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Grandparents as primary carers and the issue of parental responsibility

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Attwood Marshall Lawyers Family Law Associate, Emily Edmonds, recently joined Robyn Hyland on Radio 4CRB to discuss the growing phenomenon of grandparents becoming primary caregivers to their grandchildren.

Introduction

In some situations where a grandparent is required to step in to be the primary caregiver to their grandchild, there’s a heart-breaking story to follow.

Grandparents becoming primary carers for grandchildren can come about for any number of reasons. Sadly, it’s rarely a positive scenario and some examples of this include:

  • The death of a child’s parent (including homicide);
  • Domestic and family violence;
  • Incarceration relating to or resulting from a family violence incident; or
  • A parent suffering critical injury or illness.


Whatever the reason may be, in many instances grandparents step in to take on the primary carer role without any formal arrangement in place. By doing so for a prolonged period, it can be difficult for a grandparent to be able to make important decisions for that child. If a grandparent has become the primary carer for their grandchild, it is important that they get trusted advice from an experienced family lawyer to understand what they may need to put in place from a legal perspective, and to understand their legal rights, responsibilities, and how the law applies to their unique situation.

When does a parent’s legal responsibility to their child end?

Despite a grandparent stepping in and looking after their grandchild, until an order has been made by the court, a grandparent will not have parental responsibility for the child, even if they have taken on the role of primary carer.

It’s important that the carer of the child seeks orders for parental responsibility which will in turn, grant them the authority necessary to engage with organisations such as the child’s school, health care providers, and government institutions just to name a few. This then allows the carer to ensure that appropriate arrangements can be made for the child or children.

Formalising the arrangement by way of Court Order can also assist grandparents in gaining access to the different benefits that can be available in these circumstances.

Formalising a parenting arrangement

The Federal Circuit and Family Court of Australia has recently established what is referred to as a Critical Incident List. This list allows for family law applications where there is no parent available to care for a child.

This system has been put in place to support the extraordinary challenges non-parent carers face who are in this situation.

To be considered for this type of application, a grandparent must satisfy a set of criteria, including:

  1. The applicant must be a non-parent caring for the child
  2. There is no parent available to care for the child
  3. The grandparent is seeking orders for parental responsibility to be able to make appropriate arrangements and facilitate the care of the child
  4. There are no pre-existing family law or state/territory child welfare orders in place relating to the care arrangements for the child.


An experienced family lawyer can help prepare an application, and they will file the application with the court along with required supporting documentation.

What type of issues does a Parenting Order cover?

Parenting Orders determine the issue of parental responsibility which then gives the appointed person the ability to make all of the important decisions in relation to that child. This can include decisions about where the child goes to school, any cultural or religious traditions the child may follow, if the child is to receive immunisations and other health care, etc.

The orders may also deal with:

  • where the child will live
  • time the child will spend with family members
  • how the child will communicate with family members
  • overseas travel arrangements


After an application is filed with the court, the court will determine what’s in the child’s best interest. As far as the court is concerned, the interests of the child are paramount. Orders will then be made accordingly.

A child’s best interests gives consideration to their short and long-term concerns and will take into account the physical and emotional wellbeing of the child.

The court will also be mindful of the need to protect a child from any risk that they may suffer physical or psychological harm, and this includes the need to protect the child from being subjected to, or exposed to, any form of abuse, neglect, or family violence.

Support available to help grandparents who are stepping in as the primary carer of a grandchild

There are many support groups available for grandparents who have parental responsibility for their grandchildren.

Grandparents who have parental responsibilities for their grandchild can make an application to Centrelink for financial support to help provide care for that child.

Grandparents may be able to access Family Tax Benefits, claim childcare subsidy for childcare fees, or be eligible for double orphan pension, if their circumstances warrant this.

If the grandchild has a disability or medical condition, the grandparent may also have a number of other benefits available to them, including:


Grandparents will need to meet specific requirements in order to benefit from these types of support payments. Centrelink requires documents to support any claims for such benefits, including evidence of formal agreements, such as court orders.

In addition to financial support, it is important that support is gained to assist both the child and grandparent with their psychological and emotional wellbeing. There is often trauma surrounding these situations that needs to be addressed as well.

Support groups can help reduce stress and develop a support network with similar people.

The government has a program where they offer the support of Grandparent, Foster, and Kinship Carer Advisers to give tailored help for non-parent carers and help them understand what support services and benefits are available.

Although having full time care of grandchildren can be extremely rewarding, it no doubt has its challenges and it’s not uncommon for grandparents to need extra support themselves.

In Queensland, there is the “Time for Grandparents Online Video Peer Support Group” available for all grandparent carers who are full time carers of their grandchildren.

For parenting advice or support, there is a national helpline available in each state and territory. Click here to learn more about the support available in your state.

Attwood Marshall Lawyers – Helping families maintain positive relationships

At Attwood Marshall Lawyers, we have a dedicated team of senior family lawyers who practice exclusively in this complex area of law. Our experienced family lawyers are ready to support families through their most difficult challenges.

If you need advice on parenting matters, custody arrangements, or consent orders, contact our Family Law Department Manager, Donna Tolley, on direct line 07 5506 8241, email dtolley@attwoodmarshall.com.au or call our 24/7 phone line on 1800 621 071. Our family lawyers are available for appointments at any of our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney, and Melbourne.

Where to turn for help:

  • 1800RESPECT is a confidential counselling, and support service, and is available 24/7 to support people affected by sexual assault, family or domestic violence and abuse. Call 1800 737 732.
  • Lifeline – Access to 24-hour crisis support and suicide prevention services. Call 13 11 14.
  • The Family Relationship Advice Line – A national telephone service that helps families affected by relationship or separation issues. Call 1800 050 321 Monday to Friday 9am to 8pm, Saturday 10am to 4pm (local time).


Read more:

Grandparent’s rights with their grandchildren: where does the law stand?

Navigating the world of co-parenting – even celebrities Ted Lasso and Dr Remy ‘Thirteen’ Hadley need the help of the Family Court!

Children, Custody, Christmas and Covid: Have you sorted your parenting arrangements for the festive season?

 
 

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Emily Edmonds - Associate - Family Law

Emily Edmonds

Associate
Family Law

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Disclaimer
The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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