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Grandparents and Family Law in Australia

Grandparents can play a significant role in a child’s life and may be the child’s main caregiver. In many situations it is therefore important to understand your rights as a grandparent to see and care for your grandchildren. The Family Law Act 1975 (Cth) has provision to grant rights to grandparents in relation to their grandchildren.

Under the Family Law Act, a grandparent is the parent of a child’s mother or father. A child usually has four biological grandparents (whether living or deceased) but may also have non-biological grandparents.

Rights of grandparents

The Family Law Act 1975 (Cth) recognises that children have a right to maintain regular communication with those who are considered important to their welfare, care, and development. It specifically refers to grandparents as being included in that category of people with whom the child should maintain contact.Grandparents and custody rights However, a grandparent does not have an automatic right to see, or care for, their grandchild but will have a right to apply to the court.

Custody and access

A grandparent is entitled under the Family Law Act 1975 to make an application for a parenting order if they want access or custody of their grandchild or grandchildren. The court will only grant an order when they consider it to be in the best interests of the child.

It may be necessary or desirable for grandparents to apply for access or custody of the grandchild where the parent:

  • is unwilling to care for the child;
  • is unable to care for the child; or
  • lacks the capacity to care for the child.

The court will need to be satisfied that the parent falls within one of these categories and cannot meet the needs of the child or children.

Where there is evidence of abuse, neglect or substance abuse the court is more likely to grant an order in favour of the grandparent. The order can either give the grandparent full custody of the child or share custody with the parent.

The child’s best interests

In deciding whether it is in the best interests of the child to be placed into the grandparent’s custody, the court will refer to a number of different factors, including:

  • The need to protect the child’s psychological or physical safety;
  • The benefit of having a relationship with their parents and grandparents that is meaningful;
  • The kind of relationship the child has with the parents and grandparents;
  • Whether the child is financially supported;
  • The likely effect of change on the child;
  • Whether there is evidence of any family violence; and
  • Any views of the child if they are old enough and mature enough to convey relevant views.

Only when the court finds that it is not in the child’s best interests to remain with the parent will the court make an order for custody in favour of the grandparent.

Parental responsibility

If the court determines that granting access for custody to the grandparent is in the child’s best interests, they may confer on the grandparent parental responsibility for that child. This means that the grandparent will have all the legal authority, power, duty, and responsibility a parent usually has in relation to a child.

Being granted parental responsibility allows the grandparent to make decisions for the child without needing to consult the parents. The grandparent can make decisions relating to the child’s care, welfare and development such as the child’s schooling, health, living arrangements, and religion.

Parenting Order By Consent

Grandparents do not have automatic parental rights over a grandchild. However, if the child has been living with the grandparent pursuant to an informal arrangement with the parent, it may be beneficial for the agreement to be formalised by making a parenting order by consent.

A parenting order by consent can be done by drafting an agreement where both the parent and grandparent consent to the custody arrangements. Once an agreement has been written, an application must be made to the court to approve the parenting order by consent.

If you have any concerns about your grandchild’s welfare, you should contact the police and/or the relevant child protection agency in your state.

Assistance for grandparent caregivers

Grandparents who have full custody of grandchildren can make an application to Centrelink for financial payments to help provide care for that child, including:

  • Grandparent Child Care Benefit;
  • Family Tax Benefit;
  • Double Orphan Pension; and
  • Child Support.

If the child has a disability or medical condition, the grandparent may also make an application to Centrelink for:

  • Carer Payments;
  • Carer Supplement;
  • Carer Allowance;
  • Child Disability Assistance Payment; and
  • Carer Adjustment Payment.

In addition to financial assistance, there are government and community support services that can assist grandparent caregivers. The Australian Government’s Department of Human Services should be able to assist in locating support organisations in your area.

 

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