Do Grandparents, Relatives and other third parties have the right to seek parenting orders?
Apart from parents bringing parenting applications in relation to their children, the Court also has regard to all significant relationships a child has including those with their grandparents, new partners of their parents as well as their uncles and aunties.
Under s65C of the Family Law Act 1975 (Cth) any of the following persons can bring parenting applications:
- Either or both of the children’s parents
- The children themselves
- The children’s grandparents
- Any other person concerned with the care, welfare, and development of the children
Parenting Applications by Grandparents
The legislation has clearly created a right for grandparents to bring parenting applications which may include orders for the children to spend time with them or in appropriate cases for the grandchildren to live with them. In determining whether such parenting orders should be made in favour of grandparents, the overarching consideration which the Court must have regard to is what is in the children’s best interests.
Grandparents often bring parenting applications to spend time with their grandchildren in cases where there has been a breakdown in the relationship with their own children or with the other parent and as result they can no longer maintain meaningful relationships with their grandchildren. In other cases, grandparents can seek that the grandchildren live with them. Examples of such applications can occur where one parent has passed away or where either or both parents are not fit to care for the children due to a physical or mental incapacity.
Parenting Applications by relatives and other third parties
When other people such as step-parents or relatives wish to bring a parenting application firstly they need to establish to the Court that they are a person who is “concerned with the care, welfare and development” of the child. Secondly, they also need to demonstrate to the Court that it is in the child’s best interests for the child to spend time with them.
When considering applications brought by non-parent parties, the Court will look at closely the party’s relationship with the child and the role such person has played in the upbringing and the overall development of the child.
The case of Maldera v Orbel  FamCACF 135 (30 July 2014) involved a parenting dispute between a maternal grandmother and a father. The Mother did not participate in the proceedings. It was accepted that the Mother did not have any meaningful involvement in the child’s life for a long time. From the time of the child’s birth until the age of 4, the child either lived with his Mother or his parents. After many “negative and inappropriate” changes to the child’s family situation during his earlier years, from the age 4, the child started living with his maternal grandmother and continued to do until he was about 12 years of age. Previous Orders had been made for the child to live with the Maternal Grandmother and to spend time with each of his parents under different regimes.
Subsequently, the Father brought an application seeking that the child live with him. The Father argued that since the previous orders had been made, he was now married and had 3 children with his Wife. His life was now more settled than it was previously and argued that “he and his wife were now capable of having the child live with them”. The Court found that the Grandmother took good care of the child that the child did not express a view about where he wanted to live. The Court found that the child had good relationships with the Grandmother, the Father, and his wife as well as their three children.
Ultimately the Court held that whilst a child living with his or her natural parent is a relevant and important consideration in determining what is in the children’s best interests, it does not create a presumption or a preferential position that it is in the children’s best interests to be cared by a parent as opposed to a non-parent.
The important message from this case in the context of determining parenting applications which involve non-parent parties is that the Court will have regard to the quality of parenting offered to the child rather than simply rely on the fact that a child living with his or her natural parents will always be in the child’s best interests. Each case must be determined according to its own facts and the guiding principle when the Court makes parenting orders is always the child’s best interests.
If you are interested in making an application for parenting orders and you are not the child’s biological or adopted parent, please contact Anthi Balafas of Rockliff Lawyers on (02) 9299 4912 to discuss your matter.
Author: Anthi Balafas