Modern Custody Disputes: Examining Grandparents' Legal Rights (2025)

In a significant shift, the May 2024 reforms to Australia's Family Law Act have reshaped the landscape of grandparenting rights. The changes, which prioritise children's best interests and safety over presumptions of parental responsibility, have ushered in a more child-focused, safety-first approach to parenting order decisions.

The reforms, which came into effect in May 2024, have removed the presumption of equal shared parental responsibility. This means that courts no longer automatically assume equal responsibility between parents or extended family, including grandparents. Instead, courts now tailor parenting arrangements to each family's specific circumstances.

The legal framework has been simplified, with six best interest factors replacing the previous 15 factors. These factors guide courts when evaluating parenting order applications, including those by grandparents. The new factors prioritise the child's safety and wellbeing, the benefit of having a meaningful relationship with the grandparent, the child's views and wishes, the nature of the relationship between the child and the grandparent, any risk factors concerning the grandparent, and practical considerations such as the child's living arrangements and the impact of granting an order on the child's stability and routine.

The role of Independent Children's Lawyers has been enhanced to require more direct engagement with children, reinforcing children's voices in decisions that may affect their relationships with grandparents.

Grandparents must still demonstrate that an order is in the child's best interests, with courts exercising discretion under the new child-focused framework. In cases where grandparents apply for parenting orders, their applications will be carefully weighed against these key factors.

In practice, this means that the child's views, especially those of teenagers, are weighed in grandparent application cases. Safety and protective capacity, as demonstrated by police reports, GP letters, or screenshots, can support a grandparent application. In New South Wales, holding a current Apprehended Domestic Violence Order (ADVO) protecting the children can potentially waive the requirement for Family Dispute Resolution.

First Nations connections to Country or other cultural identities can potentially influence kinship care decisions. Practical considerations, such as distance between homes and work hours, are factored into grandparent application decisions. Tasmania and the Northern Territory offer travel grants for remote carers in grandparent application cases. Victoria has raised legal-aid caps for grandparents.

It is important to note that grandparents may not have an automatic right to custody, but the courts are increasingly open to listening to strong cases for the children's wellbeing in 2024-2025. Evidence of an existing relationship with the children, including sleepovers, school runs, and pancake breakfasts, is important in grandparent application cases. Queensland heavily relies on video link for grandparent application hearings.

Western Australia has a separate Family Court, but federal principles still apply with some procedural differences. The Tonkin Legal Group, which has been championing grand-family ties for over 50 years, offers confidential consultations. In the Venter (No 2) [2025] case, the court noted grandparents' regular attendance at school events, such as musicals, as an important factor in their relationship with the children.

These changes mark a significant shift from presuming shared parental responsibility to a tailored evaluation centered on children’s safety and best interests. Grandparenting rights now must be justified within this framework, with courts weighing factors like child safety, meaningful relationships, and the child’s views carefully when deciding on parenting orders involving grandparents.

The May 2024 reforms to Australia's Family Law Act have extended the consideration of grandparenting rights beyond presumptions of parental responsibility, now emphasizing the child's health-and-wellness, as well as the benefits of maintaining a relationship with their grandparents in the science of child development. The courts, when making decisions on parenting orders involving grandparents, will now prioritize the child's best interests based on facts such as safety, the child's wishes, the nature of the relationship between the child and grandparent, any risk factors concerning the grandparent, and practical considerations.