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Step-parent liability for child support

Step-parent liability for child support

Step-parents can be responsible to provide support for their former partner’s child.

The definition in the Family Law Act of a step parent, in relation to a child, means a person who:
                (a)          is not a parent of the child; and
                (b)          is, or has been, married to or a de facto partner (within the meaning of section 60EA) of, a parent of the child; and
                (c)           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.

Section 66D of the Family Law Act sets out the principles of when there is a duty to maintain a step-child. The provisions of   section 66D of the Family Law Act provides that:
"66D(1) [Step-parents' duty] The step-parent of a child has, subject to this Division, the duty of maintaining a child if, and only if, a court, by order under section 66M, determines that it is proper for the step-parent to have that duty.
66D(2) [Priority of step-parents' duty] Any duty of a step-parent to maintain a step-child:
(a) is a secondary duty subject to the primary duty of the parents of the child to maintain the child; and
(b) does not derogate from the primary duty of the parents to maintain the child.
 Section 66M of the Family Law Act sets out when there is a duty to maintain.
When step-parents have a duty to maintain
             (1)  As stated in section 66D, a step-parent of a child has a duty of maintaining a child if, and only if, there is an order in force under this section.
             (2)  A court having jurisdiction under this Part may, by order, determine that it is proper for a step-parent to have a duty of maintaining a step-child.
             (3)  In making an order under subsection (2), the court must have regard to these (and no other) matters:
                     (a)  the matters referred to in sections 60F, 66B and 66C; and
                     (b)  the length and circumstances of the marriage to, or relationship with, the relevant parent of the child; and
                     (c)  the relationship that has existed between the step-parent and the child; and
                     (d)  the arrangements that have existed for the maintenance of the child; and
                     (e)  any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

The duty of the step-parent is secondary to that of the biological parents. A step-parent should be the last port of call.  The length and circumstances of the marriage with the child’s parent will be looked at, along with the relationship between the step-parent and child, the maintenance of the child to date, any special circumstances and the support available from the biological parent.
Any application for child support will need to demonstrate the efforts that have been undertaken to obtain support from the biological parent, length of delay before the application, contact with the biological parent and property settlement received by the biological parent, where appropriate as well as the assumptions of responsibility.
If the application is successful and a declaration is made that the step-child is a dependent child, then the Child Support Agency can take the step child into account. There must be a legal duty to provide support before the Agency will include the step child in the assessment.

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Disclaimer: The information contained in this blog is for informational purposes only and is not legal advice. Nothing in this blog should be deemed to create or constitute a solicitor-client relationship between any readers and Swan Lawyers. A solicitor-client relationship is created only when this firm agrees to represent someone and a written engagement agreement or engagement letter is signed by both the client and solicitor. In all cases, the reader should consult his or her own solicitor for advice. The information in this blog is based on Australian law.