Dear customer, the Family Law Act allows for a wide variety of person who may make an application for a parenting order. An application for a parentingorder can be commenced by a person who is concerned with the care, welfare and development of the child. This includes:
- •the child’s parents;
- •the child;
- •a grandparent;
- •any other person concerned with the care, welfare and development of the child.
A number of provisions in the Act refer only to "parent" or "parents" which has been defined to mean only biological and adopted parents and not a person who stands in loco parentis to a child. Each case will therefore be viewed on its own circumstances and the court will need to consider how Pt VIII would apply to a person who is not a parent.
It is clear that s 65C allows an application to be brought by any person with a legitimate interest in the child’s welfare. This can include, for example, a person who has previously lived with the child as a step-parent. In cases where a natural parent has died, a relative of that deceased parent may make an application in respect of the child.
The best interests of the child are the paramount consideration of the court when making orders in relation to that child. The objects of Pt VIIand the principles underlying it are set out in s 60B(1) and (2) of the Family Law Act.
If a party has a current parenting order and wishes for a variation to be made to that order, they must first prove that there has been a significant change in circumstances since the original order was made to warrant a review.
An application should be made to the court by way of filing an initiating application together with a supporting affidavit.
Whilst there is no binding rule as to what the court must consider when making a decision as to whether a fresh set of orders should be made, the court generally follows a long standing rule set out by Rice & Asplund (1978) on the facts of each particular case.
When determining whether or not to reopen a matter to make new orders, the court is not required to address the factors set out in s 60CC in determining where the best interest of the child might lie. In Carriel & Lendrum (2015) the Full Court did, however say that the court can address the best interests of a child by reference to whether it is in their interest for further litigation.
Parenting orders can be amended, however, the best interest of the child is paramount and the governing decision for the outcome.
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