Grandparents Rights In Family Law

A complete overview of Grandparents rights

Sadly it is not uncommon for relationships between parents and their adult children or their child’s co-parent to sour.  Sometimes, if you are a grandparent, the fallout from this can be the reduction or cessation of time your grandchildren spend with you.

Grandparents showing love and affection with their grandchildren
Grandparents often have a unique relationship with their grandchildren

Sometimes the circumstances of a grandchild’s care cause grave concern.

Below are some commonly asked questions that you might find helpful but remember, nothing can replace appropriate legal advice. Grandparents have a special relationship with grandchildren — often playing important roles in the personal and cultural development of the child as well as being significant caregivers, especially in critical moments for the family.

Do grandparents have legal rights to access grandchildren?

Grandparents have no explicit right to maintain a relationship with their grandchildren. The primary Family Law legislation in Australia — the Family Law Act 1975 (Cth)— does not refer to the rights of any person, including parents, to maintain a relationship with a child.

Rather, when determining with whom a child may spend time, the primary consideration is the child’s best interests which are defined by the legislation to be a relationship with both parents, and to be protected from harm, neglect or abuse. At first glance, this puts grandparents at a disadvantage because their relationship with the child is not a primary consideration for the Courts.

There is no special provision for grandparents in Australian family law. This may become an issue where the parents of a grandchild separate leading to a grandparent becoming excluded by the former in-law, or where there is an estranged relationship between the grandparent and their child.

Can a parent deny a grandparent visitation?

“the child has a right to spend time on a regular basis and to communicate on a      regular basis with people significant to their care, welfare and development – this includes    grandparents – except when it would be contrary to the child’s best interests.”[2]

Consequently, while grandparents have no explicit right to maintain a relationship with a grandchild, a grandchild has the right to maintain a relationship with their grandparents. It is this right, among others, that are considered when an application is made for a court order to include or exclude a grandparent in a child’s life.

Can grandparents apply for access to grandchildren?

Yes, the Family Law Act allows grandparents to apply for, initiate and be included in child access and custody matters. Family law recognises three avenues for grandparents to secure access, communication and time with their grandchildren. These are:

  • Parenting Plan
  • Parenting Orders by Consent (“Consent Orders”); and
  • Parenting Orders by a Family Court

Can a grandparent be included on a parenting plan?

It is possible to make parenting arrangements ‘by ear’ and negotiate towards agreement on a day-to-day basis. Where there is no conflict between the parties, it may be ideal to create plans informally by conversation or text message and its therefore unnecessary to engage in legal arrangements. Informal arrangements will not stop a party from changing their mind and upsetting any previously made agreement. A parenting plan or consent order becomes especially important where there are volatile or conflicting relationships in the family, or for grandparents who may already have little influence on the child’s life. In these circumstances, informal arrangements are ineffective because they aren’t enforceable nor are they good evidence of a working parenting arrangement. Consequently, it is wise to take steps to make a formal parenting arrangement.

Parenting plans are the first step to formalise a parenting arrangement. These are written documents recording a voluntary agreement between the parties.[8] They are simple documents and are only required to be in writing, signed and dated by each adult involved. Parties don’t have to attend court nor do they require a lawyer to draft a parenting plan. However, some people find it beneficial to seek the advice of a lawyer, counsellor, or dispute resolution specialist such as a mediator to help create a parenting plan.

Parenting plans can include as many of the above-mentioned parenting arrangement topics and be as detailed as the parties desire. This includes an agreement for grandparents to spend time with grandchildren, or any other wishes a grandparent may have for their grandchild.

The key benefits of a parenting plan are their flexibility and simplicity, that they make sure each party knows their obligations to each other and the child, and that they provide good evidence of a previous parenting plan should the matter ever go to court. If a party applies for a judge-made parenting order, the court is required to have regard to the most recent parenting plan and must consider whether to include in the order the terms (with or without modification) of an existing parenting plan. It is therefore beneficial to have documentary evidence of parenting plans should the matter go to court.

However, while parenting plans are useful for reference, they don’t create legal obligations and can’t be enforced. To obtain enforceability, agreeing parties may apply to the court to seek their parenting plan being ratified by the court and turned into enforceable ‘consent orders’.

Can a grandparent apply for a child arrangement order?

Yes, a grandparent is entitled to apply or may be included in another’s application. Family law courts are able to make an order in favour of a grandparent despite parental opposition or limitations. Child arrangements orders can be via consent when the parents agree or via a court order when the parents don’t agree to the grandparents having access to the children.

Can a grandparent apply for parental responsibility?

Yes, grandparents can apply for parental responsibility. The court has broad powers when making a parenting order. It will assess the circumstances and perspectives of all relevant parties, and make any order that it thinks is proper in relation to the rights and responsibilities to the child. Parenting arrangements can relate to the following topics:

  • where the child lives;
    • who they spend time with;
      • who has parental responsibility;
      • what communication the child is to have with other people;
      • medical issues;
      • schooling;
      • religious and cultural practices;
      • how disputes between cares will be resolved; and
      • any other aspect of the child’s care, welfare and development.[6]

Can grandparents go to mediation?

