Updated on 31 March 2008 by Legal Aid NSW.
Please note that this self help package is for information only. It is not intended as a substitute of legal advice. If you need legal advice, you should consult a solicitor, or call a Community Legal Centre or Legal Aid Office.
Any opinions expressed in this publication are the authors' and do not necessarily reflect the views of the Law and Justice Foundation's Board of Governors. The authors retain copyright of the publication. Unless otherwise stated this publication may be reproduced in part or in whole for educational purposes as long as proper credit is given to the authors.
This information kit was initiated by a request from GRANS — Growing Relationships and Network Support, Forster, NSW. Hunter Community Legal Centre gratefully acknowledges the research and writing skills of Sharlene Naismith in the preparation of this information sheet. HCLC also thanks Carl Boyd, staff of the Family Court Registry and Family Court Counselling - Newcastle for their contribution. Hunter Community Legal Centre is funded by the Legal Aid Commission of NSW and the Family Law and Legal Assistance Division of the Commonwealth Attorney General's Department.
The kit was updated by the NSW Legal Aid Commission in March 2008.
|FAMILY LAW ACT 1975 - SECTION 60B
Objects of Part and principles underlying it
Child's best interests paramount consideration in making a parenting order
FAMILY LAW ACT 1975 - SECT 60CC
How a court determines what is in a child's best interests
Grandparents play an important role in children's lives. A healthy relationship between a grandparent and grandchild can provide support to a child at times of family stress and breakdown.
Grandparents often feel great loss when parents separate and want to have an ongoing relationship with their grandchildren.
The Family Law Act sets out important principles that underlie the way family disputes should be resolved. These principles emphasise that, except when it would be contrary to a child's best interests:
children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives. (section 60 (B) (2) (b) )
This kit is designed to provide a starting point for grandparents who wish to spend time with their grandchildren.
If you are involved in a dispute about spending time with your grandchild you should first consider participating in Family Dispute Resolution.
There may, however, be circumstances where you have been the main carer of your grandchild and you are worried about a child being removed from your care, or the child may be in the care of parents but you have concerns about the welfare of the child. In circumstances such as these you should seek legal advice or call LawAccess NSW on 1300 888 529.
You should initially attempt to come to an agreement with the parents without outside assistance. Meet and talk with the parents and discuss how you feel the child would benefit from spending time with you. Reaching an agreement between yourself and the parents means that everyone benefits, especially your grandchild.
Family Relationship Centres (FRCs)
It is in everyone's interests, especially the child's, to solve disputes without resorting to legal action. For help with resolving a dispute out of court, go to www.familyrelationships.gov.au or call 1800 050 321. You will be referred to services that provide assistance to anyone who is affected by family relationships or separation issues.
FRCs have now been established in all States and Territories. They have been established as a means of assisting people resolve family relationship disputes without the need to resort to litigation. FRCs can provide information, relationship advice and assistance, dispute resolution, counseling and referral to other specialist services.
FRCs are able to offer assistance to grandparents who are affected by separation issues. Staff at a FRC will provide individual advice free of charge. A FRC will provide up to three hours of joint dispute resolution sessions free of charge. If further sessions are needed the Centre may charge fees, however, the family's ability to pay will be taken into account.
To find out if there is a Family Relationships Centre near you please call 1800 050 321 or visit www.familyrelationships.gov.au/.
In addition to Family Relationships Centres, there are a number of organisations that can assist you in reaching an agreement. If you wish, you could attend family dispute resolution through a private agency. There may be a cost to this.
Family dispute resolution involves a process of mediation which focuses on co-operative problem solving to:
If you have been unable to solve your dispute using any of the previous steps, you may consider starting court proceedings. However, unless your matter comes under one of the exceptions described below, you will require a certificate from a registered Family Dispute Resolution Practitioner before a court is able to hear a dispute about a parenting matter.
The exceptions include matters where there is urgency, where there are allegations of abuse of a child or family violence, and where a person is unable to effectively participate in dispute resolution, for example, because of an incapacity.
There are four types of certificates that can be issued:
A grant of Legal Aid will be available for family dispute resolution, or subsequently for going to court in matters where you qualify under the means and merit test.
For information about whether you are eligible for Legal Aid, call LawAccess NSW on 1300 888 529. If you need more details about how you qualify for a grant of legal aid, and the means test in particular, you can go to www.legalaid.nsw.gov.au where you will find a full explanation of what these tests mean.
