Grandparent Rights NSW: What You Need to Know About Grandparents Rights Within Family Law

In Australia, the concept of family is deeply cherished and that includes the role of grandparents, as such grandparents’ rights are covered in the Family Law Act.

Grandparents play a vital role in the lives of their grandchildren and an increasing number are taking on prominent caregiving roles as well. To reflect this, Australia has established legal provisions known as “grandparents’ rights.” These rights seek to address the complex challenges faced by grandparents when seeking access to and visitation with their grandchildren.

There are various factors that influence grandparents’ rights, such as the nature of the relationship between the grandparents and the child, the parents’ willingness to facilitate grandparent-grandchild contact, and the potential impact of the child’s welfare and stability.

While the complexities of family dynamics and legal systems can be overwhelming, grandparents’ rights in Australia seek to strike a delicate balance between preserving the child’s well-being and acknowledging the invaluable contributions grandparents make to their grandchildren’s lives. If you’re a grandparent looking for legal means to access visitation rights with your grandchildren, you should contact the professionals in family law – get in touch with Burke Mead Lawyers.

Contents

Understanding Grandparents' Rights in NSW

Grandparents do not have an automatic right to have a relationship with a grandchild. However, grandparents do have the right, under the Family Law Act, to apply to the Court for parenting orders.

Can a Grandparent Be Denied Access to Their Grandchild by the Child's Parents?

As stated above, grandparents don’t have an automatic right in regards to contact with their grandchildren and grandparents can be denied access to their grandchildren by the parents. This can happen for any number of reasons, such as a breakdown in family relationships or family separation, etc. However, the Family Law Act explicitly includes grandparents in the category of people a child should maintain contact with.

Anyone who has an ongoing relationship with a child, or, can show that they are concerned with the care, welfare or development of a child may apply. Many grandparents today would fit this description, as many are performing caregiving duties in some capacity.

In fact, according to the Australian Institute of Family Studies, two in five grandparents with a grandchild aged under 13 years were providing some child care and one in four of this same demographic were providing childcare at least once a week. The proportion providing child care was higher (63%) if the youngest grandchild was under 10 years rather than 10–12 years (33%), and the childcare was also performed more frequently for children under the age of 13. And while there are no definitive statistics, survey data estimates that there are approximately 22,000 families in Australia where the grandparents are raising one or more of their grandchildren.

Types of Orders

There are two types of orders that can occur when a party – whether a parent, a grandparent or any adult with an established relationship – applies for the legal right to spend time with and communicate with a child: parenting orders and consent orders.

Consent orders is a document that outlines the time spent with and the communication between the parties and the child/children. Consent orders are drafted during the negotiation or mediation process, which is a method of family dispute resolution, and state the details of the mutual agreement of the parties involved. Mediation has been found to be the best method for long-term success and cooperation. If you think you are eligible to apply to the Court for consent orders, contact a family law professional to get independent advice about your legal rights and how to proceed.

Parenting Orders

A Parenting Order made in the context of contested Court proceedings is an order, being the same types of document as the consent orders, however, they are determined by the Court (this happens if mediation is unsuccessful). This document outlines how much time and/or communication the parties can have with the child/children. If you think you are eligible to apply to the Court for a parenting order, contact a family law professional to get independent advice about your legal rights and how to proceed.

Factors That Influence a Grandparent's Rights to Access

There are three primary factors that can influence a Court’s decision on grandparents’ rights and access to their grandchildren.

Is There An Existing Relationship?

If the grandparent has an established relationship with the child or children in question, that can have a big impact on the outcome. For example, if you have performed childcare or had a significant role in the child’s life (such as supporting their welfare and development), as a grandparent you may be eligible to apply for parenting orders.

Is It In the Child's Best Interests?

There are many reasons why grandparents may lose contact with their grandchildren, but what is the primary concern of the Family Court is what is in the child’s best interests. If putting parenting arrangements in place will support the continuation of a meaningful relationship that is in the best interests of the child, that will be influential to the Court’s decision.

In deciding what arrangement is in the best interests of the child, the court will refer to a number of different factors, including:

  • protecting the child’s psychological or physical safety
  • ensuring the child is financially supported
  • any benefits by having a meaningful relationship with their parents and grandparents
  • what kind of relationship the child has with the parents and grandparents
  • effect of change on the child
  • evidence of any family violence
  • views of the child if they are old enough and capable of conveying relevant views

Impact on the Child's Welfare?

The Court prioritises the best interests of the child and this includes their welfare. Whatever arrangement is agreed to or decided on needs to put the welfare of the child – not the child’s parents or grandparents – first. In terms of what that will mean for the outcome of an application will depend on the unique circumstances of each case.

Grandparents And Parental Responsibility

Grandparents are able to make an application for access or custody of a grandchild/children under the Family Law Act 1975, which may be granted by the Court if they consider it to be in the child’s best interest.

There are many reasons why a grandparent may feel the need to apply for parenting orders, but to be successful the grandparent will need to show that the parent:

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

The court will need to be satisfied that the parent cannot or will not meet the needs of the child or children. If this inability to care for their child/children includes evidence of abuse or neglect or substance abuse, the court is more likely to grant or determine an order in favour of the grandparent. If the order includes granting access for custody to the grandparent, the court may confer on the grandparent ‘parental responsibility’ for that child or children.

Parental responsibility means that the grandparent will have all the same legal authority, powers, duty of care, and responsibilities of a parent for the child/children included in the order. This allows them to make decisions for the child relating to their care, welfare and development without consulting the parents – this can include where they go to school, medical treatment, living arrangements, religion, and more.

Child custody issues and grandparents’ rights is a unique type of family dispute that can be extraordinarily challenging for all parties involved. An experienced family lawyer can help navigate the challenges ahead with compassion and confidence.

The team at Burke Mead Lawyers are experts in family law, including child custody and parenting arrangements. Our experts can assist you throughout this process to protect your legal rights and responsibilities.

About the Author
Ebony Purcell

Ebony Purcell is an Associate in the Family Law Team at Burke Mead Lawyers. Ebony’s experience as a solicitor exclusively in family law spans more than 10 years advocating for her clients. She also regularly appears for clients in the Federal Circuit and Family Court of Australia both locally and throughout the country.

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