Grandparents often play a vital role in their grandchildren’s lives by offering care, stability and unconditional love. But what happens when parents cannot or will not provide a safe environment? 

Many grandparents wonder: can grandparents apply for custody in Australia?

However, it is not automatic, and the law does not use the word “custody” in modern family law. In Australia, grandparents can apply for parenting orders through the Federal Circuit and Family Court of Australia (FCFCOA). These orders can determine where a child lives, who they spend time with and who makes major decisions about their care.

Grandparents do not need the parents’ consent to apply for these orders. These applications are taken seriously, and grandparents must show that involvement is necessary to support the child’s safety and wellbeing.

This guide explains grandparents’ rights under Australian law, the conditions under which they can seek parenting orders, what the court considers and the process involved. 

Understanding grandparent rights in Australia

Under Section 60CC of the Family Law Act 1975 (Cth), children have the right to maintain meaningful relationships with important people in their lives, including grandparents, when safe and in their best interests. Importantly:

• Grandparents don’t have automatic custody rights.
• They do have the legal right to apply to the Family Court or Federal Circuit Court for parenting orders.
• The court prioritises the welfare of the child above all else.
• Grandparents can be joined as parties to an existing parenting case.
• Grandparents do not have a presumptive right to parental responsibility. Parents do; grandparents must prove necessity.

This means that grandparent rights in Australia exist, but they are always secondary to the child’s best interests.

Reasons grandparents can file for custody of a grandchild

Grandparents may seek custody (known legally as parenting orders) when they believe it’s necessary to protect their grandchild’s welfare. Common reasons include:

Parental neglect or inability to care

Situations where parents struggle with substance abuse, mental health conditions, or homelessness.

Example: A grandmother applies for custody because both parents are battling drug addiction, leaving the child unsafe.

Family violence or abuse

If there is evidence of domestic violence, neglect or abuse in the home, grandparents can intervene to ensure the child’s safety.

Parental absence

When parents have passed away, abandoned their child or are incarcerated.

Instability or repeated conflict

If the home environment is chaotic due to ongoing disputes, frequent relocations or exposure to harmful behaviour.

Existing caregiving role

Many grandparents are already the primary caregivers. In these cases, applying for custody formalises an arrangement that is already in place and gives them the authority to make decisions for the child.

Situations where one parent blocks contact with the other side of the family

If grandparents provide the only safe, reliable connection to the child’s wider family network, courts may intervene.

Courts recognise the importance of children maintaining safe relationships with extended family when appropriate, and grandparents may be the only stable link. These reasons show when the law allows grandparents and extended family to step in to provide stability and protection.

Parental rights vs grandparent rights

The law carefully balances parental rights vs grandparent rights:

• Parental rights: Parents are presumed to have the primary duty to care for and make decisions about their children.
• Grandparent rights: Grandparents don’t automatically gain rights over parental decisions. Instead, they can apply to the court if they believe the child’s best interests are at risk.

Key principle: 

Parents are the primary carers under the law. Grandparents can only override parental decisions when evidence shows the child’s safety or wellbeing is at risk.

Courts focus solely on what is best for the child, rather than what may feel fair to grandparents. They will not make orders simply because grandparents can offer a more stable home or have different views about parenting.

How the court decides grandparent custody applications

When assessing custody applications, Australian courts consider:

1. The best interests of the child (the guiding principle in all cases).
2. The child’s relationship with their grandparents and whether maintaining that relationship benefits them.
3. The capacity of grandparents to provide for the child’s emotional, educational and physical needs.
4. The views of the child (if they are old and mature enough to express them).
5. Any history of family violence or abuse.
6. Practical arrangements such as housing, financial stability, and ability to support the child long-term.

Example: A grandfather applying for custody of his 10-year-old granddaughter will need to provide evidence of her strong bond with him, his stable living arrangements and why living with him is safer than with her parents.

Legal options available to grandparents

Grandparents in Australia can pursue several legal avenues through the Family Court:

Parenting orders: Formal court orders outlining who the child will live with and how decisions will be made.

Visitation orders: If full custody isn’t necessary, grandparents can apply for visitation rights to maintain contact.

Shared care arrangements: In some cases, grandparents share caregiving responsibilities with parents or other family members.

Family lawyers play a crucial role here. They help by guiding grandparents through applications, helping them collect evidence, and advocating in court.

Steps grandparents must take before applying

1. Family Dispute Resolution (FDR) is usually required

Grandparents must attempt mediation before going to court except in cases of family violence, urgency or safety risks.

2. Section 60I certificate

A certificate confirming FDR occurred (or was inappropriate) must accompany the court application.

3. Filing for parenting orders

If mediation is unsuccessful or unsafe, the next step is filing with the FCFCOA.

4. Evidence required

Courts expect grandparents to provide:

• caregiving records
• police, medical or school reports
• evidence of unsafe parenting practices
• diaries or written logs of concerning incidents
• statements from witnesses
• proof of stable housing and financial stability

Types of parenting orders grandparents can apply for

1. Live-with orders: Determines primary residence.
2. Spend-time-with orders: Allows structured time with the child; replaces the outdated concept of “visitation”.
3. Communicate-with orders: Covers phone, video and written contact.
4. Consent orders: Formalises agreements without a court hearing.
5. Urgent or interim orders: Available when the child faces immediate risk.
6. Joining existing cases: Grandparents can apply to be added to current family court proceedings.

Support options for grandparents

1. Centrelink payments

Grandparents caring for children may qualify for:

• Family Tax Benefit
• Child Care Subsidy
• Parenting Payment
• Carer Allowance
• Double Orphan Pension in specific circumstances

2. Support services

Include counselling, community support groups and legal-aid assistance.

3. Grandparent advisers

Centrelink provides specialised staff to assist grandparents with entitlements and care responsibilities.

4. Informal arrangements

When safe, grandparents may consider informal care before entering legal proceedings.

Challenges grandparents may face

Applying for custody as a grandparent isn’t simple. Common challenges include:

• Proving necessity: Courts require strong evidence that custody is in the child’s best interest.
• Financial strain: Legal fees, court costs and ongoing care responsibilities can be significant.
• Family conflict: Custody applications can cause tension with parents and extended family.
• Emotional toll: Balancing the role of caregiver while navigating strained family dynamics can be overwhelming.

How family lawyers can help

Family lawyers support grandparents by:

• Explaining their rights under Australian law.
• Helping them decide whether to apply for custody or visitation.
• Preparing and filing legal documents.
• Representing them in mediation or court.
• Offering strategies to reduce conflict and focus on the child’s welfare.
• Helping grandparents pursue consent orders where possible.

Example: In Queensland, a grandmother engaged a family lawyer to apply for parenting orders after years of informally caring for her grandson. With legal support, she secured full custody and decision-making rights, giving her peace of mind and her grandson stability.

Conclusion: Protecting children through family law

So, can grandparents apply for custody? Yes, but it requires evidence, legal support and a clear focus on the child’s best interests. While parents are given primary responsibility, grandparents play a crucial role in providing stability when circumstances demand it.

With Bark, you can connect with experienced Australian family lawyers who understand the delicate balance of parental rights vs grandparent rights and can help guide you through the legal process with compassion and expertise.