It is becoming increasingly common for grandparents to play a
major role in their grandchildren's ongoing care and
development. Accordingly, the Family Court places significant
weight upon the benefit of a child having a meaningful relationship
with their grandparents.
Section 65C of the Family Law Act 1975 (Cth) says that
grandparent can apply to the Family Court for orders in relation to
their grandchild. Grandparents are specifically referred to in the
legislation along with parents and any other person concerned with
the care, welfare and development of a child. This therefore
entitles a grandparent to apply to the Family Court for orders that
the child live with or spend time with them.
Further, under the Family Law Act 1975, the best interests of a
child are the paramount consideration when making parenting orders.
In determining what is in a child's best interests, there are
two primary considerations:
The benefit to the child of having a meaningful relationship
with both of the child's parents; and
The need to protect the child from physical or psychological
harm from being subjected to, or exposed to, abuse, neglect or
In circumstances where there is evidence to suggest the child is
at risk the Court will give greater weight to the need to protect a
child from harm over and above the benefit of the child having a
meaningful relationship with both parents.
There could any number of reasons why a grandparent may be
concerned that their grandchild is at risk. Common scenarios
include drug or alcohol use by one or both parents, mental health
issues that impact temporarily on their parenting capacity,
exposure of the child to family violence, or simply that a parent
does not want to care for the children any longer.
If a child is at risk of harm in the care of his/her parents,
and sufficient evidence can be provided, the Family Court may
consider placing the child in the care of a grandparent until such
time as the parent/s can show that they have the ability to care
for the child. In the absence of evidence that it is safe for the
child to return, the Court may consider that it is in the
child's best interests to live with his/her grandparents full
In determining whether it would be in the child's best
interests to live with their grandparents, whether on an interim or
final basis, the Family Court will also take into account the
nature of the child's relationship with their grandparents and
the role they have placed in the child's care and
Normally parties to a Family Law matter must participate in
Family Dispute Resolution prior to making an application to the
Family Court. There are, however, exceptions to this in
circumstances where there has been child abuse or family violence
or where it would not be appropriate for the parties to attempt any
kind of mediation.
If you are concerned that your grandchild is at risk of harm,
you should seek legal advice as soon as possible. You may need to
take action immediately. If your concerns are genuine and
well-founded, it could prejudice your case for you to do
Contact us and speak to our expert Family Law team if you would
like advice about how best to protect your grandchild.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Sect.117 can deal with false statements and knowingly making false allegations of violence could justify a costs order.
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