Grandparents in Family Law
Posted on 20 September 2023
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:
- 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.
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.
- 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  FCCA 1553).
- Spend six hours twice per school term plus three days during each school holidays (Wallace and Marriner  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:
- There is no established relationship between the grandchildren and grandparents. In Penn and Haughton  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  FedCFamC1A 81).
- There is a harm or unacceptable risk of harm established with the grandparent(s). In Chaney and Danville  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.
HOW CAN OMNIA LEGAL ASSIST YOU?
We can provide legal advice to you about grandparents in the Australian family law system, to help establish your significant relationship with grandchildren, and to assist you to seek orders to reunify your grandchildren with you.
This article provides general information on legal topics for educational purposes only, and should not be considered legal advice or recommendations. While we have taken care to ensure accuracy, Omnia Legal is not responsible for any errors, and makes no guarantees about the accuracy or completeness of the information. Links to third-party websites do not constitute an endorsement, and we are not liable for any damages that may result from using inaccurate or incomplete information. It's always best to seek legal advice for specific situations.