Step-Parent Parenting Orders
When a court is determining the best interests of a child, the two primary considerations a Court considers are the child’s right to have a meaningful relationship with both parents, balanced against the child’s right to be protected from physical, psychological and emotional harm and neglect.
But what about a step-parent ?
Is a step-parent a Parent under the Family Law Act?
We discussed the definition of a ‘parent’ in our article Am I a parent.
A step-parent does not fall within the definition of a parent within the meaning of the Family Law Act.
Given the two primary considerations the Court is required to consider in determining what orders are in a child’s best interests, it would seem pretty clear then that when a step-parent comes up against a biological parent in a family court proceeding, that the biological parent would be granted primary custody over a step-parent right? Interestingly enough, the answer to this question is not black and white…
Lets see where a step-parent fits in in the Family Law Act 1975.
A Parenting Order may deal with the person or persons with whom a child is to live with and spend time with (amongst other things). A person for this purpose is either a parent of the child or a person other than a parent of the child, including a grandparent or other relative.
The objects of the Family Law Act are, amongst other things, that the child are to ensure the best interests of the children are met by ensuring that children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests whilst ensuring they are protected from harm. Some of the principles underlying these objects are that except when it is or would be contrary to a child’s best interests:
- children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
- children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
Therefore, in summary a step-parent is considered a ‘relative’ not a parent, for the purpose of the Family Law Act.
Can a Non-Parent & Step-Parent apply for parenting orders?
In our article on Non-Parent Parenting Orders, we explained that a non-parent can apply for 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 a step-parent, you fall into the fourth category and in order to apply for parenting orders, you must establish the threshold test, that you are a person concerned with the care, welfare of development of the child.
Case Study: Cottey & Backe
In Cottey & Back (No.2) [2020] FamCAFC 206 the child (8) lived with the Mother and step-father. The mother and the Father separated when the child was twelve months old and thereafter the Father had little contact with the child. The Father commenced spending consistent time with the child on alternate weekends and school holidays from 2015 onwards. In 2019, the mother died in a motor vehicle accident. Following the Mother’s death, the child continued to spend each alternate weekend and a portion of school holidays with the Father and his wife. Those arrangements continued until April 2020 when the father refused to return the child to the step-father. subsequently the child was retained by the biological father (hereinafter the ‘father’).
The Step-father made an application for parenting orders seeking return of the child and that the previous time arrangement be reinstated.
The Court determined that the step-father is a person concerned with the care, welfare and development of the child for the purpose of section 65C of the FLA.
On the first return date the Judge dismissed the step-father’s application for return of the child. Interim orders were made which provided that the child live with the father and spend time with the stepfather by agreement and failing agreement each alternate weekend and half of each school holiday period. The matter was adjourned to a date in 2021 following release of a Family Report. The primary Judge in making his decision noted his inability to make findings of fact and cited the case of Marvel v Marvel which says “often for very good reason, a conservative approach, or one which is likely to avoid harm to a child is adopted”
The Step-father appealed this interim decision. The appeal was in relation to the exercise of discretion.
The grounds of the appeal were that the primary judge erred:
- by failing to provide adequate reasons that it is in the child’s best interests to live with the father and if the child lived with the stepfather there is a real risk that the child’s meaningful relationship with the father may be adversely compromised (Ground 1, 3, 7 and 8)
- in his Honour’s application of s 60CC(3)(d) of the Act and by failing to consider the effect on the child of changing his living arrangements (Grounds 2, 4 and 9);
- by failing to give weight to the child’s relationship with his stepfather and his brother (Ground 5).
In relation to the adequacy of reasons the Court found that the primary judge did not give adequate reasons for why the step-father’s case was rejected. There was no explanation provided for the conclusion by the primary judge that there would be a negative impact on the child’s relationship with the father should the child return to live with the step-father. The Court found that the reasons for judgement of the primary judge did explain why he determined it was in the best interests of the child to live with the father – namely, because he was the child’s sole surviving biological parent.
