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ALDRIDGE [2009] – It’s in the child’s best interests for a village to raise them

Aldridge & Keaton [2009] FAMCAFC 229

The Case

This was an appeal brought the the mother of a young girl, almost 3 years old at the time of trial. The respondent was the former same-sex partner of the mother. The respondent had been in the child’s life around the time the child was conceived by means of IVF through an anonymous sperm donor, as well as following her birth. By agreement following separation, the respondent initially spent time with the child for one third of the school holidays and then 2 overnights per week. With the aim of restricting the respondent’s involvement in the child’s life, the mother then reduced the time to once per month. When the case came before the Court, interim orders were made for the respondent to spend time with the child for a few hours every Saturday, with time to gradually increase. These Orders were adhered to.

At trial, orders were made for the mother to have sole parental responsibility, for the child to live with her, and the child to spend every 3rd weekend with the respondent. The respondent sought orders to have declared as a legal parent and to be listed as a parent on the child’s birth certificate. These orders were not made.

On appeal, the mother challenged the orders which provided spend time with the child and her former partner. The main arguments put forward by the mother were that: –

  1. Having not declared the respondent a legal parent and having given the mother sole parental responsibility for the child, no time should have been ordered between the child and the respondent.
  2. The respondent’s standing (that is, not a parent or grandparent) was weak and should not have afforded her “rights” as against the child, that is to spend time.

Discussion

The main discussion point arising from this case is the importance given to non-biological/natural parents of children when making parenting orders. As the Court acknowledged on appeal, there will not be many cases between a parent and a non-biological parent of a child. It is more common to see two biological parents as parties to a case, where the Court must decide between their competing proposals.

This case saw the former partner of a same-sex relationship who wanted to maintain a relationship with her former partner’s child. While there was found to be no mutual commitment to raising the child together, the respondent was nonetheless someone concerned with the “care, welfare and development of the child”, this meant she was entitled under law to apply for parenting orders.

It may seem a strange situation where a former partner can apply for parenting orders when their relationship has ended. In effect, the child would be an enduring tie to a relationship that has already broken down. However, the law is clear and it states under section 65C that: –

Who may apply for a parenting order

                   A parenting order in relation to a child may be applied for by: 

                     (a)  either or both of the child‘s parents; or 

                     (b)  the child; or 

                   (ba)  a grandparent of the child; or 

                     (c)  any other person concerned with the care, welfare or development of the child.

Importantly, section 65C(c) is the relevant section here, as the mother’s former partner was someone “concerned with the care, welfare and development of the child”. There had been consistent time spent between the respondent and the child. It could certainly be said that the child had a relationship with the respondent, and the evidence of the expert clinical psychologist in fact confirmed this. It was the expert’s opinion that: –

  • [i]t seemed likely the child does have a warm and significant attachment to [the applicant]”;
  • the attachment between the child and the applicant was not an attachment “in the clinical sense but as a term for interaction or relationship or strength of bond”;
  • the applicant would provide an alternative parenting environment which included a strong sense of community;
  • the parties had considerably different parenting styles and values with the applicant subscribing to more “traditional” and “childcentred” methodologies

It was undeniable that the respondent, while not a natural parent, was a key person in the young child’s life.

Unfortunately, the legislation does not clearly state what priority is to be given to natural parents or non-parents (I.e. grandparents and other persons concerned with the care, welfare and development of the child). While there are several provisions which refer directly to the benefit of children having a relationship with parents, there are also other provisions which refer to the benefit of children’s relationships with other persons, such as grandparents and other interested persons. Historical case law have given some indication, for example in the case of Rice & Miller (1993) FLC 92-415 (and later confirmed in the case of Re Evelyn (No 2) (1998) 23 Fam LR 73, it was held that: –

We would reiterate, however, that the fact of parenthood does not establish a presumption in favour of the natural parent nor generate a preferential position in favour of that parent from which the Court commences its decision making process. Each case must be determined according to its own facts, the paramount consideration always being the welfare of the child whose custody is in question.

The Court then begins the process of deciding parenting orders as follows: –

  1. Does the person applying for a parenting order fall under a class of persons under section 65C (extracted above)?
  2. If yes, then proceed to consider which parenting orders would best forward the child’s best interests (considering all the relevant provisions under the Act).

In the case, the trial judge did exactly that. It considered that the respondent was someone concerned with the care, welfare and development of the child and then considered all the best interests considerations under section 60CC of the Act. It was at all times accepted that the respondent was not a legal parent of the child, and ordered were made accordingly.

Significance

This case is significant for a few reasons, namely: –

  1. It shows the proper approach to take when the Court is faced with competing proposals that involve a natural parent and someone, who while not a parent, is concerned with the care, welfare and development of the child/ren.
  2. It recognises the current reality of blended families, different relationship structures, and the implications of IVF procedures on the status of persons as legal parents.
  3. It affirms that a child’s best interests are best met by providing them a diverse range of relationships with people concerned with their care, welfare and development, not solely limited to their parents.

In summary, it is not the status of the person that is primarily considered, but rather the children’s best interests. These are always to be determined after considering the relevant provisions under the Act, whether they are the Objects of the Act and the more important provisions such as s60CC. As was stated on appeal, the current legislation (following the 2006 amendments): –

enables a court dealing with a parenting application the flexibility to recognise and accommodate “new” forms of family, including families with same-sex parents, when making orders which are in the best interests of a child who is part of such a family [para 77].

It appears that this case (and indeed the legislation) gives credence to the old adage that “it takes a village to raise a child”. One could go as far as to say that, from a legal perspective at least, “it is in the best interests of the child for a village to raise them”.

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