Grandparents – do you have rights?

 
No matter what situation you might find yourself in, it is important to remember that the Family Law Act (the Act) provides for grandparents in relation to their grandchildren

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When parents separate, care arrangements for the children of the relationship or marriage are often negotiated amicably or orders are made with intervention from the Court.

When Orders or agreements are being negotiated by parents after separation, other important people in the child or children’s lives such as their grandparents are often overlooked.

You might have a falling out with your grandchild or grandchildren’s parents and are no longer able to spend time with or communicate with your grandchild/ren. Or god forbid the unthinkable happens and one or both of your grandchild’s parents passes leaving them without one or both of their parents.


Grandparents can play a significant role in a child’s life – they may even be a child’s main caregiver.

No matter what situation you might find yourself in, it is important to remember that the Family Law Act (the Act) provides for grandparents in relation to their grandchildren.

Children have a right to maintain regular communication with those who are considered important to their welfare, care and development and the Act specifically refers to grandparents as being included in that category of people with whom a child should maintain contact.

Being a grandparent does not automatically grant you the right to see or care for your grandchild but you do have the right to apply to the Court and depending on the circumstance that you might find yourself in you can apply to the Court to obtain orders:

  1. so that you can see / communicate with and / or spend time with your grandchild; or

  2. so that your grandchild lives with you and in some circumstances giving you (the grandparent) parental responsibility.

As a grandparent if you need to apply to the Court for Orders so that you can spend time with/communicate with your grandchild or because of your specific circumstances you believe that your grandchild should be living with you, the Court will need to look at multiple factors like (this is not an exhaustive list):

  1. the need to protect the child’s psychological or physical safety from things like abuse, neglect or family violence or the risk of these occurring;

  2. the benefit of having a meaningful relationship with their parents and you (their grandparent);

  3. the kind of relationship that the child already has with their parents and you (their grandparent);

  4. the effect any change of circumstances will have on the child;

  5. the ability of parents and you (the grandparent) to provide for the child’s emotional and intellectual needs;

  6. the attitude of the parents and you (the grandparent) towards the child;

  7. the child’s views; and

  8. the practical issues involved with the child spending time (or living) and communication with you (the grandparent).

What does this mean? Bottom line – before a Judge / Court can make an order, they must be satisfied that making the Order is in the child’s best interests.

If you already have an agreement or come to an agreement – what can you do?

You can formalise your agreement with either a:

  1. Parenting Plan; or

  2. Consent Order.

If you are unable to come to an agreement – what is your next steps?

If you are unable to come to an agreement with the parent(s) of your grandchild – you will need to:

  1. attempt to mediate with the parent(s) of your grandchild – unless there is urgency; and

  2. if you cannot negotiate an agreement – you will need to file an Application in the Federal Circuit Court of Australia.

Before filing any Application to Court – I would always recommend, at the very least, obtaining initial advice from a lawyer who practices in family law.


Where to from here? 

You are probably in one of three head spaces right now: 

  1. You liked the information, you found it interesting - but that’s all you wanted for now.

  2. This blog post resonated with you but you are just not ready yet to do anything and just want to look at more information about Family Law – I suggest you look at the other Free Information we have on our website which includes FAQ's as well as Helpful Links and Contacts that may come in handy.

  3. You are wanting more information about what you need to know after separation or you are ready to do something about your problem right now. If that is the case, then book an appointment with one of our Family Law solicitors by clicking here to make an online booking or why not start online!