Booklet 4: LEGAL ISSUES. Legal Issues. Grandparents for Grandchildren SA Inc

Transcription

1 Booklet 4: LEGAL ISSUES Legal Issues Grandparents for Grandchildren SA Inc

2 ISBN: Department for Families and Communities Reprinted: June 2008 Publication Number: GPG B024 The information contained in this publication is for general information purposes only and is not to be relied upon as a substitute for specific, professional advice. The information about financial assistance is intended as a guide only to payments available. Individual circumstances vary and you should obtain your own advice about whether or not you qualify under the relevant laws and criteria. The Government of South Australia makes no representation or warranty that the information is accurate or complete or will remain accurate and complete after the date of publication. The Government of South Australia has made reasonable efforts to ensure the information is accurate and current as at June 2008 but does not accept responsibility for any errors or omissions.

3 Booklet 4: LEGAL ISSUES 1 Contents Introduction 2 Australian Family Law 2 Parenting Plans 3 Parenting Orders 3 Legal Advice 3 Legal Aid 3 Family Dispute Resolution 4 Family Law Conferencing 4 Family Law Courts 4 The Youth Court 5 Care and Protection Matters 5 The Youth Court 6 Informal Relative Caregiver s Statutory Declaration 7 Access to a Child s Birth Certificate 8 Applying for Passports for Children 9 Making a Will 10 South Australian Community Legal Centres Contact Details 10 Legal Advice 10

4 2 Introduction Children s needs and best interests should be the first consideration in any separation or family breakdown. With this in mind, Australian family law and South Australian Child Protection legislation allows courts to consider the relationship between children and grandparents and other members of extended families and to consult them in determining what is in a child s best interests. Australian family law applies when there has been a family separation or divorce, and the parents or other family members wish to make plans for the children either voluntarily or with the help of a court. The parties to the court application are usually the parents of the child, and the dispute to be resolved is between them. Child Protection legislation in South Australia (and other states of Australia) applies when child protection authorities have concerns that a child has been harmed or is at risk of harm. The child protection authority may apply to the state court, for an order to secure the child s care and protection. In South Australia this court is called the Youth Court. The parties to the court application will usually be the child protection authority and the parent/s of the child; in this situation the dispute is between the state and the parent/s. The information in this booklet is also relevant to all relative caregivers that have taken on the responsibility for a child or young person. This booklet provides you with information about legal issues that you may encounter. For more information see: Booklet 1 General Information Booklet 2 Support for Families Booklet 3 Education, Parenting and Health. Australian Family Law Australian Family Law Courts can take into account: the nature of the relationship between a child and a grandparent the likely effect on the child of separation from a grandparent the capacity of the grandparent to provide for the needs of the child. Parents and courts are encouraged to make provision for a child to continue a relationship with grandparents by ensuring that appropriate time is built into the parenting order or plan. Sometimes a child s situation may be dealt with under the state legislation and Australian family law at different times, depending on the circumstances. These booklets have been designed to assist you to answer questions and provide information about issues you may face when raising your grandchild. Contact details have been provided for you to get in touch with the people that may assist you.

5 Booklet 4: LEGAL ISSUES 3 Parenting Plans A parenting plan is an agreement, in writing, made by the child s parent on any aspect of the child s upbringing. The plan can cover where the children will live, who they can see, their schooling, holidays, and religious and medical matters. It is up to the people involved to decide what goes into a parenting plan. For advice and information about Family Law, child protection and other legal issues, telephone the Legal Help Line , run by the Legal Services Commission. Parenting Orders All court orders made by Family Law courts about children are called parenting orders. Any person concerned with the care, welfare or development of a child can apply for a parenting order. Parenting orders can specify people other than parents who are to spend time with and communicate with the child, including grandparents and other family members. Anything that might be in a parenting plan can be the subject of a parenting order. From a Grandparent Scott has been living with his grandparents, Bill and Angela, for the last 13 years. They have a court order giving them guardianship of Scott. It was a long and expensive process to be granted guardianship but having the order has allowed Bill, Angela and Scott to make plans for the future like other families. Scott knows that he has a loving, stable and supportive environment to rely on. Legal Advice If you choose to apply for an order, this will involve costs. At a minimum this will include court filing fees and, if you are legally represented, your lawyer s fees. You may be eligible for legal aid, which can assist in meeting the cost of being represented in court. Legal Aid If you wish to apply for legal aid, you may do this directly with the Legal Services Commission or through a private lawyer. The Legal Services Commission will decide whether you are eligible for assistance by assessing your financial situation and considering whether your case meets legal aid guidelines. For example, your case must have a reasonable chance of success in the family law courts. It is important to submit a legal aid application as soon as possible to enable your eligibility to be determined before legal proceedings commence. Legal aid will pay legal fees only after the date on which legal aid is approved; any legal fees incurred before that date will need to be paid by you. All recipients of legal aid are also required to pay a contribution towards their legal fees. Depending on the extent of the anticipated legal fees, the Legal Services Commission may place a charge on any real estate owned by you to cover your contribution. If you do not qualify for legal aid, you can still obtain free advice from the Legal Services Commission.

