You can apply for a parenting order in relation to a child, even if you are not a parent of the child, if you are a grandparent of the child, or you are a person concerned with the care, welfare and development of the child.
The Legislation:
Section 60CA of the Family Law Act (“FLA”) provides that the child’s best interests are the paramount consideration in making parenting orders. Considerations which are relevant to the determination of a child’s best interests include the nature of child’s relationship with each parent and others, including grandparents and other relatives, and the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of their parents, or any other child or person, including grandparents or other relatives, with whom the child has been living (s60CC(3) FLA).
Section 64C of the FLA provides that a parenting order in relation to a child may be made in favour of a parent of the child or some other person.
Section 65C of the FLA provides that a parenting order may be applied for by:
- either or both of the child’s parents;
- the child;
- a grandparent of the child; or
- any other person concerned with the care, welfare or development of the child.
Accordingly, it follows that orders can be made for a child to live, spend time, and communicate with any of these persons, or for these persons to have or share parental responsibility for a child.
Case Law:
Case law has supported care by grandparents as being in the child’s best interests. In the case of Kay & Jasper and Ors [2007] FamCA 1646, the Court ordered that the children live with the grandparents and spend time with the mother (who was too ill to care for them) and the father/s and also granted equal shared parental responsibility to the mother, father/s and the maternal grandmother.
In the case of KAM v MJR; JIG (Intervener) (1999) FLC 92-847, the Court considered s 65C in an application being made by a former partner of the mother. The facts were that the applicant, Ms M, sought orders that she had contact (as time was then referred) with a child who was a child of the respondent and the intervener. Ms M and the child’s natural mother had been friends for 7 years and had been in a sexual relationship for a period of about a year during that time. The applicant had a good deal of contact with, and was involved in the care of, the child during her sexual relationship with the mother and then, during different periods of time subsequently, had occasional although fairly regular contact including overnight contact. Both the child’s natural parents opposed the application on the basis that the applicant’s relationship with the child had been no more than that of a nanny, babysitter or teacher and that the applicant had not undertaken any parenting role and had not been a carer of the child. They maintained that the applicant was not a person competent, or entitled, to bring an application for contact in that she was not a person concerned with the care, welfare or development of the child. They contended that there needed to be some real nexus between the person making the application and the issue of care, welfare and development of the child. They also cited that the rights and entitlements of a parent should not be readily undermined by the Family Court in entertaining applications for contact from people who were essentially outsiders. The applicant argued that the Parliament had provided a very wide basis for determining the competence needed to establish the threshold issue. She argued that she was at the very least a person concerned with the care of the child and was therefore competent to make the application.
The court held:
- Any person may file an application for a parenting order.
- A parenting order may be made in favour of a person other than a parent (s 64C).
- In order to proceed beyond the mere making of the application, the applicant for a parenting order must demonstrate that he/she is a person “concerned with the care, welfare and development of the child”. This imposes a threshold test, to be determined on the individual facts and circumstances of each case.
- The degree or strength of the nexus or concern with the care, welfare or development of the child is again an issue for determination in each case, depending upon on the facts and circumstances of each case.
- The specific wording of s 65C appears to require demonstration of a concern with only one of the issues of care, welfare or development.
In the circumstances of the case the applicant comfortably passed the threshold test and was at liberty to proceed with her application.
What does this mean for you:
Grandparents, any other person concerned with the care, welfare or development of the child, have standing to apply to the Court for parenting orders. They can bring an application to the Court for a parenting Order either as an Applicant initiating proceedings or as a Second or Third Respondent seeking leave to intervene in a parenting dispute.
The right to apply for parenting orders, as a grandparents, any other person concerned with the care, welfare or development of the child, is distinct from any right spend time with or care for the child/ren. It does not necessarily follow that grandparents have an automatic right to their grandchildren as the “best interests of the child/ren” remains the paramount consideration which the Court to be taken into account when considering all the relevant factors involved in a particular case.
To find out if an application is appropriate in your situation and the likelihood of a successful outcome, please contact us to discuss.