The Appellate Judges quoted Rice v Miller [1993] FamCA 87; (1993) FLC 92-415 (“Rice v Miller”), and made it clear that parenting (custody) disputes between a parent and a non‑parent must be decided solely on the basis of the child’s best interests. There was no presumption in favour of the natural parent when determining custody or similar matters. The fact of parenthood is a significant factor but does not “generate a preferential position in favour of the natural parent from which the Court commences its decision making process in the adjudication of custody disputes.”
The child’s right to be cared for by both parents as noted in the principles of the act is always subject to the child’s best interests. Thus, notwithstanding that for the first time the Act contained a series of objects, including one emphasising a child’s right to know and be cared for by both parents and; a more extensive list of factors, some of which referred exclusively to parents, the Court highlighted that there was no presumption or preference in favour of a parent in a parenting/residence dispute as against a third party.
The Father’s case, which was accepted by the primary Judge, was presented on the basis of him being in a preferred position by reason of parenthood and the stepfather needing to establish a risk of harm to the child in order to dislodge that advantage.
The Appeal Judges further determined that the primary judge had erred by not taking into account the child’s stable living arrangements in that he had been consistently living with the step-father prior to the father withholding the child.
Finally, the Appeal Judges determined that the primary judge had not given adequate consideration to the fact that the orders resulted in a separation of siblings, who were close together in age and had lived together for most of their lives. The Court determined that this was a step that would only be justified in the most serious of circumstances, especially given the lengthy adjournment that had been contemplated by the primary judge.
Overall, the Appellate Court found that Her Honour made significant errors as to critical aspects of the evidence and its effect and above all, she had insufficient evidence
Given the determination that the primary judge had not considered the extremely relevant factor of the stability of the child in his well settled living arrangement living with the step-father for years prior and given the Appeal Court could not establish any other reason that the primary judge ordered for the child to live with the father, other than because he was the child’s parent and given the step-father’s case was wrongly evaluated on the basis that he bore an onus to demonstrate disqualifying factors in the father to have the child returned to him, the appeal was allowed.
In deciding to re-exercise discretion, the Appeal court determined that it was in the child’s best interests on an interim basis to live with the step-father and spend alternate weekends with the Father, pending a final hearing. The factors the court considered in making this determination were:
- the child has lived with the stepfather, the Mother and his sibling most of his life;
- the child had a close relationship with the step-father which warmed even more after the mother’s death;
- The boys and the step-father grieved the loss of the mother, however it brought them closer together and the boys obtained solace from the other in that loss. Depriving the boys of the other’s comfort and support following the mother’s death was not in their best interests. The evidence on both sides appeared to support that the boys were close and it was in their mutual benefit to be reunited in the one family. This was a factor that weighed heavily in the circumstances of the case.
- The father’s decision to break the agreement that the child would continue to reside with the stepfather pending assessment and not to return him, raised serious questions about his parenting capacity and his regard for the child’s relationship with his brother and stepfather.
- The child would be returning to the home he has lived in since he was a baby and the school where he will pick back up with the friendships he had established in kindergarten and so he would be re-established in a well settled living environment that has to date, served him nicely.
- in respect of the child’s reduction in the time he spends with the father, the court recognised that the child loves his father, enjoys spending time with him and there is a strong relationship. The court recognised that this relationship would continue with the child living with the step-father;
- Both men were said to be important role models for the child and the child saw each of them as a father figure; the stepfather is “Big Dad” and the father is “Little Dad”. The fact that the child has lived most of his life with the stepfather as a pivotal role model, at this stage negated the father’s parenthood as warranting any weight.
Are you a non parent seeking orders for time with a child?
Contact our office on 3465 9332 and book a reduced rate initial consultation with one of our experienced Brisbane Family & Divorce Lawyers to have a confidential discussion about your individual circumstances.
