Grandparent rights under the Family Law Act

Date: Feb 03, 2011
Document Type: Newsletter

In 2006 a grandparents right to contact with their grandchildren was finally recognised in the Family Law Act. Before this the word “grandparent” was not mentioned in the Act in relation to any rights to maintain a relationship with their grandchildren on the breakdown of a marriage.

The changes were introduced to address the common scenario where grandparents were cut out of their grandchildren’s lives after separation or divorce of the parents of the grandchild.

What are my rights under the Family Law Act to see my grandchildren?

The Family Law Act states 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 including grandparents.

The Court is required to consider when determining what is in the best interests of the child the right of the child to spend time with their grandparents.

In addition, when making certain orders concerning what is in the child’s best interests the court must consider:

  • Other persons including any grandparent.
  • The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from any grandparent with whom they have been living.
  • The capacity of any other person, including any grandparent, to provide for the needs of the child, including emotional and intellectual needs. 

Do I need to go to Court to see my grandchildren?

It is not always necessary to go to the Family Court to gain access to see and have a relationship with your grandchildren.

The Family Law Act promotes the resolution of family law disputes by mediation which is where everyone sits down with a qualified mediator to attempt to resolve any conflict surrounding what is in the best interests of the child.

The result of this early dispute resolution process often results in the parties reaching an agreement about grandparents spending time with their grandchildren. This agreement can be included in a Parenting Plan setting out where the child lives and when the child communicates or spends time with their parents and grandparents.

In the event that no agreement is reached at mediation than it may be necessary to make an application to the Family Court seeking an order on when you can communicate or spend time with your grandchildren.

The rights of grandparents under the Family Law Act are fairly new which is why it is best to seek qualified legal advice if you are a grandparent seeking communication and contact with your grandchildren. Expert family lawyers can explain the legal process involved in gaining contact with your grandchildren and your rights under the Family Law Act.

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