It is not uncommon to receive an enquiry from someone whom is not a biological parent to a child (e.g. grandparents, step-parents and other relatives) about their options to spend time with the children of others, such as their grandchildren.
The Family Law Act provides that “any person concerned about the children’s care, welfare and development” can seek Orders in relation to children.
Whilst this seems like it could include a broad range of people, before allowing such parties to seek such Orders, the Family Court places the onus on an Applicant to provide evidence which justifies their need to spend time with the children and evidence that their Application would be in the children’s best interests .
The Full Court of the Family Court in the matter of Mankiewicz and Anor & Swallow and Anor said
Whether or not permission should be given [to a third party to joint proceedings] is a question of fact… to be determined on the basis that an applicant can demonstrate he or she is concerned with the care, welfare or development of the child. It will be a matter for the judge to decide in the individual case.
Case law in the area suggests that the Court will consider evidence such as the role the Applicant had in the lives of the children in the past, the nature of their relationship and their influence on the wellbeing of the child. As always, the Court’s paramount consideration is the best interests of the children.
The Full Court in Mankiewicz and Anor & Swallow and Anor considered an appeal made by maternal great grandparents who had made numerous Applications over the years to obtain parenting orders to allow them to spend time with their great grandchildren. In 2009, at first instance, their Application was unsuccessful with the Court finding that their relationship with their great grandchildren was not of such a nature to warrant their involvement in the proceedings. They did not meet the threshold required to be involved in the parenting arrangements for the children. They were unsuccessful in subsequent appeals, with the Full Court not being persuaded that such an Application was in the children’s best interests.
If you would like further advice about your options to seek parenting orders, including matters where you are not a biological parent to such children, you should contact our experienced family law team.