You bring up your children – they get married and then another great milestone – you become a grandparent. Sadly, the good days do not last and you witness the heart-wrenching divorce or relationship breakdown your child goes through. In the process, while the focus always remains on the breakdown of the couple’s relationship and the rights of the child, grandparents are often left wondering about their own rights over their grandchildren. The same applies to other causes of family splintering/separation such as the death of one parent, drug or alcohol abuse, incarceration or violence. Whatever the reason for the parental breakdown, the questions remain:

  • What are grandparent’s rights in a divorce?
  • Are there custody or visitation rights? Which is preferred?
  • In which situations are grandparents allowed to successfully “gain” rights and what are the limitations?

Below, we have put together an overview that will help you understand the family law around this and where you stand in relation to the rights over your grandchild.

The Family Law Act 1975 (“FLA”)

The FLA applies to separation and divorce, division of property and who children live with and spend time with when their parents separate. The FLA acknowledges the importance of children having a relationship with their grandparents who can use the FLA to apply to court for orders that their grandchildren live with them or spend time with them. Though grandparents are expressly mentioned, it is important to be aware that this does not mean that grandparents have an automatic right to have contact with the grandchild as the ‘best interests of the child’ will always be the paramount consideration for the Court.

Applications and Court Orders

Australia recognises that children have a right to spend time and communicate on a regular basis with both their parents and other people significant to their care, welfare and development. This includes grandparents and other direct relatives. This basic recognition allows grandparents to apply to the Court to seek Orders. The most common types of orders sought in applications includes:

  • Application to be allowed to communicate and spend time with your grandchild (visitation rights);
  • Application to obtain parental responsibility for your grandchildren;
  • Application and order for your grandchild to live with you (legal custody);
  • Guardianship;

The application you make will depend on the child, the nature of the family breakdown and your own personal circumstances. Our team of family lawyers is able to advise on which application will suit you best and which you are likely to succeed with. For example, as a grandparent, you are more likely to succeed in gaining parental responsibility and legal custody of your grandchild when both parents are unwilling, unable or lack the capacity to adequately care for the child. The Court will consider the following:

  • Whether either or both parents have alcohol or drug addiction problems;
  • Whether there are incidences of family violence towards the child or a parent;
  • Whether either parent has mental or physical health problems that impact on their capacity to adequately care for the child; and/or
  • Whether Family and Community Services are already involved via the invocation of the Children and Young Persons (Care and Protection) Act.

Applications for communication and visitation rights are possible where a grandparent is unfairly and unreasonably denied (by both parents) any meaningful relationship with a grandchild. Such applications are available regardless of whether the parents are still together, are separating or are already separated. In granting communication and visitation rights, the Courts will consider a grandparent’s own relationship with the grandchild and whether they have been consistently involved in the child’s life.

The Child’s Best Interest is Always Paramount

In making any decisions regarding the arrangements for children in family breakdown situations, the best interests of the children is always the paramount consideration for the court. In making determinations, the Court examines, applies and makes findings in relation to issues such as the benefit of the child having a meaningful relationship with parents, carers or grandparents and the need to protect the child from harm and/or family violence. Other considerations which can be gleaned from Australian case law include:

  • The needs of the child, including considerations of physical and emotional health of the child, the safety of the child, and the welfare of the child;
  • The capability of the parents and/or grandparents to meet the needs of the child;
  • The wishes of the parents and the grandparents – do they collide?;
  • The wishes of the child, if the child is sufficiently matured to decide;
  • The strength of the relationship between the grandparents and the grandchild;
  • The child’s adjustment to the home, school, or community; and
  • Any other factors that the Court considers relevant.

If you are a grandparent considering rights in relation to your grandchild, call us at 1800 770 780 or contact us via email at ohl@owenhodge.com.au for a consultation. Our family lawyers have the necessary expertise to ensure that any course of action you take to assert your rights has the best possible chance of success.