By Carlos Turini – Accredited Family Law Specialist
Sometimes persons other than the parents of a child become involved in a family law dispute about a child. The Family Law Act allows grandparents to apply for parenting orders with regard to their grandchildren.[1] Other persons, including step parents, may also apply for parenting orders provided that the Court finds that they are “concerned with the care, welfare or development of the child”.[2]
Step parents may apply to the court to seek “parenting orders” in relation to a step child, that is:
- for a step child to live with them;
- to be able to spend time with a step child; or
- to have some parental responsibilities for that child.[3]
When the Applicant is not a biological parent of a child or a grandparent, the Applicant must satisfy a threshold test, a preliminary matter, namely, the court must make a finding that the Applicant has an appropriate degree or “nexus or concern with the care, welfare or development of the child in the particular case”. [4]
In the case of Tran & Ngo,[5] Judge Scarlett dealt with a case where two young children were living with their aunt. Their father was deceased and their mother had left the country. Judge Scarlett had no difficulty to find that the Applicant passed the threshold test and he made orders that:
- the children live with the aunt; and
- that she have specific parental responsibility orders namely about:
- “Making decisions about enrolling the children in school and other aspects of the children’s education;
- Making decisions about the hospitalisation and other medical or dental treatment of the children; and
- All other aspects of parental responsibility for the children.
On the other hand, in the case of R & M[6] , Federal Magistrate Driver dismissed an application by a friend of the recently-deceased father of a child as the Federal Magistrate found that the Applicant had had no prior involvement with the care, welfare or development of the child and therefore had no standing to bring the application.
In Re J and M: Residence Application [7], an application was made for a parenting order by the biological mother and her partner in a same sex relationship. FM Walters found that both Applicants could apply for a parenting order. They were both involved in all aspects of the care of the children and they considered themselves the joint parents of the children.
Judge Neville dealt with the case of a four year old child in Harris & Calvert [2013] FCCA 955 (26 July 2013). The Applicant (not a biological parent) and the Respondent (the biological mother of the child) had been in a same sex relationship, they had been separated for some time and the Applicant sought orders that to enable her to re-kindle her relationship, and spend regular time, with the child. She has not seen or spent any time with him for some two years. His Honour dismissed the application. He found that: “The evidence makes clear that while [the Applicant] certainly was once so engaged in X’s life, she has not been so occupied for a very significant period of time. Accordingly, she does not meet or satisfy the requirements of s.65C(c).”
In Musgrove & Panshin [2014] FCCA 1680 (31 July 2014), the Applicant was the step parent of a 14 year old child. The biological father of the child had had no involvement with the child since the child was one year old and he was not part of the court case. The relationship between the Applicant and the child’s mother commenced when the child was three years old. The parties separated when the child was 12 years old. In the two years since the parties had separated, the Applicant had had no contact with the child apart from sending the child birthday cards. The Applicant did not know where the Respondent and the child were and the Respondent wished that information to remain secret. The Respondent described a relationship where she was the victim of domestic violence perpetrated by the Applicant which included physical and mental abuse some of which was witnessed by the child. The violence was also perpetrated on the parties’ pets. The Respondent described that the Applicant exhibited controlling behaviour towards her. The Respondent described that the Applicant and the child were not close and that the child has stated that she wanted the Applicant out of her life. The Judge indicated that he found this a troubling case but concluded that the Applicant had passed the threshold or preliminary test and the case should be properly heard on its merits.
If you are a step-parent, or someone who wishes to continue be involved in the upbringing of a child after a relationship breakup and want to learn more about your rights and obligations, or if you are a parent wanting to seek payment from a former partner or spouse please contact Carlos Turini.
p: +61 2 6206 1300 | e: cturini@elringtons.com.au
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[1] Section 65C (ba) of the FLA.
[2] Section 65C (c) of the FLA.
[3] See the definition of a “parenting order” according to section 62B(2)(a),(b) and (c) of the Family Law Act 1975 (“FLA”).
[4] Goodall & Anor & Kearns & Anor [2015] FCCA 2946 (30 September 2015)
