Grandparents have a unique relationship with their grandchildren, and some are their primary carers. We often get calls from grandparents who are being kept from their grandchildren, or who want to spend more time with them. It can be very confusing, especially when the person stopping the time is their own son or daughter.
Here is how the law works for grandparents in Australia, and what we tell grandparents in the first conversation.
Key takeaway: Grandparents can apply for parenting orders under the Family Law Act. The court decides based on the child’s best interests, not on what the grandparent is entitled to.
Do grandparents have rights to see their grandchildren?
The law focuses on children’s rights rather than grandparents’ rights. Children have a right to know and spend time with people who are important to their care, welfare and development, and that includes grandparents. The Family Law Act specifically allows grandparents to apply for parenting orders, including orders that a child spends time with them or lives with them.
When deciding what is in the child’s best interests, the court considers the child’s safety, their views, their needs, and the benefit of their relationships with parents and other people significant to them, such as grandparents.
Try mediation first
Mediation, also called family dispute resolution, is so important in these situations. It gives everyone a chance to talk with an independent mediator, and many grandparent disputes can be resolved there without going to court. Before applying to court, you generally need to attempt mediation and get a section 60I certificate, unless an exception applies, such as family violence or urgency.
We understand mediation is not always successful, especially where relationships between grandparents and parents have broken down. If it fails, a court application is the next step.
Need advice on your situation? Our family lawyers can help with your parenting arrangements. Book a consultation to talk it through.
When a grandparent is the primary carer
Some grandparents are not just visitors in a child’s life. They are the child’s full-time carer, and the child may have lived with them for years. In these cases the grandparent’s position is much stronger, and urgent action may be needed if the child is taken away.
We recently ran a matter where the grandparent was the child’s primary carer and looked after the child full-time. The child’s biological mother, the grandparent’s own daughter, took the child away and said the grandparent would not see the child again. We applied urgently to the court for a recovery order, and we were able to get the child back.
Key takeaway: If you are the child’s main carer and the child is taken, act quickly. Urgent recovery orders can be sought without first going to mediation.
How strong is your claim?
Grandparents need to understand how realistic their likely outcome is. Not every grandparent has a strong claim, and we would rather tell you early than after you have spent money on a case that is unlikely to succeed. Factors that make a claim stronger include:
- A close, established relationship with the grandchild
- Having cared for the child regularly, or as primary carer
- No safety concerns about the time you would spend with the child
- The child wanting to see you, depending on their age
- Evidence the parent is stopping contact without a good reason
A claim is weaker where contact has been limited for a long time, there is serious conflict that would affect the child, or the parent has genuine safety concerns.
What it costs
As a guide, a grandparent application that is resolved by negotiation costs $5,000 to $10,000. If it goes to court, it usually costs around $20,000 to $30,000. We talk through cost against likely outcome before you decide whether to go further.
First steps for grandparents
- Keep a record of your relationship with your grandchild, including photos and messages
- Stay respectful in contact with the parents, even when it is hard
- Try mediation
- Get advice early on whether your claim is strong
- If the child is at risk or has been taken from your care, get urgent advice
