Parenting Orders, Step Parents and other concerned adults

By Carlos Turini – Accredited Family Law SpecialistCarlos Turini

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:

  1. for a step child to live with them;
  2. to be able to spend time with a step child; or
  3. 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:
    1. “Making decisions about enrolling the children in school and other aspects of the children’s education;
    2. Making decisions about the hospitalisation and other medical or dental treatment of the children; and
    3. 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)

[5] [2012] FMCAfam 1352

[6] [2002] FMCAfam 279

[7] [2004] FMCAfam 656; (2005) 32 Fam LR 668

Step by Step: Does a step-parent have to pay child support?

By Pheobe Ryan

The biological parents of a child have the primary legal obligation to financially support their child under the Child Support (Assessment) Act (“CS(A)A”). The CS(A)A places no obligation on anyone else other than the biological parents.

In some appropriate cases, however, the duty to financially support a child may be imposed on a step parent by an order of a Court under the Family Law Act (“FLA”)[1].   The “maintenance liability” imposed on the step parent may then be registered with the Child Support Agency [2] which will then collect child support from the step parent.

The step parent’s duty to maintain a step child is always secondary to the obligation of the biological parents and does not remove the responsibility of the biological parents.[3]

When may the legal liability on a step parent arise?

The Court must consider various matters including:

  1. the attempts made by the applicant to obtain financial support from the other biological parent;
  2. whether there are circumstances why the applicant may be exempted from seeking child support from the other biological parent;
  3. the length and circumstances of the relationship between the applicant and the step-parent;
  4. the relationship that has existed between the step-parent and the child;
  5. the arrangements that have existed for the maintenance of the child; and
  6. any special circumstances which, if not considered in the particular case, would result in injustice or undue hardship to any person.

If you are a step-parent 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, you can contact one of our experienced family law team to discuss your matter further.

e: info@elringtons.com.au | p: | 02 6206 1300

__________________________________________________________________________________________________________________________

[1] Sections 66D and 66M of the Family Law Act 1975.

[2] Pursuant to the Child Support (Registration and Collection) Act 1988

[3] Section 66D of the Family Law Act.

 

Will the Court listen to my child’s wishes?

By Anya Aidman

When it comes to parenting matters, I regularly have clients come to me and say “will the Court care about what my child thinks?” and “do they get a say in what happens?”.

Children do not give evidence in family law disputes. However, section 60CC(3)(a) of the Family Law Act requires that the Court considering a dispute involving a child must take into account the child’s wishes and any factors such as the child’s level of maturity and understanding.  So, how does the Court ascertain what are the wishes of a child? There are various means available to the Court.

The Independent Children’s Lawyer
Section 68L of the Family Law Act enables the Court to appoint an Independent Children’s Lawyer. This is a lawyer who acts independently from the other parties to a matter and whose role it is to represent your child and their interests.

Child-Inclusive Conference
The Court can order that the parties attend a Child Inclusive Conference (“CIC”). Generally, but not always, the Court will order a CIC when parenting matters involve older children.

A CIC includes a court appointed officer, parents or other relevant care givers, and the child or children who are the subject of the proceedings.

“Wishes” Report
The Court can order that a ‘wishes report’ be prepared.  A wishes report can in general terms be described as a psycho-social assessment of a child, generally by a psychologist or child specialist.

The report will be based on an interview or interviews and present the child’s views and experiences, as well as observations and analysis of the child’s views and behaviour in the context of the parenting matter at hand.

Family Report or Memorandum
Section 11F of the Family Law Act enables the Court to order that the parties attend upon a Family Consultant.

This Consultant will interview each party, sometimes with the child or children in question, and prepare a memorandum with respect to their observations and findings.

Section 62G enables the Court to order a Family Consultant to prepare a report to assist the Court.

It is mandatory for a Family Consultant in preparing such a report to:

  1.  ascertain the views of the child in relation to that matter; and
  2.  include the views of the child on that matter in the report.

The findings or reports produced through any of the above processes are not binding on the Court but can be relied upon by the Court in reaching any determination.

If you wish to discuss your family law matter please contact:

Anya Aidman:

e: aaidman@elringtons.com.au | p: +61 2 6206 1300 or

Carlos Turini http://elringtons.com.au/wp-content/uploads/2011/07/Specialist-accreditaion.jpg:

e: cturini@elringtons.com.au      | p: +61 2 6206 1300