Step Parents & Step Children

father and daughter leaning on eachothers feet

Rights and obligations of step parents – and ex step parents

Step parents and step children are common in the social fabric of modern Australia. When a step parent and the biological parent separate, this can raise some issues about what rights and obligations step parents have in raising, providing for, and spending time with, their ex-step children.

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Am I a step parent?

Under the law, you are not automatically a ‘step parent’ if you were married to the child’s biological parent. Whether you are a step parent, depends on what type of relationship you have had with your step child, and the step child’s biological parent.

Under the Family Law Act, you are only a step parent if:

(a) You are not the parent of the child;

(b) You are, or were previously, married or in a de facto relationship with a parent of the child; and

(c) You treat, or at any time while married, or the de facto partner of the parent, the child as a member of the family formed with the parent.

Do I have a financial obligation to my step children?

There is no presumption that you have a financial obligation to a step child. You can agree to provide for a step child, if you wish. However, unless a parenting order is made by a Court that determines that you are obliged to financially support a step child, you are not legally obligated to provide for a step child.

In relation to making or opposing any application, the length of your relationship with the child’s biological parent, as well as the nature of your relationship with the child, will determine whether you have an obligation to financially support the child, following separation from the child’s parent.

Do I have rights to spending time with my step children?

You do not have any automatic rights to spending time with a step child, after separating from the child’s biological parent. However, the parties can make an agreement to do so, if both agree.

If you want to have rights to custody, care and decision-making in the child’s life after separation, and an agreement cannot be reached, then you will need to make an application to the Family Court for parenting orders. If the child is over 16 years of age, in certain situations, you can make an application for guardianship under the Guardianship and Administration Act 1990.

What Can I do?

If you wish to make an application for parenting orders, for spending time with your step child, or getting the other person to financially support a child, Mossensons can assist you.

If you wish to adopt a child under 16 years, or adopt a child over 16 years, then Mossensons can advise, prepare and lodge the appropriate application.

Mossensons can also defend an application made against you for parenting or financial orders, and appear for you in Court.

Arrangements for care of children, after separation and divorce

While there is no obligation for parents to go to Court, it becomes necessary if you want to formalise your parenting arrangement, or if you cannot agree as to the care and maintenance of your children.

To commence court proceedings in relation to parenting matters the parties must first have attempted family dispute resolution (“FDR”) and be in possession of a valid FDR certificate (60i certificate) issued by the FDR provider.

If you cannot agree on some, or all of the issues related to caring for your children, then the matters in dispute will be decided by the Court. Mossensons can advise you as to whether you need to go to Court, and to help you and the other party try to resolve the issues in dispute.

You can also choose to formalise the arrangement entering into Consent Orders, which are legally binding and enforceable.

What is a Parenting Plan?

A Parenting Plan is an informal agreement between parents, carers, guardians and relatives about arrangements for caring for children. A Parenting Plan is not legally binding, and cannot be enforced.

Parenting Plans can be as simple or as detailed as needed. You can include the time children are to spend with relatives, such as grandparents, times and places for children to be delivered and collected by each party, where the child lives, and schooling arrangements.

What are Consent Orders?

Consent Orders are the formal arrangements for the care of children, and can be enforced. Consent Orders must be made with the consent of both parties.

Consent Orders commonly cover:

Where the child should live
who the child should spend time with, and how much time
where the child should attend school
who decides medical and lifestyle decisions.

Recovery & Relocation Orders?

If a person decides to permanently move away with a child, and they do it without the agreement of the other parent, then the parent can apply to the Court for a recovery order to have the child returned.

If a parent wishes to move away from the other parent, and take the child with them , and moving away would affect the amount of time that the child spends with the other parent, then the parent wishing to move can apply for a relocation order. If the other parent does not consent to the child moving, either parent can make an application made to the Family Court to decide whether to permit or refuse to allow the child to relocate.

Recovery and relocation orders are dealt with by the Family Court. These orders can be made on an interim (temporary) order, or by making a final (permanent) order. Mossensons can advise and prepare the application needed to make the relocation order.

