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Parenting Orders and what you need to know.


In our previous article ‘Who is a Parent??’ we touched on the importance of being a ‘parent’ under Australian Law, and the legal consequences associated with paternity.

You might then find it strange to learn that when applying for Parenting Orders at Court, you do not have to be a parent. In fact, you don’t even have to be a relative. Parenting Orders can cover all aspects of the care and welfare arrangements for a child and are not just limited to who a child lives with and spends time with.

Section 65C of the Family law Act 1975 specifically allows parents and grandparents to apply for Parenting Orders, but also allows Applications from “any other person concerned with the care, welfare or development of the child”. Of course, it isn’t quite as simple as the babysitter applying for an Order that your child lives with them, as the person applying has to satisfy the Court that they meet what is known as the “threshold test”.

The question of whether a particular person passes the threshold test can only be answered by referring to previous decisions of the Court. In Venkatesan & Pawar, the Court noted that “there has to be some relationship between, or involvement with, the child in a meaningful sense” for a person to apply for a Parenting Order.

In Halifax & Fabian, the Court considered the case of a female same-sex couple, each of whom had a child during their relationship using artificial insemination. After separation, one of the mothers applied to the Court to relocate interstate with her biological child. She was opposed by the sperm donor and his new partner. The sperm donor, who was a personal friend of the mother, had regularly spent time with the child and had paid child support to the mother. The Magistrate found that both the sperm donor and his new partner were able to oppose the relocation.

The case of Chan & Chan & Anor concerned an Application from a woman seeking to intervene in the parenting proceedings between the father, who was her ex-husband (Mr Chan) and the mother of the child. Ms Chan wanted to spend time with the child, who she had spent considerable time with during the time she was married to Mr Chan. She informed the Court that they had an ongoing relationship and communicated regularly. The child’s mother opposed the Application and argued that Ms Chan should not be able to intervene. She was unsuccessful, and Ms Chan was allowed to join the proceedings, as despite her having no biological connection to the child and no continuing romantic involvement with the Father, the Court found that the woman had developed a strong relationship with the child.

Another example comes from the tragic case of Director Clinical Services, Child & Adolescent Health Services and Kiszko & Anor, often referred to as ‘Oshin’s Case’.

At the age of five, Oshin had a rare brain tumour surgically removed. Oshin’s doctors recommended that Oshin undergo follow up chemotherapy and radiotherapy, but Oshin’s parents preferred to treat Oshin with alternative therapies, including naturopathy, massage therapy and herbal treatments. The Director of the Child and Adolescent Health Service commenced proceedings and sought Orders that Oshin receives the treatment recommended by the doctors.

The Director of the Child and Adolescent Health Service was able to apply because the responsibilities of his position were sufficient to satisfy the threshold test, despite having no personal relationship to Oshin at all.

The case was heard by the Court three times in six months, with further medical treatment being opposed each time by Oshin’s parents in favour of alternative therapies. Oshin’s chances of survival reduced considerably over this period, and by the third and final hearing in August 2016, Oshin’s chances of survival were “almost zero”. Oshin died in December 2016.

The case law shows that there have been several different people who have applied for Parenting Orders, and many have been successful in demonstrating that they should be allowed to do so. Whether a particular person will be able to apply for Parenting Orders is determined by the unique circumstances of each matter.

If you are unsure whether you can apply for a Parenting Order in relation to a child, or whether someone else may be able to apply in relation to your child, contact our team at Butlers for further information.


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Wednesday, 22 September 2021

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