What are the legal rights of step-parents in Australia? A guide

Separation and divorce can be complicated, especially when step-parents and non-biological children are involved.

By Stefanie Costi, Lawyer at Watts McCray.

We often get asked a lot of questions about what step-parents can and can’t do in Australia, like who’s responsible for what and how child support works. Therefore, in this article, we’ll explain what rights step-parents have in Australia in the event of a family breakdown.

What does Australian law define a step-parent as?

According to Section 4 of the Family Law Act 1975 (Cth), the Australian legal definition of a step-parent is someone who:

1. is not the biological parent of a child; and
2. is or was married to or lived with one of the child’s biological parents; and
3. treats the child as a member of the family during their marriage or de facto relationship with the biological parent.

Do step-parents have legal parental responsibility in Australia?

Parental responsibility means making important decisions that are best for your child, from everyday matters like food and clothing to long-term concerns like education and health.

In Australia, when biological parents split up, they usually share parental responsibility equally unless it’s not in the best interest of the child. Step-parents do not automatically have parental responsibility. Even if one biological parent passes away, the surviving biological parent still has parental responsibility.

While step-parents often act like parents and undertake many parenting duties, they can’t sign school forms, apply for passports, obtain birth certificates, or approve medical care without legal parental responsibility. In emergency medical situations when the biological parents are unavailable, step-parents might be able to provide consent.

How can step-parents obtain legal parental responsibility and custody rights?

After a separation or divorce, step-parents often want legal parental responsibility and custody rights for their non-biological children.

As a step-parent, you can obtain these in three ways:

1. Agree with the child’s biological parent:
   Try to agree with them and then formalise it by filing parenting orders in the Federal Circuit and Family Court of Australia.
2. Parenting orders:
   If you can’t agree, you can apply to the Federal Circuit and Family Court of Australia for orders that give you the same responsibilities as a biological parent. These orders cover where the child lives, visitation, and their wellbeing.
3. Adoption:
   In some cases, step-parents can adopt their step-child. This means that they take over parenting rights and responsibilities from their step-child’s birth parents. However, adoption orders are usually only granted by the Federal Circuit and Family Court of Australia if a biological parent has passed away or can’t provide proper care, or if it is in the child’s best interests.

Remember, the Federal Circuit and Family Court of Australia’s main concern is what is in the best interests of your step-child. If your partner passes away and the surviving biological parent can provide good care, the Court will try to maintain a strong relationship between the child and the biological parent.

If the other biological parent has passed away, your partner can name you as your step-child’s guardian in their Will. If there is a disagreement about guardianship, the Court will decide.

Are step-parents required to pay child support?

Usually, step-parents don’t have to pay child support in Australia. However, there are exceptions when the Federal Circuit and Family Court of Australia might order it.

When the Court decides if a step-parent should pay child support, it looks at:

1. the duration and nature of the marriage or de facto relationship.
2. how long and what kind of relationship the step-parent had with the child.
3. the financial support the step-parent provided during the marriage or de facto relationship.
4. the step-parent’s income, earning capacity, assets, and other financial resources.
5. any special circumstances to make sure things are fair for everyone involved.

As a step-parent in Australia, you’re an important part of your stepchild’s life.

Understanding what rights step-parents have in Australia plus your responsibilities as a step-parent is key to creating a loving and supportive family environment.

Keep in mind that every family is unique, and legal matters can be tricky. Don’t hesitate to seek legal advice if you need help.

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