Blended families are a common occurrence within our community and are created when two adults engage in a relationship and include their children from a previous relationship. It can be a challenging dynamic to manage, so knowing your potential legal rights and obligations as a step-parent can assist in navigating the way forward.

The Family Law Act 1975 (FLA) defines a step-parent as follows:

• Is not a parent of the child; and

• 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.

  
  

In the event of a separation, the courts' primary focus when dealing with matters relating to children is to ensure they are properly supported and provided for and to have an ongoing relationship with both parents. 

A parent will have parental responsibility for their child unless there is a court order to the contrary. For example, the Court may decide that it is not appropriate or in the best interests of the child for a parent to maintain parental responsibility and nominate one parent to have sole parental responsibility.

Having parental responsibility means, in accordance with the FLA, that a parent will have "all the duties, powers, responsibilities, and authority which, by law, parents have in relation to children." The purpose of having these powers and responsibilities is to ensure that a child reaches their full potential and to authorise a parent to make decisions such as medical treatment, education, living arrangements, schooling, and religion.

A step-parent can gain parental responsibility for a child through the following mechanisms:

1. Adoption Order;

2. Parenting Order;

3. Legal Guardianship

Adoption Order

The power to make adoption orders is governed by state legislation and therefore lies with the relevant court in each state. For example, in New South Wales it is the Supreme Court; in Western Australia, it is the Family Court of Western Australia.

An order for the adoption of a child will generally require the consent of one or both parents, depending on the circumstances. Generally, interviews will be conducted by a state department with the parents and the proposed adoptive parents to ascertain the suitability of the adoption order being made. Reports in relation to those interviews will then be prepared, which will ultimately be submitted to the relevant court with the application seeking the adoption order. 

The effect of the adoption order is that it transfers the legal rights of the biological parents in relation to the child to the adoptive parents.

Parenting Order

The FLA provides for who can make an application for a parenting order other than a parent, which is "any other person concerned with the care, welfare or development of the child." That includes a step-parent. This can be done by the step-parent either independently or jointly with the biological parent, making an application to the Court for an Order including parental responsibility and either a live with or spend time with Order. If a step-parent is residing with a parent of the child, then it is not necessary to obtain such an order.

When engaging in negotiations regarding parenting orders, although the step-parent may not be identified as a parent on the orders, regard should be had to appropriate orders where the step-parent may assist with the care of a child and be included in the orders. This can avoid conflict in the future.

Legal Guardianship

Guardianship Orders, or Care Orders can be made for a child; however, these are orders usually made in the Children’s Court. A guardian will have full parental responsibility for a child until the child reaches 18 years of age. An application to become a guardian will usually be made once a government department has intervened as they have concerns as to the care and welfare of the child and have sought a Care Order for the child.

Step-parent liability for supporting a step-child 

A step-parent is under no legal obligation to provide financial support for a step-child. 

A Child Support Assessment cannot be undertaken for a step-parent to pay child support for a step-child. However, financial support of a step-child may be grounds to seek a change of child support assessment. That is, a step-parent’s duty to maintain a step-child reduces capacity to pay child support to a biological child.

The Court can make a maintenance order providing that the step-parent has a duty to maintain the child. In considering whether or not to make an order for a step-parent to pay maintenance for a child, the Court will have regard to the following:

• Whether or not the child receives adequate financial support from the biological parents;

• The circumstances and duration of the relationship between the step-parent and the biological parent;

• The nature of the relationship between the step-parent and the child;

• What financial support was provided for the maintenance of the child during the      relationship;

• Any circumstances that the Court must have regard to so as to not cause injustice or hardship to any person.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice beforetaking any course of action.*