Stepparents can often play a positive and significant role in a child’s life, and may often undertake many parenting duties in a blended family. This article will explore the different legal rights and responsibilities of step-parents in Australia under the Family Law Act 1975.
Under s 4 of the Family Law Act 1975 (Cth), a step-parent can be defined through the following;
- 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.
As a result, the Australian legal framework enables step-parents to be legally recognised as a ‘relative’ of the child. Hence, this gives step-parents the ability to make an application to the Family Court for parental rights through a parenting order or adoption.
The Legal Responsibilities of a Step-Parent
Parental responsibility involves making decisions that are in the best interests of the child, covering everyday matters like food and clothing, as well as long-term concerns such as education and healthcare.
In Australia, when biological parents separate, they typically share parental responsibility and decision making equally unless it’s deemed not to be in the child’s best interests.
Step-parents do not automatically have parental responsibility and decision making rights. If one biological parent passes away, the surviving biological parent retains parental responsibility.
Although step-parents often take on many parenting duties, they do not have the legal authority to sign school forms, apply for passports, obtain birth certificates, or approve medical treatment without official parental responsibility. In emergency medical situations where the biological parents are unavailable, step-parents may be allowed to provide consent.
How can a step-parent obtain parental responsibility and decision making?
A step-parent may obtain parental responsibility for their step-child through making an application for a parenting order, or through adoption.
Parenting Orders
Under s 65C(c) of the Family Law Act, a step parent can make an application to the Court as “any other person concerned with the care, welfare or development of the child”.
Parenting orders provide a formal record of terms in a parenting agreement between parents. While step-parents may not have automatic legal parental responsibility of their step-child, the Court offers them an opportunity to make an application. This may include orders regarding the child’s residence, contact, education and other factors.. In the event that a parenting order is made to give a stepparent full parental responsibility, a step-parent will effectively obtain all the full responsibilities of a biological parent.
Additionally, parenting orders may be made for specific arrangements rather than parental responsibility as a whole. This may concern the above factors as well as those that include spending time and communication with your stepchild should you separate from their biological parent.
Parenting orders can be made by agreement between the biological parents, or through an Order of the Court. However, the Court must be satisfied that such orders are in the best interests of the child.
Adoption
Adoption can be defined as the process in which a child is given the legal status of a child within a family other than their birth family. Adoption may only be considered by step-parents as an option to obtain parental responsibility of their step-child in the most exceptional circumstances. This would enable them to become the permanent adoptive parent of their partner’s child through a legal process transferring all rights and responsibilities of the biological parent to them. However, the biological parent would need to either be deceased, have consented to the order or have inactive involvement in the child’s life. Further, the Court will need to be shown that this is in the best interests of the child.
Usually, an Adoption Order may not be granted if parenting orders are sufficient enough in protecting the best interests and welfare of a child.
Child Maintenance/Child Support
A step-parent can only be ordered by the Court to make child support payments, should it be determined that it is the appropriate duty for the step-parent to have. However, the duty of the biological parent to maintain their children remains primary.
Some considerations the Court may make in relation to the maintenance of a child by a step-parent:
- If the child receives adequate financial support from their biological parents
- The nature of the marriage or relationship between the step-parent and biological parent, including duration
- The relationship between the step-parent and child involved, including any current arrangements for the maintenance of the child during the relationship
- Any other special circumstances
Step-Parent Custody Rights
In the event that your stepchild’s biological parent passes away, the Court may enable you the right to spend time and communicate with your stepchild.
While you can ask the Court to have your stepchild live with you, the Court’s objective priority is for the child to have a meaningful relationship with their surviving biological parent – should they want to and are able to provide proper care. The Court will make decisions based on the best interests of the child. Alternatively, your partner can also ask the Court to appoint yourself as your stepchild’s legal guardian should your stepchild’s other biological parent pass.
Case Examples
Kator & Wadala [2023] FedCFamC1F 650
This case exemplified the biological mother and step-father commencing proceedings for the step-father to obtain orders for the adoption of the child as well as shared parental responsibility. Some significant circumstances in this case include that the biological father had not seen the child in nine years, and thus consented to the orders sought. As a result, the Court ordered for the child to live with the mother and step-father, and for the step-father to obtain parental responsibility of the child.
Waters & Vasati [2023] FedCFamC1F 367
This is another example of a case where the mother and step-father commenced adoption proceedings for the child and sought orders from the Court for parental responsibility of the child. As the biological father had never met the child and consented to the orders, the Court enabled for the child to live with the mother and step-father and for the step-father to obtain legal parental responsibility.
Resources
Stepfamily.org.au: https://stepfamily.org.au/wp-content/uploads/2017/05/stepparent-rights-and-responsibilities_web.pdf
FCFCOA parenting orders: https://www.fcfcoa.gov.au/fl/pubs/parenting-orders
RAMSDEN FAMILY LAW – HOW WE CAN HELP
If you face such a situation, consult our experienced family law specialists at Ramsden Family Law. We are here to provide you with the necessary legal support and guidance to protect your family’s best interests during this challenging time. Empathy and understanding are crucial to helping clients through these difficult situations.
Our team of dedicated family law specialists brings extensive experience to the table. We understand the nuances of family law cases involving parenting and the responsibilities of step parents. We offer comprehensive legal support tailored to your specific situation. Whether you’re dealing with parenting disputes, or custody battles, we have the expertise to guide you.
We recognise the emotional and personal challenges you may face in these situations. Our approach is rooted in empathy, ensuring you receive the support you need during difficult times. Our primary goal is to safeguard your family’s well-being and best interests. We work diligently to achieve outcomes that prioritise your family’s future.
Every family law case is unique. We provide customised solutions and legal strategies tailored to your specific circumstances. Ramsden Family Law has a strong track record of successfully handling family law cases, including those involving the legal rights and responsibilities of step parents
If you’re facing family law challenges related to parenting disputes don’t hesitate to contact Ramsden Family Law. Your family’s future is our top priority, and we’re here to provide the guidance and support you need.
The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.
