Grandparents in Family Law

When parties with children separate, there may be a disagreement about the time the children will spend with the other parent. This can in turn create another hurdle for children to spend time with grandparents on both sides of their family.

If children primarily live with one parent more than the other, some grandparents may begin to experience less contact with their grandchildren. This can have a negative impact on the children, particularly if they have had a strong and close relationship with the grandparents prior to the separation.

The Family Law Act 1975 (Cth) (the Act) allows the court to make orders for parents to encourage the participation of specified other persons, including grandparents. The Act goes further granting children the right to spend time on a regular basis with and communicate on a regular basis with other people significant for their care, welfare, and development, such as grandparents.

Contact with grandparents can be considered as part of a child’s best interests.

If contact with your grandchildren is being restricted or a child’s attitude towards you has shifted significantly for no apparent reason, there are some things grandparents can do, including:

1. Reach out

Sometimes parents may not be aware what is happening because they may be distracted by family law conflict or domestic violence. By simply raising this with the other parent in a calm and respectful way, time and communication may recommence as normal, without the need for further dispute resolution.

2. Mediation

If the other parent does not respond or acknowledges the lack of contact and continues to restrict a child’s time with a grandparent, Solicitors at Omnia Legal can assist you to invite and attend with the other parent at mediation. Mediation allows the parties to engage in an open and confidential discussion to reach a resolution both parties can agree on.

3. Initiate court proceedings 

If mediation does not work, and you have made a genuine attempt to participate in mediation, you will be issued a section 60I certificate. Completing this step allows you to initiate court proceedings in the Federal Circuit and Family Court of Australia for orders.

What kinds of orders can grandparents apply for?

While Grandparents may not always be granted the same amount of time and/or contact as a parent, some orders have included:

• Spend no less than two hours on the first Sunday of each month (Arnetts and Arnetts [2021] FCCA 1553).
• Spend six hours twice per school term plus three days during each school holidays (Wallace and Marriner [2021] FCCA 1452).
• Live with orders may be made where the parents lack capacity or pose unacceptable risk of harm to a child or children, and there is a significant relationship with the grandparent(s).

When will the court not make orders for grandparents?

Some examples where the court has not issued orders in favour of grandparents include:

1. There is no established relationship between the grandchildren and grandparents. In Penn and Haughton [2013] FCCA 1941, Lapthorn J dismissed a grandmother’s application because the grandmother had had no contact with the grandchildren for three (3) years and there was no significant relationship. The court also considered that the parents opposed the application of the grandmother, however this opposition alone is not sufficient to dismiss a grandparent’s application (see Bonner and Chandler [2021] FedCFamC1A 81).
2. There is a harm or unacceptable risk of harm established with the grandparent(s). In Chaney and Danville [2020] FamCA 646, the grandmother sought orders to have unencumbered access to the children. The court agreed that the grandmother posed no risk to the children, however, the father argued that the grandfather did pose an unacceptable risk of harm because the mother had disclosed that the grandfather had sexually assaulted her as a child.  

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