How to Apply for Grandparents Rights in Australia: A Complete Guide

In Australia, parents have long preferred to continue caring for their children.

Sadly, there are situations in which this isn’t possible—perhaps the parents are too old or incapable of caring for their kids. Or maybe the kids themselves aren’t in the best situations.

If you find your grandchild in this position, you may take over the child’s care. But Can you do that in Australia? Can grandparents apply for custody? 

This article will analyse the complexities of grandparents’ rights in Australia, including how the Family Law Act (1975) acknowledges the necessity of maintaining relationships between children and their close relatives, including grandparents. We will also discuss how to apply for grandparents’ rights. We will go over all of the legal aspects below.

Grandparents Rights Australia

The Family Law Act of 1975 has no particular provisions on grandparents’ rights to see or care for their grandchildren. In truth, parents do not have automatic parental rights; they have obligations to their children. The primary focus here is on children’s rights. A child has the right to see and spend time with extended family members and other significant persons, including grandparents.

“Children have a right to spend time with, and communicate regularly with, both their parents and other people important to their care, welfare, and development,” the Act states.

Grandparents are mentioned explicitly elsewhere in the law as examples of individuals concerned with the kids’ upbringing, welfare, and development.

A grandparent has legal meaning as the parent of the child’s mother or father. A kid typically has four biological grandparents, who may be living or deceased, and non-biological grandparents.

Grandparents do not have an automatic right to see their grandchildren, but that does not mean they cannot do anything. Grandparents can apply for a court order to communicate or spend time with their grandchildren.

Parental rights vs Grandparent rights

In Australia, there are few differences between the rights of grandparents and parents.

However, they are only the child’s legal guardians once they obtain a Parenting Order from the court. If grandparents believe their grandchildren are not receiving proper parenting, they can petition the court for custody of the kid. Suppose the parents reach an agreement for the kid after their separation. In that case, the grandparents might request that their rights be included in the contract. However, if it is in the child’s best interests, the court may order that the grandparents have access to the child. 

Do grandparents have the right to see grandchildren?

Feeling cut off from your darling grandchildren can be a traumatic experience, and you may question if there is any legal way for you to keep that crucial link. You must understand that while Australian family law does not explicitly grant grandparents the “legal right to see their grandchildren,” it does recognise the value of the bond between grandparents and grandchildren. The Family Law Act of 1975 states that children have the right to enjoy their connections with their parents and other significant individuals, including grandparents. As a result, the so-called ‘grandparents’ rights in Australia’ are only indirectly acknowledged.

If you have difficulty establishing touch with your grandchildren owing to family disputes or breakdowns, realise there is still hope. You can seek court orders. This process will determine whether keeping contact with you is in the children’s best interests. Keep in mind, however, that this is not about what we adults or grandparents want or need; instead, it is solely about increasing the welfare and pleasure of youngsters.

So, while it is not explicitly stated that ‘grandparents have a legal right to see their grandchildren’, Australian law does appreciate and protect those beloved relationships between generations. It is suggested that grandparents are important in a child’s life.

Do Grandparents have legal rights regarding their Grandchildren?

When a kid’s parents separate, one of the most challenging concerns is selecting where the youngster will reside. The court’s primary priority is ensuring the best arrangements for the kid. Occasionally, delegating parental duties to someone other than the child’s parents—like grandparents—is the most significant way to do that.

In 2000, the Family Law Act was changed to allow grandparents to file a parenting order application in Family Court or Federal Circuit Court. The rights granted to grandparents recognise the value of extended family in the care and development of children.

Assumed by the Family Law Act to be in the child’s best interests is equal parental responsibility shared by both of the child’s parents. On the other hand, the court may issue an order transferring parental responsibility to a grandparent or other significant person if there are good reasons to believe that a parent (or person living with a parent) has abused the child or engaged in family violence. 

We have represented grandparents in various child-focused cases for various participation reasons. Sometimes, the child’s parents are too busy to care for them or unable to give them enough attention. Talking about it with their grandchildren might be challenging for grandparents. Please get in touch with us if you have any worries concerning your grandchild’s upbringing, welfare, or development.

If you are not a parent or grandparent but have had a substantial role in a child’s upbringing, you could apply with the Family Court or Federal Circuit Court. Please get in touch with us if you would like more information about this. 

What are the common grounds on which grandparents can apply for grandchild custody?

For various reasons, grandparents may need to care for their grandkids independently. These circumstances frequently involve one or more parents being unable to care for the child or the child’s safety being in danger because of their circumstances. Among the scenarios that could occur are:

Neglect and Unfit Parenting

In cases when there is proof of parental abuse, neglect, or substance misuse, the grandparents may be granted custody by the court. This could show itself as an inability to raise the child, rendering the parents unfit to be parents. Suppose there is proof that the parents are incapable, unwilling, or incapable of providing for the child. In that case, the grandparents may request custody of their grandchildren.

