Grandparents’ rights in NSW Australia

Introduction

Grandparents providing childcare is often associated with positive wellbeing for the grandparents and strengthening family relationships and connections.

Two in five grandparents with grandchildren aged under 13 years old provide some form of childcare. Families in Australia survey.

As a grandparent who is caring for or raising grandchildren, or has been stopped from seeing them, it is important to understand your rights.

What are grandparents’ rights in Australia?

The Family Law Act recognises that children have a right to have a relationship with other people who are significant to the child where it is safe to do so. This includes grandparents.

As a grandparent you do not have an automatic legal right to care for or see your grandchildren. However, you do have the right to apply to the Federal Circuit and Family Court of Australia (FCFCOA) to have care or access to your grandchildren.

You can apply to the Court to make orders for your grandchildren to spend time with or live with you, regardless of whether the parents of the children are together or separated.

Grandparents’ visitation and custody rights

As a grandparent you may apply for access or custody of a grandchild when:

• A parent lacks capacity to care for their child
• A parent is preventing their child from seeing you
• A parent is unwilling or unable to care for their child

You can apply for orders that address:

• Who has responsibility for deciding major long-term issues in relation to the child
• Who spends time with the child
• Where the child lives
• The communication the child has with other people

The child’s best interests

As a grandparent, if you make an application to have access or custody of your grandchildren, the Court must regard the best interests of the child as the paramount consideration. In determining a child’s best interests, the Court must consider:

• What arrangements would promote the safety of the child and each person who has care for the child
• Any views of the child
• The developmental, psychological, emotional, and cultural needs of the child
• The capacity of each person who has parental responsibility of the child
• Benefit to the child having a relationship with the child’s parent’s or people significant to the child
• Anything else relevant to the circumstances of the child

Parental responsibility

The Family Law Act defines parental responsibility as all duties, powers, responsibilities and authority which, by law, parents have in relation to their children. This is subject to any court orders made by the Court.

The Court may confer parental responsibility on a grandparent for major long-term issues if they are granted sole care of the child.

Major long-term issues include:

• The child’s education
• The child’s religious and cultural upbringing
• The child’s health
• The child’s name
• Changes to the child’s living arrangements that make it hard for the child to spend time with a parent

Parenting orders by consent

As the grandparent, if you and your grandchild’s parents agree to any access or care arrangements for the child, they can document that agreement with a parenting order by consent.

An application for consent orders allows grandparents and parents to request that the Court formalises the agreement and makes enforceable orders. The FCFCOA often takes the view that a child has the right to spend time with their maternal and paternal families and will carefully consider an application by grandparents asking to spend time with their grandchildren.

Grandparents’ rights to financial support for caregiving

If an agreement or consent orders are made for the grandparents to have full custody of the grandchildren, they can be entitled to financial support including:

• Family Tax Benefit Part A
• Family Tax Benefit Part B
• Child support
• Childcare benefit
• Childcare tax rebate
• Maternity immunisation allowance
• Carer allowance if the child has a disability
• Medicare benefits
• Double orphan pension.

A grandparent must have legal responsibility and at least 35% actual care of the child to be eligible for family assistance.

What to do if grandparents’ rights are being blocked?

If you are being denied access or care to your grandchild, the following steps can be taken to resolve the issue:

Step 1: Seek legal advice

Contacting a family lawyer can provide you with options and guidance on your next steps. A family lawyer can assist you with negotiations, organising mediation, advocating for you, and documenting any agreement reached. This can be beneficial to help you understand your options and help you through the process.

Step 2: Dispute resolution

Dispute resolution is where a trained independent practitioner helps families discuss their differences and try to reach an agreement. It allows grandparents and parents to come to an agreement about seeing or caring for the children without having to go to court.

Importantly, the Family Law Act requires people to attempt dispute resolution first before making an application to the Court.

Step 3: Court proceedings

If dispute resolution is unsuccessful, grandparents can apply to the Court for an order that the child spends time with or communicates with you.

To begin court proceedings, you must have a certificate from an accredited family dispute resolution practitioner showing that mediation was attempted. However, there are certain circumstances where a certificate is not required such as where there is risk of family violence.

You should obtain legal advice before starting court proceedings to understand the issues in dispute, to know the strengths of your case and what documents you will need to submit.

What to do next

As a grandparent it is important to understand your options to have access and care of your grandchildren. Remember that grandparents have no automatic right to their grandchildren, but they do have a right to apply for an order from the FCFCOA to have care or access of their grandchildren.

Before making any order, the Court will consider what is in the best interests of the child.

The Family Law team at Turnbull Hill Lawyers can assist with any stage of the process to provide you with the best possible outcome.

To see how we can help you with your family law matter, contact us today.