Unless the exceptions set out above apply, a grant for legal aid in the first instance in a family law matter will be for family dispute resolution. The Legal Aid Commission provides a lawyer assisted model of dispute resolution and the grant of aid will be for a lawyer to provide advice and assistance in the dispute resolution and help you explore options for settlement. A legal aid grant can be made for assistance from a lawyer employed by NSW Legal Aid or from one of the private legal practitioners who are on the panel of private practitioners who are available across the state to do legal aid work.
The conferences are chaired by trained and experienced dispute resolution practitioners and are attended by all of the parties to a dispute. The dispute resolution unit at the NSW Legal Aid screens matters for suitability for a dispute resolution conference and, if the parties prefer, can arrange shuttle conferences where the parties are in separate rooms and the dispute resolution practitioner moves between them, or telephone conferences especially for people in more distant locations. Multi party conferences can involve parents and grandparents. The aim is to encourage a settlement in relation to issues concerning the children.
At the conclusion of a dispute resolution conference the agreement reached can be written as a parenting plan or drafted as consent orders to be filed in court. At the conclusion of the conference a certificate will be issued. The settlement rate at conferences is high. However, if no agreement has been reached, the certificate can be filed in subsequent court proceedings. A further application for legal aid would need to be made for court proceedings.
If an agreement is reached between the parties, this agreement can be included in a parenting plan. A Parenting Plan is a written agreement which is signed and dated and sets out the arrangements for you to spend time with your grandchildren.
Parenting plans are voluntary and can be changed in writing at any time as long as it is with the agreement of all of the parties. Parenting Plans create no legal obligations on parties. However, the Court can consider what has been agreed in a Parenting Plan if you have later court proceedings dealing with parenting issues.
If family dispute resolution has not resolved the matter and you decide to go to court you will need to firstly decide what orders you want the court to make and secondly file an application with the court.
The court can make "parenting orders" which include:
Alternatively you can seek an order for reasonable time with your grandchild. This means that you arrange your own schedule with the parent/s of the child. You can make times for whenever you like provided that the parties agree and the amount of time is "reasonable". In order for this type of order to be effective however, you will need to be able to communicate effectively with the parents of the grandchildren and other family members.
The Federal Magistrates Court commenced operating on 1st July 2000. The Court is intended to be a user friendly and affordable way to resolve disputes.
The Family Court hears matters which are complex . The Court has registries throughout Australia. The current court fees are:
The basic document for grandparents seeking to spend time with their grandchildren is an Initiating Application. This form needs to be completed and you should clearly state the orders sought.
You cannot file for interim orders, without also filing for final orders. The reason for this is that the Court will not make an interim order unless there are also proceedings for a final order in the pipeline.
Final Orders are orders which can be made by consent of the parties or after the court has heard all of the evidence. Final orders finalise the arrangements for the children.
This form is filed with the court and outlines the orders you want the court to make for you to spend time with your grandchild. This form can be completed when you are requesting either Final or Interim orders and can be completed by hand if necessary.
In the Federal Magistrates Court you need to file a short affidavit stating the facts relied on. This is the case whether you are seeking interim orders or final orders. The affidavit needs to be a separate document.
In the Family Court you only have to file an affidavit if you are seeking interim or procedural orders.
In both courts if you allege that there has been abuse of a child or family violence, and the allegations of abuse, family violence or risk of abuse or family violence are relevant to whether the court should grant or refuse the application, you must file a Notice of Child Abuse or Family Violence (Family Court Form 4).
This form is to be used if you are Responding to an Initiating Application. You use this form if you are opposing the orders sought or you are asking the court to make other orders.
You will need to file an affidavit with this form if you are responding to an interim or procedural order.
The forms can be found at any Family Court or Federal Magistrates Court or online at www.familylawcourts.gov.au or call 1300 352 000.
This is your formal statement (evidence) in writing setting out the facts of your case. An affidavit supports your case. You may also wish to include affidavits from other people to support your case. These people are called witnesses, and your affidavit is referred to as 'evidence in chief'. In general an affidavit supporting your application to spend time with your grandchildren should:
For example, instead of saying, "Robert was distressed", you could say things like "I observed Robert crying, his face was flushed and he was short of breath."
The relevance rule
You must also be careful only to include information which is relevant in your affidavit. If you fill your affidavit with information which does not refer to the order which you are seeking, it is likely that a judge may order that it be removed from your evidence. Be wary of going off on a tangent and telling the judge your whole life story. Only tell the judge those facts which are relevant to your contact with your grandchild — more specifically to the 'best interests of the child'.
