Chapter 6
Barriers in acquiring legal recognition
6.1
There is no data on the number of informal grandparents raising
grandchildren in Australia. One research study has estimated that the ratio of
informal to formal kinship carers is about three to one.[1]
However, witnesses who gave evidence to the inquiry considered that the ratio
is four to one or higher.[2]
In either case, there are a significant number of grandparents raising their
grandchildren without legal recognition.
6.2
The legal status of grandparents raising grandchildren is important for
a number of reasons, including: to facilitate the return of children to their
grandparents care (when removed by the birth parent(s)); the ability to
exercise parental responsibilities (decision‑making in relation to
education, health or travel issues); and as a determinant of the grandparents'
ability to access supports and services.[3]
Wanslea Family Services Inc. (Wanslea) submitted, for example:
[The inability to sign consents] can present significant issues
when attempting to access health services. It also means that the grandchildren
cannot be included on their grandparents' Medicare card or private health
insurance, representing a further barrier to accessing health services...[T]hese
children often arrive with additional health and support needs due to their
early experiences, and not being able to access health services increases their
vulnerability and poor long-term outcomes.[4]
6.3
COTA Australia similarly submitted:
[A lack of formal status] means that grandparents are not
eligible for financial assistance and children do not have the security of
knowing they are in a permanent relationship. The lack of a formal order can
also restrict [grandparents'] access to other support services[.][5]
6.4
For various reasons, however, many grandparents cannot, or choose not
to, formalise care arrangements for their grandchildren.[6]
For example, Dr Caroline O'Neill from Permanent Care and Adoptive Families gave
the following evidence:
[A] fairly typical scenario for how people get into
non-statutory care is that the police or some other organisation will ring a
grandparent or other relative or neighbour or friend or whoever and say, 'We
have these kids here, can you come and take them?' Of course you are going to
take them. In that moment of taking them, you usually lose any possibility of
statutory status. In Victoria, for instance, the [Department of Human Services
(Vic)] will say the children are now safe so we do not need to go to court; we
do not need to register these people formally and therefore they will not get
any support at all.[7]
6.5
The three barriers to acquiring legal recognition examined in this
chapter are:
-
financial constraints, particularly where the grandparents do not
receive Legal Aid;
-
lack of knowledge regarding legal rights and the legal system;
and
-
an unwillingness to exacerbate family tensions by initiating legal
proceedings.
6.6
Participants in the inquiry commented on these three themes, focussing
on the Family Court of Australia, Family Court of Western Australia and the
Federal Circuit Court of Australia (family law courts) jurisdiction, as well as
the state and territory courts which are empowered to grant care and protection
orders (Children's Courts, Youth Courts and Magistrates Courts).
Financial constraints
6.7
Submitters and witnesses argued that financial constraints prevent some
grandparents from formalising care arrangements for their grandchildren,
particularly where the grandparents cannot access Legal Aid or afford
other legal assistance and representation.
6.8
National Legal Aid (NLA) and Gosnells Community Legal Centre Inc.
(Gosnells) highlighted two primary reasons why these grandparents require
professional legal services:
-
for advice regarding whether a care and protection order or a
Parenting Order/Parenting Plan[8]
is in the best interests of their grandchildren (especially where the children
have complex needs); and
-
for general information, advice and representation.[9]
6.9
Further, the Federal Circuit Court of Australia (Federal Circuit Court),
which deals with the vast majority of family law parenting disputes, noted that
grandparents raising grandchildren might:
...have difficulty in securing an order in the Court, [particularly]
if they have to make an application without assistance or legal representation.[10]
Legal Aid
6.10
Participants stated that grandparents raising grandchildren cannot
access the professional services provided by state and territory Legal Aid Commissions
(LACs) due to prohibitive eligibility criteria and the prioritisation of birth
parents' grant applications.[11]
Eligibility criteria
6.11
LACs provide legal assistance to disadvantaged people but, to qualify
for legal representation, an applicant must first satisfy a means and merits test,
as well as meet the relevant commission's guidelines.[12]
6.12
Submitters and witnesses maintained that grandparents often fail the
means test 'because of the assets that they have, for example a family home
against which they could borrow'.[13]
NLA noted that, in such circumstances, the grandparents can still access the
LAC's free services (such as the Family Law Duty Lawyer Scheme, and advice or
minor assistance from an LAC office or outreach service).[14]
The Department for Child Protection and Family Support (WA) advised that
it also exercises a role in supporting grandparents who have not obtained a
