Do extended family members have any parental rights?

Published 18 Jun 2019

Extended family members have no automatic rights when it comes to seeing or making decisions about children of close relatives. However, the Family Law Act 1975 is designed to consider what's in the best interest of every child, and this could include residing with, or being allowed to visit, other family members.

What does the Family Law Act 1975 state?

The Act aims to ensure the wellbeing and development of all children by providing access to any family member considered integral to their care. It recognises that children often benefit from these wider relationships, and that relatives can sometimes provide a high standard of care when the parents cannot.

Anyone who can prove that they have a significant ongoing relationship with a child, and that they are duly concerned about their care and welfare, can apply to the courts for a Parenting Order.

A Parenting Order may ensure that the family member has a legal right to communicate with the child (and specify how and where), spend time with them or gain custody. It is not necessary for the child's parents to have separated for a family member to apply for an order.

Obtaining a Parenting Order

In an attempt to first repair strained family relationships, the law is quite specific about the process relatives must go through in order to have access to the child or children concerned. The exact requirements vary according to whether the application is lodged with the Family Law Court or the Federal Circuit Court, both of which deal with slightly different types of request. 

However, in general, family members applying for court action should: 

  • Attempt mediation - You must prove that you have attempted to come to an agreement outside of the courts, by providing a certificate from an accredited practitioner. Only where there are concerns for the immediate safety of the child, or a family member is unable to take part in the discussion due to a disability, are you permitted to skip mediation.
  • Seek legal advice - Should mediation attempts fail, you should seek legal advice to ascertain the proper process required, as well as what paperwork your must complete.
  • Apply to the courts - Assuming your legal advisor recommends court action, they should also help you determine where to lodge your application and the costs you will incur.

Remember, no matter what process you follow, the child's best interests are always the top priority.

Before you make an application for the right to see or care for a child in your family, it's important to seek legal advice to ensure you're fully aware of your rights and obligations. Make an appointment with Malouf Solicitors to discuss your situation today. 

Please call us on 02 8833 2000 to speak with a lawyer

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