Grandparents, Aunts or Uncles caring as parents: Should I be seeking an Order?

There are many situations that may lead to children being placed in the care of family members other than their parents. This can be through concerns for mental illness, drug or alcohol abuse, financial instability, or simply needing that extra support. But as the grandparent, aunt, uncle, cousin or family friend who has the child in their day to day care; should you consider applying for a Court Order for parental responsibility?

As is often the case, you may not think about the importance or assistance of having a formal Court Order until the need arises. Say for example you are the grandparent, with your five year old grandchild in your care. Your child is the father, who is currently an in-patient at a mental health care facility. It is likely he will be there for some time. The mother has moved to Western Australia, changing her mobile number and cutting off contact with the father. You need to sign the vaccination forms for your grandchild to attend primary school, but are unable to complete any of the forms as you are not the parent or legal guardian of the child. You cannot contact the mother to sign an authority, and your son has told you he does not want to deal with those things at this time.

In this circumstance, it would be in your interests (and likely in the child’s) to apply for an Order from the Family Court or Federal Circuit Court, to confirm that you are the legal guardian or that you have parental responsibility for the child, enabling you to make such decisions.

The parents of the child would need to be notified of your application, but if they chose not to participate, Orders could still be made by the Court. 

Who can apply for a parenting order?

Under Section 65C of the Family Law Act 1975, a person is able to apply for a parenting order if they are:

    a           either or both of the child's parents; or
    b           the child; or
    ba           a grandparent of the child; or
    c          any other person concerned with the care, welfare or development of the child.

While it is clear a parent or grandparent can make such an application, if you are another family member (or not a family member) more information may need to be provided to the Court to demonstrate that you are a person "concerned with the care, welfare or development of the child".

You seek legal advice tailored to your individual circumstances to ensure that your application meets the relevant criteria. Family law is complex and a specialist family lawyer can help you navigate the system.

This information is not intended to be a one size fits all guide. It is important to be able to make an informed decision that is based on your specific needs and concerns. There may also be other more suitable options available to you than commencing Court proceedings. To make an appointment with a member of our team, contact our office on (02) 6225 7040 or send an enquiry to us at info@rmfamilylaw.com.au.