Grandparents and Family Law

The importance of grandparents and their role in a child’s life, particularly in instances where their parents are separating, cannot be underestimated. They can be a great support system as they provide love and stability for the child.

It is important to understand that under Australian law, a parenting order may be applied for by:

• either or both of the child’s parents;
• the child;
• a grandparent of the child; or
• any other person concerned with the care, welfare or development of the child.

The Family Law Amendment Act 2000 has made specific provision for grandparents to make applications for parenting orders. In the past, their power to make an application for a child came under the heading of ‘any other person’. This legislative change outlining express references to grandparents reinforces this recognition of extended family playing a significant role in the development and care of a child and the increasing number of applications made by grandparents. Case law has also supported care by grandparents as being in the ‘child’s best interests’, which is the paramount consideration for the Court when determining parenting applications.

When a Court considers an application for a child made by grandparents, it considers their rights to maintain a relationship with their grandchild. Under Australian law, the factors that the court takes into consideration when determining what orders will be made for such an application are as follows:

• The benefits and advantages that the child will enjoy by having a relationship with their grandparents;
• The views and opinions of the child, including whether they wish to spend time with their grandparents, and whether they consider grandparents to be a significant part of their lives;
• The nature and relationship between the child and their grandparents;
• The risk of violence or neglect;
• The capacity of the grandparents to take care of the child, and the capacity to consider the child’s emotional and intellectual needs;
• The practical difficulties that may arise, and expenses; and
• The impact that this change will have on the child’s life.

Aside from court ordered parenting Orders, and depending on the circumstances of the family, grandparents also have other options available to them when it comes to formalising arrangements for the care of a child, whether it be through a Parenting plan or Consent orders.

If you’re a grandparent concerned about the care, welfare and development of a grandchild (or grandchildren) and don’t know where to start, get in touch with one of our experienced family lawyers so we can assist you and provide you with comprehensive advice about your rights and options. Contact us via phone (03) 9279 6800, or email theteam@umbrellafamilylaw.com.au.