Do Grandparents Have Rights After Separation in NSW?

When families break down, grandparents are often left wondering where they stand legally. Under Australian family law, grandparents do not have automatic rights to see their grandchildren, even after separation or divorce. However, the Family Law Act 1975 does recognise the important role grandparents can play in a child’s life.

This means that while there is no guaranteed entitlement, grandparents can apply to the Federal Circuit and Family Court of Australia (FCFCOA) for parenting orders that allow them to spend time with or communicate with their grandchildren.

The key factor the court considers is always the best interests of the child. Judges will look at the existing relationship between the grandparent and the grandchild, the child’s need for stability, and any concerns about safety, such as family violence. If grandparents have played a significant caregiving role, their case for ongoing contact may be stronger.

Can Grandparents apply for Parenting Orders in NSW?

Yes, grandparents in NSW can apply for parenting orders under the Family Law Act 1975. These orders are not limited to parents; they are also available to grandparents or any other person who has played a meaningful role in a child’s life.

Parenting orders can determine:

• where a child lives
• how much time they spend with each parent or grandparent
• the type and frequency of communication

The process usually begins with Family Dispute Resolution (FDR). Mediation is encouraged as a first step to resolve disagreements without the stress and cost of court proceedings. If mediation is unsuccessful or inappropriate due to issues like family violence, a section 60I certificate is issued, allowing grandparents to take the matter to the Federal Circuit and Family Court.

When deciding whether to grant a parenting order, the court looks at the best interests of the child. This includes preserving important family relationships, ensuring the child is safe, and supporting their emotional well-being. Grandparents who have provided day-to-day care, financial support, or a safe home environment may be in a stronger position to show why orders should be made.

Custody and Parental Responsibility for Grandparents

In some circumstances, grandparents in NSW may seek more than visitation or access, they may apply for custody (legally known as “parental responsibility”). This usually arises when parents are unable or unwilling to provide safe care for their children, such as in cases of family violence, substance abuse, neglect, or the absence of a parent due to illness or death.

Under the Family Law Act 1975, grandparents can apply to become the child’s primary carer through a parenting order. This may grant them full or shared parental responsibility, allowing them to make important decisions about the child’s upbringing, schooling, and medical needs. Courts will assess whether placing the child with a grandparent will serve their best interests prioritising stability, safety, and continuity of care. For grandparents already raising grandchildren, obtaining formal custody can provide security and clarity for both the child and the caregiver.

What Do Courts Consider in Grandparent Cases?

When grandparents in NSW apply for visitation, custody, or parenting orders, the court’s focus is never on the grandparents’ rights alone it is always on the best interests of the child. This guiding principle under the Family Law Act 1975 ensures that decisions are made to protect the child’s safety, well-being, and long-term stability.

Some of the key factors the court will consider include:

• Existing relationship: How strong and consistent is the bond between the grandparent and the grandchild?
• Emotional and developmental needs: Will continued contact support the child’s sense of identity and stability?
• Parental circumstances: Are the parents able and willing to provide safe, appropriate care?
• Safety concerns: Any history of family violence, neglect, or substance misuse will be taken seriously.
• Views of the child: Depending on the child’s age and maturity, their wishes may be considered.
• Practical arrangements: Can the grandparent provide a safe home environment, schooling stability, and financial support if required?

Courts may also weigh the importance of maintaining family connections with extended relatives and the potential consequences of cutting off that relationship. Ultimately, the decision is not about what is “fair” for the grandparents, but about what will best serve the child’s future.

Mediation and Dispute Resolution Before Court

Before applying to court, grandparents are generally required to attempt Family Dispute Resolution (FDR). This structured mediation helps families agree on arrangements such as visitation schedules, communication methods, or temporary care.

If parties reach agreement, the outcome can be formalised into consent orders, which are legally binding. This is often quicker and less stressful than litigation.

If mediation fails or is unsafe due to family violence, neglect, or risk of harm, a mediator can issue a section 60I certificate, allowing the matter to proceed to the FCFCOA.

For many families, mediation preserves relationships and avoids conflict. But when resolution isn’t possible, the certificate ensures grandparents still have a pathway to protect their role.

Costs

For many grandparents, the thought of going to court is daunting not only emotionally, but also financially. The costs of applying for parenting orders or pursuing custody can vary depending on the complexity of the case, whether it proceeds to a hearing, and the need for expert reports or barristers. While some matters may be resolved through mediation at relatively low expense, contested proceedings in the Family Court can quickly become costly. Investing in early legal advice often helps prevent disputes from escalating, saving both money and stress in the long run.

Protecting Your Role as a Grandparent

Separation can be one of the most challenging times for families, and grandparents often feel the impact just as deeply as parents and children. While grandparents’ rights after separation are not automatic, the law does provide pathways to maintain meaningful relationships with your grandchildren.

If you are being prevented from seeing your grandchildren or believe they may be at risk, the most important step you can take is to seek professional legal advice. At Orman Solicitors, we are experienced in guiding grandparents through the family law system with empathy and clarity.

Contact us discuss your options and protect your relationship with your grandchildren.

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