Do I have legal rights if I'm not the child's parent?

As the diversity of family structures across Australia continues to increase, many people involved in a child's life, such as stepparents, grandparents, former partners of a parent, or other carers, may not be legal parents, but still play important roles. In family law, these individuals are often referred to as non-parents. While they may not have automatic legal rights, they can, in some cases, apply for parenting orders enabling them to spend time with or make decisions about a child.

This article explains the keyways in which non-parents can participate in family law proceedings regarding children.

Parenting orders

Non-parents can participate in parenting proceedings and can be bound by parenting orders made by the Federal Circuit and Family Court of Australia (Court).

Parenting orders are legally binding orders made by the Court which set out who has various responsibilities for a child. Parenting orders are made under Part VII of the Family Law Act 1975 (Cth) (Act).

Parenting orders typically deal with the following issues:

1. Who a child lives with;
2. Who a child spend times and communicates with; and
3. Who makes long-term decisions in relation to a child (such as decisions about the child's health, education and religion).

When making parenting orders, the most important factor, from the Court's perspective, is what is in the best interests of the child.

Can non-parents apply for parenting orders?

Yes, non-parents can apply for parenting orders. Section 65C of the Act provides that the following individuals can apply for a parenting order:

1. The parents;
2. The child;
3. A grandparent; or
4. Any other person concerned with the care, welfare or development of the child.

Hypothetical examples

Below are some examples of circumstances in which a non-parent may wish to apply for parenting orders in respect of a child:

1. The partner of a birth mother of a child born through artificial conception can seek an order for parental responsibility;
2. The grandparents of a child may wish to seek orders to spend time with or communicate with a child;
3. A step-parent of a child may seek an order for parental responsibility and/or orders to spend time with the child; or
4. Surrogate parents may seek orders for parental responsibility where their child was born through a surrogacy arrangement.

Non-parents and non-grandparents

A non-parent or non-grandparent seeking parenting orders is required to advance compelling evidence to demonstrate that:

1. Firstly, the applicant is a "person concerned with the care, welfare or development of the child"; and
2. Secondly, that it is in the child's best interests for a parenting order to be made in their favour. Case law suggests that there is not a presumption in favour of parents (as compared with non-parents) when determining what orders are in a child's best interests. This article provides further information regarding how a child's best interests are determined by the Court.

Both requirements must be satisfied for an application to be successful. If the Court is satisfied that the first requirement is met but is not satisfied that the orders sought are in the child's best interests, the application will be unsuccessful, and the non-parent will not be eligible to apply for parenting orders.

As a non-parent or non-grandparent of the child, an applicant's involvement and interaction with the child, and the extent to which this is relevant to the child's best interests, may be more complex than a parenting application made by a parent. As such, it is important to give special attention to the type of evidence that is put before the Court.

Case example

In the case of Kam v MJR and Another, the Applicant (the non-parent, "Sarah") was the former partner of the biological mother of the child ("Emily"). Sarah sought orders to spend time with the child. The child's parents, Emily and Roger, both opposed Sarah's application.

Emily and Roger commenced a relationship in 1991, and the child was born in 1993. Emily and Sarah commenced a sexual relationship in 1994 which ended in 1995. They never lived together in a permanent domestic partnership. Following the child's birth, Sarah was involved in the child's care, including overnight stays and regular phone contact. Sarah undertook elements of a carer's role, more than that of a nanny or babysitter.

In the above circumstances, the Court found that Sarah met the threshold requirement as someone "concerned with the care, welfare or development of the child" and was allowed to continue with her application to spend time with the child.

The Family & Relationship Law team at Lander & Rogers has extensive experience acting for non-parents, as well as defending these applications. If you or someone you know would benefit from further advice regarding non-parents and the family law system, please contact a member of our specialist legal team here.