Aunt successful in application for nephew to live with her instead of father
In a recent case, the maternal aunt was successful in obtaining an order that her 51/2 year old nephew live with her following her sister’s death from cancer. It is not commonly known that you do not have to be a parent to apply for a child to live with you or spend time with you.
- The father in legal correspondence has noted that the aunt is not “the parent of [X]” and that there is “no basis for withholding [X] from his father” (letters dated 1 August 2017 and 4 August 2017).
- The law however, allows a person other than parents to bring applications for parenting proceedings pursuant to section 65C(c) Family Law Act 1975 if that person is “concerned with the care, welfare or development of the child”.
- Burr J in Kam & MJR and Anor (1998) 24 FamLR 656 at [5.1.1 to 5.1.5] explained that “any person may file an application for a parenting order. A parenting order may be made in favour of a person other than a parent (section 64C). In order to proceed beyond the mere making of the application the applicant for a parenting order must demonstrate that they are a ‘person concerned with the care, welfare or development of the child.’ In my view this imposes a threshold test. It being a test to be determined on the individual facts and circumstances of each case. That the degree or strength of the nexus or concern with the care, welfare or development of the child is again an issue for determination in each case, depending upon the facts and circumstances of each case…… There may well be circumstances in this court where a mere ‘interest in’ or ‘concern about’ the child in question is sufficient to satisfy the threshold test. Once the threshold stage has been passed the individual facts and circumstances of the matter again must be viewed in order to determine whether or not a parenting order is appropriate and in the best interests of the child as would be the nature and form of any such order. The specific wording of section 65C(c) appears to require demonstration of a concern with only one of the issues of care, welfare or development”.
- The court has long recognised that persons other than biological parents of a child can play an important role in a child’s life.
- The Full Court in Re C and D (1998) 23 FamLR 375 [4.3] stated “persons significant to the life of a child are not confined to those who are biologically related to the child, in the same way that the existence of a family is not determined by biological considerations”.
- I find that the aunt, who has been actively involved in the care of [X] since 2016 and has been the primary carer of [X] since 2017, is a person who is responsible for the “care welfare or development of the child” and therefore able to seek parenting orders for [X].
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