LawTalk Blog

Can you only issue proceedings in children’s matters if you are a biological parent?

Who can make Family Law applications concerning children?

An updated version of this blog can be found here

The Family Law Act 1975 (“the Act”) has a wide scope for who can institute proceedings for children’s matters in both the Federal Circuit and Family Court of Australia.

Commonly people believe that only a biological parent or grandparent is allowed to institute legal proceedings in Family Law in relation to a child.

This is incorrect.

Under s65C of the Act a parenting order in relation to a child may be applied for by:

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

With reference to “any other person concerned with the care…” it means that the scope for who can institute proceedings for children’s matters is much more wide open than just limiting it to biological parents and grandparents. It is not uncommon for this to apply to aunts, uncles, extended family members and step-parents of a child.

Recently, our firm acted for a step-parent in relation to children’s proceedings. The step-parent was successful in their claim to secure joint parental responsibility for the child, as well as shared care.

First and foremost the court look to the “best interests of the child” under s60CC of the Family Law Act. If the best interests of the child align with that child being cared for by a party other than that child’s parent(s), then the Act has scope to accommodate an application by parties as outlined above.

It must be noted that each matter is looked at factually by the court on a case-by-case basis. Therefore simply because you are a step-parent does not automatically mean that you will end up with the same result as our client referred to above.

If the court decide that the child’s best interests align with a care arrangement that includes or favours care from a step-parent (or aunt, uncle, family friend etc), then the court do have authority to make care arrangements involving that particular party. 

Please note, this Blog is posted in Adelaide, South Australia by Andersons Solicitors. It relates to Australian Federal legislation. Andersons Solicitors is a medium sized law firm servicing metropolitan Adelaide and regional South Australia across all areas of law for individuals and businesses.

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