GRANDPARENTS AND FAMILY LAW: UNDERSTANDING YOUR RIGHTS

Written By Tori Bowman

Grandparents play an important role in a child’s life. They may provide care, stability, cultural connection and emotional support. However, sometimes when a relationship breaks down, grandparents become a forgotten part of the picture despite them having close relationships with their grandchildren. Grandparents are then left wondering what options they have to maintain their connection with their grandchildren. 

Whilst the Federal Circuit and Family Court of Australia (the Court) recognises that grandparents may play a significant role in a child’s life, the Family Law Act 1975 (Cth) (the Act) does not give grandparents an automatic right to spend time with their grandchildren. The Court’s focus is not on the rights of the grandparent, or even the rights of either parent. Its paramount consideration is always the child’s best interests.

Can grandparents apply for parenting orders?

The short and simple answer is yes. Section 65C of the Act expressly provides that the following people can apply for a parenting order in relation to a child:

  • either or both of the child’s parents; or

  •  the child; or

  •  a grandparent of the child; or

  •  any other person concerned with the care, welfare or development of the child.

Grandparents may wish to seek orders that relate to:

  • whether a child spends time with the grandparent;

  • when, where and how that time occurs;

  • what communication the child can have with the grandparent; and

  • in appropriate cases, who has parental responsibility for the child and who the child lives with.

However, before making any application to the Court, any grandparents contemplating making an application should first obtain legal advice to assess the facts of their matter and their appropriate options. 

What does the Court consider?

Section 60CA of the Act provides that the child’s best interests are the paramount consideration when the Court makes a parenting order.

Section 60CC provides the Court with framework as to what matters the Court must consider including:

  • what arrangements would promote the safety of the child and each person who cares for the child;

  • the child’s views, having regard to the child’s age, maturity and understanding;

  • the child’s developmental, psychological, emotional and cultural needs;

  • the capacity of each proposed carer to meet those needs;

  • the benefit to the child of having relationships with their parents and other significant people, where it is safe to do so;

  • anything relevant to the child’s particular circumstances; and

  • for an Aboriginal or Torres Strait Islander child, the child’s right to enjoy and maintain a connection with their family, community, culture, country and language.

The Court may therefore consider the nature and history of the relationship between the grandparent and the child. A grandparent who has regularly cared for the child and formed a secure and meaningful relationship with them could be in a vastly different position from a grandparent who has had limited involvement in the child’s life.

The Court may also consider the practical effect of the arrangement the grandparent is proposing. For example, the Court may examine whether time with the grandparent would support the child or expose the child to further adult conflict. 

Do parents have a say?

The parents generally make day-to-day decisions about their child unless there are Court orders that provide otherwise. Their views are relevant, particularly if they raise genuine concerns about safety, conflict or the child’s wellbeing with respect to any arrangements the grandparents may be seeking.

However, a parent’s objection does not necessarily prevent the Court from making orders. Again, the Court will independently assess what is in the child’s best interests.

It is important to note, however that being a grandparent does not create an automatic entitlement to contact. The Court will not ordinarily make orders simply because a grandparent feels that the parent’s decision is unfair. Any application must remain child focussed and detail how the proposed orders would benefit the child.

It should also be noted that the merit of each case is, of course, dependent on the facts of the case. For example, the Court may be more willing to intervene and make orders if the parents pose a risk of harm to the child and/or lack parenting capacity. There are some circumstances in which the Court will order that the grandparents have parental responsibility and the child live with them rather than their parents, however, this is not common. Typically, it is preferred that the child live with either of their parents provided it is safe to do so. 

What should grandparents do before going to Court?

Court proceedings should generally be treated as a last resort. Where it is safe and appropriate, the first step may be to send a written proposal to the child’s parents including spend-time and communication arrangements. The proposal should be practical and child focussed. 

Family counselling and/or mediation can also assist grandparents and parents to discuss the issues with an independent professional, as the dispute may simply need to be discussed in a safe and controlled environment. 

If agreement is reached, the parties should obtain legal advice about how it should be recorded. 

How can a grandparent strengthen their position?

A grandparent considering an application to the Court should keep the focus firmly on the child. Relevant information may include:

  • the history of their relationship with the child;

  • the care they have previously provided;

  • the frequency and quality of past contact;

  • the child’s relationship with the wider family;

  • any cultural, religious or community connections supported by the grandparent;

  • attempts made to resolve the dispute; and

  • a realistic proposal for future time or communication.

Communications with the child’s parents should remain measured and respectful. 

Obtaining legal advice

Disputes between grandparents and parents are rarely straightforward. Each case depends on the circumstances of the matter including the history of the family relationships and any identified risks.

Early legal advice can help grandparents understand whether an application is appropriate, explore the alternatives available and ensure any proposal is focused on the child’s best interests. It can equally assist parents in understanding their position and responding appropriately to a grandparent’s request.

In summary, whilst the law provides a pathway for grandparents wanting to recommence their time with a child, it does not guarantee it.  To better understand your options so that you can make informed decisions, it is important to seek legal advice from a specialist family law practitioner.  

Each family law matter is dependent on the facts of the matter. This blog has been prepared to provide information only, it does not constitute legal advice.

The contents of this blog are relevant as of 1 October 2026. 


Tori Bowman
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