Grandparents’ rights to see grandchildren aren’t automatic under Australian family law. There is no standalone right to spend time with a grandchild. The law does, however, weigh the importance of people who are significant to a child, including extended family, when it works out what is in that child’s best interests. Being cut off from someone you love hurts. There are legal avenues you can pursue to regain contact.
Key takeaways
The Family Law Act makes provisions for grandparents in relation to their grandchildren.
There are various circumstances where a grandparent may wish to apply for a parenting order.
The Court considers various factors when assessing a parenting order.
A family lawyer may provide crucial support for the process.
What the Family Law Act says about grandparents' rights to see grandchildren
The Family Law Act 1975 contains provisions that affect the right of grandparents to see their grandchildren. Section 60CC refers to the factors the Federal Circuit and Family Court of Australia (FCFCOA) considers when determining what is in the child’s best interests. One of the considerations is the following:
The benefit to the child of being able to have a relationship with the child’s parents, and other people who are significant to the child, where it is safe to do so.
This positions parties, such as grandparents, as an important factor in the FCFCOA’s decision-making in relation to parenting orders. Section 65C specifically refers to grandparents as one party who may apply to the Court for a parenting order. Another person concerned with the care, welfare or development of the child may also apply.
When a grandchild lives with a grandparent full time
Many grandparents search for terms like “full custody” when they want a grandchild to live with them. The Family Law Act doesn’t use the word custody. Since the changes that commenced on 6 May 2024, the Act deals with who a child lives with, who a child spends time with, and how parental responsibility is allocated. You can read more about the current framework on our family law reform hub and our guide to child custody. Whichever words are used, the outcome depends on the child’s best interests rather than on the relationship title.
When grandparents can apply for time with a grandchild
There are many circumstances where a grandparent may believe that it’s best for the child’s wellbeing for them to formally take responsibility for their care. This could include:
Neither parent is able to take responsibility for their own child’s welfare, for example because of untreated substance misuse or serious health issues.
The grandparent may have concerns about the child being exposed to family violence.
The grandparent has already taken on parental responsibility as a primary carer and wishes to formalise the arrangement.
Contact has stopped after the parents separate, and shifting family dynamics have left the grandparent without an existing relationship with the child.
A grandparent may apply to the Court for parenting orders in these situations. Standing to apply is not the same as a particular result. The Court decides each application on the child’s best interests, so no outcome can be predicted in advance. Our grandparents rights lawyers in Brisbane can talk through where you stand before anything is filed.
If you have concerns about domestic violence, there are resources available:
DVConnect Womensline (Queensland): 1800 811 811
DVConnect Mensline (Queensland): 1800 600 636
1800RESPECT (national): 1800 737 732
If you’re in immediate danger, call the police on 000. Our domestic violence lawyers can also talk through the legal options available to you.
Try to reach an agreement first
Before applying to the FCFCOA for a parenting order, a grandparent is generally expected to make a genuine effort to resolve the dispute through family dispute resolution. Any disagreements may be worked through with the help of a family dispute resolution service or mediator. Resources, such as the Family Relationship Advice Line (1800 050 321), can assist parties with working through disputes. In Western Australia, applications of this kind are made to the Family Court of Western Australia.
Section 60I certificates and mediation
Under section 60I of the Family Law Act, an application for parenting orders is generally filed together with a section 60I certificate from an accredited family dispute resolution practitioner. There are five kinds of certificate. A certificate may record that a person attended and made a genuine effort, that they attended without a genuine effort being made by everyone, that the other party did not attend, or that the practitioner considered family dispute resolution unsuitable in the circumstances.
The Court may grant an exemption from filing a certificate. The grounds set out in section 60I(9) include family violence, child abuse, urgency, and consent order applications. The FCFCOA guidance on compulsory pre-filing family dispute resolution and the Attorney-General’s Department information on section 60I certificates set out how this works. So a grandparent may go to court for parenting orders where mediation doesn’t resolve the dispute, and also where an exemption applies.
Written agreements and consent orders
If the parties can agree to appropriate arrangements, they may apply to the Court for consent orders. The Court decides whether to make the orders, with the child’s best interests as the paramount consideration. Where a grandparent seeks orders for a child to live with them, or for parental responsibility, section 65G sets out a further step involving a conference with a family consultant, unless the Court is satisfied that it is appropriate to proceed without one. Once made, consent orders are legally binding.
