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.
Naturally, a good way to follow up such an article is with an explanation of why, when seeking Parenting Orders from a Court, it does not matter who a child’s parents are at all.
I was reminded of the issue by this cartoon, recently sent to me by a colleague.
Parenting Orders are Orders made by the Court about matters relating to the parenting of a child.
Section S64B of The Family Law Act 1975 (Cth) (‘the Family Law Act’) defines ‘Parenting Orders’ as including any Order about:
- 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;
- The communication a child is to have with another person or other persons; or
- Any aspect of the care, welfare or development of the child or any other aspect of parental responsibility for a child.
The Family Law Act is clear that a Court can make a Parenting Order in favour of literally anyone, regardless of their relation to the child.
The Act is similarly broad on who may apply for a Parenting Order. Section 65C of the Family law Act specifically allows parents and grandparents to apply for Orders, and also allows applications from “any other person concerned with the care, welfare or development of the child”. This is sometimes known as the “threshold test” for standing to apply for Parenting Orders.
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 Altobelli FM 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 had sufficient standing to oppose the relocation.
In Chan & Chan, the Court heard an application from a woman seeking to intervene in the parenting proceedings between her ex-husband and his new partner. The woman was seeking to spend time with the child of her ex-husband and his new partner each school holiday period. The child’s mother opposed the application, and argued that her partner’s ex-wife did not have sufficient standing to apply for Orders in relation to her child.
Despite having no biological relation 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 and therefore had sufficient standing to apply for the Orders she was seeking.
The broad range of parties who may have standing to apply for parenting Orders was demonstrated in 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 receive the recommended treatment.
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 recommended care being opposed each time by Oshin’s parents in favour of alternative therapies. Oshin’s chances of survival were markedly reduced 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 is clear that the broad and evolving class of people who can apply for Parenting Orders is anything but predicable. It currently includes sperm donors, ex-partners of parents and government officials, and further inclusions seem likely as time goes on.
If you are unsure as to whether you are able to apply for a Parenting Order in relation to a child, or whether someone else may be able to apply in relation to your child, please contact our experienced Team at Butlers for further information.