Non-parents in Family Law Matters

With Covid-19 restrictions, many families are experiencing the impact of loved ones not being able to see each other. Hopefully we are not too far away from families being able to again spend time together.

But what does Family Law do when someone wants to spend time with a child and the parents don’t agree?

Such situations are not uncommon. Under the Family Law Act, a non-parent can seek orders regarding a child.

Parents and grandparents have automatic standing to bring applications for orders regarding children, but someone who is not a parent of a child — “any other person” — must first convince the court that they are a person concerned with the care, welfare and development of the child

The first test is a threshold test, the court will look at that first and the application not go further if that isn’t found to be correct.

If the first test is satisfied, the second element is for the court to consider whether the orders sought are in the best interests of the child. To do this, the court considers matters such as:

• The nature of the applicant’s relationship with the child
• Whether the applicant has played a significant role in the child’s life and
• What has been the interest or involvement in the child’s life in the past

So, what sort of situations end up being cases of this nature?

With grandparents, the cases generally fall into two categories. Those where the grandparent is standing alongside or instead of a parent and those where the grandparent is making an against both parents – which can even be when the parents are still in a relationship together.

Other applicants come from a wide range of connections – cases have seen aunts, uncles, step-siblings, friends and former partners of parents all bring such applications. The category has little impact upon the merits of the case, rather it is about the connection with the child and the evaluation of what is in the best interests of the child.

Matters like these usually come from complex or tragic circumstances – families estranged, death or health issues are often the background. Sometimes it is a situation where the non-parent seeks to join in current proceedings that are already in court, other times it is the non-parent commencing the court application.

If you can’t reach an agreement with a parent regarding a child or you are wondering about whether you should be participating in current court proceedings, you should make an appointment with one of our family lawyers who will be able to advise you on the likelihood of success of your application and the best way to go about getting the outcome which is best for the child and you.