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What happens when a couple separates and a partner who has been a step-parent wishes to continue to see the step-children? Does the step-parent have any access to the family court system to seek time with the children, if negotiations over parenting arrangements don’t work? The answer is: yes, absolutely.

It’s not just biological parents who can apply for parenting orders. Under the Family Law Act 1975, any person “concerned with the care, welfare and development of the child” can apply for parenting orders. And there’s actually no preferential position between parent and non-parents. The term “non-parent” is an slightly jarring one but is just technically used to describe a non-biological parent, even where that person was a step-parent and therefore obviously acted as a parent.

As the judge in a recent “non-parents” case said: “It is not parenthood which is crucial to the best interests of the child, but parenting”.  In the case, heard in the family court in Parramatta recently under the court-ordered pseudonyms Lipovic & Sorrel, the court was tasked with determining whether a seven year old girl should spend time with her “non-parent”, being her stepfather (who is the biological father of the girl’s three half-sisters and who spends significant time with them).

The girl’s mother, with whom the stepfather had a “poor relationship”, opposed him spending time, expressing a concern that the girl might not be treated equally to her half-siblings by the stepfather. Meanwhile the girl’s biological father had withdrawn from proceedings, previously describing the court process as “a clown show”, and now agreed with the mother’s position.

In the reasons for judgment, the court placed great weight on the views of the clinical psychologist expert witness and agreed that it was in the girl’s best interests to maintain a relationship and be granted time with the stepfather, similar to her sisters’ arrangement.

The expert told the court the girl “clearly identified [the stepfather] as a parental figure in her life”. He said that despite expressing an understanding of the fact that she “has two daddies”, the girl observed her sisters regularly going off to spend time with their dad and “appeared confused by this arrangement”, particularly since she rarely saw her own biological dad.

One of the things the court has to bear in mind in situations like these is the importance of keeping siblings together as much as possible. The expert referred to the extensive research confirming that growing up with siblings and sharing activities gives people a greater chance of experiencing enduring adult sibling relationships. Although the girl lived with her sisters at her mother’s home, it was bewildering to her that her sisters went off to see their dad and she was excluded.

The expert felt that there was some “irrational fear” of spending time with the stepfather, which was felt to “mirror the mother’s trepidation”. He said withholding contact would only “crystallise this irrational fear and further perpetuate double standards within their home” – rather than the stepfather not treating the girl as an equal to the half-sisters, it seemed in fact that the mother was treating her differently.

With the aim of establishing an arrangement which would give the girl the most consistency and predictability, the judge said that imposing a structured and routine contact regime (“all children to attend contact at the same time fortnightly”) would preserve and enhance family life and alleviate stress for the daughter. The expert said, “the fact that they are all together doing the same thing is going to be very reassuring for her”.

The other critical issue the court felt was relevant was the need to ensure the girl had the opportunity to have a reliable, accessible, positive male role model in her life. These days, many of us are aware of the importance of a good male role model to children living without a dad in the home. The expert refers to the “vast amount of research on the impact of the absent male figure in the development of children” and the “enormous long-term implications associated with having an absent positive male role model”.

For girls, these impacts include the risk of developing a standard “fearful or vigilant approach to any possible male that wants to seek to have an intimate relationship with her”, in this case due to the behaviour she learned from the mother in rejecting the stepfather. There’s also an associated risk of early puberty and early pubescent development as well as poorer school performance and vocational outcomes. The expert underscores the “big challenge for female children coming out of conflicted families and absent-father families”.

With predictability of contact vital, and the biological dad only being a presence in his daughter’s life “once every blue moon”, the expert found that the most reliable father figure who would enrich the girl’s life was the stepfather, who was “willing to step up and be a consistent, positive male figure”.

But despite the fact that the biological dad had refused to engage in the proceedings, the court took care to ensure that he was not removed from the girl’s life through the new arrangement: the time she is to spend with the stepfather is to “reasonably give way in circumstances where on reasonable notice the daughter is to spend time with her biological father”.

The takeaway of this “non-parents” case? So-called non-parents who can offer a child the benefit of regular, consistent, positive role modelling are likely to be preferred in the family courts over a disengaged, fly-by-night biological parent. Even if you are not biologically related to the child, as non-parents, you are still able to seek parenting orders if you can make a case that it would be in the child’s best interests.

You can read the case here.

Are you separated and need assistance with establishing legal custody arrangements for your children, even if they are not your biological children? Please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Legal Services for a free first conference,  on (02) 6223 2400.

You may also like to read our related blog on step-parents and family law, or our blog on step-parent adoption.

Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Legal Services.


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