short answer is no, not as an automatic right. The Legal Aid ACT fact sheet for grandparents explains that the Act recognises children benefit from a relationship with their grandparents. It also says this does not mean grandparents have an automatic right to contact. The focus of the law is on the child, not on the adults around them.
That focus matters. A grandparent who asks the court for time with a grandchild is not enforcing a personal entitlement. They are asking the court to find that the arrangement is in the child’s best interests. Framing your request around the child from the start may also help conversations with the parents.
Who can apply for parenting orders?
Parents are not the only people who can apply. According to the Legal Services Commission of South Australia Law Handbook, anyone concerned with the care, welfare or development of a child may apply to the court. The examples it gives include grandparents, aunts and uncles and new partners of either parent. The Handbook points to section 69C of the Family Law Act for this rule.
Grandparents can apply whether the child’s parents are together or apart. Most people picture this issue arising after a separation or divorce. If a family is preparing for that step, our guide on the steps to prepare properly for divorce covers the wider picture. Applications for parenting orders are made to the Federal Circuit and Family Court of Australia, or to the Family Court of Western Australia for families in WA.
What can parenting orders cover?
Parenting orders can deal with many parts of a child’s life. The Legal Aid ACT fact sheet lists the main areas. A grandparent will usually be most interested in time and communication.
- where the children live
- who the children spend time with
- who can make decisions for the children
- what communication the children have with others, including phone and email
- any other part of the child’s care, welfare and development
An order might set out a regular weekend visit or a set time for a video call. It might also cover school holidays or special family occasions. In some families a grandparent is the main carer, and the orders reflect that. Each set of orders depends on the facts of the particular family.
Family dispute resolution comes first
Before anyone applies for parenting orders, the parties must usually try family dispute resolution. This is a form of mediation run by a family dispute resolution practitioner. The Law Handbook says an application must include a section 60I certificate from that practitioner. Without one, the court will generally expect a valid exception to apply.
There are exceptions to this rule. The Law Handbook lists situations such as consent orders, urgent matters and cases where a person is unable to take part. It also includes cases where there are reasonable grounds to believe there has been child abuse or family violence, or a risk of it. Even where an exception applies, the court can still order the parties to attend later.
Mediation is often the cheapest and quickest way forward. A calm meeting with a neutral person can sometimes achieve more than a court case. It gives the parents room to raise their worries. It also lets the grandparents show they want to support the family, not take sides.
How the court decides what is best for the child
If agreement is not possible, the court decides. The Law Handbook explains that the court must treat the best interests of the child as the most important consideration. This comes from section 60CA of the Act. The court then looks at a set of matters under section 60CC.
The matters the court considers
The court considers arrangements that promote the child’s safety. It looks at the child’s views and the child’s developmental, psychological, emotional and cultural needs. It also weighs each carer’s ability to meet those needs. The benefit to the child of a relationship with parents and other people significant to them is part of the picture, where it is safe.
A history of family violence, abuse or neglect will also be relevant. So will any family violence order. Families dealing with protection orders may find our article on how to cancel or vary a violence restraining order helpful background. For Aboriginal and Torres Strait Islander children, the court must also consider the child’s right to enjoy their culture.
Parental responsibility
The Law Handbook notes that each parent has parental responsibility for their children until they turn 18. Since 6 May 2024, the court no longer presumes that equal shared parental responsibility is in a child’s best interests. Parents are still encouraged to consult each other on major decisions where it is safe. Grandparents are not given parental responsibility by default, though orders can be made in their favour.
When grandparents are the main carers
Some grandparents end up caring for grandchildren day to day. This can happen through informal family arrangements or through child protection involvement. Legal Aid ACT notes that grandparents with legal responsibility for daily care may be eligible for Commonwealth payments. Details are available from Services Australia.
A grandparent in this position may want formal orders. Without them, simple tasks like enrolling a child in school or consenting to medical care can become awkward. State child protection systems also have their own rules for kinship carers. Those rules differ from one state or territory to the next.
Practical steps for grandparents
Start by keeping communication with the parents respectful, even when it is difficult. Keep a simple record of past contact, such as regular visits, school pickups or holidays. This helps show the role you have played in the child’s life. Avoid speaking badly about either parent in front of the children.
Next, look into family dispute resolution services near you. Legal aid commissions in each state and territory can tell you what is available. Some run free duty lawyer services, such as the Family Law Duty Service at Legal Aid ACT. Getting early advice can save time and money later.
Be aware that separating parents often have other legal matters running at the same time. Property issues have their own deadlines, which our post on time limits for property settlements explains. If you are choosing a family lawyer, look past marketing. Many firms work hard to be found online, as these SEO tips for law firms show, so check experience and fees directly.
Frequently asked questions
Can grandparents apply to court without the parents’ agreement?
Yes. Anyone concerned with a child’s care, welfare or development can apply for parenting orders. Grandparents are given as an example in the Law Handbook. They will usually need to try family dispute resolution first.
Do I need a section 60I certificate?
In most cases, yes. The certificate comes from a family dispute resolution practitioner. Exceptions exist, including urgent matters and cases involving family violence or child abuse.
Will the court always give grandparents time with the children?
No. The court decides based on the best interests of the child. Safety and the child’s needs come first. A relationship with grandparents is one factor among several.
Are the rules the same in every state?
Parenting orders mostly fall under the federal Family Law Act, so the core rules are largely the same across Australia. Western Australia has its own Family Court, and court processes and local services vary from place to place. Child protection and kinship care rules also differ between states and territories.
This article is general information only and is not legal advice. Family law and court processes change, and some rules differ between states and territories. Please speak with a qualified family lawyer about your own situation.
