Grandparents do not have automatic rights to see or care for their grandchildren. However, the Family Law Act 1975 specifies that “children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development” (such as grandparents and other relatives).
If a grandparent is not seeing the children at all, regardless of whether or not the parents of the children have separated, there may be legal remedies so that they can have time with the grandchildren.
When a grandparent applies for a court order in relation to their grandchildren, the court will consider several different factors to determine whether the order should be granted in their favour. These factors include:
- Whether or not it is in the child’s best interest.
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
- The benefit of a meaningful relationship with their grandparents.
- The nature of relationship the child already has with each of their parents and grandparents.
- The effect any changes to current arrangements would have on the child.
- Whether the child is financially supported.
- The ability of the parents and grandparents to provide for the child’s emotional and intellectual needs.
- The attitude the parents and grandparents have towards the child.
- Any views expressed by the child and any factors (such as the child’s maturity and age and understanding of the situation) that the Court thinks are relevant to the weight it should give to the child’s views.
- If the child is of Aboriginal or Torres Strait Islander descent, the child’s right to enjoy their Aboriginal or Torres Strait Islander culture.
- Practical issues and expenses of a child spending time with and communicating with the grandparent.