The hearsay rule
Although changes to the Family Law Act introduced with the reforms in 2006 mean that the rules of evidence do not apply to child-related proceedings unless the court decides there are particular circumstances, it is still important to avoid hearsay by stating in your affidavit what you saw or heard but not what someone else has told you they saw or heard.
Putting what other people have told you in your affidavit is called hearsay. For example if a neighbour has told you about something that he or she saw happening which involved your grandchild, rather than write in your affidavit Mrs. Jones told me that Sam was crying when…, it would be best if the neighbour provided an affidavit setting out what she knew so that the court had first hand evidence about the incident.
To file your documents is to fill them out, lodge them with the court, pay the filing fee and have them stamped with the court's seal. The court will then return stamped copies to you to serve on the other parties and one copy for you to keep.
Sometimes the court appoints an Independent Children's Lawyer (ICL) to represent the best interests of children. Make sure you file sufficient copies with court — i.e. a copy for the court, a copy for you, a copy for the ICL (if there is one) and a copy for each other party, e.g. both parents. You can file your document by post if you are unable to get to the court. Include a cheque for the filing fee and a stamped self-addressed envelope.
You serve your document by arranging to have the court stamped document formally delivered to the other party (the 'respondent') and the Independent Children's Lawyer if there is one — check with the court to find out). It is important to serve the other parties as soon as possible after the stamped documents are returned to you. Late service of documents will only prolong the process.
Documents can be served in person, by post, or by fax in certain circumstances. If the part has an Address for Service filed with the court, you must ensure that this is the address for delivery of the documents. It is often safer to have your documents personally served. It is not appropriate for one party to personally serve documents on another party. You could arrange for a friend or acquaintance or professional process server to serve the documents. The person who serves the document MUST complete an Affidavit of Service. This form outlines obligations and responsibilities for the service of documents.
When you file an application in the Family Court for final orders (Form 1) a date will be set for a first return date.
There are different ways that children's matters can be heard in the Family Court. Matters where there are allegations of child abuse may move directly into the Magellan Program (see below). Other matters when they are mentioned on the first court return date will be included in the Child Responsive Program (described below) and then, if necessary, be allocated to a particular judge for a less adversarial trial.
The Child Responsive Program provides a new pathway through the Family Court. In this program your first attendance will include an information session geared to explaining the process with information about post-separation conflict. A parent assessment meeting then occurs which allows the family consultant allocated to the case by the court to explore individually with each parent and grandparent the history of the conflict between the parties , any other issues which impact upon the wellbeing of children, and the dynamic between the parties.
The family consultant then meets with any school aged children, in a play therapy orientated session, to explore the needs and views of the children. Feedback is provided directly to the parents and grandparents on the day of interview about what is concerning the children, their feelings, and their needs in relation to the resolution of the dispute.
A preliminary report is then prepared by the family consultant and given to the parties. A formal feedback meeting is held with the parties, their legal representatives and a Court Registrar. The intention of the feedback meeting is to encourage all parties to consider resolving the dispute. Should you be able to reach an agreement, a registrar is present to make any orders sought by consent. If necessary, the registrar is also present to set the matter down for a Less Adversarial Trial.
A major feature of the Less Adversarial Trial Program (LAT) is the active role taken by the Judge who is allocated to the case. Unlike traditional adversarial hearings, which resemble a contest where the parties (or their legal representatives) are responsible for deciding how they prove their claims to the court, a Less Adversarial Trial hearing is more closely directed by the Judge and is designed to encourage the parties to identify the issues in dispute and focus on future arrangements that are in the best interests of the children. The family consultant who has been allocated to the case will remain involved.
The hearing will usually spread across a number of court listings, with the parties preparing simple documents when the matter first comes before a judge who will then give directions about the evidence that needs to be prepared for determination of the issues that remain in dispute as the matter progresses.
While the procedures have changed, the Judge must, as required by the Family Law Act, still regard the best interests of the child as the paramount consideration.
The Magellan Program is a special court model for managing cases where serious allegations are raised about sexual or physical abuse of children in family law disputes. This model involves collaboration between the court and the child protection authority, i.e. the Department of Community Services in NSW.
