Can grandparents and other family see the children after separation?

The Legal Position

Parents often decide, after separation, that one side of the family will not see the children. That decision can be painful and it can still be lawful on paper: each parent holds parental responsibility under s 61C unless a court order displaces it. A grandparent does not hold that parental responsibility merely by being a grandparent. The Family Law Act gives a grandparent standing to apply for a parenting order (s 65C(ba)). Other family — an aunt, uncle, adult sibling, step-parent, or great-grandparent — must first satisfy the court that they are a person concerned with the child’s care, welfare or development (s 65C(c)). The order, if made, is about live-with, spend-time, or communication that promotes this child’s best interests, including safety.

1. The child’s relationships — not a family member’s personal right

Search language often asks about “grandparents’ rights.” The Family Law Act does not confer a personal right on a grandparent, aunt, or sibling to a set amount of time. Section 60CA requires the court to regard the best interests of the child as the paramount consideration when making a parenting order.

Section 60CC(2)(e) requires the court to consider the benefit to the child of being able to have a relationship with the child’s parents, and with other people who are significant to the child, where it is safe to do so. That is the statutory place where a grandparent or other relative’s relationship is weighed. It is conditional on safety.

Safety is a general consideration in s 60CC(2)(a): arrangements that promote the safety of the child and of each person who has care of the child. Section 60CC(2A) requires the court, when considering safety, to include any history of family violence, abuse or neglect, and any family violence order that applies or has applied to the child or a member of the child’s family.

2. Who may apply: grandparents under s 65C(ba), everyone else under s 65C(c)

Section 65C sets out who may apply for a parenting order. Paragraph (ba) names a grandparent of the child. A grandparent does not have to win a separate permission hearing merely to be allowed to file.

Paragraph (c) is different. It covers any other person concerned with the care, welfare or development of the child. In Mankiewicz & Swallow [2016] FamCAFC 153 the Full Court held that people in that class have a right to bring an application to establish the facts that would permit them to apply — and no right to substantive relief until the court determines they are such a person. Great-grandparents in that case were not grandparents under s 65C(ba). The same threshold applies to an aunt, uncle, adult sibling, cousin, or step-parent who relies on s 65C(c).

“Concerned with” is a fact about this child and this person: the history of care, the relationship, and the welfare connection. It is not established by a family label alone.

3. What a parenting order can do

Section 64B describes a parenting order. It can deal with whom a child lives with, spends time with, and communicates with, and with parental responsibility. Section 65D is the court’s power to make such an order. Section 64C allows an order to be made in favour of a parent or of some other person, which is how time or communication with a grandparent or other relative is framed.

The order is specific or it is weak. “Reasonable time as agreed” leaves the parent who has the children as the practical gate. Minutes that state days, times, communication method, and a changeover the court can supervise are the form the Act’s machinery can enforce.

If final parenting orders already exist, s 65DAAA sits in front of a fresh application to reconsider them. A grandparent or other relative who was not a party to those orders still has to meet that reconsideration threshold where it applies, as well as their own standing.

4. The authority ladder: agreement, a plan, mediation, then court

Where the parents will agree, a written parenting plan under s 63C can record time or communication with a grandparent or other relative. A plan is not a court order. Consent orders under the Rules (rr 10.04–10.05) are the instrument that can be enforced.

Most applications for a parenting order must first go through family dispute resolution under s 60I, unless a certificate under s 60I(8) or an exemption under s 60I(9) is available — including urgency and family-violence or child-abuse exemptions where the facts support them. Rules rr 4.01–4.02 are the filing counterpart.

A grandparent or other relative can be a party to that process. The certificate, if one issues, records the FDR outcome. It does not decide whether time is in the child’s best interests.

5. When a parent is the gate

Section 61C provides that each parent has parental responsibility for the child, subject to any court order. A parent who decides that the children will not see the other parent’s family is exercising that responsibility unless an order says otherwise. The decision is not, by itself, a breach of an order that does not exist.

It can still be put before the court under s 60CC(2)(e): the benefit to the child of the relationship with people who are significant to the child, where safe. The longer an exclusion runs, the more the arrangement on the ground becomes the one an interim court is asked to disturb. That is a timing fact, not a finding that the exclusion was justified.

The application names the parents as respondents where they are the people whose decisions the order would affect. The relief is an order about the child. It is not a prosecution of the parent.