The parties can also make an informal written agreement with a parenting plan. While parenting plans aren’t typically enforceable through the FCFCOA, they can be a useful way for families to organise parenting arrangements without involving the Court.
What the Court considers
The factors the Court will consider under the law include:
What arrangements will promote the child’s safety and the safety of anyone caring for the child.
The child’s views.
The child’s developmental, psychological, emotional, and cultural needs.
The capacity of each person who has, or is proposed to have, parental responsibility to meet the child’s needs.
Benefit to the child of being able to have a relationship with people who are significant to the child, such as grandparents, where it is safe to do so.
Any history of family violence involving the child or a person caring for the child.
Any other matter the Court thinks is relevant.
There are additional provisions for Aboriginal and Torres Strait Islander children. The law recognises the importance of matters, such as the child’s right to enjoy their culture. This could involve connecting with family members and their extended community.
Financial support for grandparent carers
Grandparents who care for a grandchild may be able to access Commonwealth payments. Eligibility generally depends on the level of actual care provided, together with income and residence tests, rather than on holding legal authority for the child. Services Australia sets out the details on its support for grandparent carers page.
Child support. A non-parent carer may apply for a child support assessment where they care for the child at least 35% of the time and are not the partner of either parent. Our child support lawyers can explain how this works alongside parenting matters.
Family Tax Benefit. Part A generally involves caring for the child at least 35% of the time, along with income and residence requirements.
Child Care Subsidy. A carer may be eligible with at least 14% care where they pay the child care fees.
Additional Child Care Subsidy (grandparent). This involves 65% or more care, substantial autonomy over day-to-day decisions about the child’s care, and receiving an income support payment. Details are on the Services Australia grandparent subsidy page.
Double Orphan Pension. This may apply where a child’s parents have died, or in other limited situations set out by Services Australia.
Grandparents who care for a child and live in the same house as one of the child’s parents are generally not eligible for these payments. Services Australia suggests contacting them to discuss individual circumstances, and Grandparent, Foster and Kinship Carer Advisers are available on 1800 245 965. Payment rates and thresholds change from time to time, so it’s worth checking the current figures directly with Services Australia.
Legal authority can also matter for everyday tasks. Without parental responsibility, a grandparent may find it harder to enrol a child in school, consent to medical treatment, or claim Medicare benefits for the child. Parenting orders can address who makes these decisions.
The role of a family lawyer
Grandparents often look for legal support when contact stops or when a grandchild’s welfare is at risk. Seeking legal advice can help you understand where you stand as a grandparent. This may be important for managing issues, such as:
Applying to the Court for the appointment of an independent children’s lawyer.
Seeking a court order for a family report prepared by a family consultant.
Assisting with dispute resolution sessions.
Weighing up court action against other ways of settling the child’s care arrangements.
Alternative strategies may help grandparents stay in contact with their grandchildren. Rather than seeking full parental responsibility, an agreement could be reached to maintain contact through scheduled video calls and regular visits. Support services, including counselling and family relationship centres, can also help families work through conflict.
Everyday steps that help maintain relationships
Where the child lives with a parent, small things often make a difference. Respecting household rules, avoiding criticism of the parents in front of the child, and giving notice before visits can help preserve an existing relationship. Keeping the focus on the child’s care rather than on adult disagreements tends to support better long-term family dynamics.
Conclusion
Grandparents can be an important part of a child’s life as they grow up. The law recognises how crucial grandparents can be to a child’s development and provides ways for them to have a say in parenting matters. There are various reasons why grandparents may take legal action to maintain contact after a family separation. Understanding grandparents’ rights to see grandchildren can help you navigate the court process and work out positive parenting arrangements.
Are you seeking advice for grandparents and other family members?
The Andrews Family Lawyers team can help you understand your legal responsibilities and the options available to grandparents. Contact us today for a free consultation.
Disclaimer: This article provides general information only. It is not legal advice. Family law outcomes depend on your circumstances. You should speak with a family lawyer before making decisions about your matter.
