It is common for parents to rely upon grandparents and/or other relatives to provide care for their children when they are unable to do so.

It is for this reason that when a relationship breakdown involving children occurs, it does not only affect the children and their parents, but may also have an effect on extended family such as grandparents.

The Family Law Act 1975 (“the Act”) recognises a child’s right to spend time on a regular basis with and communicate with, both their parents and other people significant to their care, welfare and development (such as grandparents) where it is found to be in the child’s best interests.

Do grandparents have rights to see their grandchildren?

Although a grandparent’s role in a child’s life is recognised under the Act, it does not necessarily mean that grandparents have a specific class of rights. When deciding whether to make a particular order in relation to a child, a Court must regard the best interests of the child as the paramount consideration.

Grandparents can apply for orders in either the Family Court or the Federal Circuit Court for matters such as parental responsibly, with whom the child will live, spend time with and communicate. Before an application for parenting orders can be made to the Court, the parties must first attempt family dispute resolution with a family dispute resolution practitioner. In the event that agreement cannot be reached in relation to the issues in dispute, then a certificate will be issued to the parties pursuant to section 60I of the Act which will allow you to commence an application at Court for children’s orders.

The need to attend family dispute resolution does not apply in the event that:

1. The parenting orders are made with the consent of all parties to the proceedings; or
2. There has been, or there would be a risk of abuse of the child by one of the parties to the proceedings; or
3. There has been, or there would be a risk of family violence by one of the parties to the proceedings; or
4. The application is made in circumstances of urgency.

If one or more of the above apply to your situation, it is in your interests to obtain independent legal advice as to how to make an application to the Court.

In certain cases children are placed in the care of their grandparents or other extended family members. If this applies to you we strongly recommend that you obtain independent legal advice in relation to obtaining formal orders from the Court.

Should you require assistance in relation to your Family Law matter please contact Carew Counsel Incorporating Hogg and Reid on 03 9670 5711.

The content of this blog is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Jana Homatopoulos

Jana Homatopoulos

Senior Associate

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