“Parenting” Orders (When You’re Not A Parent)

By Bethany Moller – June 2021

Parenting orders are orders made by Courts that addresses with whom a child lives, communicates and spends time. Other terms used to describe this are ‘custody’ ‘contact’ and ‘access’ to children.

It’s not just ‘parents’ who can have parenting orders made: the Court can make orders on the application of either or both the child’s parents, the child, a grandparent of the child, or any other person concerned with the care, welfare or development of the child (section 69C, Family Law Act 1975 (Cth)).

It takes concerted efforts to ensure that children’s relationships with their extended families stay strong, regardless of whether their parents are separated or not.

Occasionally, members of their extended family will want to maintain the relationship with the children where either or both of the child’s parents oppose this.

This article examines two cases in recent years that where the Family Court addressed issues about grandparents seeking time with children where the parents opposed the time.

Sarti and Anor & Sarti (No. 3) [2020] FamCAFC 319 (17 December 2020) 

Here the children’s grandfather applied to the court to spend time with his five year old grandson.

The parents were separated, but were united in opposing their son spending any time with the grandfather, saying they found it too stressful as parents to manage the grandfather’s time. The father and grandfather had a difficult relationship and the mother felt “very rattled”, “threatened, anxious and upset” by the grandfather’s behaviour. The grandfather had a “track record of belligerent refusal to abide reasonable requests by the parents” aimed at helping the mother feel more comfortable.

After the parties separated, the child visited the grandfather once or twice a year, and saw him at other times. Under threat of litigation from the grandfather, the father agreed times and the child spent time with the grandfather about once a month, and the court made orders to continue that regime. The parents appealed and were partially successful, but the orders made until a further hearing were to continue the child’s time each month with the grandfather.

A significant factor was that the grandfather had terminal cancer with a life expectancy of a few months, and so, a key question was for how long the parents would have to endure the stress of managing the relationship.

Coleman & Hindle and Ors [2010] FamCA 319

By contrast, this case considered children who were 13 and 9, and engaged in court proceedings for a very long time through the grandparents’ 33 separate applications to the court. Although the maternal grandparents had previously had an important role in the children’s lives, it had broken down to the extent that the judge considered the real question was whether “the relationship between the maternal grandparents and the parents is now so dysfunctional that I have to consider whether the best that can be done for the children is to give them some peace and quiet.”

In the end, the judge ordered that the grandparents spend no time at all with the children. The decision was influenced by the risk the children would be exposed to harm in the grandparents’ household, that the grandparents would denigrate the parents in the children’s presence, and the distances the grandparents lived from the parents – in essence, meaning the children’s relationships with the parents would be undermined.

We’re Here to Help

Family law matters can be difficult and complex. If you require any assistance with a family law dispute, always contact a legal practitioner who will be able to help.

O’Sullivan Davies has practitioners experienced in dealing with all family law issues, including applications for parenting orders by non-parents including step-parents, aunts, uncles and grandparents. More information about our services can be found at our About Us page here.

Disclaimer

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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