6 4 Family Dispute Resolution Family dispute resolution is the term used in the Family Law Act 1975 for services that help people affected by separation or divorce sort out their disputes with each other. A common dispute resolution process is mediation. This is a process where people in dispute reach an agreement about an issue (eg parenting) without going to court. The role of the mediator is to guide the disputing parties through the process towards an agreement. If you would like additional information about family dispute resolution services, call the Family Relationships Advice Line on Family Law Conferencing Family Law Conferencing is a form of family dispute resolution run by the Legal Services Commission. It is an opportunity for the people involved in a conflict about a child s care arrangement to resolve the dispute. It allows the parties to identify and agree on their own solutions and avoids the stress and anxiety of going to court. To use the Family Law Conferencing program, at least one person involved in the dispute must qualify for legal aid. These can include the child/ren s mother, father, grandparent or other extended family members and, if the child/ren has their own solicitor, the child representative. The parties attend with their solicitors, who participate in the conference process. Issues commonly dealt with at conferences include who the child/ren will live with, who the child/ren will spend time with, other specific issues and child support matters. Not all cases will be suitable for a family conference, and the Legal Services Commission carefully screens all potential candidates for conferencing. Contact details: Family Dispute Resolution (FDR) Unit Legal Services Commission Wakefield Street, Adelaide SA 5000 Phone: (08) Fax: (08) Family Law Courts The Family Court and the Federal Magistrates Court both have power to deal with Family Law Act matters such as: orders on where a child lives, who a child spends time with and communicates with or other specific issues that might arise regarding a child s welfare (eg education, religion, medical matters) enforcement of court orders and issues of contravention location and recovery orders as well as warrants for the apprehension or detention of a child. The Family Court deals with the more difficult and complex cases. The Federal Magistrates Court deals with less complex matters, child support and all divorce applications. It is a good idea to seek legal advice if you are not sure in which court you should apply for orders. Once you have consented to the Federal Magistrates Court hearing your matter, you cannot withdraw and apply to the Family Court. The Federal Magistrates Court, however, can refer complex matters to the Family Court. Fees are charged for lodging applications, but it is possible to have the fee waived if you can demonstrate financial hardship.

7 Booklet 4: LEGAL ISSUES 5 The Youth Court The Youth Court deals with matters under state legislation. The court hears: trials and guilty pleas in criminal cases for youths under the age of 18 years, child protection applications and applications for adoptions of children. In addition there are three separate administrative branches, namely the court registry, the Family Conference Team, and the Care and Protection Unit. The registry deals with all matters referred into and out of the Youth Court. The Family Conference Team conducts family conferences for young offenders. The Care and Protection Unit conducts family care meetings for children at risk of abuse or neglect. Youth Court hearings, family conferences and family care meetings are conducted in both metropolitan and country regions. Care and Protection Matters The Care and Protection Unit (CPU) and the Youth Court both deal with matters concerning children at risk under the Children s Protection Act; these matters are brought to the CPU and the court by Families SA, the government agency with statutory responsibility for investigating and assessing situations of child abuse and neglect, and for arranging out-of-home care for children who cannot live with their parent/s. Family Care Meetings Family care meetings provide an important opportunity for family members such as grandparents, aunts, uncles, and cousins, to participate in making decisions about the future care and protection of children. Parents may be having significant problems caring for the child, possibly because of mental illness, drug and alcohol problems, or violence. The aim of the meeting is to make agreements that avoid matters proceeding to court if possible, or may include applications for court orders. When is a referral made? Referrals are made to the Care and Protection Unit by Families SA and the Youth Court. A referral is required before an application may be made by Families SA for a custody or guardianship order. It is the family s right to have such a meeting if they believe it would be useful. However, they are not obliged to do so and may prefer to seek alternatives. Who attends? The child, parents and other family members will usually be invited to attend the meeting. The child s views must be presented either by the child in person, or by a child advocate when the child is too young to participate or does not wish to attend. A cultural representative must be present for Aboriginal and Torres Strait Islander children. An officer from Families SA is required to attend, and others may be invited, including support persons for family members, and any person who has counselled or treated the child.

