Family law 101: Grandparents’ ‘rights’ in family breakdown situations

Oct 13, 2020
Being a grandparent in the eyes of the law can be tricky. Source: Getty.

Divorce or separation can impact many parts of a family, including the relationships between grandparents and grandchildren.

Yet it might come as a shock to find out there are no automatic ‘legal rights’ for grandparents in Australia to gain access to their grandchildren. While the law recognises the importance of the role grandparents play, the reality is the ‘best interests’ of the child are seen by the Family Courts as paramount. For this reason, the law is framed around children having all of the ‘rights’.

There is some good news in that the legal system allows for ways you can re-establish contact and communication with your grandchildren if it is in their best interests, even if you are estranged from your adult child.

What does the law says about grandparents?

The Family Law Act recognises that children have a right to spend time and communicate on a regular basis with both of their parents and other people significant to their care, welfare and development. Grandparents fall into this category and are specifically referred to in the act as able to make an application seeking parenting orders in relation to a child. The act expressly requires the court to consider the nature of a child’s relationship with their grandparents as part of determining what is in their best interests.

As such, grandparents may apply to the court for orders in relation to grandchildren in a variety of circumstances, including where:

  • A parent is preventing the child from spending time with or communicating with the grandparent,
  • A parent is unable to care for the child,
  • The child is at risk of harm in a parent’s care.

Depending on the circumstances, the court can order that a child live in the primary care of a grandparent or that the child spend regular time with a grandparent. The law recognises that children have a right to a relationship with their grandparents so long as it is in the best interests of the child to do so.

How does a court decide the best interests of a child?

There are lots of things that the court will consider when deciding whether it is in the best interests of a child to live with or spend time with a grandparent.

Under the act, determining a child’s best interests will primarily take into account the benefits of having meaningful relationships with family members and the need to protect the child from physical or psychological harm. The court will also consider the views of the child (depending on their age and maturity or level of understanding) and the relationships between the child and their parents, grandparents or relatives.

The impacts of any changes to the child’s circumstances if they are separated from a parent, grandparent, carer or another child they might be living with is also taken into consideration. Another thing the courts will look at is the capacity of each person to provide for the needs of the child, including emotional and intellectual needs.

Can I get a court order to see my grandchild?

You can certainly apply for a court order, which is known as a parenting order. It is an order made by the court that sets out the parenting arrangements for a child and that can also include decisions about the role of grandparents. Whether you get what you want will depend on what the court considers to be best for your grandchildren.

These parenting orders can deal with a range of issues from where a child lives to how much time they spend with parents, grandparents or other significant people in their lives. The order can also set out any aspects of a child’s care, welfare and development including arrangements for travel interstate or overseas – even what should happen on birthdays or religious holidays.

It is important to note that once a parenting order is made, it is binding on all parties and there can be serious consequences for breaching a parenting order.

How do I get a parenting order to see my grandchild?

Any person applying for orders in relation to a child is required to attend family dispute resolution as a first step, before using the court system as a last resort. If mediation is not successful or a party does not attend the mediation, you can then apply to the court for a parenting order, but if you can reach an agreement at mediation, a parenting order can also be made ‘by consent’ from the parents and the grandparents.

We would advise that you speak to a specialised Australian family lawyer about your individual case before taking steps to apply to the court, or even to mediate, however, so that you can work out a clear legal strategy to seek or re-establish a relationship with your grandchildren.

IMPORTANT LEGAL INFO This article is of a general nature and FYI only, because it doesn’t take into account your financial or legal situation, objectives or needs. That means it’s not financial product or legal advice and shouldn’t be relied upon as if it is. Before making a financial or legal decision, you should work out if the info is appropriate for your situation and get independent, licensed financial services or legal advice.

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Did you know this was how grandparents were viewed by the law?

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