Hearing that your child’s relationship is falling apart is frightening enough. For grandparents, there’s often a second wave of fear right behind it: will I still get to see my grandchildren?
That fear is completely understandable, and it’s one of the most common questions we hear on the podcast. The good news is that grandparents are far from powerless in this situation, even though the law doesn’t spell out “grandparents’ rights” in black and white. Below, we explain exactly where grandparents actually stand under Australian family law.
Is There Such a Thing as “Grandparents’ Rights” in the Family Law Act?
Unfortunately, there’s nothing specifically in the Family Law Act 1975 Australia (the Family Law Act 1975 (Cth)) that names “grandparents’ rights.” But don’t be alarmed, there’s nothing in the Act about a parent’s rights either. It’s all about the children, not any adult’s entitlement.
Australian family law is built around the best interests of the child, and children have the right to spend time and communicate with all people who are significant in their lives, including grandparents and other relatives. That’s the actual legal hook grandparents rely on, not a standalone right of their own, but the child’s right to maintain relationships that matter to them.
Can Grandparents Apply to the Court?
Yes. Grandparents can have standing to make applications to the court if they need to, because the law recognises that meaningful relationships with extended family genuinely matter to a child’s wellbeing.
This means a grandparent isn’t shut out simply because they’re not a parent. If informal arrangements with the parents break down, or one or both parents are actively preventing contact without good reason, a grandparent can apply for parenting orders in their own right, covering time spent with the child, communication arrangements, or in more serious situations, where the child lives. This applies whether the parents were married or in a de facto relationship, since the child’s right to a meaningful relationship with significant people in their life doesn’t depend on the parents’ relationship status.
When Might a Child Live With a Grandparent?
Orders for children to live with a grandparent are trickier, but they’re sometimes necessary. Think, for example, of a situation where the parents don’t have the capacity to care for the child, and the court is satisfied the parents can’t meet the child’s needs. In those circumstances, a “live with grandparent” order might be required.
This is often the outcome in matters where parents have a substance abuse addiction and are unable to care for a child, where a parent has displayed neglect, or where a parent lacks capacity in some way to care for the child. Sometimes there are also matters where a grandparent has been the significant or primary carer, and the court needs to make orders for the child to spend time with the grandparent once the parents themselves come back to resume time with the child. Everything is determined on individual merit, as all family law matters are.
How Does Parental Responsibility Actually Work?
To understand where grandparents fit in, it helps to understand how parental responsibility works between the parents themselves first.
Parental responsibility means all the duties, powers, responsibilities, and authority parents have in relation to their children. When the parents of a child under 18 separate, separated parents continue to share parental duties and rights, regardless of whether they were married, in a de facto relationship, or never in a relationship at all.
It’s worth being accurate here, because a lot of older information gets this wrong. As of the reforms that took effect on 6 May 2024, there is no longer a presumption that a court will order parents to share decision-making on major long-term issues equally. The court simply looks at what’s right for the child in the specific circumstances of the case, it may order joint decision-making, sole decision-making for one parent, or something in between. Family law legislation now reflects this more flexible, case-by-case approach rather than a default starting position.
Even so, Australian family law encourages separated parents to consult each other on major long-term issues, such as education, health, religious upbringing, and significant changes to living arrangements, where it’s safe to do so. In many everyday situations, both parents share responsibility for major decisions affecting the child in practice, simply because that’s how they’ve always approached raising their child together, even after separating.
What Does Family Law Actually Cover?
If you’re asking how family law works in Australia more broadly, it’s worth zooming out. Family law covers marriage and divorce, parenting arrangements after separation, property and financial settlements, and spousal maintenance, all primarily governed by the Family Law Act 1975 (Cth) and administered through the Federal Circuit and Family Court of Australia. Divorce in Australia operates on a no-fault basis, meaning the court doesn’t consider who caused the breakdown, only whether the marriage has irretrievably broken down after 12 months of separation.
Explore parentage under the Family Law Act, and you’ll find it’s genuinely gender-neutral. The Act doesn’t make assumptions about parenting roles or how much time a child should spend with each parent, and the same principles that govern parents’ rights and responsibilities also shape how grandparents’ applications are assessed.
