Grandparents' Rights in Australian Family Law

Legal standing: section 65C

Grandparents have explicit statutory standing under section 65C(ba) of the Family Law Act 1975, inserted in 2010 to place them on firm footing alongside parents — they do not need leave of the court to apply.

Section 65C sets out the full list of persons who may apply for a parenting order:

• Section 65C(a) — either or both of the child's parents.
• Section 65C(ba) — a grandparent of the child. This paragraph was inserted in 2010 to remove any doubt about grandparent standing.
• Section 65C(c) — any other person concerned with the care, welfare or development of the child — for example, aunts, uncles, step-parents, or other relatives.

Types of orders grandparents can seek

• "Lives with" orders — the child lives primarily with the grandparent. Usually sought when parents are deceased, incapacitated, or unfit.
• "Spends time with" orders — regular time with the grandparent on weekends, holidays, or special occasions. The most common order sought by grandparents.
• "Communicates with" orders — telephone, video calls, letters, or other communication. Often sought alongside or as an alternative to in-person time.
• Parental responsibility orders — decision-making authority allocated to the grandparent. Sought when parents are unable to fulfil this role.

How the court assesses grandparent applications

Every grandparent application is assessed against the six section 60CC(2) best interests factors. Three factors are particularly relevant to grandparent cases.

• Factor (e): Maintaining relationships — the most directly relevant factor. If the grandparent can demonstrate a meaningful existing relationship — or the potential for one — the court must weigh the benefit to the child of maintaining or developing that relationship, where it is safe to do so.
• Factor (c): Developmental needs — supports grandparent involvement where the grandparent provides stability, emotional support, cultural connection, or continuity — particularly after the death of a parent or during periods of parental instability.
• Factor (d): Capacity of carers — crucial when grandparents seek "lives with" orders. They must demonstrate capacity to meet the child's physical, emotional, educational, and developmental needs — including health, housing, and financial stability.

Common scenarios for grandparent applications

Most grandparent applications arise in one of a handful of recurring circumstances that Australian courts deal with regularly.

• Parent restricts contact after separation — the most common scenario. When parents separate, one parent may restrict or eliminate grandparent contact due to conflict. Grandparents can apply for "spends time with" orders.
• Death of one parent — particularly common where the deceased parent was the grandparents' own child. Courts are generally sympathetic to maintaining the child's connection to the deceased parent's family.
• Child welfare concerns — where grandparents become aware of abuse, neglect, or other welfare concerns and seek to intervene, potentially seeking "lives with" and parental responsibility orders.
• Existing informal care — where a grandparent has been the de facto primary carer (for example, due to parental substance abuse, mental health issues, or incarceration) and seeks court orders to formalise the arrangement.
• Both parents deceased or incapacitated — grandparents may seek "lives with" and parental responsibility orders. The FCFCOA has a Critical Incident List for urgent applications in these circumstances.
• Kinship care formalisation — particularly in Aboriginal and Torres Strait Islander communities, where grandparents already provide primary care and seek formal legal recognition through parenting orders.

How to apply for parenting orders as a grandparent

Grandparents must follow the same pre-action procedure as any other applicant for parenting orders before they can file with the court.

Step 1 — Attempt informal resolution

Before formal steps, try to negotiate directly with the parent or parents. Propose reasonable, child-focused arrangements in writing. Avoid threats of legal action — this often escalates conflict and may be viewed negatively by the court.

Step 2 — Attend Family Dispute Resolution (FDR)

Contact a Family Relationship Centre (1800 050 321) or registered practitioner. Engage genuinely and focus proposals on the child's needs. The first three hours are typically free for eligible individuals. You must obtain a Section 60I Certificate, which is valid for 12 months.

Step 3 — Prepare your evidence

Document the nature and extent of your relationship with the child — babysitting, school pickups, holidays, photographs, communication records, financial contributions. If seeking "lives with" orders, prepare evidence of suitable accommodation, financial stability, and health capacity.

Step 4 — File the application

File an Initiating Application (or Application in a Case if proceedings are already on foot) through the Commonwealth Courts Portal. Required documents include: the application form, the Section 60I Certificate, Notice of Child Abuse/Family Violence/Risk (Form 4), a Genuine Steps Certificate, and supporting affidavit or affidavits.

Step 5 — Attend court

The first court event is typically one to two months after filing. Urgent interim orders can be listed within days to weeks. The court may order a family report, appoint an Independent Children's Lawyer (ICL), or list the matter for a final hearing — which can take 12–24 months depending on complexity.

Costs

Key case law for grandparent applications

Australian courts have developed a consistent body of principles governing grandparent applications that practitioners and self-represented litigants should understand.

Rice v Asplund (1979) FLC 90-725

The foundational case establishing that courts should not lightly re-open final parenting orders. Where final orders already exist, a grandparent must demonstrate a significant change in circumstances since the original orders were made. As of the 2024 amendments, this principle has been codified in legislation.

Donnell v Dovey [2010] FamCAFC 15

The Full Court of the Family Court confirmed that "parent" should not be expanded beyond its natural meaning, but affirmed that non-parents (including grandparents) can obtain parental responsibility through parenting orders. The paramount consideration remains the child's best interests.

B and B: Family Law Reform Act 1995 (1997) FLC 92-755

A High Court decision emphasising the child's right to know and maintain contact with parents and persons significant to them, establishing that relationships with extended family (including grandparents) are relevant to best interests assessments.

Aboriginal and Torres Strait Islander kinship

In Aboriginal and Torres Strait Islander communities, grandparents have traditionally played a central role in raising children. The 2024 amendments significantly strengthened the legislative recognition of these kinship structures.

Section 60CC(3) requires the court to consider an Aboriginal or Torres Strait Islander child's right to enjoy their culture and to connect with and maintain connection with family, community, culture, country, and language. The court must also consider the likely impact of any proposed order on these rights.

The 2024 amendments introduced an inclusive definition of "member of the family" that recognises Aboriginal and Torres Strait Islander kinship structures. "Grandparent" in kinship terms may extend well beyond biological grandparents to include people with defined cultural roles of care.

The Aboriginal and Torres Strait Islander Child Placement Principle — while operating primarily in state and territory child protection contexts — is influential in federal family law proceedings. The placement hierarchy prioritises extended family and kinship groups, followed by the child's community of belonging.

Practical advice for grandparents

Before taking formal steps, consider these practical measures that can strengthen your position or avoid litigation entirely.

• Document everything — keep a diary of all time spent with grandchildren. Save communications, photographs, and records of financial contributions. This evidence is invaluable if you need to demonstrate your relationship to the court.
• Communicate in writing — keep records of every attempt to arrange time with grandchildren and any responses or refusals. Text messages and emails create a paper trail that verbal conversations do not.
• Focus on the child — frame everything in terms of the child's best interests, not your right to see them. Courts respond to child-focused proposals, not entitlement-based arguments.
• Avoid escalation — avoid disparaging the parents in communications or on social media. Courts look unfavourably on grandparents who seek to undermine parental authority. Demonstrate willingness to cooperate.
• Get legal advice early — consult a family lawyer experienced in grandparent matters before taking formal steps. Understand the strength of your evidence, the costs, and the risks.
• Consider the bigger picture — court proceedings create conflict. Weigh whether the potential benefit to the child justifies the disruption. Family Dispute Resolution may achieve a better outcome with less harm.

Support services

• Family Relationship Advice Line — 1800 050 321 (free)
• Legal Aid NSW — 1300 888 529
• Victoria Legal Aid — 1300 792 387
• Legal Aid Queensland — 1300 651 188

Common questions