In Australia, there is a myriad of formations of who may act in the role of a parent: the traditional two-parent household, the common single-parent household, or where an extended family member (like a grandparent, aunt or uncle) acts in the role of a parent. Relevantly to the Family Law Act 1975 (Cth), all of these parties can possibly seek parenting orders from a Court subject to their particular circumstances.
A parenting order may be in relation to:
The allocation of parental responsibility;
With whom a child is to live; or
With whom a child is to spend time.
The Court must regard the best interests of the child as the paramount consideration. In determining this, the primary considerations are:
The benefit to the child of having a meaningful relationship – being one of positivity and benefit – with each of their 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.
The Court is required to give greater weight to the second consideration. There is also a range of additional considerations the Court must take into account when seeking to make parenting orders.
The Court has no pathway as to how to prioritise the “parent” over that of a grandparent, aunt or uncle, or a person “otherwise concerned with the care, welfare or development” of the child. Put simply, there is no such priority. What is an unconditional right, is the standing of a parent, a child or a grandparent, to apply for parenting orders. The aunt, uncle or say, the step-parent of a child, must first establish themselves as a person so concerned with the care, welfare or development of the child, and once established, may then proceed to seek parenting orders.
An example of this was Winship & Wrays [2019] FamCAFC 225, where the Full Court of the Family Court of Australia upheld a decision that:
The aunt of the subject child is granted sole parental responsibility.
The child to live primarily with the aunt.
The child to spend significant and substantial time with the father, being alternate weekends in the school term and half of school holidays and special occasions.
Relevantly in Winship, the child had been in the care of the mother, who unfortunately passed away due to breast cancer. The aunt cohabitated with the mother and father to provide support and care for the mother in her illness, and in the care of the child, who had their own health needs. The mother passed away after the parties separated, with the aunt remaining with the child in the mother’s home, the father having moved out. There were circumstances of family violence as between the father and the mother, and a particularly fraught incident involving the father, the mother, and the child, that led both the mother and the child to fear for their safety from the father.
Following the mother’s passing and failing resolution of an agreed parenting arrangement between the father and the aunt, the father brought proceedings to the Family Court of Australia. The trial judge ultimately determined orders in favour of the aunt as against the father, relevantly as it was in the best interests of the child to live with the aunt over the father. The fact the father perhaps had a “better” standing to seek orders about the child, made no difference to how the Court regarded what was in the child’s best interests.
While the Court may give regard to previous decisions, it is not in any way bound by them. The Court will apply the relevant law to the facts in your particular circumstances at the time. To know what options are available to you, it is important to get advice tailored to you. If you would like to discuss your matter and how we can assist you, contact us today on, contact us today at (02) 6225 7040 or by email at info@rmfamilylaw.com.au or get started now online.