It is becoming increasingly common for grandparents and significant others, responsible for the care, welfare and development of the child, 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 biological parent / primary carer and played a significant role in the care and welfare of the child during the child’s life.
- There is no parent available to care for the children as a result of death, critical injury or incarceration relating to family violence and orders are sought for parental responsibility to enable appropriate arrangements to be made for the children.
Do any of these situations apply to you? Are you seeking a non-parent parenting order?
Read on to understand 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, relatives of the child and significant others in the child’s life.
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 not sure if I am a parent. What is the definition of a parent?
See our article Am I a Parent to give you some clarity surrounding this issue.
I am not a parent. 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.
At para 10 of the Judgement, Justices Ryan and Austin (Murphy dissenting), said:
“The effect of s 65C is that the only people who have an unconditional right to apply for parenting orders are those identified in ss 65C(a), (b) and (ba). Applicants who only fall within s 65C(c) have the right to do no more than bring an application to attempt to establish facts which would permit them to apply for a parenting order and have no right to seek substantive relief until they do so. The point being that they can only apply for a parenting order where a court determines they are such a person and thereby grants permission. Whether or not permission should be given is a question of fact and to be determined on the basis that an applicant can demonstrate he or she is concerned with the care, welfare or development of the child. It will be a matter for the judge to decide in the individual case whether this issue is addressed as a discrete issue early in the case or at some other stage.”
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 , once you prove you a person concerned with the care, welfare and development of the child.
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 welbeing, and overall, whether the orders you seek are in the children’s best interests.
Urgent applications for non-parent parenting orders
An urgent application to the court may be required for parenting orders where there is no parent available to care for the children as a result of death, critical injury or incarceration relating to family violence and orders are sought for parental responsibility to enable appropriate arrangements to be made for the children.
The Critical Incident List was created to facilitate the urgent hearing of such applications.
The Criteria for inclusion in the Critical Incident List is as follows:
- The applicant is a non-parent caring for the child.
- There is no parent available to care for the child as a result of death (incl homicide), critical injury or incarceration relating to/resulting from a family violence incident.
- The applicant is seeking orders for parental responsibility to enable appropriate arrangements to be made for the child (e.g. authority to engage with schools/health care providers, and this may or may not include an order for the child to live with the applicant)
- There are no existing final family law or state child welfare orders in place relating to the child’s care arrangements with a non-parent or allocating parental responsibility of the child to a non-parent.
When the criteria for inclusion on the critical incident list are met, the application will be listed within 7 days before a Judge in Division 1 of the FCFCoA.
Applicants are excused from compliance with the pre-action procedures (mediation etc) when lodging an application for filing in the Critical Incident List.
Check out the Critical Incident List Practice Direction for more information.
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 non-parent parenting orders or if you require urgent orders where there is no parent available to care for the children, contact us today to book a reduced rate initial consultation with one of our family law experts to have a confidential discussion about your individual circumstances.
