Are Step-Parents Responsible for Child Support?
Under Australian law, separated parents (including same-sex parents) must provide a proper level of financial support for their children. This duty is considered paramount over all other responsibilities and obligations.
The law stipulates that all children of a parent are deemed equal, and in cases where a parent does not reside with their child, they may be obligated to provide child support or maintenance.
In today’s society, more people are living in blended families. A person who starts a de facto relationship with a person who already has children does not ordinarily have a legal obligation to support those children, except in special circumstances.
What if you hold concerns for the paternity of a child? Are you required to pay child support for a child that is not biologically yours? Are step-parents required to pay child support if they separate from their partner?
Child Support Scheme
The Child Support Scheme (‘the Scheme’) was established in 1988 to provide a flexible way of ensuring children are supported by their parents, often with the assistance of government benefits.
Pursuant to the Child Support (Assessment) Act 1989 (Cth), the parents of a child have the primary duty to maintain the child.
That said, it is vital to understand that the duty to maintain a child is not of lower priority than the duty to maintain any other child or person, including meeting the necessary financial commitments of the parents to support themselves.
Child Support Assessment or Agreement
Administrative Assessment
Ordinarily, it is the role of Services Australia to determine how and how much child support should be paid for a child, and can collect and transfer payments on behalf of the parties.
The child support formula is complex, and is based on:
- the taxable incomes of both parents,
- the costs of the child, and
- the level of care each parent has for the child.
Parents wanting to claim child support through Services Australia must complete an Application for Child Support, and provide proof of parentage before the application can be accepted.
It is important also to note that child support payments can affect the amount of Family Tax Benefit payable to the recipient parent.
Consent Agreements
In the alternative to Services Australia, parents may make agreements between themselves about how much and how child support is to be paid.
These agreements are outside the ordinary framework of the Scheme and may result in child support which is higher or lower than may be assessed by Services Australia.
Parents can also enter into a Binding Child Support Agreement to give certainty to their child support arrangements for the foreseeable future.
When entering into an agreement of this nature, both parties are required to obtain independent legal advice regarding the effect of the agreement on their rights and the advantages and disadvantages of making the agreement.
In the event of non-compliance by either party with the terms of these agreements, the other party can apply to the Federal Circuit and Family Court of Australia (Court) to enforce the agreement.
Most importantly, these agreements cannot be altered or modified in any way; however, they can be ended and replaced with a new Binding Child Support Agreement.
What if the Child Is Not Mine?
If you believe that the child you share with another person is not biologically yours, you may apply to the Court for orders regarding parentage and child support.
A determination of the Court as to parentage is helpful in these situations, especially if either parent is or has been liable for paying child support to the other for a child that is not theirs.
Presumptions of parentage arise from certain circumstances, including:
- marriage,
- cohabitation,
- registration of birth,
- findings of a Court, and
- acknowledgments of parentage.
More common than others is the presumption of marriage – that if a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband.
However, a person may rebut the presumption by proof on the balance of probabilities.
DNA parentage testing can be useful to resolve disputes of paternity for a child and the following medical procedures may test a person’s parentage of a child:
- Red cell antigen blood grouping,
- Red cell enzyme blood grouping,
- HLA tissue typing,
- Testing for serum markers, or
- DNA typing.
It is important to note that either party may request orders for a parentage testing procedure.
Should any person refuse to comply with the testing orders, the Court may draw such inference as it deems appropriate from whatever other evidence has been brought before it.
There is no penalty for non-compliance with an order for a parentage testing procedure, and no person may be compelled to comply with the order.
As well as deciding the issue of parentage after receiving evidence, the Court also has the power to make a Declaration of Parentage that is conclusive evidence of parentage for all laws of the Commonwealth.
If it is discovered that a payer of child support is not the parent, a court may order repayment of any child support that has already been paid.
When are Step-Parents Responsible for Child Maintenance?
Whether or not a step-parent is responsible for maintaining a step-child is a matter for determination by the Courts alone – there is no hard and fast rule.
The Court can make Orders for a step-parent to pay child maintenance, having regard to the following:
- the primary duty of parents to adequately provide financial support for the child,
- the length and circumstances of the marriage/relationship with the biological parent of the child,
- the relationship that has existed between the step-parent and the child,
- the arrangements that have existed for the maintenance of the child, and
- any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.
Any duty of a step-parent to maintain a step-child is a secondary duty and does not derogate from the primary duty of the step-parent to their biological children in the first instance.
Contact Us
If you need additional information involving step-parents and child support or any other children’s issue, Bambrick Legal can help. We also offer a free, no-obligation 15-min consultation for all enquiries.
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Related Blog – Can a Separated Parent Take a Child Out of State?
