This information is also available in the Legal Issues brochure [PDF 966KB].
Grandparents raising grandchildren may feel overwhelmed by the legal system and unsure of where to get help. This website provides information about care and protection issues, the orders and proceedings of the Family Court and the Magistrates Court, and the legal advice, support and services that are available to assist grandparents.
Grandchildren may come into the care of their grandparents in one of three ways:
- through informal arrangements (these arrangements may come about with or without the agreement of the child’s parents, and may or may not involve the State child protection authorities);
- through family law parenting orders (where grandparents or other people concerned with the care, welfare or development of a child have applied to the Family Court for a parenting order); or
- through care and protection orders made in the Children’s Division of the Magistrates Court (these orders are made by the Magistrates Court on application by the child protection authority).
Grandparents may not want to take matters through the courts and may be prepared to have their grandchildren living with them through informal arrangements. However, the status of the grandparents’ responsibility for a child may affect the financial support for which they may be eligible. It is important for grandparents to find out what their rights and responsibilities are and what assistance is available before they take steps that may have long-term consequences.
Information about the family law system is available from a number of sources. You can:
- call the Family Relationship Advice Line on 1800 050 321 between 8 a.m. and 8 p.m. Monday to Friday, and 10 am to 4 pm on Saturday (local time), except national public holidays. (this is a free call);
- access Family Relationship Online;
- call the Legal Aid Commission on 1300 366 611 (for the cost of a local call);
- contact a Community Legal Service.
If you have Care and Protection concerns about a child, you should ring the Child Protection Advice and Referral Service on: 1300 737 639.
Note: Calls to 1300 numbers cost 25 cents from anywhere within Australia; calls to 1800 numbers are free. Calls from public pay phones or mobile phones may be charged at a higher rate.
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Under the Children, Young Persons and Their Families Act 1997, any adult who suspects that a child is suffering abuse or neglect has a responsibility to take steps to prevent it continuing. One of the steps that a grandparent concerned about the care, abuse or neglect of a grandchild under the age of 18 can take, is to report those concerns to the Child Protection Advice and Referral Service (a division of the Department of Health and Human Services, Tasmania).
The Child Protection Advice and Referral Service (CPAARS) can be contacted on 1300 737 639. They will record your details and the incidents or situation you are reporting. They will discuss your concerns with you, tell you about what will happen next and who to contact to find out how things are progressing. They may not be able to tell you everything you want to know, because they are bound by legislation to keep certain aspects confidential. Neither your details, nor the details of your report, will be provided to those implicated.
Depending on the information they receive, CPAARS may investigate the situation initially by contacting family doctors, the child’s school or other people who have contact with the child to find out more about your concerns. Professionals such as doctors, nurses, psychologists, teachers and police officers have a legal obligation to report care and protection concerns to CPAARS.
If, after those initial investigations, a child is considered to be ‘at risk’ then CPAARS will request a more detailed assessment. This stage could involve an application by the Department of Health and Human Services (DHHS) to the Magistrates Court (Children’s Division) for a care and protection order for the child.
A care and protection order may mean that the child is removed from the custody of the parent or guardian. Custody may then be transferred to the Secretary of the Department of Health and Human Services. In terms of where the child would go to live, the Department’s preference is usually to place the child with a suitable member of their extended family. Placing a child with grandparents, for example, is likely to be seen as better for the child than a placement with foster carers whom the child has not known. Before this can happen, the Department will assess the suitability of the placement, to make sure that the child will be safe and well cared for.
The Department of Health and Human Services must not divulge personal information that is gathered during the assessment, unless it is necessary and appropriate. A person who notifies the Department of concerns of abuse or neglect will not be identified unless a Magistrate permits this. So the information that care and protection workers can give grandparents about the child or the child’s immediate family is often limited.
If the Department is considering placing a child with a grandparent, it will outline the concerns about the child and discuss ways in which the Department will support the grandparent in caring for the child for the term of the order.
More information about the process in Tasmania can be found on the Department of Health and Human Services website . Look in the ‘Services Directory’ for ‘Care and Protection Services’.
General information is available through the National Association for the Prevention of Child Abuse and Neglect (NAPCAN) and the Australian Childhood Foundation Child Abuse Hurts Us All campaign.
