FLAST CASE SUMMARY: Lipovic & Sorrel [2019]:Final parenting:Where a non-parent seeks orders to spend time with the child.
Lipovic & Sorrel [2019] FamCA 38 (1 February 2019)
A stepfather is seeking time spent with his stepdaughter. The stepfather also has biological children to the mother; there are consent orders for him to have significant time with his children. At present, the stepchild has been excluded from visitation/contact since 2014.
The child’s biological father provided evidence in the proceedings, voiced concerns as to his child starting to spend time with the stepfather. His concerns reflected the poor relationship between the stepfather and his children of the relationship with the mother.
The mother conveys her concern that should the child spend time with the stepfather, the stepfather would not treat her equally to her half siblings.
FACTS SUMMARY:
- Where a non-parent seeks orders to spend time with the child.
- The non-parent stepfather is the father to the child’s half siblings.
- The child, X was born in 2011 and at trial was aged seven.
- The father has perpetrated family violence against the mother.
- The mother conveys her concern that should the child spend time with the stepfather, the stepfather would not treat her equally to her half siblings.
- The biological father expressed concerns reflecting the poor relationship between the stepfather and his children of the relationship with the mother.
- Where it is the opinion of the expert that it is in the child’s best interests to spend time with the Step Parent.
ISSUE:
Should the Step Father be granted time, if any, with the child?
HELD:
It was ordered for child to spend time with non-parent stepfather.
In determining whether or not to grant time spent with the child the Judge looked to Section 65C of the Family Law Act 1975 (Cth) that provides persons other than parents, including grandparents and any other person concerned with the care, welfare and development of the child, can apply for parenting orders.
The contemplation of non-parents in respect of the best interests considerations are supported by reference to s 60CC(3)(m). The Full Court in a number of recent cases has made it clear that the additional consideration s 60CC(3)(m), allowing the Court to consider “any other fact or circumstances that the Court thinks relevant”, acts as a catch all provision. It is, therefore, appropriate to apply the relevant considerations in respect of the Step Father by way of application of s 60CC(3)(m).
It is settled law that there is no presumption or preferential position that applies as between a parent and a non-parent. As the Full Court said in Valentine & Lacerra and Anor [2013] FamCAFC 53 at [43]:
... there are no presumptions or preferential positions that apply as between parent and non-parent, and an application for a parenting order by a non-parent is to be determined in the same way as an application by a parent, namely, according to its own facts and having regard to the best interests of the child as the paramount consideration (s 60CA of the Act). ...
It was determined it’s in the best interests of the child that she be able to spend time, in the company of her half sisters with the step father. Such time for the child to spend with the stepfather should reasonably give way in circumstances where on reasonable notice the child is to spend time with her biological father but not to such an extent that it excludes the child completely from spending time in the company of her sisters with the step father.
