Parents Like Me! > Legal issues

Legal issues
State government systems

Like it or not, the type of legal authority you have for the children in your care can substantially influence your access to medical, educational and psychological services, as well as government financial support.

Legal issues

The Family Court of Australia
The Family Court of Western Australia
General information
Legal advice

While dealing with the legal system may be the last thing you feel like doing, it is important that you clarify your authority and try establish yourself as your grandchild’s primary carer as soon as you can so that you can access the services you need now, and in the future.

It is generally accepted that there are two main types of care arrangements and that these determine whether, and to what extent, Grandfamilies receive financial and other support:

1. Formal care - formal placements occur as the result of legal action and a court decision, after:
   
   
   1. the direct intervention of the Western Australian statutory child protection authority under a Protection Order granted by the Children’s Court. In these cases the child is in the care of the CEO (Chief Executive Officer) of the Department for Child Protection, who has parental responsibility.
      
      
   2. a Family Court decision made in the favour of a Grandcarer under a Guardianship Order, or as a result of an application for a Parenting Order. In these cases, the grandparent assumes parental responsibility for the child(ren).
      
      
2. Informal care - informal placements tend to occur as the result of an actual or implied agreement between the Grandcarer(s) and the parent(s). For example, when:
   
   
   1. the grandparents and parent(s) have made their own arrangements regarding the care of children, without going to court.
      
      
   2. an emergency or temporary placement ends, but the parent(s) agree to allow the child(ren) to continue to live with the grandparents.
      
      
   In both of these cases the child’s parent/s are the legal guardians and continue to have parental responsibility for the child(ren), while the Grandcarer is responsible for their day-to-day care.

The Family Court of Australia

IMPORTANT!
As any Family Court action potentially represents a substantial restriction, or termination, of parental rights it is strongly recommended that independent legal and/or other advice is sought to plan for any consequences that may follow such action. 

The Family Court of Australia strongly advises Grandcarers who have assumed care of their grandchildren through 'informal' processes, to try and get a written agreement in place with the parent(s) to help clarify the arrangement and assist if any problems should arise in relation to schooling, health care and other matters. Written agreements can be formalised and made legally binding by applying to the Family Court for Consent Orders. A Consent Order will help affected Grandcarers justify exemption from participation requirements under the Australian Government Welfare-to-Work provisions (see the Guide to Social Security Law).

The Family Court also points out that if an agreement cannot be reached with the child(ren)’s parent(s) a Grandcarer can, as “a person concerned with the care, welfare and development of the child”, apply for a specific type of Parenting Order, such as a Residence Order.

While these courses of action may be legally possible, our research has shown that Grandcarers are often reluctant to start this type action because the parents have threatened to remove the child(ren) to prevent loss of income, such as from Parenting Payments.

The Family Court of Western Australia
Unlike all other States and Territories, Western Australia has its own State Family Court.  More information about the parenting dispute resolution process in WA, as well as contact details, can be found at the Family Court of Western Australia website under > Resolving Your Dispute > Parenting.

Legal Advice
Before undertaking any course of action that involves legal or financial matters it is very important that you seek independent advice that takes into account your individual situation.

Information on low-cost, or no-cost, legal advice and services is available from the Murdoch University Guild website under > education & welfare > legal advice.

Types of community based legal services that are listed and described include:

• Legal Aid Information Line: 1300 650 579
• Legal Advice Bureau (LAB): 1300 650 579
• Community Legal & Advocacy Centre (CLAC): 9202 1688 
• Southern Communities Advocacy, Legal and Education Service (SCALES): 9528 6077 
• Sussex Street Community Law Service: 9470 2676 
• Federation of Community Legal Centres: 9221 9322 
• Citizens Advice Bureau: 9221 5356

General information about Family Law matters
See the ‘Family Law for Grandparents’ package under Grants > Grant Products > 2000/2001 on the Law and Justice Foundation website. Or, alternately see the ‘Legal Matters’ section on the Grandparents Raising Grandchildren page on the @aboutseniors website.

TIP:
A full list of Community Legal Centres (CLCs) operating in Western Australia is provided on the Community Legal Centres Association of WA website.

Pro bono legal advice is also available to the general public at the Parkway Legal Advice Centre Inc, which is run out of the University of Western Australia as part of its law program. The Centre can be contacted at 9380 3668, or you can visit the website.

State Government Systems

TIP:
Take help when it is offered. That is, if a State Government Department offers to organise a professional service (e.g. counselling) for you chances are there will be a long waiting list for that service. So, if you do not need the help now you probably will once you get to the top of the list!