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Grandparents may decide to apply to the Family Court for an order to maintain contact with their grandchildren, or to gain an order that states that the children are to live with them.
An application to the court will involve costs – you will have to pay filing fees and, if you are legally represented, your lawyer’s fees. Free legal representation may be available through the Legal Aid Commission. Whether the free service is available to you will depend on your income and assets. Even if you are eligible, assistance may not be possible as demand often exceeds the resources available and priority may be allocated to other cases.
The best place to start finding out about these matters is to call the Legal Aid Commission on 1300 366 611 Monday to Friday between 9 a.m. and 5 p.m. You will only pay for the cost of a local call and you will speak directly to a lawyer. Free legal advice is available over the phone as well as information on your eligibility and the availability of free legal representation. The Commission can also refer you to other advice services such as Community Legal Centres or the Women’s Legal Service. Alternatively, you can contact a Community Legal Centre directly. You don’t need a referral from the Legal Aid Commission.
The Legal Aid Commission offers a Clinic Advice Service for people who hold a Health Care Card and who need advice on a family matter. The locations and phone numbers for the offices in Tasmania are listed below.
Legal Aid Commission offices are located at:
- Hobart: 158 Liverpool Street (03) 6236 3800
- Launceston: 64 Cameron Street (03) 6336 2050
- Devonport: 8 Griffith Street (03) 6421 7870
- Burnie: 50 Alexander Street (03) 6434 6444
The Commission also offers a range of self-help kits, fact sheets and other publications designed to build people’s knowledge about the law and to give them the capacity to take informed action on their own behalf. Self-help groups and forums can contact the Commission to arrange for speakers on legal matters of interest to grandparents. You can ask for publications and speakers on legal subjects through the telephone advice service, or by calling at offices of the Commission.
Community Legal Centres may be contacted from 9 a.m. to 5 p.m. Monday to Friday as follows:
- Hobart Community Legal Service: (03) 6223 2500
- Launceston Community Legal Centre: (03) 6334 1577
- North West Community Legal Centre: (03) 6424 8720
- Women’s Legal Service: 1800 682 468 (this is a free call)
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Section 60B of the Family Law Act 1975 provides that ‘children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development’. This provision recognises that grandparents may have an important role to play in children’s lives.
Grandparents may be included in parenting plans. A parenting plan is a written agreement between separated parents about any aspect of children’s lives. The plan can cover where children live, who they see, where they go to school, holidays, and religious and medical matters. It is up to the people involved to decide what goes into a parenting plan. Parenting plan kits are available at Family Court Registries.
- Hobart: 39–41 Davey Street (03) 6232 1725
- Launceston: 3rd Floor, ANZ Building, Cnr Brisbane and George Streets (03) 6334 2111
Further information can be found on the Family Court website.
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Family law orders now use the word ‘residence’ instead of ‘custody’, and the word ‘contact’ instead of ‘access’.
A parenting order can cover:
- who a child lives with (residence);
- contact between a child and other people (contact);
- maintenance of a child (child maintenance); and
- any other aspect of parental responsibility (specific issues).
A grandparent, or any other person concerned with the care, welfare and development of a child, may apply to the Family Court or the Federal Magistrates Court for a parenting order.
In circumstances where parenting order proceedings involving the child’s parents are in progress, the court may allow a person other than a parent of the child to be heard. A parent’s opposition will not prevent the court granting a child contact with the grandparents if the court has determined that this contact is in the child’s best interests.
If one of the parties breaks a court order the person who obtained the order may return to the Family Court with a Contravention Application.
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Section 65E of the Family Law Act 1975 expressly provides that in proceedings for a parenting order in relation to a child, the court must put the child’s best interests first.
In determining what is in the child’s best interests, the court must take into account a range of factors set out in section 68F of the Family Law Act 1975. This section directs the court to consider a child’s relationship or contact with people other than his or her parents, such as grandparents.
The list of factors the court will take into account includes:
- any wishes expressed by the child;
- the nature of the child’s relationship with both parents and with other people;
- the likely effect on the child of any changes in their circumstances;
- the practical difficulty and financial costs of a child having contact with a parent;
- each parent’s capacity to care for the child;
- the child’s maturity, sex and cultural background;
- the need to protect the child from physical and psychological harm caused by abuse, ill treatment or violence to them or a member of their family;
- the attitude of the parents towards their child and their parenting responsibilities.