8 6 The meetings are convened by care and protection coordinators who will consult with family members about the time and place for the meeting, and who should be invited. The coordinator has the final say on who to invite, based on the child s best interests. On average, four family members attend family care meetings. Usually at least one or both parents attend and grandparents are often present. If a grandparent or other relative is listed on the referral form or nominated by another family member such as the child s parent, the coordinator will contact the relative either by phone or letter, to find out whether that person wishes to participate. Sometimes participation will be by phone link or by passing on views to the coordinator who relays them to the meeting. What decisions can be made? At the meeting, the coordinator helps the family understand the concerns held by Families SA for the child, and invites them to propose ways to tackle these concerns so as to keep the child safe. The aim is to give families the chance to come up with their own solutions. Families are entitled to private time during the meeting without any professionals present, to see if they can agree on proposals to care for and protect the child. Decisions can include where and with whom the child will live, contact arrangements, and any conditions such as supervision, support services to be provided to the child and family, undertakings by family members and by Families SA, and whether or not a court order is being sought. Family members who volunteer to assist with the care of the child for a short time, or in the long term, will be assessed by Families SA to make sure the arrangements are suitable for the child. If no decisions are made, or the plans are not complied with, Families SA may make an application to the Youth Court for a Care and Protection Order. Family Care Meetings can be challenging for parents and other family members. The meeting may provide a good opportunity for family members to make plans and negotiate arrangements with Families SA, and for parents to reflect on what they need to do for their children to remain in, or be returned to, their care. Grandparents and other relatives often express positive comments about the family care meeting, which may be the first time they have been fully informed about the situation for the child or children, and have had a forum to express their views. The Youth Court The Youth Court may make a number of orders in response to an application by the Crown on behalf of Families SA. The orders include an Investigation and Assessment Order (for 42 days with one extension of 28 days), Care and Protection Orders for 12 months, and Guardianship of the Minister orders until 18 years. There is also a provision for Guardianship orders to another person. This means that the court can make an order for a child to be in the guardianship of a family member such as a grandparent; however, the application must be made by Families SA.

9 Booklet 4: LEGAL ISSUES 7 Grandparents or other family members are not usually parties to the court applications and therefore cannot oppose the application or seek a variation of an order. There is, however, the right of interested parties to be heard. Where a member of the child s family, or person who has had the care of the child at any time, may apply to the Court to make a submission in respect of the child. If family members wish to apply to be joined as parties to a court application, or have other concerns about a court application, it is advisable to seek legal advice. Contact Details Care and Protection Unit 75 Wright Street, Adelaide SA 5000 Phone: (08) Fax: (08) careandprotection@courts.sa.gov.au Youth Court of SA 75 Wright Street, Adelaide SA 5000 Phone: (08) Fax: (08) youthcourt@courts.sa.gov.au Informal Relative Caregiver s Statutory Declaration If you are raising your grandchild or a relative s child informally on a full-time basis and are having trouble identifying your full-time care-giving status to State Government agencies you can complete an Informal Relative Caregiver s Statutory Declaration (the Declaration). The Declaration is a written statement made in the presence of an authorised witness (Justice of the Peace, Proclaimed Member of the Police Force, Notary Public or any Officer by law authorised to administer an oath or affirmation) that states that you are informally providing fulltime care to a relative s child or young person. The Declaration can be used as evidence to establish your care-giving status, which will assist to enrol the child in school, consent to medical and dental treatment and to access other State Government supports and services. From a Grandparent George has been caring informally for his grandson James for six months. At first, George sometimes found it difficult to establish his care-giving status to service providers. This led to James missing out on a school excursion because George was not authorised to provide the necessary consent. James school suggested that George complete an Informal Relative Caregiver s Statutory Declaration and provided him with the information he needed to fill it out. Since completing the Declaration, George has found it easier to establish his care-giving status to access services for James. He can consent to school-related activities, such as school excursions, and finds it much easier to access health services.

