An expert legal guide to stepparents’ rights in Australia

Learn exactly what the law says when it comes to stepparents’ rights in Australia.

By Adrian Curtis, Associate at Australian Family Lawyers, Canberra, ACT.

A stepparent may have a major role in the life of their partner’s children. However, they are not able to make decisions and provide authorities as a biological parent would. 

This means that a stepparent cannot expressly make decisions regarding schooling, medical care or sign passport documents. Their ability to seek a relationship with their stepchild following separation from a biological parent is also different.

What does the law define a stepparent as?

Section 4 of the Family Law Act 1975 (Cth) (“the Act”) defines a stepparent as a person who:

1. is not the parent of the child;
2. is, or has been, married or in a de-facto relationship with a parent of the child; and
3. while in a relationship with a parent of the child, treats the child as a member of the family with that parent. 

Stepparents and custody rights of their non-biological child or children

In Australia, if a stepparent and the child’s biological parent separate, a stepparent does not automatically have an entitlement to spend time with their stepchild or to commence Court proceedings in the same way that ‘parents’ do. This does not stop a parent and stepparent from reaching an informal agreement or entering into a Parenting Plan. However, to seek Orders for time with their stepchildren, a stepparent must first obtain leave of the Court to start proceedings, or to join existing proceedings.

Section 65C of the Act provides a way for stepparents to commence Court proceedings, even though they are not biological parents. The section provides for a person concerned with the care, welfare or development of a child to be able to commence or join proceedings concerning the child they have a concern about. The section does not set out a specific test and the factors will vary depending on the specific circumstances of each case. 

Some of the factors that may be considered include the form of Orders being sought by the stepparent and the history of their relationship with the child. 

Adoption is another path that may be available to stepparents. However, this will typically require the consent of both biological parents, unless one of those parents has passed away. Adoption laws vary between states and can be complex. 

If adoption is something you and your partner are considering, then you should seek advice about whether this option is available to you, and the processes involved. 

Related reading: Grandparents rights in Australia

Stepparents and child support 

A stepparent will not usually be required to pay child support or maintenance. However, this can be changed by Order of the Court.

The Child Support Division of Services Australia is responsible for assessing any child support that one parent pays to another to care for a child. However, they can only make an assessment for a stepparent if an Order is first made by the Federal Circuit Court or Family Court. Such an Order will need to be sought under section 66M of the Act before Child Support can be sought.

When making an Order that a stepparent has a duty to support the child, the Court will consider: 

1. The income earning capacity of each party; 
2. The commitment of each party to support themselves and/or other children;
3. The costs incurred by the person the child/ren lives with; 
4. The relationship between the stepparent and child/ren; 
5. Any previous arrangements for support of the child/ren; and
6. Any other special circumstances. 

The matter of Carnell & Carnell (2006) 204 FLR 122 provides an overview of the application of section 66M. 

The Court will consider a stepparent’s duty to support a child financially as being secondary to that of the parents. The Court will also take careful notice of whether a parent is supporting the child, and the extent of that support, prior to Ordering that a stepparent has a duty to support the child. 

Each case is different, and there is no one size fits all approach when it comes to stepparents’ rights in Australia. The Court will consider the specific facts of each case when coming to a decision.

If you’re looking for further guidance in relation to your stepparents’ rights in Australia, book an appointment with us via the form below for detailed advice on how we can help and the best approach for you.