Parenting Orders - What they are, Who can Apply

21/08/2015

The Family Law Act 1975 empowers the Family Court of Australia or the Federal Circuit Court of Australia to make parenting Orders. Parenting Orders are Orders made in relation to a child or children (or variations, suspensions, revivals of earlier Court Orders) that deal with one or more of the following:-

  1. The person or persons with whom a child is to live.
  2. The time a child is to spend with another person or other persons.
  3. The allocation of parental responsibilities for the child.
  4. If two or more persons are to share parental responsibilities for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility.
  5. The communication the child is to have with another person or other persons.
  6. The maintenance of a child.
  7. The steps to be taken before an application is made to a Court for a variation of an Order to take into account changing needs or circumstances of:-
    1. The child to whom the Order relates.
    2. The parties to the proceedings in which the Order is made.
  8. The process to be used for resolving disputes about the terms of operation of the Order.
  9. Any aspect of the care, welfare and development of a child or any other aspect of parental responsibility for a child.

Who Can Apply

The Family Law Act allows certain persons to make an application to the Family Court of Australia or the Federal Circuit Court of Australia for parenting Orders. Section 65C of the Act provides that an application may be made by:-

  1. Either or both of the children’s parents; or
  2. The child; or

(ba)     The grandparent of the child; or

  1. Any other person concerned in the care, welfare and development of a child.

The Court has recently again considered the issue of when a person who is not a parent or a grandparent but a person who is said to be interested in the care, welfare and development of a child. 

In the recent case of Grimshaw and Thanh the Federal Circuit Court dismissed an application made by a person who asserted that he was the de facto father or step father of the child. In determining the case the Court confirmed that the Applicant in the proceedings had the right under the Act to file an application with the Court. It also confirmed that a parenting Order may be made in favour of a person other than a parent.

Importantly, the Court said that in order to proceed beyond the mere making of the application for the Applicant for a parenting Order must demonstrate that they are a person concerned with the care, welfare and development of the child.  The Court required satisfaction of a threshold test which needs to be determined on the individual facts and circumstances of each case.

The court said that an application for a parenting Order must be made by a person actually interested or concerned in the welfare of the child but not a mere busybody who had no prior involvement or connection with the child.  In that particular case the Orders were opposed by the parents of the child who had resumed co-habitation and were regarded as an intact family.

The applicant failed in his case.  

Please do not hesitate to telephone Richard Watson or Dennis Grant should you have any queries or concerns relating to parenting orders.

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