- It is possible for the parents of the child, the child itself, grandparents or “any other person concerned with the care, welfare or development of the child” to apply for parenting orders.
- Grandparents may seek to have a child live with them, or continue to live with them, due to a parent’s impaired capacity to care for the child. Grandparents are also entitled to make an application to the court proposing for the child to spend time with them.
- The court’s most common approach: “There are no presumptions or preferential positions that apply between a parent and non parent, and an application for a parenting order by a non parent is to be determined in the same way as an application by a parent…having regard to the best interests of the child as the paramount consideration” (Valentine & Lacerra & Anor  FAM CAFC 53 at ).
- The “maintenance of a meaningful relationship between a child and a grandparent may be considered equally important to maintaining such a relationship with a parent” (Donnell & Dovey  FAM CAFC at ).
Who can apply for parenting orders?
The Federal Circuit and Family Court of Australia (FCFCOA) has the power to make parenting orders initiated by parties that are not the biological parents of a child. According to section 65C(c) of the Family Law Act 1975 (Cth), it is possible for the parents of the child, the child itself, grandparents or “any other person concerned with the care, welfare or development of the child” to apply for parenting orders. This means that the parental responsibility of a child can be provided to a non parent to make decisions relating to the child’s education, health, religious upbringing, whom the child is to live with and whom the child is to spend time with.
However, the eligibility to apply for a parenting application under section 65C(c) depends on an assessment of current circumstances, such as:
- When was the last time the non parent spent time with the child?
- How regularly does the non parent contact the child?
- Has a relationship developed between the non parent and child?
- Is the relationship more than just a historical relationship?
Legislative pathway for grandparents
Parenting applications initiated by grandparents are determined by the same legislative pathway applied in parenting applications initiated by a biological parent of a child. Firstly, the court must regard the best interests of a child as the most paramount consideration when making a parenting order with respect to a child (section 60CA of the Family Law Act 1975 (Cth).
When determining what is in the best interest of the child, the court is required to have regard to the primary considerations outlined in section 60CC(2) of the Family Law Act 1975 (Cth), which are:
- The benefit to the child of having a meaningful relationship with both parents; and
- The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In Donnell & Dovey  FAM CAFC 15, it was established that the “maintenance of a meaningful relationship between a child and a grandparent may be considered equally important to maintaining such a relationship with a parent”.
The court can also take into account any additional considerations established in Section 60CC(3) of the Family Law Act 1975 (Cth), including but not limited to:
- The children’s views;
- The nature of the child’s relationship with the parent or other persons (including any grandparent or relative of the child);
- The extent to which each of the child’s parent has taken, or failed to take, the opportunity to participate in making decisions about major long term issues, to spend time with the child and to communicate with the child.
- The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
- The likely effect of any changes in the child’s circumstances, including the effect of the child being separated from either of the child’s parents or any other person (including the child’s grandparent or other relatives) with whom the child has been living.
- The practical difficult and expense of child spending the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
- The capacity of each of the child’s parents or any other person (including any grandparent or other relative) to provide for the emotional and intellectual needs of the child;
- The maturity, sex, lifestyle and background of the child and of the child’s parents;
- If the child is an Indigenous Aboriginal child or a Torres Strait Islander child;
- The attitude of the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
- Any family violence involving the child or a member of the child’s family;
- If a family violence order applies or has applied, to the child or a member of the child’s family;
- Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child; and
- Any other fact or circumstance that the court thinks is relevant.
Grandparents and ‘live with orders’
Grandparents may seek to have a child live with them, or continue to live with them, due to a parent’s impaired capacity to care for the child. Grandparents may adopt the role as the child’s primary carer for an extended period of time in circumstances where one, or both, of the child’s parents, suffer from drug abuse, substance abuse, mental illness and/or family violence.
For example, in Carlson & Bowden , the paternal grandmother and her partner applied for parenting orders seeking the parental responsibility of their four-year-old grandchild. The biological parents of the child were both drug users whereby the mother was a heroin addict and the father had an extensive criminal history involving firearms and violence. The court granted sole parental responsibility and ‘live with’ orders to the grandmother and her partner where the child would spend time with each respective parent. The court recognised that it was in the best interest of the child to continue living with the grandparents to maintain the child’s stability and routine.
However, it is possible for parents to regain control of their lives and successfully seek for the children to live with them again if they can provide evidence confirming that they no longer suffer from an impaired parental capacity and are willing to embrace the responsibilities of parenthood. This can be achieved by undertaking treatment, therapy, completing parenting courses, changing their lifestyle and improving their overall circumstances.
The death of a parent
It is not uncommon for grandparents to make an application to the court proposing for the child to spend time more time with them. This is particularly relevant to situations where one of the child’s parents have passed away and the grandparents, or close family members, of the deceased parent, are seeking to maintain a relationship with the child.
In Valentine & Lacerra and Anor , a father prevented the child from spending time with the maternal aunt and grandmother following the death of the child’s mother. The father relocated to Victoria despite interim orders being made for the child to spend weekend time with the maternal family. The maternal aunt and grandmother sought orders to spend time with the child on weekends and in the school holidays, which was granted by the court. The father appealed the decision on the basis of the court failing to consider his superior status as the surviving parent. The Full Court (Faulks, DCJ, Coleman and Strickland JJ) rejected the father’s argument as “there are no presumptions or preferential positions that apply between a parent and non parent, and an application for a parenting order by a non parent is to be determined in the same way as an application by a parent…having regard to the best interests of the child as the paramount consideration” (Valentine & Lacerra & Anor  FAM CAFC 53 at ).
A parent rejecting a grandparent’s claim – who knows best?
A grandparent may seek orders to spend time with the child irrespective of either, or both of biological parents resisting their claim. There have been various approaches adopted by the courts to deal with this scenario.
The first approach is characterised by the “parents knows best” attitude, whereby the court may be inclined to uphold the parent’s judgment when deciding who the child spends time with as it is a decision that incidentally relates to parental responsibility and autonomy.
For example, in Church & S Overton , the maternal grandfather sought orders to send cards, letters and gifts to his grandchildren, to speak with the grandchildren on a monthly basis and spend time with the grandchild four times a year. The mother opposed these orders because she submitted that the grandfather was using family law proceedings to cause her emotional distress. The court permitted the maternal grandfather to send cards and letters to the grandchildren, however all other applications were dismissed.
On the other hand, the court overruled parental autonomy in the case of Jacks & Samson  where the maternal grandparents made an application to spend three days every four weeks with the children. The mother of the children rejected this claim on the basis that increasing contact would cause her stress and anxiety. The mother alleged that the maternal grandfather was emotionally abusive towards her and an expert report was produced to verify that the maternal grandfather suffered from traits of a narcissistic personality disorder. Nevertheless, the court ruled that the grandparents posed no risk to the children and the children would benefit from developing a meaningful relationship with the grandparents (Jacks & Samson  FamCAFC 173, ).
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