Family law: July 2015

Children – parents had reconciled – application by former ‘de facto father’ summarily dismissed

In Grimshaw & Thanh [2014] FCCA 2614 (14 November 2014) Judge Kemp heard an application by a former de facto partner to spend time with an eight year old boy whose parents had reconciled. They argued that he lacked standing under Family Law Act 1975 (Cth) s 65C and that his application should be summarily dismissed.

The applicant began a relationship with the mother when the child was 19 months which ended when the child was three. The child’s parents subsequently reconciled. The applicant alleged that the child called him ‘Uncle Mr Grimshaw‘ and ‘dad’ and had asked him to ‘be his dad and has asked about him and whether he [was] going to see him again’ (at [14]). The applicant called himself the child’s ‘de facto father’ (at [76]). The Court (at [29]) was ‘satisfied that the applicant should be viewed as a … person concerned with the care, welfare or development of the child [s 65C]’.

The Court, however, accepted the submission of the parents’ counsel (at [42]) that ‘where the parties were in an intact marriage, it would only be in extreme circumstances where there was an obvious risk to the child that the Court would intervene and order the involvement of a third party in the child’s life, against the express wishes of the child’s parents, citing (at [47]) Church & M Overton [2008] FamCA 953.

The Court added (at [76]) that ‘for the applicant to continue to assert that he is the child’s “de facto father” … suggests a lack of insight [by] the applicant in failing to understand how the child may be potentially confused and conflicted by [his] maintaining that he is a “father” of the child, when the child lives with his biological mother and father as an intact family unit’. The application was summarily dismissed.