What If a Grandparent Needs to Apply to the Family Court?
If informal arrangements aren’t working, a grandparent can pursue a Family Court custody application, though the correct modern term is a parenting order application rather than “custody.”
Before filing, most people are required to attend Family Dispute Resolution (FDR) and make a genuine attempt to resolve the issue outside of court, though there are limited exceptions to this rule, including situations involving family violence or urgency. Where an agreement is reached this way, it’s worth formalising it through consent orders so it’s actually enforceable. If FDR doesn’t resolve things, the actual child custody application form is filed with the Federal Circuit and Family Court, setting out exactly what orders are being sought and why.
What If a Parent Refuses to Follow Through on Grandparent Time?
If a parenting order already exists giving a grandparent time with a child, and a parent simply isn’t complying, that’s a contravention, or breach, of the order.
People affected by a parenting order, including grandparents, can bring a contravention application if the terms aren’t being honoured. Depending on the seriousness of the breach, the court can order make-up time, require attendance at a parenting program, or in more serious and repeated cases, impose fines or other penalties. If circumstances have changed significantly since the original order was made, our article on changing final parenting orders explains the threshold the court applies before varying an existing arrangement, based on the long-standing principle from Rice and Asplund (1978).
It Is Vital That Grandparents Don’t Give Up
It is vital that grandparents don’t lose faith or give up immediately, and that they get legal advice early to understand whether, and what, case they actually have. Every family’s situation is different, and what looks hopeless on the surface often has more options than expected once properly assessed.
Grandparents often play a significant role in children’s lives, a role that should continue to flourish no matter their parents’ situation. If a parent is planning to move away with the child, our guide on relocation disputes explains how that process works, and how it might affect a grandparent’s existing time with a child, and if the move involves leaving Australia entirely, our international family law team, with offices across Gold Coast, Brisbane and Cleveland, can advise on the implications of the Hague Convention on the Civil Aspects of International Child Abduction. If safety is a factor in the family, whether through domestic violence or a pattern of financial abuse, it’s worth raising this early with your lawyer too, since it can be directly relevant to what arrangement is genuinely in the child’s best interests.
Speak With Our Family Law Team
If you would like to meet with Dannielle Young or one of our other family lawyers, arrange a free initial consultation today. Unlike many law firms, we are obligation-free and will simply let you know if you don’t need a lawyer, or how you might resolve your matter without us. If you do need us, we’re here waiting to help you through it.
This article is general information only and does not constitute legal advice. For guidance specific to your circumstances, speak with a family lawyer.
Frequently Asked Questions
What if one parent refuses to co-parent?
If a parent won’t engage in genuine co-parenting or repeatedly breaches an existing parenting order, the other parent, or an affected grandparent, can pursue family dispute resolution first, then apply to the court for parenting orders or a contravention application if an order already exists. The court takes a parent’s refusal to support a child’s relationship with the other parent, or with significant people like grandparents, seriously when assessing what’s genuinely in the child’s best interests.
How does family law work in Australia?
Family law in Australia is governed nationally by the Family Law Act 1975 (Cth) and administered through the Federal Circuit and Family Court of Australia. It covers divorce (on a no-fault basis after 12 months’ separation), parenting arrangements based on the best interests of the child, property and financial settlements, and spousal maintenance. The system encourages separated parents to resolve matters through mediation and family dispute resolution before turning to litigation.
How often do fathers get 50/50 custody in Australia?
Genuinely equal care time is relatively uncommon. According to the Australian Institute of Family Studies, around 9% of children were in an equal time arrangement as of June 2024, with a further 13.2% in a broader shared care arrangement. The court doesn’t apply any presumption in favour of equal time, arrangements are decided based on what’s practical and in the best interests of each individual child.
Can a father terminate his parental rights in Australia?
No, a parent can’t simply choose to end their parental responsibility or walk away from their legal obligations, including child support, by declaration. Parental responsibility can only be removed by a court, and this happens rarely, generally in serious circumstances such as abuse, neglect, or as part of a formal adoption process where another person takes on legal parental responsibility for the child.
