Section 4 of the Family Law Act 1975 (Cth) defines a step-parent as a person who:
- Is not a parent of the child;
- Is, or has been, married to or a de facto partner of, a parent of the child; and
- Treats, or at any time while married to, or a de facto partner of, the parent treated, the child as a member of the family formed with the parent.
De facto relationships include same sex couples.
Following the breakdown of a relationship, step-parents may wish to continue to spend time with their step-children. However, when biological parents of children refuse to allow this to happen, step-parents may have to turn to the Family Law Courts for assistance.
The Family Law Act allows step-parents to bring an application for Parenting Orders under the provision for ‘other people significant to the care, welfare and development of a child’ to do so. (Grandparents, for example, can rely on this same provision).
Such Orders can be made either by agreement between the parties or by Order of the Court.
The Court will always consider what is in the best interest of the child in deciding whether to make an Order.
Step-parent financial obligations to step-children
We have all heard about parents having to pay child support for their children, but did you know that step-parents can also be obliged to financially support their step-children?
Whilst parents can be ordered to pay child support by the Department of Family Services (formerly Child Support Agency), it is only a Court that has the authority to make an order for a step-parent to make child maintence payments for a step-child.
In considering whether the Court should make such an order, the Court needs to firstly determine whether it is proper for the step-parent to have that duty, noting that any duty of a step-parent is secondary to the primary duty of the child’s parents to provide financial support for him or her.
The Court will consider the following factors to decide if a step-parent has a duty to pay child maintenance for a step-child:
- The length and circumstances of the relationship or marriage between the step-parent and the biological parent;
- The relationship between the step-parent and the child;
- The arrangements that have existed for the maintenance of the child;
- Any special circumstances which, if not taken into consideration in the particular case, would result in injustice or hardship to any person.
As noted above, a separated step-parent can apply to the Court to spend time with a step-child or they may have come to an arrangement with child’s parent to do so, but the responsibility to pay child maintenance for a step-child can theoretically exist even if a step-parent has no ongoing contact with his or her step-child. However, the shorter the relationship was between the step-parent and the child’s parent, the less likely it is that he or she will be obliged to provide financial support of a step-child.
If a Court does determine that it is proper for a step-parent to pay child maintenance, the Court has the discretion to determine the appropriate amount payable by taking into consideration the general circumstances and the ability of the parents to fulfil their primary duty to maintain the child. Read our information sheet Calculating Child Support to find out more.
If you require assistance in your parenting matter, contact the family law team on 02 4929 3995.