The operation of s65C - Threshold test of right to apply for parenting orders

Section 65C of the Family Law Act 1975 states that the following people may apply for a parenting order in relation to a child:

1. Either of the child’s parents;
2. The child;
3. A grandparent of the child;
4. Any other person concerned with the care, welfare or development of the child. 

Mankiewicz & Anor & Swallow & Anor [2016] FamCAFC 153 dealt with the application of the threshold test under s65C.

This case involved an application by great grandparents seeking parenting orders to spend time with their great grandchildren.

The maternal great grandparents first applied to the court in 2009 at which time it was determined that they did not meet the necessary threshold test, that they were a person concerned with the children’s care, welfare or development, for the court to interfere with the existing parenting arrangements.

Their later appeals were dismissed as they were not able to provide further evidence to suggest any change in circumstances since 2009 so as to be able to establish standing to apply (the threshold test) and secondly that it was in the best interests of the children to spend time with them.

At para 10, Justices Ryan and Austin (Murphy dissenting), said:

The effect of s 65C is that the only people who have an unconditional right to apply for parenting orders are those identified in ss 65C(a), (b) and (ba). Applicants who only fall within s 65C(c) have the right to do no more than bring an application to attempt to establish facts which would permit them to apply for a parenting order and have no right to seek substantive relief until they do so. The point being that they can only apply for a parenting order where a court determines they are such a person and thereby grants permission. Whether or not permission should be given is a question of fact and to be determined on the basis that an applicant can demonstrate he or she is concerned with the care, welfare or development of the child. It will be a matter for the judge to decide in the individual case whether this issue is addressed as a discrete issue early in the case or at some other stage.

The main take away from this case is that in the application of section 65C, unless you are a parent, child or grandparent, you have no more than a right to apply for permission to make a parenting application and you have no right to seek substantive relief (that is, the right to ask the court to make parenting orders) until you prove that you are a person concerned with the care, welfare and development of the child.