Passports & Travel?

To travel outside of Australia, a child needs a valid passport. To obtain a valid passport, both parents need to consent and sign the passport application.

If one party does not consent, and consent is unreasonably withheld, then the other parent can make an application in which they set out the grounds that they believe consent is being unreasonably withheld, and why the passport should be granted. Mossensons can assist you, in applying for a passport for a child, where the other parent unreasonably withholds consent, or in advising you if the other parent wishes to apply for a passport against your wishes.

Where a parent or guardian is concerned that another parent or guardian is going to remove a child permanently from Australia, without their knowledge or consent, the parent or guardian can apply to have a child placed on an airport Watch List, which alerts authorities if a person attempts to remove the child through a domestic airport

What is a VRO?

A Violence Restraining Order (‘VRO’) can provide you with protection from somebody with whom you were in an intimate, or family relationship.

How do I obtain one?

A VRO is obtained by application to the Court. Mossensons can advise, prepare and defend VRO applications, and can represent you in Court. A well-prepared application can greatly improve your chances of successfully getting a final VRO, or defending an application made against you.

A VRO prevents the person bound by the Order from:

being within a certain physical distance to you;
communicating with you; or
behaving in a violent, threatening or abusive way towards you.

A VRO is granted for a specific period of time, usually between 12 to 24 months. Once the time period has elapsed, it ceases to be enforceable against the person bound by it.

Will a VRO appear on my Criminal Record?

A VRO does not appear on a criminal history check, unless you have breached the VRO, and you have been convicted of the breach. If you are the protected person, it does not appear on your criminal history check.

However, in some cases you may be required to disclose the VRO and its terms to a current or prospective employer.

How to apply for VRO?

You will need to make an application to the Magistrates Court, in order to have a VRO granted. Please be aware that you may have to appear in Court on the same day that you lodge your application. Mossensons can assist you in preparing the application, and can lodge it with the Court, on your behalf.

You can choose whether you want the application to be heard in the absence of the other person, or with the other person present in the Court.

If you decide to proceed in the absence of the other party, you will have to tell the Court why you want the VRO, and you will need to make out the grounds for granting it. A Magistrate will then make a decision as to whether to grant it, or whether to dismiss your application.

Getting proper legal advice prior to making your application, will ensure that you are able to provide the Court with the information needed to grant or defend the VRO.

When does the other person find out about the VRO?

Following the initial hearing where you (and your legal representative) appear in Court, the Magistrate will decide whether to dismiss, or grant an interim VRO.

If an interim VRO is granted, the other party will be served with the Order by the police. The other party will have the choice to either accept the VRO, or to defend the application.

What is an Interim VRO?

When a Court grants a VRO, it is usually on an interim (temporary) basis, giving the other person the opportunity to tell their side of the story at the next hearing. The interim VRO will be in place until the other party has had a chance to respond to your application, at a final hearing.

The interim VRO will not come into force until it is served on the other party by the police, in person. Once served, the other party has 21 days to respond to your application. If no objection is filed, then the VRO automatically becomes a final order.

When the other party is served with your VRO, they are usually served with a copy of your application, and they can apply for a copy of the Court transcript of what was said when you were in Court.

What if the Other Party Objects to the VRO?

If the other party objects to the VRO, the Court will contact you and arrange a time for the final hearing at the Court. The magistrate will listen to you and the other party and make a decision as to whether to grant the Order or to dismiss the application.

If you have been served with an interim VRO, and you want to object to it, Mossensons is able to assist you in defending the application. If you wish to make an application for a VRO against the protected person, then seeking legal advice prior to doing so, will ensure that you have proper information, as well as an understanding of your prospects of success, given your particular circumstances.

How does the Court make its decision?

The Court will decide whether to grant the VRO based on the evidence that each party gives in relation to such matters as, whether there has been any instances of family violence, in the past and whether you have reasonable grounds to believe that the other party will commit family violence against you in the future, and the seriousness of this possibility.

The most important factors that the Court will consider in granting the VRO are:

Your safety

The need to protect you from the threat of violence, and

The safety and well being of children