10 8 The Declaration does not have any effect on the legal custody of the child and does not affect the legal rights of the parents. The Declaration provides a consistent means to identify your care-giving role. Included in this publication are a Declaration and a Frequently Asked Questions Fact Sheet which provides more information about the Declaration. These documents are also available from the Department for Families and Communities ( and Services SA ( websites. There are lots of places you can obtain a hard copy of the Declaration, including Families SA offices and the Office of Grandparents for Grandchildren SA Inc at the Torrens Building, Room 18, Level 1, 220 Victoria Square, Adelaide. The Department for Families and Communities website contains a list of locations where you can obtain a copy of the Declaration. Grandparenting Keep up with your grandchildren s interests. As your grandchildren grow older, their interests will change. Take an interest in what they are doing. For example, listen to some contemporary music so that you can talk or ask questions about it. Access to a Child s Birth Certificate The Births, Deaths and Marriages Registration Office is responsible for maintaining registers of births, deaths and marriages in South Australia. It has an Access Policy which governs the access to certificates. All applications are considered against this policy, which exists to protect the privacy of individuals and the confidentiality of information held about them. Generally, grandparents are not entitled to access their grandchildren s birth certificates. However, where grandparents are providing informal care and are acting in a parental role, special consideration is given to their applications. Where the child s parents are not available or will not cooperate to give their authority for access, you should contact the Births, Deaths and Marriages Registration Office on (08) and ask for the Assistant Registrar (Applications). You will be asked the purpose for which you require the certificate and details of the residency arrangements which apply. You may be asked to complete an Informal Caregiver s Statutory Declaration and also to provide other evidence that the child is residing with you, such as Medicare and Centrelink cards with the child s name, or a letter from the school principal or a general practitioner confirming this. In addition, all applicants are required to provide proof of identity (POI) details. Details of the requirements for POI are listed on the certificate application form and on the Births, Deaths and Marriages section of the Office of Consumer and Business Affairs website:

11 Booklet 4: LEGAL ISSUES 9 Applying for Passports for Children There are laws governing the issue of passports to children. These laws are designed to protect children from abduction and to safeguard the rights of all people with parental responsibility for children. Before a passport can be issued, Australian law requires the written consent of all people with parental responsibility for the child. Usually, this will be the child s parents, unless their parental responsibility has been removed by an Australian Court. If you have exhausted all possible avenues and cannot obtain the consent of anyone with parental responsibility, and there is no court order permitting the child to travel internationally, a written request for special circumstances under section 11(2) of the Australian Passports Act 2005 may be made. In order to do this, you will need: a statement made on Form B8 or B9 in which you state why the necessary consent has not and cannot be obtained, and explain the special circumstances relevant to the application, and evidence of one parent s citizenship or permanent residency at the time of the child s birth, and the child s full birth certificate, and If you intend to travel overseas with the child in your care, it is advisable to apply for the child s passport at the earliest opportunity, ensuring there is at least two months allowed for processing. No firm travel bookings should be made until a decision on the issue of a passport is known. There is no guarantee that a passport will be issued to the child and, in the event of a refusal, the application fee is non refundable. It may be necessary to obtain a court order permitting the child to travel internationally. The Australian Passport Information Service (APIS) provides a telephone information service to callers inside Australia seven days a week. When you call your questions will be answered by trained and experienced staff. You can contact APIS on for the cost of a local call from 8am to 8pm weekdays and 8.30am to 5pm on weekends and most public holidays. Forms B8 and B9 may be completed (but not lodged) online by accessing Alternatively, you may complete and lodge a passport application at any Australia Post outlet. Any overseas travel for children and young people under the Guardianship of the Minister will require both Departmental and Ministerial approval. It is important to contact the Families SA Social Worker who is allocated to the child or young person as soon as possible about your intent to travel so that an approval process can begin, including processes involved in applying for a passport for the child or young person. the originals of all court orders affecting parental responsibility for the child. Further information is available in a brochure Children and parental consent available from the Australian Passports Office website or from any Australia Post outlet.