grant of Legal Aid:
[T]he department's role at times is to support grandparents
and other carers to access and apply for parenting orders through the Family
Court. We would step in quite formally there, write to the Family Court,
confirm our support of that arrangement or not and we would stay involved
in a case management sense, facilitate access to some practical and emotional
support [for] those carers. But we are not funded—and we are not a legal
provider—to facilitate access to legal representation.[15]
6.13
Grandparents For Grandchildren SA Inc. described the means test
as 'harsh', submitting that grandparents raising grandchildren must sometimes
liquidate assets to finance legal proceedings. Further:
The period for finalisation of a custody case can take as
long as [two] years or more and may result in destitution for the grandparents,
with no funds remaining to purchase [the] necessities of life.[16]
6.14
The Mirabel Foundation similarly commented on how a LAC's decision not
to make a grant of Legal Aid adversely affects grandparents who raise their
grandchildren:
[It] means re-mortgaging their home. It means downsizing. It
means going back to work. It means sometimes hundreds of thousands of dollars
in legal representation costs, which is something that of course [the carers]
have not planned for but which obviously impacts their ability to then parent
their grandchildren.[17]
6.15
The Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd (ATSILS Qld)
opposed compelling grandparents to use their income or savings on legal
services:
Assistance should be available to grandparents across the
board–or at the very least (for those above the means test) with minimal
financial contribution required.[18]
6.16
Community Legal Centres NSW and The Aged-care Rights Service Inc. (TARS)
indicated that contributions toward the cost of legal proceedings could still
render those proceedings unaffordable for some grandparents raising
grandchildren (particularly when Legal Aid grants are exhausted).[19]
A representative from TARS added:
We have had desperate calls from people whose funding grant
has run out, and so [has] the solicitor, because they cannot afford to pay for
the rest of it. And that is usually [at] the most critical time.[20]
6.17
Participants called for state and territory governments to review the
eligibility criteria for Legal Aid,[21]
with the Commonwealth assisting where possible,[22]
to enable grandparents to access professional legal services when seeking to
formalise care arrangements for their grandchildren.
Prioritisation of birth parents' grant
applications
6.18
In addition to eligibility criteria, participants indicated that grandparents
raising grandchildren are prevented from accessing Legal Aid by the
prioritisation of birth parents' grant applications. UnitingCare Tasmania
reported that some grandparents:
...noted the unfairness of a system that provides Legal Aid to
parents with addictions or mental illness to regain custody or access while the
[grandparent], who in their own opinion, is 'saving' the grandchild/ren from
harm, is deemed ineligible for Legal Aid.[23]
6.19
A few organisations–The Centre for Excellence in Child and Family
Welfare Inc. and Mission Australia–remarked on the behaviour of birth parents
who receive Legal Aid and who intentionally prolong the legal process at great
expense to the grandparents.[24]
6.20
NLA acknowledged that 'decisions about whether or not to make a grant of
aid are...made in the context of competing priorities for limited funds'.[25]
Acknowledging this situation, the Shoalcoast Community Legal Centre Inc. (Shoalcoast
CLC) noted that there are no easy solutions to address the demand for, or allocation
of, limited Legal Aid funding.[26]
6.21
However, a NLA representative indicated that the merit of ongoing
funding will be reviewed at all stages in the proceedings: 'so, although it may
well be the case that a parent is funded at the outset, over time Legal Aid
will continue to consider the appropriateness of that funding'.[27]
6.22
In relation to Aboriginal and Torres Strait Islander families, ATSILS
Qld advised that it too is sometimes constrained in the provision of legal
services by a conflict of interests. However, similar to the North Australian
Aboriginal Justice Agency (NAAJA) in the Northern Territory,[28]
there are few alternate providers. ATSILS Qld highlighted the effects of a lack
of access to legal services, including: birth parents not agreeing to consent orders,
or agreeing without fully understanding the implications of the orders; and the
need for grandparents raising grandchildren to pursue contested Parenting
Orders.[29]
Legal assistance and representation
6.23
Submitters and witnesses argued that the affordability of legal
assistance and representation is a key barrier preventing some grandparents from
formalising care arrangements. Without a grant of Legal Aid, these costs can be
significant and/or prohibitive.[30]
Mr John Ward, grandparent, described legal costs ranging from $3,000 to
$165,000 and the example of one grandparent who could not afford to take on the
care of a grandchild for such reasons:
One gentleman rang me one night from up on the north-west
coast in tears. He had another grandchild who wanted to come and live with him,
but he said he could not afford the court costs. I said, 'Just fill out your
paperwork, and you'll get the large sum of $28 per week', which was the same as
