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Who can participate in parenting cases?

By March 11, 2020February 22nd, 2024No Comments

Biological mums, ‘intending mums’, biological dads, sperm donor dads, grandmas, former de facto partners?

Alliance Family Law regularly advises parties and potential parties to parenting cases about their rights. The Family Law Act, and how it is interpreted by recent cases including in the High Court, helps the courts work out who can:

  • Participate in court cases;
  • Seek a parenting order in their favour, whether or not they are the biological parent of a child.

The Family Law Act has a specific series of factors set out in section 60CC of the Act which are relevant only to parents, rather than other people such as grandparents or step-parents or ex-partners of parents who may have been heavily involved in child rearing. This means non-parents cannot seek an order for either ‘parental responsibility’ or to spend time with a child. It does mean that the court may weigh up some factors differently to other factors and give some factors a greater importance than others. At the end of the day, however, the best interests of the child come first after the court has looked at all the evidence and applied the Family Law Act to that evidence.

The starting point may be looking at ‘who is a parent’ in the first place, as this might affect the pathway that the case will take. The law for parenting cases is now very complex, as it covers biological parents, parents who conceive through formal IVF type procedures (whether or not one or both are genetically linked to the child), parents who conceive through informal ‘home made’ artificial insemination, sperm donors in some circumstances, intending parents of same sex relationships and, and, and…… It is not always the case that just because you are not on the birth certificate, you are not a ‘parent’. Equally, you could be a parent of a child who has 3 parents (intending lesbian mother, biological lesbian mother and biological ‘sperm donor’ father who is involved with the rearing of the child). It is complex and if you are unsure, it may be worthwhile to get some specific legal advice on your situation.

If you are not a parent, but still heavily involved in the child’s life, such as a grandparent, the court may consider it in the best interests of the child for you to remain in the child’s life, and even have parenting orders in your favour. This could include step-parents who have been raising the child with a biological parent, and are then widowed, leaving the child at risk of being removed from a stable home environment and put in the care of a parent who has played a lesser role in his or her life. In such cases, the court may decide the best thing for the child is to stay with the step-parent, rather than be uprooted to live with the remaining biological parent. Alliance Family Law has been involved in such parenting cases and has been able to successfully negotiate outcomes which are accepted by all relevant parties without the stress of proceeding through court. Even where parties are amicable, it may be worthwhile getting orders setting out who can apply for passports, sign off on medical procedures or enrol a child in school. A non-parent might have an easier time of it with a court order permitting all such things.

In addition to various parent applicants, grandparents may wish to become involved in a court case, seeking time with a beloved grandchild. This might be relevant where, for example, the child’s biological parent can’t be involved in the child’s life, for reasons of drug abuse or mental illness, but the grandparents on that side of the family still wish to have a connection with the child. Alliance Family Law has represented such family members from time to time. On the other hand, if you are a parent who opposes a grandparent having court-ordered time with your child, these sensitive matters require very careful handling, whether or not the child’s parents are separated or still happily together. The stress of court cases on married parents who oppose grandparents’ involvement in their children’s life can be enormous and not without its own challenges. Finding a law firm experienced in handling such cases will be an important first step when faced with this scenario.

If you have been cut out of the loop of a parenting court case, but consider that you should be a party to a case, Alliance Family Law can assist you with an application to join court proceedings. Call Canberra family lawyer Cristina Huesch or one of our other experienced solicitors on (02) 6223 2400.


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