Family Violence and Safety Concerns

Another essential reason why grandparents seek custody of their grandkids is the occurrence of domestic violence. Violence can have severe consequences for a child’s psychological and physical well-being. Evidence of familial violence is a significant worry in the eyes of the court, and grandparents are frequently viewed as the safest and most stable alternative for the child in such situations.

Absence of Both Parents

When both parents are unavailable due to death, divorce, or infirmity, grandparents can step in to provide care and stability for their grandchildren. In such instances, grandparents may seek parenting orders to formalise custody arrangements and assume parental responsibilities. This legal authority entitles parents to make crucial decisions on behalf of their children.

In circumstances of emergency, such as the death, critical injury, or incarceration of both parents, the court maintains a Critical Incident List, which enables prompt legal involvement to preserve the child’s welfare.

How to apply for grandparents’ rights

Suppose a grandparent cannot spend time with or communicate with a grandchild or grandchildren. In that case, they may seek a Parenting Order that specifies the time they are permitted to spend with them, the conversations they must have with them, and other orders. The court generally ruled that it was the child’s right to maintain a relationship with close relatives such as grandparents. Grandparents are mentioned in the Family Law Act 1975 as having the right to petition for parenting orders.

If an agreement is achieved, informal arrangements and parenting plans are viable alternatives to court-ordered parenting orders. Alternatively, if an agreement is to be binding and enforceable, parties (including grandparents) can formalise it by seeking a consent order in the Federal Circuit and Family Court of Australia.

In rare situations, grandparents can seek parental responsibility, allowing them to make crucial long-term decisions for their grandchildren. This is an example of an order that grandparents can petition for as long as it is in the best interests of their children.

Before requesting orders from the court, parties typically attempt dispute resolution or family mediation if an agreement cannot be reached. If the issue remains unresolved, or if family dispute resolution is ineffective, grandparents can seek a Parenting Order to allow their grandchildren to spend time communicating with them or have the children live with the grandparents and assume parental responsibility for them. These are just a few samples of the options available.

Filing for a Parenting Order

Family Lawyers Mackay can help grandparents file several documents with the court when filing for a Parenting Order. These documents contain the following: 

1. Starting the application.
2. Affidavit: This document includes statements and evidence to support the application.
3. Section 60I certificate: This is obtained from a family dispute resolution professional. Suppose you are exempt from family dispute resolution. In that case, you must provide an affidavit stating that you have not filed a family dispute resolution certificate. 
4. Notice of child abuse, family violence, or risk: This form is necessary and must be filled out to report any such difficulties in the case.
5. If there are any family violence orders, please provide copies.
6. Actual steps certificate: This document verifies that the applicant(s) made a real effort to resolve the disagreement before filing for a parenting order, if applicable.

How can we help?

Navigating the nuances of family law can be overwhelming for anybody, but it does not have to be. At Family Lawyers Mackay, we understand the difficulties grandparents encounter while pursuing custody of their grandchildren. We are here to give you the legal guidance and help to go through this process. Whether you need help understanding your rights under the Family Law Act 1975, starting the court procedure, or preparing consent orders, our experienced family lawyers in Australia are here to help and encourage you to seek legal counsel.

Our family law services are available in Mackay, Australia. Please book your free consultation with us by calling (07) 4847 0198.

FAQs

Can grandparents attend mediation?

If a grandparent desires to seek a court order, they must attend mediation and try to address the situation. Overall, the Family Law Act encourages people to resolve issues among themselves and to use judicial processes as a last resort.

What happens if a parent refuses to meet with a court order involving grandparents?

Court orders are binding, and noncompliance allows the aggrieved party to petition the court for a Contravention order. A Contravention application might result in a variety of consequences. For minor violations, the court may order parties to attend parenting classes, offer to compensate contact time for missing time with a child, amend orders to benefit the aggrieved, and impose financial penalties. The court may impose community service, penalties, or imprisonment for significant offences.

Can grandparents receive financial assistance?

This raises the issue of child support. The Child Support Agency administers child support. The agency uses a formula to determine how much should be paid. It strongly relies on who spends most of the time caring for the child. You may be eligible for child support if you provide at least 35% of your grandchildren’s care. The proportion of care you have is computed using the number of nights the children will likely spend with you over the next 12 months. The number of nights is then calculated as a percentage of the entire year.

Can a parent deny a grandparent’s time?

A child has the right to spend time with persons essential to their care, welfare, and development, including grandparents unless doing so harms the child’s best interests.

Grandparents do not have the right to have a relationship with their grandchildren; nevertheless, the grandchildren have the right to retain a relationship with their grandparents. This right, among others, is taken into account when a court order is sought to include or exclude a grandmother from a child’s life.