When is a parent not a parent?
Posted: 10th August 2017
Posted in: Uncategorised
Posted by: Luke Brandon, Partner
The Family Court is an open Court, which means that members of the public may come into the back of Court and listen to other matters. This is often quite unnerving for clients, to know that their “dirty laundry” is being aired publicly. The Court being open however is not the subject of this discussion, rather it relates to a matter which was on before me in Court yesterday which I found to be quite interesting.
The matter involved two females who had been in a de facto relationship for some 15 years. They had lived in New Zealand before deciding to relocate to Australia permanently several years ago. The Application was in respect of a 10 year old child. Immediately upon birth of the child, he was given up by his birth Mother to the Respondent in the proceedings. At that time in 2007 the Applicant and the Respondent had been in a de facto relationship for some five years. The Respondent and the birth Mother entered Orders by consent in the NZ District Court, Family Division, which provided for the day to day care of the child to be vested in the Respondent. The Applicant was not a participant in the NZ proceedings.
It was uncontroversial that the birth Mother was not ever involved, nor had she ever taken an interest, in the child’s life. There was not any mention of the birth Father.
Fast forward 10 years to 2017 and the Respondent and the Applicant have separated.
The Applicant would like regimented time with the child. The Respondent agrees to time occurring between the Applicant and the child but on a very limited basis. The Applicant applied for parenting Orders.
When the matter came before the Judge, the Judge noted a Full Court decision of last year which considered which class of litigants had the right to bring a parenting application. Neither lawyer involved in the case was aware of the decision. The decision is known as Mankiewicz and Anor & Swallow and Anor  FamCAFC 153 (16 August 2016). In that decision, Justices Ryan and Austin (with Justice Murphy dissenting – meaning His Honour did not agree with Justices Ryan and Austin) held that unless you are a parent, a child or a grandparent you have no more than a right to apply for permission to make a parenting application.
In the case I observed, His Honour went on to apply the Full Court decision and determined whether leave should be granted to the Applicant to apply for parenting Orders. This required a factual determination, which would ordinarily require a discrete hearing where the facts could be tested. His Honour determined that on the evidence of the parties, it was uncontroversial that the Applicant was a class of person that ought be given leave to apply for parenting Orders. That was a very fortunate outcome for the Applicant, given that the cost of a discrete hearing would have been significant.
His Honour whilst making substantive Orders for time between the child and the Applicant, did not consider it appropriate at that juncture of the proceedings to make a determination about parental responsibility, opining that was a complicated issue and one which would require further evidence, including from an Expert social worker (in the form of a family report). His Honour further observed that the NZ Order in favour of the Respondent did not extend to parental responsibility, rather only to the day to day care of the child. Thus presently, in strict terms, only the birth parents have that responsibility.
The lesson to be learned from that case, particularly for people who for all intents and purposes take on the parenting role of the child, is to ensure that they are formally recognised as the parents of the child. This would ordinarily require the formal adoption of the child. In circumstances where there is a surrogacy arrangement, there is a specific process which involves Surrogacy Agreements, a Court Application and a Counselling process. It is an involved process and one which you would need the assistance of a specialist family lawyer.