6. When a protection order is also in force

A family violence intervention order, ADVO, DVO, or FVRO can name a grandparent or other relative, or can make contact with the protected person a criminal breach even when the children are the subject of the visit. Read the face of the order. Conditions about approach, communication, and named children bind until varied or until a later federal spend-time order deals with inconsistency.

Division 11 (ss 68P–68Q) applies where a federal court makes a parenting order that provides for a child to spend time with a person in a way that is inconsistent with a family violence order. The family violence order is invalid only to the extent of that spend-time inconsistency, and only after the statutory preconditions. Section 68R is the state court’s power, when making or varying a family violence order, to touch an existing federal parenting order. It is not a grandparent’s shortcut.

An IVO application is allegation-source material. It is not a finding that the underlying conduct occurred (Amador & Amador at [94]–[96]). Complying with a live order and contesting untested particulars are different acts.

7. Recovery and location — where an arrangement already exists or is sought

A recovery order is defined in s 67Q. It is a mechanism to find and return a child. Section 67T(ca) allows a grandparent of the child to apply. Section 67T(d) allows any other person concerned with the care, welfare or development of the child to apply — the same concern test as s 65C(c), not a second, easier door.

Section 67K is the location-order standing provision, including for a grandparent. A location order and a recovery order answer “where is the child, and how are they returned.” They do not decide, by themselves, that a grandparent who has never had an order should become the person the child lives with.

Where there is no parenting order and the children are with a parent who holds s 61C parental responsibility, the usual instrument is an application for a parenting order (live-with, spend-time, or communication), with recovery only where the facts support a return to an arrangement the court is asked to protect.

8. Practical traps

• Treating “grandparents’ rights” as if the Act awarded a quota of time.
• Filing as a great-grandparent, aunt, or sibling under s 65C(ba). That paragraph is grandparents. Everyone else is s 65C(c), and Mankiewicz is the threshold.
• Asking for “reasonable time as agreed” and then discovering the parent who has the children can refuse every date.
• Ignoring a live protection order in order to collect the children from school or a sports ground.
• Applying to reconsider final orders without addressing s 65DAAA.
• Leading with a recovery order when no parenting order exists and the children are with a parent.
• Inventing a finding that the parent’s reasons were false. Allegation-source material stays allegation-source until a competent process finds the facts.

9. Pathways available under the Act

These are procedural options with their statutory basis. The person who files chooses which one matches their documents and may obtain independent legal advice.

1. Write down the actual relationship: dates of care, overnight stays, school or medical involvement, and the date contact stopped. That record is what s 60CC(2)(e) and, for non-grandparents, s 65C(c) are decided on.
2. Read every live parenting order and protection order. If a protection order restricts contact, compliance continues while any federal application is prepared.
3. Where the parents will discuss it, propose specific spend-time or communication and, if agreed, move from a s 63C parenting plan to consent orders.
4. Attend family dispute resolution under s 60I, or identify a s 60I(8) certificate or a s 60I(9) exemption that the facts support, before filing.
5. A grandparent may file an initiating application for a parenting order under s 65C(ba), seeking stated live-with, spend-time, or communication orders under s 64B and s 65D.
6. Any other relative files on s 65C(c) and puts the care, welfare, and development facts before the court at the threshold Mankiewicz describes.
7. Where final orders already bind the child, address s 65DAAA. Where the child has been taken from an existing spend-time or live-with arrangement that includes the applicant, s 67T is the recovery standing provision and s 67K is the location standing provision.

Key Legislation and Authorities

• Family Law Act 1975 (Cth) — s 60CA (best interests paramount), s 60CC(2)(a) (safety), s 60CC(2)(e) (relationships with parents and other people significant to the child, where safe), s 60CC(2A) (family violence history and orders), s 60I (family dispute resolution), s 61C (parental responsibility of each parent), s 63C (parenting plans), s 64B & s 65D (parenting orders), s 65C(ba) (grandparent may apply), s 65C(c) (any other person concerned with care, welfare or development), s 65DAAA (reconsideration of final parenting orders), s 67K (location orders), s 67Q (recovery order), s 67T(ca) (grandparent may apply for recovery), s 67T(d) (other person concerned), ss 68P–68Q & s 68R (Division 11)
• Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) — r 2.04, rr 4.01–4.02, rr 10.04–10.05
• Mankiewicz & Swallow [2016] FamCAFC 153 — s 65C(c) is a threshold; grandparents under s 65C(ba) are not in that class
• Amador & Amador [2009] FamCAFC 196 at [94]–[96]