The following information is provided as a general overview only. More detailed information about the various State Government Departments is available from their respective websites.

The Department for Child Protection (DCP) has particular statutory responsibilities under the Children and Community Services Act 2004.  If the CEO receives information that raises concerns about a child's wellbeing, the CEO may make inquiries necessary for determining whether action should be taken to safeguard or promote the child’s wellbeing.  The CEO can cause an investigation to be conducted to find out whether the child may be in need of protection because of abuse or neglect.  Taking intervention action may involve the Department making an application to the State Children’s Court for a Protection Order on behalf of a child. In accordance with the legislation, the CEO may:

• make payments to a person in relation to the care of a child when the child is in a placement arranged by the Department; and/or
• provide social services if appropriate.

In keeping with this role, the Department:

• is the funding body for all foster care programs in Western Australia;
• through its Fostering Services unit, is responsible for the recruitment, assessment and training of Departmental foster carers and for the central registration of Departmental foster carers.
• through its local district offices, is responsible for the assessment and training of relative foster carers and arranging ongoing supervision and support to registered general and relative foster carers and their families.
• in collaboration with the Departments of Education and Training; Housing and Works; Corrective Services and Police may provide intensive support to parents whose children are engaging in antisocial behaviour, truanting from school or criminal behaviour.

Relative Foster Carers:
Where the Department for Child Protection places the child with a Grandcarer, the grandparent must be assessed and registered as a relative foster carer in accordance with the Children and Community Services Regulations 2006 Section 4. Grandparents who are registered foster carers receive the Foster Care Subsidy, training and other supports provided by the Department. The Department also visits the child regularly and monitors the placement to ensure the child’s ongoing safety and wellbeing.

The assessment process for general and relative foster carers involves:

• a criminal record check
• a Working With Children check, and
• an assessment based on competencies (detailed in the Regulations) and preparation training

Up-to-date telephone contact details can be found at: http://www.community.wa.gov.au/DCP/ContactUs/Contact+Us.htm

The Department for Communities (DFC) is responsible for integrating a range of government and non-government functions and services to strengthen and support the wellbeing of children and young people, seniors, women, carers, and people from culturally and linguistically diverse backgrounds. Because of its coordinating role, it also functions under a number of different Acts and Regulations and receives funding for services under specific funding legislation.

In addition to its work with specific communities, the Department incorporates strong support for children and families through:

• practical on the ground support for delivery of children's services
• a range of universal parenting programs
• child care licensing
• children services policy development

Up-to-date telephone contact details for parenting information, support and services can be found at: http://www.community.wa.gov.au/DFC/Communities/Parents/

• Allen, R. (2002). Grandparents as carers: A look at the situation faced by grandparents who are raising their grandchildren on behalf of the children's parents. Perth, Western Australia: KidLink.
• Department of Human Services (2003). Public parenting: A review of home-based care in Victoria. Melbourne, Victoria: Victorian Government.
• Families Australia. (2007). Grandparenting: Present & Future. (Family Issues Series No. 2). Barton, ACT: Families Australia.
• Fitzpatrick, M. (2004). Grandparents raising grandchildren: A report commissioned by the Hon Larry Anthony Minister for Children & Youth Affairs (SA17). Melbourne, Victoria: COTA National Seniors.
• Grandfamilies:A Resource Guide for Western Australian Grandparents Raising Grandchildren. (2005) (2nd ed.). Perth, Western Australia: Office for Seniors Interests and Volunteering.
• Horner, B., Downie, J., & Wichmann, H. (2005). The Intergenerational Response Against Drugs (TIRAD): A needs specific intervention for grandparents parenting grandchildren where the parents have substance abuse problems. A report to Wanslea Family Services and Community Vision Incorporated. Bentley, Western Australia: Centre for Research into Aged Care Services, School of Nursing and Midwifery at Curtin University of Technology.
• Mason, J., Falloon, J., Gibbons, L., Spence, N., & Scott, E., (2002). Understanding Kinship Care. A report on a research project undertaken by The University of Western Sydney and the Association of Childrens Welfare Agencies. Haymarket, New South Wales: Association of Childrens Welfare Agencies.
• Orb, A., Davey, M., & Henderson, S. (2004). Perceptions of grandparents as primary caregivers of their grandchildren. Bentley, Western Australia: Centre for Research into Aged Care Services, Curtin University of Technology.