As soon as possible after the court becomes aware of the allegations the court will appoint an Independent Children's Lawyer, and consider procedural or interim orders that need to be made to protect the child or any of the parties in the matter and to enable expert evidence about the allegations to be obtained. At this time the court will also request the intervention of an officer of the child protection authority and a report by that authority on the allegations. This report is known as the “Magellan Report”. It includes a summary of the authority's involvement with a family as well as any recommendations about the matter that are considered necessary. Magellan matters are managed as expeditiously as possible by the court with the aim of finishing the case within 6 months.
The Federal Magistrates Court is intended to deal with shorter simpler matters than those that go to the Family Court. More matters are now filed in the Federal Magistrates Court than the Family Court. The aim over time is to have a common application for both courts with streaming of matters after that. At present the courts have separate rules and forms.
For information on the Federal Magistrates Court, call the Family Law Courts Inquiry line on 1300 352 000, visit the Federal Magistrates Court website, or speak to a legal practitioner.
Before deciding which court to file your documents in, it is probably a good idea to seek legal advice. Procedures and waiting times can vary and obtaining advice as to where to file may result in fewer delays in having your matter heard.
A subpoena is an order to produce documents or give evidence sanctioned by the Court. It requires a person to come to the hearing or produce documents for the hearing. You will need to issue a subpoena if you require a witness to be in Court for the hearing , or if you require documents from an organisation e.g. a bank, the Department of Community Services or the NSW Police Service. The subpoena may be issued to a person or the relevant person in an organisation with some relevant documents or insight into the situation that you believe will help your case.
There are three types of subpoena: one which requires a person to tell certain facts (Form 14, Part C); one to get a person to bring certain documents (Form 14, Part E); and one to get a person to give evidence and bring certain documents (Form 14, Part D).
You must apply to the court to issue a subpoena. If you want to get comments from an organisation it is wise to first check with a legal officer in that organisation about who the subpoena should be addressed to and the "conduct money" they require. Conduct money covers the costs of the person complying with the subpoena, e.g. Photocopying expenses, travel expenses to court.
When you file your application you will need to include the relevant filing fee and a covering letter describing why you need the subpoena. A Deputy Registrar will decide whether it is appropriate for it to be issued. You will then need to service the subpoena on the relevant person as soon as possible.
If an order for you to spend time with your grandchildren is made by the court, remember to comply with the requirements set out in the order or else you may be liable for contravention of that order. If the other party should breach the order, you will need to lodge a Form 18 — Contravention of Child Order. This order can attract fines, and in severe instances, jail penalties. You should seek legal advice before taking this action.
For free legal advice you can attend your closest legal aid office. There is no means test for legal advice. To find your nearest legal aid office please go to www.legalaid.nsw.gov.au or call Law Access NSW on 1300 888 529
For free legal information, and legal advice by telephone, call LawAccess NSW on 1300 888 529.
To find a solicitor check on The Law Society of NSW web site or ring the Solicitor Referral Service on (02) 9926 0300 or Freecall 1800 422 713.
If you wish to obtain further legal information about this area you can ring the Legal Information Access Centre at the State Library on (02) 9273 1558 or contact your nearest public library.
Application for Legal Aid
Complete to apply for Legal Aid for representation at a hearing
Complete when you are seeking Interim or Final Orders.
Response to Initiating Application
Complete when you are seeking orders which are different from those in the Initiating Application.
It is wise to seek legal advice before filing an affidavit. If you are drafting one yourself remember that the affidavit is the evidence that the Court will consider in determining your application.
Application Exemption form: Payment of court fees
This form applies if you are in receipt of a pension or hold some other kind of Centrelink concession card. Return the form to the Registry when filing your documents.
Application for Waiver of Court Fees on the basis of Financial Hardship
This form applies if you are not in receipt of a pension and are unable to afford the filing fee.
Form 6 — Acknowledgement of Service
This form is given to the respondents to your application (e.g. parents of the child) when your application is served on them.
Form 7 — Affidavit of Service
This form is to be completed by the person who serves the other parties with your application. You should not serve the documents yourself, but instead arrange for a friend, acquaintance or process server to complete this form and serve the documents
Form 14 — Subpoena
These are forms used to apply to the Court for subpoenas requiring other people to come to Court to give evidence or to produce documents to the Court. A subpoena must be issued by the Court.
This is by no means an exhaustive list Always refer back to the legislation which is reprinted at the start of this kit and include matters relevant to your case.
Provide information about the role you have played with your grandchildren including: