Rights of Grandparents in Australian Family Law: What You Need to Know in 2024

That special moment when a grandchild's hand first wraps around your finger creates a bond that should last a lifetime. Yet for many grandparents, maintaining this precious relationship isn't always straightforward. When family dynamics change through separation, divorce, or conflict, many find themselves questioning their legal position. While Australian family law doesn't guarantee automatic rights for grandparents, it does provide important legal pathways to preserve these vital relationships. Understanding your rights as a grandparent—and how to protect them—is crucial for maintaining these irreplaceable family bonds.

Legal Framework for the Rights of Grandparents

The Family Law Act 1975 (Cth) (the ‘Act’) provides the foundation for the rights of grandparents in Australia. Despite the amendments to the Act which came into effect in May 2024, Section 65C(ba) of the Act still allows grandparents to apply for parenting orders. However, the updated legislation now highlights seven key considerations for determining a child's best interests, replacing the former primary and secondary considerations that were set out in S60CC.

Understanding the New Best Interests Test

In 2024, the Court now consider a more concise set of factors when determining the best interests of the child. For grandparents (and parents alike), the focus is on ensuring the child's safety, emotional well-being, and developmental needs, alongside maintaining positive family relationships. The relevant considerations include:

Safety First

Courts will give utmost priority to protecting the child from harm. This includes: 

• Protecting the child from family violence, abuse, or neglect.
• Evaluating any history of family violence that could impact the child's safety.
• Safeguarding all caregivers involved in the child's life to ensure a secure environment for the child.

The Child's Voice 

The child's views are increasingly recognised as crucial in determining their best interests: 

• Courts consider the child's opinions, with age-appropriate weight given to their views.
• A child’s personal preferences are taken into account, especially if they are old enough to express a reasoned preference.

Comprehensive Needs Assessment

Courts evaluate the child’s overall well-being, which includes: 

• Developmental needs, such as education, health, and socialisation.
• Psychological and emotional stability, ensuring the child’s mental health is supported.
• Maintaining cultural connections and the child’s sense of identity in relation to their heritage.

Caregiver Capacity 

The ability of each caregiver, including grandparents, to meet the child’s needs is assessed:

• Ability to meet both the physical and emotional needs of the child.
• Knowledge and understanding of the child’s developmental milestones.
• Capacity (willingness and ability) to provide long-term emotional support and a stable environment.

Relationship Benefits

The role of grandparents in the child’s life is considered in terms of its benefits: 

• Courts look at the value of maintaining family connections and how those relationships enrich the child’s life.
• Safety considerations play a significant role in assessing the impact of maintaining relationships with grandparents.
• The overall effect on the child’s well-being, both emotionally and psychologically, is also reviewed.

Rights of Grandparents: Legal Pathways Available

For grandparents seeking to establish or maintain contact with their grandchildren, there are several legal avenues available, all governed by the updated best interests considerations:

Family Dispute Resolution (FDR)

Before taking matters to court, grandparents must usually first attempt family dispute resolution (mediation). This process is designed to: 

• Prioritise the safety and well-being of the child, attempting to ensure that any agreement made protects the child.
• Take the child's views into account where appropriate, reflecting the child’s age and maturity.
• Address the child’s developmental, psychological, and emotional needs in any proposed resolution.
• Aim to create sustainable, safe relationships that can be maintained long-term.
• Mediation is also often more cost-effective and less stressful than litigation and is aimed at promoting an amicable resolution on agreed terms.

Court Applications

If mediation does not resolve the issue, grandparents can apply for parenting orders through the court. Before making Orders, the Court will take into account a number of matters including:

• The safety arrangements for all parties, including any protective measures necessary for the child.
• How the child’s views have been taken into account during the process.
• Specific plans to meet the child’s developmental and emotional needs, ensuring that any arrangement is in the child’s best interest.
• Cultural considerations where relevant, particularly if there are unique family or cultural dynamics.
• Practical measures for maintaining safe relationships, such as supervised visits or structured access.

Rights of Grandparents: Real-World Applications

Case law upholds the focus on safety and the well-being of the child. Courts weigh these factors heavily in determining whether a child should spend time with and communicate with a grandparent, and if so, what that time and communication should look like in practical terms:

• Safety Priority: Courts place a high priority on ensuring a safe environment for the child, even above pre-existing relationships. Long-standing relationships with grandparents may be limited or modified if there are concerns about the child’s safety.
  
  
• Child's Voice: The child’s perspective is a relevant consideration in parenting matters. Children are able to express their views (whether that is during child impact or family report interviews, to the Independent Children’s Lawyer, during child-inclusive mediations or to other experts). The child’s view is important and is given weight in appropriate circumstances.
  
  
• Family Dynamics: Courts examine how spending time with grandparents affects the child’s overall development, emotional stability, and psychological well-being within the family unit. This involves assessing the broader family dynamics and the impact of the grandparent-child relationship.

Protecting Your Rights

To protect your rights under the new legislative framework, you should take the following steps:

Document Safety and Well-being 

Keep detailed records of your interactions with and observations of your grandchild, including: 

• Documenting the child’s developmental needs and how you support them.
• Showing an understanding of safety considerations, such as avoiding situations where there is a risk to the child’s well-being.
• Providing evidence of positive emotional support through activities, nurturing, and stable interactions.

Seek Professional Guidance 

Stay informed about the legal changes and seek expert advice on: 

• Updated legislation and developments in case law.
• Consulting child development professionals to ensure you understand the needs of your grandchild.
• Exploring cultural support where relevant, especially in cases involving cultural differences.
• Understanding the latest safety requirements to meet legal expectations.

Adopt a Collaborative Approach

Focus on creating positive and healthy relationships by:

• Promoting a safe and supportive environment for the child.
• Supporting the child’s developmental needs and emotional health.
• Respecting others involved in the child’s life (such as parents and other caregivers) and maintaining appropriate boundaries.
• Acknowledging the importance of cooperation in any ongoing family relationships.

Conclusion

The rights of grandparents in Australian family law continue to provide pathways for maintaining these vital relationships, with a focus on safety and well-being of the child in order to promote their best interests.

Get Help from Family Law Experts

At Frigo James Legal, our experienced Family Lawyers understand the recent legislative changes and the framework contained in the Act in relation to the rights of children and how to promote their best interests. We offer: 

• Up-to-date advice on new legal requirements and how they affect your situation.
• Guidance through the mediation process and other alternative dispute resolution methods.
• Expert representation in family court proceedings under the new legal framework.
• Support in documenting safety and well-being, which is essential for strengthening your case.
• Practical strategies for maintaining safe, positive relationships with your grandchildren.
• A thorough understanding of cultural considerations to ensure a holistic approach to family matters.
• Documenting and formalising agreements reached between parents and grandparents in relation to the care and welfare of children.



With decades of combined experience in family law, Frigo James Legal stays current with legal changes while working towards outcomes that benefit both grandparents and grandchildren. Make an appointment today to discuss your situation.