Grandparents in family law
Grandparents often play a significant role in their grandchild’s life and have a special interest in their care, welfare and development. Family law legislation acknowledges the importance of this relationship and explicitly provides grandparents with the right to apply for parenting orders concerning a child.
Grandparents in family law proceedings will usually come about in one of two situations:
- Grandparents are stopped from spending time with a child
For example, where a grandparent’s relationship with their own child (the child’s parent) breaks down or where the child’s parents separate and one parent refuses to maintain the child’s relationship with grandparents on the other parent’s side of the family.
- Grandparents seek substantial care or parental responsibility of a child
For example, where parents are unwilling or unable to care for a child or where a child is alleged to be at risk of physical or psychological harm in the full time care of their parents
What does the Family Law Act say about grandparents?
Section 65C of the Family Law Act 1975 (Cth) (“the Act”) stipulates that parenting orders concerning a child may be applied for by:
- either or both of the child’s parents;
- the child in question;
- a grandparent of the child; or
- any other person concerned with the care, welfare or development of the child.
Importantly, this does not afford grandparents in family law proceedings an automatic right to contact with a child. It is merely a right to apply for contact.
Section 60B of the Act focuses on the rights of a child in these situations, rather than the grandparents. It states that a child has a right to spend time with, and communicate with, both their parents and other people significant to their care, welfare and development – such as grandparents and other relatives – except when this would be contrary to a child‘s best interests.
The best interests of a child remain the paramount consideration for the Family Court when making parenting decisions. Therefore, a child has the right to benefit from a relationship with their grandparents, so long as it is in their best interests to do so.
Section 60CC(2) of the Act sets out two primary considerations that must be addressed by the Family Court when determining the best interests of the child: balancing the benefit to the child of having a meaningful relationship with both of the child‘s parents; and the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The latter of the two is to be given greater weight by the Family Court.
Section 60CC(3) of the Act sets out numerous additional considerations that must also be addressed when determining the best interests of the child, some of which include specific reference to grandparents. For example, the Family Court must consider:
- the nature of the relationship of the child with other persons (including any grandparent or other relative of the child);
- the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from any other person (including any grandparent or other relative of the child), with whom he or she has been living;
- the capacity of any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
What kinds of orders can grandparents apply for?
A grandparent may apply for orders that a parent may similarly apply for. These orders may address any aspect of the child’s care, welfare and development, but usually include one or more of the following questions:
- who a child should live with;
- who a child should spend time with, and the conditions of such time;
- who a child should communicate with, and the means of such communication; and
- who has parental responsibility for a child.
In this sense, a grandparent may apply for orders ranging from communication on a regular basis, to allotted time during the school holidays, to the sole responsibility for making major long term decisions about the child.
Do parents trump grandparents when it comes to family law decisions?
Case law has established that there should be no preferential positions between parents and non-parents (ie. grandparents) making an application for parenting orders. In Valentine & Lacerra & Anor  Fam CAFC 53, the Full Court held that these sorts of applications should be determined in the same way that applications between parents are determined: with regard to the best interests of the child as the paramount consideration.
Are grandparents eligible for financial assistance for the care of a child?
A grandparent with at least 35% actual care of a child in a year may apply for a variety of financial assistance. For example, in these circumstances, a grandparent may apply for a non-parent child support assessment or several Commonwealth payments like Family Tax Benefit B.
A grandparent will generally not be eligible for such assistance if the parents of the child live under the same roof as them.
To find out more about non-parent carer child support payments and other financial assistance, visit the Services Australia website for more information: