STEPCHILDREN AND SEPARATION

One of the most difficult challenges when separating from a partner is the realization that you will, almost invariably (barring situations involving sole parental responsibility), be spending less time with your children as you must now split time with your partner. However, biological parents have the security that the Family Law Act is generally protective of the right of children to have relationships with both parents and with few exceptions, the courts will endeavour to ensure that both parents can continue spending time and being involved with the child’s care and wellbeing.

Stepparents, on the other hand, may not feel so secure. The Family Law Act defines a step-parent as a person who:

1.     Is not a parent of the child; and

2.     Is or has been married to, or is or was a de facto partner of a parent of the child; and

3.     Treats, or at any time while married to, or as a de facto partner of the parent (including same sex couples) treated, the child as a member of the family.

Stepparents are not given any special treatment under the Act. They fall within the same subset as grandparents and extended family – being other people significant to the care, welfare and development of a child. Pursuant to section 60B of the Family Law Act, the step-parent has no entitlement to spend time or communicate with the child – it is the child’s right to spend time and communicate with people significant to their care, welfare and development which is considered by the court.

Moreover, despite oftentimes playing a significant parental role in a child’s life, occasionally being more involved in their daily care and upkeep than a child’s biological parent, step-parents do not have any automatic parental responsibility for a child. Stepparents do not have the legal authority to assume responsibility for a child – they cannot authorise medical care, sign school forms, apply for passports or obtain birth certificates for a child without court order or legal authorisation by the biological parents. If your partner dies, parental responsibility will pass to the surviving biological parent – as a stepparent you do not have any parental responsibility for the child and will have to make an application for it. Similarly, if you separate from your partner, you will need to apply for orders allowing you to spend time and communicate with the child to obtain any surety for the relationship. Otherwise, the biological parent of the child is fully within their rights to cease any relationship between you and the child.

How to apply for parenting orders

A stepparent is able to apply for parenting orders pursuant to the Family Law Act. It is always recommended that parties attempt to negotiate with each other before pursuing court proceedings. The court has a required dispute resolution process that we can guide you through. If you are able to reach agreement with the biological parents, then you should codify the arrangement in a parenting plan or consent orders. Notably, both biological parents will need to agree to the arrangements for them to be legally binding, unless one of the parties has court ordered sole parental responsibility for the child.

If you cannot reach agreement with the biological parents, you will need to initiate legal proceedings to seek parenting orders. Parenting orders can address a wide range of issues, including but not limited to:

1.     Who the child lives with;

2.     How and when the child spends time with their parents, stepparents, grandparents and other significant people;

3.     Allocation of parental responsibility;

4.     Changes of names (including preventing changes of names);

5.     Authorizing stepparents to obtain school reports, attend school events, be informed on medical issues, make medical decisions etc.

Child support/child maintenance

Another question many stepparents have is whether they have any obligation to pay child support for their stepchildren post-separation.

The Department of Human Services, which ordinarily governs the payment of child support in Australia, cannot order a stepparent to pay child support. Courts are the only body that can order stepparents to make child support payments, although this duty would be secondary to the duty of the biological parents to maintain the child.

Courts generally consider the below factors when deciding whether a stepparent may be liable to pay child support:

1.     Whether the child is adequately financially supported by the biological parents;

2.     The length and circumstances of the marriage/relationship between the stepparent and biological parent;

3.     The relationship between the stepparent and child;

4.     The arrangement that may have existed for the maintenance of the child during the relationship; and

5.     Any other special circumstances which may result in injustice or undue hardship to any person.

Notably, orders to pay child support can be made even in scenarios where the stepparent has no further contact with the child post-separation. It is left to the discretion of the courts. An example of when a court might consider child support appropriate would be if a stepparent was the sole income earner for the family for many years, while the biological parent remained a stay-at-home parent which has significantly reduced their income earning potential post-separation.