Children often have a number of people who play a significant role in their lives. This can
be mum, dad, grandparents, uncles, aunties, and family friends.
It is often the case that when parents separate, or where there are other family issues, it
is not only the relationship between a child and their parents that is affected, but also the
relationship between a child and their grandparents and/or other significant persons.
After all, family dynamics can be complex, and separations and family issues can have a
ripple effect on the individuals who are not part of the immediate family.
If a grandparent or other significant person considers that a child is at risk, or they are
seeking to spend time with a child, the Family Law Act 1975 (Cth) provides a pathway to
bring these matters before the Court.
What does the law say?
The Family Law Act 1975 (Cth) acknowledges that a child has a right to a maintain a
connection with the significant persons in their lives. It is important to note that this is a
right that the child has, rather than a right of the significant person.
Under certain circumstances, this means that a grandparent or other significant person
can make an application to the Federal Circuit and Family Court of Australia in relation
to the living arrangements or time spending arrangements for a child.
If you are a grandparent or other significant person looking to file an Initiating Application
in the Court, you should obtain independent legal advice.
Reasons for a grandparent or non-parent to apply to the Court
There are a multitude of reasons why a grandparent or significant person may make an
application to the Court. This includes where:
• A child is at risk of harm; or
• A parent cannot adequately care for a child; or
• A parent is stopping a child from spending time with a grandparent or other
significant person; or
• A grandparent or other significant person already has the care of a child and is
seeking to formalise that arrangement.
How does a Court consider these applications?
When making orders in relation to the living arrangements or time spending
arrangements for a child, the Court must consider what is in the best interests of that
child.
The best interests of a child are considered on a case-by-case basis, however the Court
will be guided by the following two factors:
• The benefit of the child having a meaningful relationship with the parents,
grandparents or significant persons; and
• The need to protect the child from physical or psychological harm including from
being subjected or exposed to abuse, neglect or family violence.
Relevant factors for the best interest of a child
When deciding what is in the best interests of a child, the Court looks at several factors,
including:
• Where it is safe, the benefit of the child having a relationship with their parents
and other persons who are significant to them.
• What arrangements will promote the safety of child.
• The child’s views and level of maturity.
• The nature of the child’s relationships.
• The likely effect of any changes in the child’s circumstances.
• The capacity of the parents and other persons involved to meet the child’s needs.
Potential outcomes
It is clear that the Family Law Act 1975 (Cth) considers the relationship between a child
and significant persons to be important.
An order for primary care in favour of a grandparent or significant person will usually
only apply where it is determined that it is in the best interests of a child.
A grandparent or significant person may also be successful in obtaining an order to
spend time with a child on a regular basis. The amount of time ordered will depend on
the circumstances.
Parties are usually required to attempt mediation, unless exceptions apply, such as
when a matter is urgent.
If an agreement can be reached by mediation or through negotiations, then this can be
documented and formalised through an Application for Consent Orders.
Next steps
If you or someone you know wants more information or needs help or advice with their
family law matter, please contact our Intake team on (03) 8415 5600 or email us at
reception@hartleyslawyers.com.au.
This article is intended to provide general information only and is limited to the Victorian
jurisdiction only. You should obtain professional advice before you undertake any course
of action.