The Law Handbook 2024

892 Section 9: Health, wills and other legal issues affecting older people with the child’s primary caregiver. If a grandparent is being denied time with their grandchildren, they may make an application to the Federal Circuit and Family Court of Australia for parenting orders, which can include the child spending time with them. Before applying to the court, a grandparent must attempt to resolve the dispute. Parties to a dispute must obtain a Genuine Steps Certificate to show that they have complied with pre-action procedures. This is in addition to the section 60I certificate. The object of this is to compel people to make a genuine effort to try and resolve the dispute. Compliance with the Genuine Steps Certificate typically involves parties inviting each other to engage in genuine negotiations, enquiring and agreeing to a suitable dispute resolution service, sharing documentation, providing written notice of the intention to commence proceedings, and participating in genuine negotiations. In situations where family violence or child abuse has occurred, a party may be exempt from having to attend mediation. If the matter fails to resolve at mediation, then the mediator will provide a certificate, known as a section 60I certificate, and an application for parenting orders can then be made to the Federal Circuit and Family Court. For a list of agencies that provide family dispute resolution or mediation, see ‘Contacts’ below. Having a grandchild in your care In situations when a parent is unable to care for their child, a grandparent might find themselves as the primary carer of their grandchildren. This may occur through an informal agreement between the parent and grandparent, or because there are protective concerns and the child has been removed by child protection services. A formal agreement to evidence the care arrangement may be needed for the purposes of seeking financial assistance, enrolling the child into school or consenting to medical treatment. If a grandparent wants to formalise the care arrangements, and the child is not subject to a court order or protection application, they can create a written agreement that outlines the child’s living and care arrangements. This is called a parenting plan. A parenting plan may be altered by agreement but will be unenforceable in the event of noncompliance. A parenting plan may be relevant to any future application for parenting orders. What can be done if a parent is not sticking to an agreement? If a grandparent has concerns about a parent adhering to an agreement or parenting plan they have made, they can file an application for consent orders with the Federal Circuit and Family Court. The court will consider the best interests of the child, so before an application for consent orders is filed, the factors contained in sections 60B, 60CA, 60CC, 61DA and 65DAA of the FL Act should be considered. If the court accepts the application, the consent orders become binding on the parties in the same way as orders actually made by the court. Thereafter, the consent orders can be enforced by the court if they are contravened. Are grandparents eligible for financial support if they are caring for grandchildren? A grandparent who is the primary carer for a grandchild may be eligible for financial support from Centrelink. Grandparents may also be eligible to claim Medicare benefits for their grandchildren’s medical expenses, and should seek legal advice about their eligibility for child support. (For Centrelink’s contact details, see ‘Contacts’, below.) Can grandchildren be appointed to a grandparent’s care by the court? The CYF Act deals with situations where child protection services believe that a child is in need of protection. The Children’s Court hears proceedings relating to an application to protect a child. This court may appoint a grandparent as a child’s primary carer, depending on circumstances and the child’s best interests. Section 10 of the CYF Act sets out principles for determining what is in the child’s best interests. As well as the need to protect a child from harm, protect their rights, and promote their development, these principles include: • to ensure intervention into the parent and child relationship is limited to that necessary to secure the safety and wellbeing of the child; • to strengthen, preserve and promote a positive relationship between a child and family members;