Parenting Orders – Who Can Apply?

A Parenting Order is an Order made under the Family Law Act 1975 that deals with one or more of the following matters set out in section 64B(2) of the Act:

– The person or persons with whom a child is to live;

– The time a child is to spend with another person or other persons;

– The allocation of parental responsibility for a child;

– If 2 or more persons are to share parental responsibility 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;

– The communication a child is to have with another person or other persons;

– Maintenance of a child;

– The steps to be taken before an application is made to a Court for a variation of the order to take account of the changing needs or circumstances of: a child to whom the order relates; or the parties to the proceedings in which the order is made;

– The process to be used for resolving disputes about the terms or operation of the order;

– Any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.

Under section 65C of the Family Law Act 1975, a Parenting Order in relation to a child may be applied for by:

– Either or both of the child’s parents; or

– The child; or

– A grandparent of the child; or

– Any other person concerned with the care, welfare or development of the child.

The majority of parenting proceedings involve an application by a parent. Parents of the child include biological parents, adoptive parents, parents of children artificially conceived and parents of children born under surrogacy arrangements.

Applications by children for Parenting Orders are uncommon, presumably because there will usually be little utility in making Parenting Orders in relation to children who have enough maturity and independence to seek Orders themselves. In one unusual case however, a 17 year old child obtained an ex-parte Order (ie, in the absence of other parties) by way of an injunction, restraining her parents and stepfather from removing her from Australia against her will: Kandal v Khyatt (2010).

Since the year 2000, a grandparent of the child has been specified in the legislation as being able to apply for a Parenting Order. Grandparents could previously make applications under the category ‘any other person concerned with the care, welfare or development of the child’ however, a separate category for grandparents must have been inserted to remove any possible doubt. Applications by grandparents are common.

Applications by any other person concerned with the care, welfare or development of the child has proven to be the most difficult category. In one case, the Court held that a woman who had been a friend and partner of the child’s mother was entitled to make an application, over the objections of both the mother and the child’s father. The applicant had had previous contact with the child and had undertaken aspects of a carer’s role in relation to her: Kam v MJR (1998).

There has been some difference of opinion about whether applicants under this provision need to have had prior involvement with the child. On a narrow interpretation, a person who is genuinely concerned with the care, welfare or development of the child may be precluded from applying for a Parenting Order; for example, an aunt or uncle who resides overseas and has therefore not had previous care of the child, but wishes to apply for a Parenting Order after the death of a parent or both parents.

The Court is challenged with the competing issues of ensuring that children’s issues come before the Court so that they can be resolved according to law, while preventing frivolous applications from being made by an applicant who has a mere interest in, or concern about, the child.

Notwithstanding this grey area and irrespective of who applies for a Parenting Order, under section 65C of the Family Law Act 1975 threshold test for standing to bring an application is created and is to be determined on the individual facts and circumstances of each case. Once the threshold stage has been passed, the individual facts and circumstances of the matter again must be viewed in order to determine whether or not a parenting order is appropriate and in the best interests of the child.

The bottom line will always be that a Parenting Order will not be made, no matter who it is applied for by, if it is not considered by the Court to be in the best interests of the child.

If you require legal assistance in relation to an application for parenting orders or a child custody matter, our experts at Prime Lawyers – Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.