12 10 Making a Will A will is a legal document that says who will get your property and possessions when you die. Making a will is the only way to ensure that your assets will be distributed the way you want. There are a number of matters you should consider when preparing your will: your funeral arrangements the persons or organisations that you want to be beneficiaries of your estate the full names and current contact details of your beneficiaries your asset details, including bank accounts, insurance policies, investments and real estate. If you die without a will it may be more difficult and more expensive for your family to deal with your estate. It also means that you have no control over what happens to your property. By having a will you give legal force to your wishes, making sure that your property and belongings go to the people you choose. Your will must name an executor; this is the person who looks after your affairs when you die. If you wish to make your grandchildren the beneficiaries of your estate, you will have to consider who will be the trustee until they are old enough to inherit the estate. Beware of trying to write your own will, even with a do-it-yourself kit. Wills are legal documents that must comply with strict rules. Any mistakes may make your will invalid and it could become very costly for your family if they have to go to court to decide what you meant. For peace of mind, it is better to have your will prepared professionally. The cost of a simple will from a private lawyer will start at around $120. It may cost more if you have a complicated estate or you wish to make special arrangements for your grandchildren. The Public Trustee can prepare a will for free but you must name it as your executor, and they will charge a percentage of your estate to act as your executor. It is important that you take care when you prepare your will. You should be sure to explain the details of your estate and your family circumstances. This should help to ensure that your estate is distributed according to your wishes. To make a will, see a private lawyer or the Public Trustee on (08) or visit their website South Australian Community Legal Centres Contact Details Legal Advice Legal Services Commission Legal Help Line (free legal advice and information) Phone: (local call) Website: Family Law Duty Lawyers at the Family Court and Federal Magistrates Court Phone: or

13 Booklet 4: LEGAL ISSUES 11 Appointments can be made at these offices: Adelaide Wakefield St Adelaide SA 5000 Phone: Elizabeth Windsor Building Elizabeth Centre Elizabeth SA 5112 Phone: Holden Hill Tenancy 7, 560 North East Rd Holden Hill SA 5088 Phone: Mount Barker 18 Walker Street Mount Barker SA 5251 Phone: Noarlunga Ground Floor, Noarlunga House Noarlunga Centre SA 5168 Phone: Port Adelaide 306 St Vincent St Port Adelaide SA 5015 Phone: Port Augusta 13 Flinders Terrace Port Augusta SA 5700 Phone: Whyalla L1, RAA House 25 Forsyth St Whyalla SA 5600 Phone: Community Legal Centres Central Community Legal Service Shop 2, 59 Main North Rd Medindie Gardens SA 5081 Phone: Northern Community Legal Service 26 John St Salisbury SA 5108 Phone: Riverland Community Legal Service 8 Wilson St Berri SA 5343 Phone: South East Community Legal Service 9 Penola St Mount Gambier SA 5290 Phone: / From a Grandparent At 45 years old, Jane started caring for two grandchildren on a full-time basis due to the death of the children s parents. Jane loves her grandchildren and is committed to providing them with a happy, stable home. It has been a hard and long battle for Jane; she has lost many of her friends due to moving and differences in current lifestyles. She used to worry about what may happen to the children if she was no longer able to care for them. She has now spoken to a lawyer and has established a will so that her grandchildren are taken care of.

14 12 Southern Community Justice Centre 40 Beach Rd Christies Beach SA 5168 Phone: Welfare Rights Centre Torrens Building 220 Victoria Square Adelaide SA 5000 Phone: / Westside Community Lawyers Parks Community Centre Trafford St Angle Park SA 5010 Phone: Grandparenting Establish your own house rules (eg the amount of time your grandchildren watch TV and play their DVDs and what they can access on the Internet). Ask them to show you how to use the computer or program the DVD player, so that they can see you are interested and that you wish to be involved in all they do. Pt Pirie Office Phone: , Women s Legal Service 19 Market St, Adelaide SA 5000 Advice: / (toll free) Administration: Rural Women s Outreach Program Phone: / (Pt Augusta) Aboriginal Legal Rights Movement (ALRM) Phone: (08) Country Freecall: Website: Aged Rights Advocacy Service Phone: (08) Country Freecall: Website:

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16 This publication has been prepared jointly by: Grandparents for Grandchildren SA Inc This publication has been made possible through Improving with Age: Our Ageing Plan for South Australia, funds from a kick-start initiative. Our Commitment to the Environment This publication has been produced by an environmentally conscious, carbon neutral printer using internationally accredited processes and practices. It has been printed on recycled paper using vegetable based inks. To request additional copies of this publication, contact the Department for Families and Communities on (08) or visit the Department for Families and Communities website at The information in this publication can be provided in an alternative format or another language on request. Please contact (08)