Step-parents Paying Child Support

The Child Support Assessment Act 1989 does not require anyone other than the biological parent of child to support that child. However, under the Family Law Act 1975, a court can impose a duty on a step-parent to financially support a child if it deems this appropriate. This liability is registered with Child Support which then collects payments from the step-parent.

What is a step-parent?

A step-parent is defined as a person who is not a parent of the child, and is or has been married or in a de facto relationship with a parent of the child. It is also a person who, while married to or in a de facto relationship with the parent, treats or treated the child as a member of the family formed with the parent.

When step-parents have a duty

The Family Law Act states a step-parent has a duty to maintain a child only if a court orders this. The Act states the duty is secondary to the duty of the child’s parents to maintain the child, and does not remove the responsibility from the biological parents.

In making an order the court must consider factors including:

• the length and circumstances of the marriage to, or relationship with, the parent of the child;
• the relationship between the step-parent and the child;
• the arrangements that have been in place for the maintenance of the child;
• any special circumstances that need to be taken into account to avoid injustice or undue hardship to any person.

An order can be sought by the child’s parent, grandparent, the child themselves, or any other person involved in the care, welfare or development of the child.

Determining child support from a step-parent

In determining the contribution to be made by the step-parent, the court must consider factors such as:

• the income, earning capacity, property and financial resources of the step-parent, including assets that could produce income;
• the step-parent’s commitment need to support themselves or any other child or person the step-parent had a duty to maintain;
• the costs incurred by the parent or other person with whom the child lives in providing care for the child, including the income and earning capacity forgone by that parent or other person;
• any special circumstances that need to be taken into account to avoid injustice or undue hardship to any person.

The court must disregard the entitlement of the child, or the person with whom the child lives, to any income-tested pension, allowance or benefit. It must also not take into account the income, earning capacity, property and financial resources of anyone who does not have a duty to maintain the child, or who does but is not a party in the proceedings.

Periodic payments are the first priority method to provide child support, followed by a lump sum payment, a transfer or settlement of property, or any other way.

The court will consider the child’s needs when deciding the amount of child support to be paid. Factors it must consider include:

• the income, earning capacity, property and financial resources of the child;
• the child’s age;
• the way the child is being and is expected to be educated and trained (such as private or public school fees);
• any special needs of the child (such as health expenses);
• published research about child costs, specifically figures from the Australian Institute of Family Studies.

Cases

The following cases demonstrate how the court uses its discretion in deciding whether to make an order that a step-parent pay child support.

Cooper v Cooper (1989)

In this case, the court refused to make a step-parent maintenance order on the grounds that:

• there was no evidence to establish a lack of capacity in the biological father (no effort was made to locate him or seek financial support from him);
• the marriage to the children’s mother lasted only 8 months and there had been no arrangement for the step-father to support the children before the marriage nor since separation;
• the children had had no contact with the step-father for 3 years, during which time the step-father had remarried without notice of the claim.

Hill v Hill (1991)

In this case, the court make a step-parent maintenance order, even though the relationship had deteriorated to the point the step-father was not seeing the child. No evidence was presented as to the capacity of the biological father to pay child support, but this was not considered significant because the wife and child had been living in poverty in the Philippines before the marriage and it was clear the biological father would have lacked capacity. The extent to which the step-father had assumed responsibility for the child was shown by the fact he was an Australian who married the mother in the Philippines and arranged for her and the child to live in Australia.

For advice or representation in any legal matter, please contact Armstrong Legal.