Who has standing in Family Law?
Standing to bring parenting proceedings the Family Court of Australia or the Federal Circuit Court is determined by Section 65C of the Family Law Act 1975 (Cth) which states:
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.
Children may commence proceedings
By virtue of Section 65C (b), a child may commence proceedings in relation to their own care. Such an application is rarely seen in the Australian court system however there was have been instances where it has been successfully utilised. An example of which is the case Kendal v Khyatt (2010) where a 17 year old girl successfully stopped her parents and step father removing her from the country against her will.
Grandparents have rights
In 2010 the legislature enacted Section 65C (ba) to remove any doubt that grandparents had standing in the courts to seek parenting orders regarding their grandchildren. Although the courts have a legislative duty to favour the rights of the parents, the courts may make orders in favour of grandparents. There are many prevalent cases regarding the courts view of the standing of grandparents one of which is Carlson v Bowden (2008) which has a detailed outline of the courts position that was taken into account when including grandparents in Section 65C.
other persons concerned with the care, welfare or development of the child
It is often seen as unclear who meets the threshold as an "other persons concerned with the care, welfare or development of a child". The courts will consider each application brought under Section 65C(c) on a case-by-case basis. One case that discusses at length what it means for a person to be considered ‘concerned with the care, welfare or development of the child’ is Kam v MJR (1998) where a woman made an application under Section 65C(c) over the objections of the parents (she had been a previous partner of the mother). The applicant asserted that she had previous on-going contact with the child and had undertaken many aspects of a carer's role. In this matter Burr J stated that the threshold was that the person must have an ‘interest in’ or ‘concern about’ the child but the circumstances of the child then had to be taken into account after the test had been met.
This subsection can be important for cases involving homosexual de-facto couples. In J & M: Residence Application (2008), twins were born to a mother through contraceptive assistance. The mothers partner subsequently applied for orders giving them joint parental responsibility. The applicant had standing under Section 65C(c).
There have been contradictory opinions of the use of Section 65C(c) through the courts, in R v M  after a fathers passing, a neighbour who had often cared for the child during his father's illness was denied standing by the courts, stating that she had not met the threshold under Section 65C(c).