the rest of [the] grandparents were received at that particular time.[31]
6.24
Wanslea submitted:
Even though [the grandparents] might own some key assets,
such as their home, they do not necessarily have ready access to cash. Further,
caring for their grandchildren has already placed a significant burden on their
finances. The result is that legal services are unaffordable and
inaccessible to grandparent carers in attempting to secure the long-term safety
and care of their grandchildren.[32]
6.25
In one submission, a grandchild observed that some grandparents raising
grandchildren pursue legal proceedings despite the immense cost:
[G]randparents have had to go into large amounts of debt, who
were in a good position going into retirement, but have then had to go into
debt, sell businesses, mortgage houses to be able to pay for the legal
fees...Yeah my Nana's had to do that.[33]
6.26
An officer from the Department for Child Protection and Family Services
(WA) noted that there is a wide continuum of experiences where some grandparents
raising grandchildren incur greater legal costs than other grandparents who
provide care to their grandchildren:
[W]e have a combination of experiences. There are some that
are quite smooth, they are quite quick and they are not contested. We have
other scenarios where, with what starts as a clear direction around a parenting
order, as the family become more involved in that process, our department or
other services become more involved in the family and other factors come into
play and, in fact, the parenting order might not be the right strategy. It
might be that care and protection orders may need to be considered and
therefore the Family Court would cease and we would come into the Children's
Court around a care and protection matter. There are a range of reasons that
that process for a parenting order can be delayed and take considerable time.[34]
Lack of knowledge regarding legal rights and the legal system
6.27
Participants in the inquiry argued that grandparents are also prevented
from formalising care arrangements by a lack of knowledge regarding their legal
rights and the legal system. Submitters and witness indicated that grandparents
require access to information and advice to successfully navigate the system(s),[35]
especially where grandparents self-represent in proceedings,[36]
proceedings involve child protection authorities or proceedings involve more
than one jurisdiction.
Self-representation
6.28
The inability to afford professional services can result in grandparents
raising grandchildren acting as self-represented litigants in legal proceedings.
Self‑representation involves many challenges which, the committee heard,
can disadvantage the grandparents and, ultimately, the children for whom
they care. Gosnells considered that self-representation by grandparents raising
grandchildren is unjust:
These clients are often stressed from the responsibility of
raising young children and dealing with ongoing conflict in their family. They
are physically exhausted from caring for children while often dealing with
their own health problems associated with advancing age. It is unjust that they
should also have to initiate [family law court] proceedings without legal
assistance and representation.[37]
6.29
NLA highlighted that self‑represented litigants must 'prepare,
file, and negotiate complex and/or daunting legal proceedings either on
their own or with very limited legal assistance'.[38]
6.30
Mr Patrick Mungar from Gosnells considered that community legal centres
provide the most cost effective way to support grandparents raising
grandchildren who commence proceedings in the family law courts:
In most cases the application will not be opposed. We are not
talking about something which will result in a full-blown trial, but it would
require some expert knowledge to draw the documentation in a way which would be
acceptable to the court.[39]
6.31
A legal practitioner representing Shoalcoast CLC gave evidence regarding
the assistance she currently provides to grandparents, to draw documentation in
the care and protection jurisdiction:
I am particularly focusing on the care and protection [jurisdiction]
at the moment, so that is advising family members who are not parents how to
fill in an application for leave to be a party to the case and how to do an
affidavit to go along with that and so forth. It is not ideal; representation
is better. But it is something. There is not necessarily a lot of free legal
advice services out there that would even be particularly familiar enough with
the Children's Court to be able to give that advice.[40]
6.32
The Aboriginal Family Violence Prevention and Legal Service Victoria (AFVPLS Vic) suggested that self-represented grandparents
raising grandchildren might not be presenting the best evidence to the courts:
It is difficult for the Family Court of Australia to
discharge its duty to make decisions in the best interests of the child
(particularly Aboriginal children) when it is limited to the evidence raised by
unrepresented parties. The court's role is also hampered where it is
unable to avail itself of the evidence and input from grandparents who have key
cultural knowledge because grandparents are unaware of their right to
participate in proceedings, or are forced to appear without legal
representation due to legal aid funding limitations.[41]
6.33
Both Tangentyere Council and the AFVPLS Vic advocated the need for courts
