It is becoming increasingly common for grandparents and significant others to apply to the family courts for non-parent parenting orders.
The circumstances which instigate applications for non-parent parenting orders are wide ranging, such as:
- The parent/s with care of the child is/are alleged to have a drug problem/mental health issue or other issue effecting their capacity to parent the child/ren;
- The person applying is being refused contact with the child by the primary carer;
- The person applying is the non-biological parent from a same sex relationship;
- The person applying is an ex de facto partner of the primary carer and played a significant role in the care and welfare of the child during the child’s life.
Do any of these situations apply to you? Are you seeking a non-parent parenting order?
This article explains your ability to apply for non-parent parenting orders for a child if you are not a parent or a grandparent.
It is important to make clear from the outset, that neither parents, grandparents or other persons have a right to access or to ‘custody’ of their child.
The Family Law Act does however recognise the right of a child to communicate with and spend time with both their parents as well as any other people who are significant to the child’s care, development and welfare, if it is in their best interests. This includes grandparents and other close relatives.
When making a parenting order the court must regard the best interests of the child as the paramount consideration.
There are a variety of facts the court is required to consider in determining what is in the child’s best interests, for example:
- The nature of the child’s relationship with other persons;
- The likely effect of any change of the child’s circumstances, including the effect of a separation from any person with whom he/she has been living;
- The capacity of the person to meet the needs of the child, including physical and emotional needs.
I am seeking non-parent parenting orders. Where do I stand?
The current position of grandparents and significant others is that a person has standing to apply for non-parent parenting orders in relation to a child if they are:
- Either of the child’s parents;
- The child;
- A grandparent of the child;
- Any other person concerned with the care, welfare or development of the child.
Therefore, if you are not a parent, child or grandparent, you must establish the threshold test, that you are a person concerned with the care, welfare of development of the child, in order to be able to apply for a parenting order.
This broad definition seemingly permits a wide range of people to apply for parenting orders.
However, the Courts have been quite strict when considering applications for parenting orders by persons other than a parent or grandparent of the children.
Petrie Family Law expert Courtney Barton, who has had extensive experience with these types of applications, states:
‘The threshold test to enable a non-parent to proceed with their parenting order application is that a person is concerned with the care, welfare and development of a child. This test is notoriously difficult to satisfy on the first court date in circumstances where many of the facts before the court at that time are disagreed between the parties and the court is not in a position to determine the truth or otherwise of the disputed facts until a final hearing. The Applicant therefore has the difficult test of trying to satisfy the court that they are a person concerned with the care, welfare and development of the child on the agreed facts, in other words, by reference only to the other party’s asserted case.”
So who is considered to be a person concerned with the care, welfare and development of the child?
Non-Parent parenting orders Case Study: Mankiewicz & Anor & Swallow & Anor
The case of Mankiewicz & Anor & Swallow & Anor [2016] FamCAFC 153 dealt with an application by great grandparents for parenting orders to spend time with their great grandchildren.
The maternal great grandparents first applied to the court in 2009 at which time it was determined that they did not meet the necessary threshold test, that they were a person concerned with the children’s care, welfare or development, for the court to interfere with the existing parenting arrangements. Their later appeals were dismissed as they were not able to provide further evidence to suggest any change in circumstances since 2009 so as to be able to establish standing to apply (the threshold test) and secondly that it was in the best interests of the children to spend time with them.
As their application was wholly unsuccessful they were ordered to pay the respondents legal costs of $15,000.
Am I a person concerned with the care, welfare and development of the child?
There is no precise formula adopted by the Courts for determining whether you meet the threshold test of being a person concerned with the care, welfare and development of the child.
Each case is different and will be determined on its own merits and the individual facts of that case.
However, the current position of the law in respect of grandparents and significant others elucidated in Mankiewicz & Anor & Swallow & Anor [2016] FamCAFC 153 may be summarised as follows:
Unless you are a parent or a grandparent of the child, you have no automatic right to apply for a parenting order. Your only right is to bring an application, to attempt to establish facts which would grant you permission from the court to apply for a parenting order and you have no right to seek the making of parenting orders from the court unless/until permission is granted.
Whether or not you are granted permission will depend on your ability to establish facts that convince the court of the threshold question, that you are a person concerned with the care, welfare and development of the child.
This case shows the difficulties the family court is faced with when required to intervene with domestic family arrangements. If you are not a parent, guardian or grandparent, your ability to obtain court orders to secure time with the children will depend on your role in the children’s lives, your previous interest in and involvement in their wellbeing, and overall, whether the orders you seek are in the children’s best interests.
What is the process to apply for non-parent parenting orders?
If you are a grandparent or significant other seeking orders in relation to a child, as with any person seeking relief from the courts, you are required, except in limited cases, to attend family dispute resolution with the other party first to attempt to reach an agreement without the need to go to court.
If you are seeking more information about your right to apply for parenting orders and whether you meet the threshold test, contact our family law expert Courtney Barton to discuss the specific circumstances of your case and take advantage of your first consultation free of charge.
