Guardianship orders aim to provide greater stability for children and young people when the Children’s Court makes a decision they cannot live with their parents.
Guardianship orders are a way of helping ensure a child or young person has a more stable, nurturing and safe home until they are at least 18 years of age, without cutting legal ties to their family.
Under a guardianship order, a child or young person is not in foster care or out-of-home care but in the independent care of their guardian.
Guardianship orders can only be made on a final and long-term basis, that is until the child or young person reaches 18 years of age. The only other orders that can be made in conjunction with a guardianship order are an order for contact, and an order prohibiting action. However, a contact order cannot be made if the Department of Family and Community Services (FACS) or an agency is required to coordinate or provide supervision of contact with birth parents or other relatives. An example of a prohibition order would be an order prohibiting a parent from going to a child’s school.
The Children’s Court can make a guardianship order for a child or young person who is in need of care and protection or who is in out-of-home care.
Guardianship orders can be made if the Children's Court is satisfied that:
A guardian is a person who:
A guardian can be a relative or kinship carer or another suitable person. There is no legal definition of who may be a suitable person. As a guide, this could include a family friend or an authorised carer who has an established and positive relationship with the child and young person and who is willing and able to take care of the child or young person until they are at least 18 years of age.
If a guardianship order is made, the child or young person will be cared for by their guardian until they are at least 18 years of age, or the Children’s Court changes the order.
The child or young person will still have contact with their parents, family and important people in their life, as outlined in their care or case plan or court orders. It is important that every child and young person has opportunities to learn about their family heritage, even if they do not have contact with their family. This enables them to have a strong and healthy sense of self and identity.
If the child or young person is Aboriginal or Torres Strait Islander, or from a different cultural background to their guardian, they have the right to maintain connections with their culture and community and have a cultural support plan in place. The guardian must ensure the child or young person’s cultural needs are met and encourage and facilitate their participation in cultural activities and events.
If there is a court order outlining contact arrangements, this order must be followed as a minimum, unless an application is made to the Children’s Court by the guardian or parent to change it. Alternatively, the frequency of contact can be increased by mutual agreement between the parent and the guardian.
A guardian is responsible for arranging, coordinating and (where required) supervising contact between the child or young person and their family members.
Contact arrangements outlined in the care plan should remain in place unless it is in the child or young person’s best interest to change them and this has been negotiated with all relevant parties or has been through the mediation process as outlined below.
It is important for anyone thinking of becoming a guardian to know that FACS or the out-of-home care agency responsible for case management will no longer have any responsibility for supervising or supporting contact arrangements.
If there is an ongoing disagreement about contact arrangements, Legal Aid may be able to provide help through the mediation process. Sometimes the practical part of contact can be difficult to negotiate and Legal Aid can help people talk about issues and try to find solutions. FACS or the agency previously responsible for case management will not be involved in the discussions. Free advice and assistance about this process is available by contacting 1800 551 589.
Guardians receive an allowance, known as a guardianship allowance, to enable them to meet the needs of the child or young person. The guardianship allowance is the same rate as the FACS statutory care allowance. The guardianship allowance is based on the individual needs of the child or young as outlined in their care or case plan.
Guardians may be eligible for support from the Commonwealth Department of Human Services (Centrelink) which deliver a range of Australian Government benefits and concessions to the general community including:
For more information about the full range of Australian Government assistance, including payment rates and eligibility criteria:
While there may be differences in the care allowance rates between FACS and out-of-home care agencies, once a guardianship order is made, the guardianship allowance will be paid at the same rate as FACS statutory carer allowance.
Once the guardianship order is made, FACS becomes responsible for managing guardianship allowance payments and annual reviews.
Each year FACS will send an annual review report letter to guardians that must be completed and returned within 21 days to confirm they are still caring for the child or young person. If the annual review report declaration is not returned to FACS, their guardianship allowance will cease. Guardians must let FACS know within 21 days if the child or young person leaves their care before they turn 18 years of age. An example would be if the child or young person returns to their birth family or other family members.
The guardianship allowance is provided by FACS as a contribution to the cost of caring for a child or young person. The Australian Taxation Office has stated that under TD 2006/62 the guardianship allowance, as with the carer allowance, is not taxable income.
Although case management and support is not provided, guardians can still seek help, support and advice from local services including child and family support, family counselling, health services, youth programs, disability and child care services. The local Community Services Centre may be able to help guardians contact these services.
Guardians are assessed on their ability to independently meet the long-term needs of a child or young person without ongoing assistance and support from FACS or an out-of-home care agency. Therefore, guardians are not eligible for:
Additionally, young people under guardianship orders are not eligible for:
Caseworkers will have initial discussions with the current carer or prospective guardian, the child or young person and with their parents about:
If it is agreed during initial discussions that guardianship should be considered, the next step will be for FACS or the out-of-home care agency with case management responsibility to organise a case plan meeting.
This meeting should involve the child or young person, (where developmentally appropriate), the carer and prospective guardian, their parent or parents as well as other significant people in their life. The meeting is an opportunity to focus on the assessed short-term and long-term needs of the child or young person, and then discuss what would be the most appropriate court order to meet the long-term needs of the child or young person, including exploring the option of guardianship.
If it is agreed that guardianship may be suitable to meet the long-term needs of the child or young person, the guardianship assessment will proceed to assess the suitability of the prospective guardian.
The request could come from:
This will depend on whether they have been previously assessed as an authorised carer, the type of assessment and when the assessment was completed.
The caseworker will talk with the prospective guardian about the assessment process before the assessment begins.
The applicant’s suitability for becoming a guardian will be assessed on the following criteria:
The applicant/s will also need to demonstrate they have:
Guardianship applications made by out-of-home care agencies or existing relative, kinship or authorised carers
The consent of the Secretary of the Department of Family and Community Services is required for a guardianship application to proceed.
The processes and procedures for guardianship applications made by out-of-home care agencies or existing relative kinship or authorised carers are available from each agency.
The Children’s Court makes the final decision about a guardianship order for a child or young person.
Can the guardianship order be changed once the order has been made?
If the guardian, parents or FACS would like any part of the guardianship order to be changed, they have the right to make an application to the Children’s Court to have the order changed.
A guardianship order may be changed if there has been a significant change in circumstances since the order was made. For example, if the guardian has a serious illness and is unable to continue to care for the child.
Parties are advised to seek legal advice if this is an option they would like to consider.
If the child or young person is already in your care, take time to talk to them about what guardianship will mean for them. It is important they understand that under guardianship orders, there is no longer a caseworker to support them.
Talk to your caseworker or contact FACS or the agency responsible for the child or young person’s case management to find out more. This will help you make an informed decision about whether guardianship is the best option for the child or young person you would like to care for, or are already caring for.
One important step will be a case plan review meeting with the child or young person, their parents, the prospective guardian, as well as other significant people in the child’s life. This is an opportunity to discuss the most appropriate options, including exploring guardianship. If it is decided that guardianship may be suitable to meet the needs of the child or young person, the guardianship assessment process will be undertaken.
For more information you can contact your local Community Services Centre or visit the FACS Safe Home for Life website.
You can also call the FACS guardianship information line on 1300 956 416.
NSW Connecting Carers 1300 794 653 or visit their website connectingcarersnsw.com.au
Aboriginal Child, Family & Community Care State Secretariat (NSW) Inc. (AbSec) Foster Care Support Line 1800 888 698 or visit their website www.absec.org.au.