to better recognise Aboriginal and Torres Strait Islander grandparents raising
grandchildren, with the latter suggesting the implementation of culturally
appropriate court procedures: 'there is no Aboriginal specific list in the
Children's Court of Victoria (Family Division) or the Family Court of
Australia'.[42]
Proceedings involving child
protection authorities
6.34
Participants described specific barriers to acquiring legal recognition,
which arise from proceedings involving child protection authorities, such
as obtaining standing as a third party. The Mirabel Foundation explained that
grandparents raising grandchildren become involved in the care and protection jurisdiction:
...when the department has a perspective, the parents have a
perspective and the grandparents feel that the magistrate is not hearing the
whole story...So they become a party to proceedings, if they are aware of the
fact that they can do that.[43]
6.35
However, Shoalcoast CLC noted that becoming a party to proceedings generally
requires the leave of the court, an application for which might or might not be
covered by a grant of Legal Aid. Consequently:
Many grandparents...remain non-parties or unrepresented in
these proceedings, despite having a genuine concern for the welfare of the
child, and are hence essentially reliant on the hope the [Department of Family
and Community Services (NSW)] will support and recommend them to be the child's
carer.[44]
6.36
The Law Council of Australia noted that the involvement of child
protection authorities generally renders grandparents 'eligible for legal
assistance funded by the relevant state welfare authority when in court', so:
Financially disadvantaged grandparents may have no choice but
to wait for departmental intervention before they can seek appropriate orders
to effectively care for their grandchildren.[45]
6.37
However, participants stated that grandparents in informal care
arrangements are often influenced by child protection authorities to formalise the
arrangements in the family law courts.[46]
Gosnells explained that this occurs when the authorities decide not to continue
with proceedings in the care and protection jurisdiction:
We have seen a number of situations where [the Department for
Child Protection and Family Support (CPFS) has] been involved with the family
and where child protection orders have been in place for some time. The grandparents
are told by the CPFS that they no longer consider the children to be in need of
protection. The grandparents are then referred for legal advice and assistance
to apply for Parenting Orders in the Family Court of WA. Sometimes there is
pressure on the grandparents to commence proceedings in the Family Court as
CPFS wish to withdraw from the Children's Court matter but insist that
Parenting Orders be obtained so that the status quo continues. Grandparents can
find [the] transition from one jurisdiction to another...quite confusing. They
are often not aware that there are two separate pieces of legislation and two courts
which can make decisions about children.[47]
6.38
Gosnells highlighted that the formalisation of care arrangements can
affect grandparents' entitlement to financial supports and services:
In some instances where child protection orders are in place,
grandparents do receive financial support from the state government. But when
CPFS forms the view that the children are no longer in need of protection and
propose to withdraw from the legal proceedings by not pursuing further
protection orders, there is a negative impact for the grandparents because the
financial support is withdrawn upon the grandparents assuming full parental
responsibility for the children.[48]
6.39
More broadly, Mrs Shirley Fitzthum made the same point:
My child came to me through [CPFS] and I had him for six
months under their ruling. I also had his sister at the time. The [CPFS] then
came to me and said, 'Look, things are going really good. I think you should
apply to the Family Court and get a parenting order, and we will support you to
do that.' I did—I got the order—and then the [CPFS] said, 'You're nothing to do
with us anymore.' None of their support was available after that; we were off
their books.[49]
6.40
Ms Kiraly highlighted that regardless of the supports and services
available to formal grandparents raising grandchildren, some grandparents prefer
to remain in informal care arrangements:
The vast majority that are outside the statutory system have
the same characteristics—parents with substance dependency, mental health
issues and so on. Whether all would want to be inside the statutory system is
another question. I have heard one or two say, 'Life would have been a lot
easier with a proper allowance,' when they are living in poverty. On the other
hand, they also say, 'From what I hear about going in and out of the courts and
fighting through the courts, I am glad I did not have to deal with that.'[50]
6.41
In addition to these matters, Mr Matthew Strong from the NAAJA indicated
that child protection authorities might not be amenable to resolving care
arrangements independent of the legal process:
Senator MOORE:...[T]here is no process in the Northern
Territory where that can be worked out in a face-to-face discussion? I just
want to see whether we could cut through the legal aspects, whether, on an
issue such as this, there is any ability for a conciliation as opposed to an
arbitration.
Mr Strong: There is some room for that in the Act, but
it has not been enacted, I understand. That would be preferable. We do try and
have meetings with the [Department of Children and Families (NT)] and the family,
but ultimately the say as to whether that goes ahead is the department's. With
its strict guidelines it is difficult, sometimes, to get around that.[51]
Proceedings involving more than one
jurisdiction
6.42
In evidence, legal representatives indicated that one challenge for
grandparents formalising care arrangements is navigating the complexities of
the legal system. Ms Meredith McLaine from the Shoalcoast CLC explained that a
key cause of this complexity is the 'interplay between...the federal family law
and the state care and protection jurisdictions'.[52]
6.43
In its submission, NLA illustrated how inter-related legal proceedings
can take place in both federal and state/territory jurisdictions, as well as
multiple courts:
[I]n the family law court for "live with" orders;
in the state/territory local court for personal protection orders; in the state/territory
care and protection jurisdiction court; and in a state/territory court with
criminal jurisdiction if charges have been brought as a result of an alleged
incident relevant to the issue of whom the child should live with.[53]
6.44
Shoalcoast CLC noted:
There are no easy solutions to this complexity, which arises
partly from the nature of our existing federal system (which separates the
relevant laws for children between the Commonwealth family law and State child
protection regimes), and partly from the inherent reality that each family and
each case is distinct.[54]
6.45
In addition, the NAAJA highlighted that there is a degree of complexity
incurred in cross-state matters, where two or more sets of child protection
laws apply:
Senator MOORE:...[Case] law is exacerbated by being
between two states, so you have got the added complexity of Western Australian
and Northern Territory jurisdictions.
Mr Strong: Yes, that is correct.
Senator MOORE: Do you have many of those in your
service because of the nature of your geography?
Mr Strong: We have matters with issues like that with
family law being a federal service with relocation. So, with the Northern
Territory being quite remote, people like to relocate fairly regularly which
causes issues with children. We have some cross-border child protection matters
with Western Australia where people are coming from, say, Broome to Darwin.
Senator MOORE: Do you have issues with Queensland with
that area down on the border: Tennant Creek across the border in Queensland?
Mr Strong: I have only had the one matter that has had
an issue with Queensland.[55]
6.46
In recent years, there have been a number of research projects and inquiries
directed toward enhancing the family law and related systems' responses to
various issues (such as: child abuse, family violence and family breakdown).
NLA noted that identified issues are the subject of ongoing collaborative work
between the Commonwealth, states and territories.[56]
6.47
In particular, in August 2009 the Standing Committee of
Attorneys-General (now the Standing Council on Law and Justice) agreed to
explore options to improve co-operation between the federal family courts and
the state/territory child protection authorities.[57]
NLA submitted:
The current collaboration between the federal family law
system and the state and territory based child protection/child welfare
authorities about sharing information such as experts reports, and streamlining
processes across the systems, can be expected to ultimately benefit the
children caught up in the family law and child protection systems and those who
are endeavouring to provide care for them including grandparents.[58]
Proposed solutions to remove financial
and knowledge barriers
6.48
Submitters proposed a range of solutions to remove the financial and
knowledge barriers which inhibit or prevent grandparents from formalising care
arrangements, such as: amending the Legal Aid eligibility criteria;[59]
and funding a dedicated seniors' lawyer in each LAC.[60]
Other participants focussed on alternate solutions: a greater role for
community legal centres and enhanced assistance in navigating current systems.
Community legal centres
6.49
Community legal centres and Aboriginal and Torres Strait Islander legal services
described their current programs, which enable, or are targeted toward,
the provision of legal assistance to grandparents raising grandchildren.
At the same time, the committee heard that these programs do not have long-term
financial security.[61]
6.50
NAAJA, whose practice comprises approximately 40 per cent civil law
(including family and child protection law), gave the following evidence:
Our entire family law practice is reliant on additional
funding [beyond core operation funding]. At this stage the additional funding
ceases on 30 June 2015. That will mean that we will need to cease our
family law service entirely...[W]e will have to make drastic changes to the
delivery of our legal services to Aboriginal people. This will be disastrous in
terms of the ability of Aboriginal people in the Top End to access justice.