If grandparent wishes to apply for an order they are required to attend family dispute resolution mediation and demonstrate a genuine effort to resolve the matter. Generally, the Family Law Act encourages people to manage conflicts among themselves and to use legal processes as a matter of the last resort.

How do I get grandparents visitation rights?

If you cannot agree to visitation with the parents, grandparents may apply to the court. The primary consideration for grandparents visitation rights in Australia is whether it is in the best interests of the child — these are to have a meaningful relationship with both parents and to be protected from harm, neglect or abuse and other considerations, such as:

  • the views of the child;
    • do they want to spend time with the grandparent?
      • do they consider the grandparent a significant part of their life?
      • the risk of neglect or violence;
      • the nature of the relationship with the grandparents;
        • Given the amount, quality, and recency of interaction, the child has had with the grandparent.
      • who the child has lived with;
      • the capacity of grandparents and parents to care for the child;
        • Grandparents will have a stronger claim where the child’s parents are not able to parent the child due to family violence or neglect.
      • the effect of changes made to the current parenting arrangement;
      • the practical difficulty and expense; and
      • any other factor the court considers relevant.[16]

Once the court has heard all the evidence it needs and given consideration to all the required relevant factors, it will make a parenting order with the benefit of enforceability.

How can grandparents enforce a consent order or parenting order?

Parties under a consent order or parenting order are legally obliged to comply. An aggrieved party can apply to the courts to implement the consequences of non-compliance. Non-compliance can be due to failing to obey the order, making no attempt to obey the order, or if a third party (such as a new partner of a parent) gets in the way of the order.

What happens if a parent doesn’t comply with an order for the grandparents?

The order will contain a range of consequences for non-compliance which can be of varying severity. For minor breaches, the court can require parties to attend parenting programs, compensate for lost time with a child, change orders to favour the aggrieved, and apply financial penalties. For serious offences, the court can order community service, fines imprisonment for up to 12 months.

Can a grandparent be included in an existing parenting order?

There may be circumstances where a parenting order is already in place. Ideally, those adults included in the existing order can agree to include the grandparent and vary the parenting order by agreement between themselves.

If the parties don’t agree to the change, the grandparent must bring a new application for parenting orders. However, the court will only reconsider an order if there have been significant and substantial changes in circumstances since the previous order. These changes might include a change in the personal or financial characteristics of the parents, a significant change in the needs or desires of the child, or continued contravention of the parenting plan.

If no such changes have occurred, a court is unlikely to reconsider an order. It is therefore important to seek legal advice before applying for a parenting order, or when attempting to vary an existing parenting plan. Until a parenting plan is varied by agreement or by the courts it must be complied with.

Can a grandparent go to court for visitation?

Yes, the law recognises that, as a grandparent, you have the right to ask the court to help you see your grandchildren.  However, how much time they spend with you will depend on what the court finds is in the grandchildren’s “best interests”.   If the grandchildren are in an intact home i.e. their parents are still together, that time is likely to be quite limited and may only be for short periods on special occasions such as birthdays, Christmas and the like. 

If you want to see your grandchild in circumstances where their parent (your child) is deceased then you may have a stronger claim.  This would be the case particularly if you connect your grandchild’s cultural heritage or race in a way their surviving parent cannot. 

Can a grandparent take custody from a mother?

Sometimes your own child may not be the best of parents.  This might be because of the impact of addiction or mental illness on your own child’s parenting capacity.   If there is a risk of harm, particularly an immediate risk, it may be appropriate to report the situation to Child Safety Services (Department of Communities). 

If the harm is not so immediate the solution may be to make an application to the Family Court or Federal Circuit Court asking the court to make an order that your grandchild lives with you.  On an emotional level taking this step can be difficult because you will have to give the court evidence of the ways in which your own child is not properly caring for your grandchildren. 

If the other parent is available to care for the children and they are fit to do so the children may also be given into their care.  

My daughter has named me as the guardian of her children in her will.  Does this mean that the children will live with me (and not their father) if she dies?

Whether or not you are a blood relative, being named as the guardian in a will does not confer any legal right to insist that a child lives with you after the death of their parent.  That does not mean you can’t ask a court to decide that the children live with you. The surviving parent may even agree that this is appropriate. In any event, whether or not the surviving parent agrees, you will need a court order formalising the arrangement otherwise you will not be in a position to deal with schools, Government departments or doctors.

Can grandparents get financial assistance?

If you have at least 35% care of your grandchildren you may be entitled to child support. The percentage of care you have of your grandchildren is calculated by the child support agency based on the number of nights that the children are expected to stay with you over the following 12 months.  The number of nights is then calculated as a percentage over the whole year. 

Luke Cudmore

Principal Family Lawyer at Cudmore Legal Family Lawyers Brisbane Co. Luke is experienced in family law matters ranging from divorce to child custody. He is a skilled negotiator and strategist and fights zealously for his clients family law rights.