Introducing our new solicitor Lucas McCallum who was admitted to practice today. Congratulations Lucas!

‘Parents’ and ‘Non-Parents’ in family law: parentage is not enough

The family law courts are frequently faced with the problem of deciding where a child should live. Sometimes, that can involve a dispute about a child who have been living with a non-parent (such as a grandparent, relative or friend) for a period of time and a parent who is asking the Court to order the child back into their care.

For obvious reasons, this can be a very difficult time for families. Often, parents seek the assistance of grandparents or other non-parents for temporary or open-ended periods of time to take care of their children. Reasons for doing so are many. Sometimes, families’ circumstances change. Some families might suffer tragedy or loss or a change of circumstances that just do not give parents the ability to care for their children as they would like.

The Family Court has recently reviewed how it decides these sorts of cases in a recent case called Maldera v Orbel (2014) 287 FLR 283.

The story

The story before the Court involved parents who had cared for their son throughout a relationship which, despite their best attempts, was on and off. As a result, the child was cared for sometimes by his mother and father and at others, by one or the other parent. When the child was three years of age, the child’s grandmother took over his care. The boy lived with his grandmother and over time, his father re-partnered and began a new family. By the age of 12 the father decided that the boy should be returned to his care.

The Full Court considered how the Family Law Act determines what is in the best interests of a child as they relate to parents versus non-parents.

The law

Confusingly, one important section of the Family Law Act that helps Judges determine what is in the best interests of a child talks about the benefit of the relationship between a child and each of his or her parents. Another section talks about ensuring that children have the benefit of both of their parents’ meaningful involvement in their lives. Those sections do not talk about non-parents at all – part of the question for the Court was how to apply these sections which talk about parents to cases involving non-parents.

The outcome

In Maldera, the Full Court of the Family Court said that adequate reasons have to be given to justify separating a child from a long term carer. The Court decided that the fact the person asking for the Court to make such an order was a parent was simply not a good enough reason.

So what does that mean?

In this case, the child was 12 years old by the time the Court made its decision. That meant the child had been living with the grandmother for 9 years.

While this case is one where the child had a long established care arrangement and significant relationship with his grandmother, it shows that just because the Family Law Act talks about ‘parent/s’, the court still has a wide discretion to determine what is in the best interests of a child under the law.

We can provide you with advice and assistance if you or your family are considering care arrangements for your child or children.

Lucas McCallum

Lucas McCallum is a new solicitor at Farrar Gesini Dunn, Canberra Office.