What is the best way to commence an application for children to live with grandparents and can you point to some relevant cases?
Simply treat the application as any parent v parent application, except in this case you must add both parents as respondents to your proceedings.
A parenting order may be made in favour of a grandparent: s 65C of the FLA. See pages 4-11 and 4-12 of TFLB. The issues are pretty much the same: see from page 4-14 onwards.
Firstly, you must arrange for your clients and the parents to attend family dispute resolution (FDR) with an FDR provider. For your nearest FDR provider do a keyword search for "fdr provider" at our online "forms and precedents". The FDR provider will then give you a certificate which you file with your court papers (in the FMC). See pages 4-7 and 4-86.
The procedure for parenting cases is set out from page 4-77 onwards.
Our precedent orders are from pages 4-88 (interim orders), 4-95 (final orders) and our precedent affidavits (for interim hearings from page 4-105 - five versions and for final hearings from page 4-132 - five versions).
See page 4-39 TFLB where we have a couple of cases on grandparent applications and, for more cases, our archived 'case notes - children’ under ‘non-parents (including grandparents)’.
For a review of the “parent v grandparent” cases, see Kay & Jasper and Ors  FamCA 1646 at paras 67-74.
In Paton & Williams  FamCA 855 a parenting dispute between parents, maternal grandmother and paternal grandparents was resolved by Austin J by means of an order that the child live with the paternal grandparents (who were to have parental responsibility for the child) and spend time with the mother and/or maternal grandmother one weekend per month and during school holidays and with the father on a supervised basis by agreement with the paternal grandparents.
Other examples of grandparents being granted orders that children live with them: Miels & Moulden  FamCA 875 and Berryman & Jones  FamCA 235. In Miels & Mouldenparental responsibility was to be shared between parents and maternal grandparents but in Berryman & Jones the paternal grandmother was given sole parental responsibility.
In Scott and Anor & Ross and Anor  FamCA 193 maternal grandparents, with whom the children had been living for some years, were granted sole parental responsibility.
There are many such cases. In Lawson & Warren and Ors  FamCA 38, where the parents had long histories of drug abuse, parental responsibility was confined to a paternal grandmother (and, when the child was to spend time with her, the maternal great-grandmother).
Also at our archive see Danes & Anor  FMCAfam 281 ('Children – Maternal grandmother’s application for parenting orders dismissed due to her lack of insight into children’s needs – Grandparent cases reviewed’).