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Grandparents’ Rights in Family Law Matters

Grandparents and the family law act

Grandparents are frequently deeply engaged in their grandchildren’s lives and can represent some of the most important connections a child has beyond their parents. We receive inquiries from grandparents seeking information about their rights concerning their grandchildren, especially when the child’s parents have separated or the grandparent’s relationship with their child has deteriorated.

The Rights of a Grandparent

Under the Family Law Act 1975, nobody has a ‘right’ to spend time with, or care for, a child. This includes grandparents and the child’s parents. Rather, section 60CA of the Act outlines that there is one paramount consideration for the Court when making a parenting order: the best interests of the child.

The determination of a child’s best interests varies from case to case. Section 60CC stipulates two primary factors in assessing a child’s best interests: the importance of a meaningful relationship with both parents and the imperative to safeguard the child from harm. Although there isn’t an inherent ‘entitlement’ to spend time with a child, the law explicitly acknowledges the child’s relationships with their parents and, when relevant, their grandparents.

The Best Interests of the Child in the Family Law Act

However, the Act also specifies other considerations for the Court to take into account. Grandparents are specifically mentioned as a consideration throughout the section, including:

S60CC(3)(b): the nature of the child’s relationship with other persons, including grandparents;

S60CC(3)(d): the likely effect of any changes in the child’s life, including separation from grandparents with whom they have been living;

S60CC(3)(f): the capacity of any other person, including a grandparent, to provide for the child’s needs (including emotional and intellectual).

Other than these specific sections mentioning grandparents, a child’s relationship with their grandparents is also often relevant when considering the child’s views and wishes, and may be particularly relevant when the child identifies as Aboriginal or Torres Strait Islander.

Applying for Orders as a Grandparent

Under s65C of the Family Law Act, parenting orders can be applied for by either parent, the child themselves, another person concerned with the welfare of the child or a grandparent.

In summary, the Court will always make orders that it feels are in the best interests of the child in that particular case. While grandparents do not have an automatic right to see their grandchildren, they are recognised in the legislation as significant people in a child’s life and an important consideration for the Court when making Orders.



Who cares for the children after separation?

Our team at Point Cook Family Lawyers can assist you in establishing an arrangement for where your children will reside after separation and how much time they’ll spend with the other parent. In these decisions, prioritizing the children’s best interests is always encouraged. Maintaining a relationship with both parents is typically considered best for the children. If you and your ex-partner agree on the children’s living arrangements and post-separation time-sharing, you can create a Parenting Plan, avoiding court involvement. While a Parenting Plan isn’t legally binding, it can be formalized with Consent Orders submitted to the Court. If you and your ex-partner can’t reach an agreement on parenting arrangements, you may need to initiate proceedings in the Family Court or Federal Circuit Court. However, this step should only follow a sincere attempt at dispute resolution through Family Dispute Resolution. Point Cook Family Lawyers can assist you to resolve your parenting matter outside of Court or through Court if necessary.

How much time will the children spend with each parent?

If you and your former partner can come to a parenting agreement between yourselves, you will have the flexibility to tailor the arrangement to best suit your needs and those of your children. If the Court is required to intervene and determine parenting disputes, it will start by considering whether children ought to spend equal time with both parents. Where this is not practicable, the Court then considers whether the children ought to spend ‘substantial and significant time with each parent. ‘Substantial and significant time with each parent must include weekdays, weekend days, holiday time, and special occasions. When determining whether equal time or substantial and significant time with each parent is practicable, the Court will consider factors such as how far apart the parents live from each other, each parent’s capacity to implement an equal or substantial and significant time arrangement, and the impact of any such arrangement on the children. At Point Cook Family Lawyers, we can assist you in resolving parenting arrangements without the need to go to Court and also where it does become necessary to go to Court.

Who is responsible for making decisions about the children?

It’s crucial to keep in mind that the breakdown of a parental relationship does not affect parental responsibility. Both parents will maintain what’s called ‘equal shared parental responsibility’ for their children under 18 years old, unless the Court decides otherwise. Legally, ‘parental responsibility’ involves the legal duties and responsibilities parents have for their children’s care, well-being, and development. This encompasses, among other things, their education, health, religion, and living arrangements. It doesn’t necessarily mean both parents will have an equal amount of time with the children, but they are obligated to consult each other and jointly decide on significant long-term matters regarding the child.It is not always easy for parents to share parental responsibility and to co-parent effectively in the wake of separation. There are circumstances where it may become necessary for one parent to make an application for sole parental responsibility, such as where there is family violence, abuse or high-level conflict between parents. Our lawyers at Point Cook Family Lawyers understand this and can assist you to navigate shared parental responsibility post-separation or advise you on sole parental responsibility in certain circumstances.

What are the best interests of the children?

In parenting disputes that require court intervention, the Court primarily focuses on promoting a meaningful relationship between the child and both parents, while also ensuring the child’s protection from physical or psychological harm. Generally, it is in the child’s best interests to have a relationship with and spend time with both parents, except in cases of extreme physical, sexual, or psychological harm or abuse. Additional factors considered when determining the child’s best interests include the child’s relationships with each parent and extended family, each parent’s willingness to support the child’s relationship with the other parent, the potential impact of changing circumstances on the child, and, in some instances, the child’s own perspective. At Point Cook Family Lawyers, we are dedicated to guiding you through parenting disputes with a focus on prioritizing your child’s best interests.

What is the process if to relocate with children?

In situations where one parent intends to move, either with the children or away from them, it can pose challenges in preserving each parent’s time with the children. When parents share equal parental responsibility, it is advisable to attempt an amicable resolution. If an agreement cannot be reached, legal action may be necessary. This could involve seeking court permission to relocate with the children or preventing the other parent from doing so. To safeguard against such situations, it is essential to have parenting orders in place addressing these matters. If you are the parent looking to relocate and cannot reach an agreement, you may apply to the Court for permission. The Court prioritizes the children’s best interests and welfare when deciding. Point Cook Family Lawyers can assist in finalizing parenting orders or provide guidance on relocation issues in cases without existing orders or when you wish to move despite them.


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