There is nobody else who can fill the gap. NAAJA is the only general civil law
service that is available to people living in remote communities.[62]
6.51
Ms Priscilla Collins, Chief Executive Officer, noted that, in 2013‑2014, NAAJA
delivered family law and child protection legal services to over 620 Aboriginal
and Torres Strait Islander people (including grandparents raising grandchildren),
adding:
The impact of [the] cuts also needs to be understood in light
of increasing demand for our services. The volume of work required of NAAJA to
meet the legal needs of Aboriginal people in the Top End continues to grow, in
part by virtue of demographics, but also because of changes to law and policy
that impact particularly on Aboriginal people.[63]
6.52
Ms McLaine from the Shoalcoast CLC stated that its special program
funding, for the provision of family law services to Aboriginal and Torres
Strait Islander communities, is not certain beyond 2015:
[W]ithout me and another solicitor also in a part-time role
focused on this, and without the new Aboriginal family law support worker
position we created...and if the funding goes on top of all the generalist legal
work the service does for the whole South Coast, it will be extremely hard to
maintain that level of help and special knowledge.[64]
6.53
In Perth, Gosnells told the committee that it has already lost the
federal funding which it used to assist its grandparents raising grandchildren
clients:
All we are able to do at present is give legal advice to
them. Previously, we often provided more time than was funded as we
knew the clients could not get legal aid, so we assisted them with preparing
consent orders or applications to the Family Court. We are not aware of how
many other community legal centres are able to assist with these matters, but
we understand that it would only be minor assistance and not include court
representation.[65]
6.54
NLA commented:
It is very often the initial paperwork that is the huge
challenge for grandparents. If there were some way for there to be exploration
of the potential, for example, for warm referrals into legal aid commissions
and other agencies like community legal centres for the purpose of at least
that initial preparation, I feel confident that would make a beneficial
difference to grandparents.[66]
6.55
Mrs Sue Brooks concurred that the assistance provided to her by a local
community legal centre was 'marvellous':
I got legal support because we were not sure what to do. I
wanted to make it so that my grandson was safe so that his mother could not go
to school, drugged out of her brain or whatever, and say, 'That's my son and
I'm taking him,' because I would not know where he is. So I went and saw
[the community legal centre] and I simply told the man the situation.
I asked, 'What do I do? Where do we go? How do we do it?' He gave me all
the information I needed. It was marvellous. He wrote all that was required.[67]
Enhanced assistance in navigating
current systems
6.56
Shoalcoast CLC submitted that formalising care arrangements in New South
Wales is not practicable for grandparents however, the relevant systems and
authorities–schools, medical providers, Centrelink and other government
agencies–have adapted their policies to recognise informal care arrangements. In
its view, attention should focus on assisting informal grandparents raising
grandchildren to navigate these systems:
The necessary official policies and supports do exist, but
the process of finding these can be problematic. Therefore there may be a need
for better streamlining of inter-agency services for grandparents and other
informal carers, and perhaps a central contact point or service which can
coordinate the necessary affairs on a carer's behalf.[68]
6.57
A member of the Aboriginal Advisory Group of Community Legal Centres NSW
stated that informal care arrangements are often functional, and questioned why
there should be any need for grandparents to alter their legal status.[69]
Other members of the group denounced the need to exchange informal care status
for government financial assistance, arguing that the current system
discriminates against Aboriginal and Torres Strait Islander grandparents
raising grandchildren:
Most 'grandparent raising grandchildren' arrangements, in Aboriginal
communities, are informal...For many families, formalizing care arrangements is simply
not worth the complications.[70]
Unwillingness to exacerbate family tensions by initiating legal proceedings
6.58
As previously discussed, commencing or even joining legal proceedings
against the birth parent(s) can generate family conflict.[71]
The removal of a grandchild from his/her parent(s) by the grandparents and the
prospective loss of entitlement to government financial assistance, for
example, can also create, or exacerbate, this tension.
6.59
Some participants suggested ways in which this aspect of intra-family
relations could be better managed, to assist grandparents to formalise care
arrangements, primarily through a more active role for child protection
authorities.
