Grandparents often play a central role in a child’s life, providing emotional support, stability, cultural connection, practical care and, in some cases, full-time parenting. When family relationships break down—whether through separation, estrangement, death, family violence, substance misuse or child protection concerns—grandparents may wish to know whether they have enforceable legal rights to see or care for their grandchildren.
The short answer is that Australian family law does not give grandparents an automatic right to spend time with their grandchildren. However, grandparents are expressly recognised as people who may apply to the Federal Circuit and Family Court of Australia for parenting orders concerning a child.
No Automatic Right but Clear Standing to Apply
The legal decision is in the best interests of the child, not the adult and their rights. The court is not concerned with whether it is “fair” for a grandparent to be excluded from a child’s life. Instead, the court will determine what arrangements will be best for the child.
The people who may apply for parenting orders includes parents, the child, grandparents and any other person who is concerned about the safety, care, wellbeing or development of the child. The 2023 reforms changed the test for deciding what orders are in a child’s best interests, but they did not take away the ability for grandparents to bring in an application. However, it is not certain that the court will act. Grandparents are given the opportunity to ask the court to make orders, but the court will make the final decision about the matter according to the child’s best interests.
Types of Orders that Grandparents May Seek
A grandparent may apply for parenting orders dealing with a range of matter, including:
- the child spending time with the grandparent
- the child communicating with the grandparent by telephone, video call, email or other means
- the child living with the grandparent
- the grandparent having parental responsibility or decision-making authority for the child
- arrangements for holidays, birthdays, cultural or religious events
- other issues relating to the child’s care, welfare and development
Generally, grandparents will seek “spend time with” orders after one parent has restricted contact following separation. In more serious cases, grandparents may seek that the child live with them, particularly when the parents are unable to provide safe and stable care due to violence, neglect, abuse, mental health issues, incarceration, death of abandonment.
Best Interests of the Child:
The biggest consideration in all parenting proceedings is the best interests of the child. Relevant considerations include what arrangements will promote the safety of the child and the child’s carers; the child’s views; the child’s developmental, psychological, emotional and cultural needs; the capacity of proposed carers to meet those needs; and the benefit to the child of having relationships with parents and other significant people, where it is safe to do so.
Grandparents will often rely on evidence showing that they are significant to the child, that their relationship has been beneficial and that continued contact will promote the child’s emotional stability, identity and sense of family connection. If a grandparent has previously provided regular care (such as school pickups, overnight stays, holiday care, financial support or day to day parenting), that history may be important to guide the court’s decision.
However, the court will also assess whether the contact with grandparents exposes the child to conflict, pressure, denigration of a parent, family violence, unsafe behaviour or emotional harm. The existence of a biological relationship alone is not sufficient.
Grandparents as Primary Carers
Grandparents who care for grandchildren informally may face difficulties with schools, medical consent, passports, agencies and financial support. A parenting plan records arrangements but is not enforceable, while consent orders are. If agreement fails, grandparents may seek parenting orders. The court considers the child’s best interests, stability, safety and caregiving capacity.
Family Dispute Resolution Before Court
Before commencing parenting proceedings, grandparents are generally required to attempt family dispute resolution and obtain a s 60I certificate, unless an exemption applies, such as urgency, family violence or child abuse concerns. If agreement is reached, arrangements may be recorded in a parenting plan or, for enforceability, filed as consent orders. If agreement cannot be reached, grandparents may apply to the Federal Circuit and Family Court of Australia for parenting orders.
Evidence That May Assist a Grandparent’s Application
In any application, the key issue is the child’s best interests. Relevant evidence may include the history of the grandparent-grandchild relationship, the grandparent’s past caregiving role, the child’s attachment to the grandparent, proposed practical arrangements, safety concerns, and the grandparent’s capacity to meet the child’s needs.
Conclusion
Grandparents do not have automatic rights to see or care for grandchildren, but they are expressly entitled to apply for parenting orders. Orders may be made where they promote the child’s safety, welfare, stability and development.