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A process such as mediation is a more cost-effective way of resolving disputes between parties because it offers a way to reach an agreement without having conditions imposed by the courts.
Mediation is a process where people in a disagreement are assisted by a mediator (an impartial third party) to identify the issues, develop options and consider alternatives and try to reach an agreement. The Legal Aid Commission may be able to assist with the mediation process.
There are also community-based organisations that provide family support services including counselling, mediation, conciliation and post-separation education. These services aim to help couples and families to resolve disputes instead of going through the courts. These services also support families in dealing with ongoing post-separation issues, such as parenting. The Family Relationships Services Program directory is available at http://www.facs.gov.au/frsp.
Alternatively, you can contact the following community-based organisations directly:
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In Tasmania, there are three courts that deal with legal decisions about where children live and who has responsibility for them: the State Magistrates Court, the Family Court and the Federal Magistrates Court.
If child protection services are involved, the Children’s Division of the State Magistrates Court will usually deal with the matter.
If child protection is not an issue, then the Family Court will hear applications from grandparents requesting that a child live with them or asking to have regular contact with them. After filing an application in the Family Court, grandparents will be asked to attend an information session to help them reach agreement with the child’s parent or parents without having to go before a judge. The court may refer parties to counselling or mediation services in the community. If agreement is reached, details of it may be written out in a parenting plan, which can be made legally binding by asking the Court to make consent orders.
If the parties cannot agree, grandparents can apply to the court for an order to be made. The two main types of order affecting children are:
- Residence Order – This determines who a child will live with.
- Contact Order – This outlines how much contact time each person spends with the child.
If no one contests the application for an order, the case may be heard quite quickly or be settled without a hearing. But if the application is contested, a hearing must be held to resolve the dispute.
The Federal Magistrates Court generally handles less complex matters in family law. The court can transfer matters to the Family Court of Australia. One factor likely to influence the decision to transfer is if the hearing is likely to go beyond two days.
In relation to both the Family Court and the Federal Magistrates Court, grandparents should contact one of the Family Court Registries.
- Hobart: 39–41 Davey Street (03) 6232 1725
- Launceston: 3rd Floor, ANZ Building, Cnr Brisbane and George Streets (03) 6334 2111
Staff will advise you about forms, fees and procedures. This information is also available on:
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The Family Relationship Advice Line is a national telephone service (Freecall ™ 1800 050 321) providing information, referrals and advice to assist people from families affected by separation or relationship issues. The Advice Line aims to provide services which focus on putting children first and assisting parents to resolve disputes about children without going to court.
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The Child Support Scheme was introduced to ensure that the children of separated parents are adequately supported.
Depending on their circumstances, grandparents (as well as any other non-parent carers) may be eligible for child support from the child’s parents. For example, if the grandparent is a child’s legal guardian or the child is in the grandparent’s care under a parenting order from a court, then the grandparent is eligible for child support.
Grandparents may also qualify for child support if the child’s parents or legal guardians do not object to the grandparents providing or sharing care of the child.
However, in circumstances when either a parent or legal guardian raises an issue with the care arrangements, the grandparent will be eligible for child support only if the Child Support Agency establishes that it is unreasonable for the child to live with a parent or legal guardian.
For further information, you can contact the Child Support Agency on 13 12 72.
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A new State Government policy in relation to family violence is being implemented. The new policy provides for a stronger response to family violence and aims to improve the safety of victims and children.
Victims and their children also have access to improved services, including advice about the options they have through the courts and to help them through their selected option.
Staff are also available specifically to assist children appearing as witnesses in court. These services can be contacted through the Victims Assistance Unit on 1300 633 773.
Counselling services for adults are available by phoning 1800 608 122. Specialist counselling services for children are available from the same number.
A 24-hour, 7 days a week Family Violence Response and Referral phone line is available to provide an immediate response when a person’s safety is at risk. It provides a referral service for information and advice. The phone number is 1800 633 937.
When a person’s safety is at risk, to ensure a quick response you should phone the Family Violence Response and Referral Line on 1800 633 937 or phone 000.
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