6.60
The Federal Circuit Court referred[72]
to a report published jointly by the Australian Law Reform Commission and New
South Wales Law Reform Commission, which acknowledged 'the powerful case for
child protection services having more involvement in family court proceedings
where they investigate allegations of child abuse and refer grandparents to
family courts for orders'.[73]
Consistent with this view, the commissions recommended:
Recommendation 19–3 Where a child protection agency
investigates child abuse, locates a viable and protective carer and refers that
carer to a family court to apply for a parenting order, the agency should, in
appropriate cases:
(a) provide written information to a family court about the
reasons for the referral;
(b) provide reports and other evidence; or
(c) intervene in the proceedings.[74]
6.61
NLA submitted that, where child protection authorities are involved, it would
be beneficial to the grandparents 'to be able to say that [the] child
protection authority is responsible for the decision‑making and the
action being taken'.[75]
Further, where the child protection authority concludes that someone other
than the birth parents should have the primary care of children, the child
protection authority should pursue Parenting Orders in favour of that person:
Such a response would:
i. Overcome the need for grandparents to initiate proceedings
against their own child in the federal family law courts jurisdiction/s.
ii. Obviate the need for representation of the grandparent in
the child protection proceedings;
iii. Remove or reduce the potential for further damage to the
grandparent/parent/child relationship because of any perception that the
grandparent was responsible for the removal of the child from the parent and
associated proceedings.[76]
6.62
Both NLA and the Women's Legal Service Tasmania added that, if this
approach were adopted, child protection authorities would need to be funded for
their additional role.[77]
Alternatively, as is the practice in New Zealand, child protection authorities could
fund the legal representation of informal grandparents raising grandchildren who
seek Parenting Orders.[78]
6.63
Ms Meredith Kiraly commented on the need for courts to adopt a more
inquisitorial approach 'where grandparents and parents are not pitted against
each other in the process'.[79]
Committee view
6.64
The legal status of grandparents raising grandchildren carers is
important, particularly for the recognition of grandparents' parental rights in
relation to grandchildren in care. For grandparents who seek formal
recognition, access to the family law and care and protection jurisdictions
should be guaranteed. However, the ability to access the courts can be hampered
by financial considerations.
6.65
The committee accepts that the provision of Legal Aid is necessarily
limited and subject to strict criteria but, as highlighted throughout the
inquiry, grandparents raising grandchildren are significantly disadvantaged.
The committee believes that the grandparents should receive legal assistance to
manage the care arrangements for their grandchildren (including information,
advice and representation in proceedings to formalise the arrangement). Such
assistance would have many benefits to the grandparents, such as helping to
preserve their limited income and assets for the raising of their
grandchildren. Accordingly, there is merit in governments exploring options for
the provision of legal assistance to informal grandparents raising
grandchildren.
6.66
Evidence presented to the committee highlighted that some community
legal centres and Aboriginal and Torres Strait Islander Legal Services (ATSILS)
are currently providing assistance to grandparents (in the form of information,
advice and document preparation). NLA acknowledged the value of this assistance.
The committee suggests that governments collaboratively consider dedicated
funding for community legal centres and ATSILS, to enable the better provision
of legal assistance to grandparents who have taken on the primary care of their
grandchildren.
6.67
Submitters and witnesses informed the committee that grandparents
raising grandchildren have difficulty navigating the legal system. This is
partially due to a lack of knowledge and also the complexity of the system. It
appears that this complexity particularly increases when matters involve
cross-jurisdictional issues. As noted by Shoalcoast CLC, this is an
inherent aspect of Australia's federal system with no easy solution. The
committee notes the current collaboration between Commonwealth, state and
territory governments to improve the interface between family law and child
protection systems. As part of this initiative, the committee suggests that
consideration should be given to reviewing, and developing if necessary,
information materials which identify and explain potential pathways for
grandparents who wish to formalise care arrangements for their grandchildren.
6.68
In recognition of the role, responsibilities and expertise of child
protection authorities, the committee considers that there is potential
for these authorities to exercise a greater role in the formalisation of care
arrangements for children who are being raised by their grandparents. It would
be useful for governments to investigate means by which grandparents could be
better supported in the family law jurisdiction, as well as in the care and
protection jurisdiction, including potentially an enhanced role for mediation.
6.69
In this regard, the committee notes also Recommendation 19-3 of the Australian
Law Reform Commission and New South Wales Law Reform Commission, which endorses
intervention by child protection authorities as a means of eliminating, or
reducing, one source of intra-family conflict. The committee suggests that
governments re-consider this recommendation.
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