Who can bring an application for parenting orders? Understanding “standing” under the family law act

Parenting orders are orders made by the Federal Circuit and Family Court of Australia about arrangements for a child, including who the child lives with, spends time with, communicates with, and who has responsibility for making major long-term decisions for the child.

Before the Court considers what parenting orders should be made, there is often an important preliminary question: does the person applying have the legal right to bring the application?

This is known as “standing”. Standing is a threshold issue. This means that before the Court determines whether the proposed parenting orders are in the child’s best interests, the applicant may first need to show that they are entitled to bring the application at all.

In parenting matters, standing is determined under Section 65C of the Family Law Act 1975 (Cth).

Section 65C of the Family Law Act

Section 65C provides that an application for a parenting order may be made by:

1. either or both of the child’s parents;
2. the child;
3. a grandparent of the child; or
4. any other person concerned with the care, welfare or development of the child.

Parents and grandparents are specifically identified in the section. However, applications are sometimes brought by other people in a child’s life, including step-parents, relatives, former carers, family friends or other significant people.

In those cases, the person must establish that they fall within section 65C(c), namely that they are “a person concerned with the care, welfare or development of the child.”

Standing is a threshold issue

The question is not simply whether the applicant cares about the child, or would like to have a relationship with the child. The Court considers whether the applicant has a sufficient connection, involvement or concern with the child’s care, welfare or development.

Each case will turn on its own facts so case law is an important part of such cases.

Mankiewicz & Swallow [2016] FamCAFC 153

The Full Court considered section 65C(c) in Mankiewicz & Swallow [2016] FamCAFC 153, which involved an application by maternal great-grandparents seeking time with the children.

The Court found no error in the trial judge’s determination that the great-grandparents did not have standing to bring the parenting application.

The Full Court explained that applicants who rely only on section 65C(c) do not automatically have the right to seek substantive parenting orders. Rather, they simply have the right to bring an application to attempt to establish facts showing that they are a person concerned with the care, welfare or development of the child.

The Court stated that whether permission should be given is a question of fact. The applicant must demonstrate the required concern with the child’s care, welfare or development. It is then for the judge to determine, in the circumstances of the particular case, whether that issue should be addressed as a discrete preliminary issue early in the proceedings or at another stage.

The Full Court also observed that standing under section 65C(c) may be acquired or lost over time. A person who did not have standing at one point may later establish standing if the facts have changed. Conversely, a person who previously had a close involvement with a child may not necessarily continue to have standing if that involvement has ceased or changed significantly.

KAM v MJR (1998) 24 Fam LR 656

The decision in KAM v MJR (1998) 24 Fam LR 656 is also an important authority on section 65C(c).

In that case, a third party sought parenting orders. The application was opposed by both the mother and the father, who asked the Court to determine, as a threshold issue, whether the applicant was competent to bring the application.

The Court found that the applicant had a sufficient nexus with the child and that her past conduct and involvement in caring for the child satisfied the threshold requirement of being concerned with the child’s care, welfare or development.

The case makes clear that:

(a) a parenting order may be made in favour of a person other than a parent;
(b) a person who is not a parent or grandparent must demonstrate that they are a person concerned with the care, welfare or development of the child;
(c) the test depends on the individual facts and circumstances of each case;
(d) the Court considers the degree and strength of the applicant’s connection with the child;
(e) the threshold may be satisfied by concern with care, welfare or development; it is not necessary to prove all three; and
once standing is established, the Court must then consider whether the proposed orders are in the child’s best interests.

Standing is separate from best interests

It is important to distinguish between two separate questions:

1. Does the applicant have standing to bring the application?
2. If so, are the proposed orders in the child’s best interests?

Establishing standing does not mean that the applicant will obtain the parenting orders sought. It only permits the application to proceed. The Court must still consider the child’s best interests as the paramount consideration.

Similarly, a person may have a genuine connection with a child but still fail to establish sufficient standing under section 65C(c), depending on the nature and degree of that connection.

Examples of relevant factors

When considering whether a person is concerned with the care, welfare or development of a child, the Court may consider matters such as:

• the nature of the relationship between the applicant and the child;
• the length and quality of the applicant’s involvement in the child’s life;
• whether the applicant has provided care for the child;
• whether the child has lived with the applicant or spent substantial time with them;
• the applicant’s involvement in the child’s schooling, health, activities or daily life;
• the views of the child’s parents or carers;
• the current circumstances of the child; and
• whether the applicant’s involvement has been recent, meaningful and ongoing.

There is no fixed formula. The Court assesses the facts of each case.

Why standing matters

Standing is particularly important in applications brought by extended family members or non-parent applicants. If standing is challenged and not established, the application may not proceed.

The Court also has power to make costs orders in appropriate cases. This means that an unsuccessful application brought without proper standing may expose the applicant to financial consequences.

Legal advice is essential. If you have a parenting matter, please contact our firm on (02) 4944 3322 to make an appointment with our Accredited Specialist in Family Law, Hayden Carr, or via the form below.

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