Carnell and Carnell

[2006] FMCAfam 476

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARNELL & CARNELL [2006] FMCAfam 476

FAMILY LAW – Child maintenance – duty of step-parent to maintain – whether application for “substantive” maintenance order required – no such order required before Court makes s.66M(2) order – application otherwise dismissed.

Family Law Act 1975, ss.66A, 66M, 66N
Child Support (Assessment) Act1989, ss.5, 39

Cooper and Cooper (1989) FLC 92-017
Duncan and Duncan (1991) FLC 92-218
Dodge and Krapf and Krapf (1991) FLC 92-214
Bassingthwaite v Leane (1993) 16 FamLR 918
Humphries v Humphries (1993) 17 Fam LR 120
Day and Day (1993) FLC 92-333
Hayne v Hayne (1994) FLC 92-512
Bienke v Bienke-Robson (1997) 23 Fam LR 569
Mulvena v Mulvena (1999) 24 Fam LR 452
Hayes & Smith (unrep. Family Court of Australia, Johnston JR, SY7416 of 1987, 12 November, 1999)
Wijayaratnam & Wijayaratnam (unrep. Family Court of Australia, Wilczek J., DG3701 of 1999, 16 February, 2000)
Facey & Facey [2001] FMCAfam 1
Anderson & Henry [2001] FCMAfam 281
Hill v Hill (Unreported, SA 88 of 2002, Kay J, 16/04/2003)
Harvey & Harvey & Reyes-Firmani [2003] FMCAfam 320
D’Andrea & Anderson [2004] FMCAfam 440
Petersen v Marangelli (unrep. Family Court of Australia, O’Reilly J. BRF4668 of 2003, 29 June, 2004
Finley v Courtney (unrep. Family Court of Australia, Faulks J., CAF620 of 2004, 18 July, 2005)
Altomare and Altomare (unrep. Family Court of Australia, Loughnan JR, SYF3478 of 2004, 9 December, 2005)
KB v SK (2005) FLC 98-026

First Applicant: DAVID KEITH CARNELL

Second Applicant: DEBBIE ANN CARNELL

Respondent: JODIE GWENYTH CARNELL

File Number: BRM749 of 2006

Judgment of: Jarrett FM

Hearing date: 14 August, 2006

Date of Last Submission: 14 August, 2006

Delivered at: Brisbane

Delivered on: 22 September, 2006

REPRESENTATION

The Applicants appeared in person

No appearance for the Respondent

ORDERS

1. That the application filed on 26 June, 2006 be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRM749 of 2006

DAVID KEITH CARNELL

First Applicant

And

DEBBIE ANN CARNELL

Second Applicant

And

JODIE GWENYTH CARNELL

Respondent

REASONS FOR JUDGMENT

1. By their application filed on the 26 June, 2006 the applicants seek the following orders:

   1   Departure order -- Under Section 116 of The Child Support (Assessment) Act 1989

   [Sub-Para 116 (2)(a)(iii)(B)]

   Duty To Maintain My Wife And Two Stepchildren

2. I take the reference to Sub-Para 116 (2)(a)(iii)(B) to be a reference to s. 117(2)(a)(iii)(B) of the Child Support (Assessment) Act1989 ("the CSA Act").

3. The application is supported by an affidavit of the first applicant, Keith David Carnell filed on 26 June, 2006.  The application has been served on the respondent Jodie Gwyneth Carnell.

4. The applicants appeared for themselves. The respondent did not appear. It became apparent through the course of the applicants’ submissions that this is really an application for an order that the first applicant have a duty to maintain the children of the second applicant pursuant to s.66M of the Family Law Act 1975 ("the Act"). 

5. The application for a departure order was not pressed before me and indeed, the material filed is entirely insufficient for such an application.  The role of the second applicant was confined to consenting to the orders sought by the first applicant.  She sought no additional orders than those I have set out above.

Background

1. There is little by way of background contained in the evidence before me.  It appears, however, that the first applicant and the respondent have one child together, Kaitlin Elizabeth Carnell born 23 February, 1992.  Kaitlin lives with her mother - the respondent.  There is no evidence of the nature and extent of the past relationship between the first applicant and the respondent.  Needless to say, Kaitlin's parents are now estranged.

2. Although there are no copies of assessments before me, it is apparent from the applicants' submissions that the first applicant has a liability to support Kaitlin assessed pursuant to the CSA Act. The evidence and the submissions suggest that he is in arrears in respect of his child support responsibility for Kaitlin, although by how much is not revealed.

3. The first applicant and the second applicant married on 25 June, 2005.  They presently live together and from all accounts are happily married.

4. The second applicant has two children from a previous relationship - Dayna Jade Carnell born 12 February, 1995 and Connor Jay Carnell born 10 November, 1999.  Patrick Walter Pearson is the father of Dayna and Connor.  He is estranged from the second applicant and Dayna and Connor live with the first and second applicants.

5. As far as I can tell, Mr Pearson has not been served with a copy of this application.

6. In his affidavit, the first applicant asserts that there is a domestic violence order in place wherein the second applicant is the aggrieved spouse and Mr Pearson is the respondent spouse.  A copy of what is said to be that order is annexed to his affidavit (annexure A) but a perusal demonstrates that it is a Protection Order made pursuant to the Domestic and Family Violence Protection Act 1989 (Qld) on 9 July, 2003. By its terms it continued in force up to and including 8 July, 2005. Thus, it expired over twelve months ago.

7. The applicants say that the second applicant has an exemption from collecting child support payments for Dayna and Connor from Mr Pearson because of domestic violence.  Annexure B to Mr Carnell's affidavit is a letter from Centrelink to the Child Support Agency dated 17 February, 2003.  It says:

   I have assessed that Mrs Pearson is eligible for an exemption from child support action on the grounds of fear of violence in accordance with Family Assistance Act 1999/F.AA, Schedule 1, Clause 10 and Family Assistance Guide 3.1.5.70.

   …

   Mrs Pearson would like all action to collect arrears to cease.

8. I infer from that correspondence that Mr Pearson has been assessed to pay child support to the second applicant in respect of Dayna and Connor, but has accumulated arrears that the second applicant has now determined to abandon.

9. The applicant asserts, and I have no reason to doubt, that Mr Pearson has lived interstate for the past 4 years and has not contacted the children for 18 months.

10. On 18 March, 2005 the Magistrates Court of Queensland at Petrie ordered:

    1.  That the name of the child DAYNA JADE PEARSON born on the 12 FEBRUARY 1995 be changed to DAYNA JADE CARNELL

    2.  that the name of the child CONNOR JAY PEARSON born on the 10 NOVEMBER 1999 be changed to CONNOR JAY CARNELL

11. The first applicant swears:

    Please note that I have full intention of applying to adopt Dayna and Connor once the conditional two years of marriage is reached.

    I have one child to my first marriage, which I have every intention of continuing to pay child support and arrears as per my current arrangement with the Child Support Agency.

    As it stands, the law does not recognize my legal and financial responsibility to my new family, therefore limiting my ability to provide a quality of life.  I have no intention of avoiding my responsibilities to my child from my previous marriage.  I just want it recognized that I have three children now, all of whom I want to be able to provide for.

    With adoption not possible for 12 months, I am asking the court to recognize my situation and commitment to all my children as equals.  I feel that Dayna and Connor don't exist because no one will recognize my commitment to them.

The Law

1. The step-parent of a child only has a duty of maintaining that child if, and only if, a Court by order under s.66M of the Act determines that it is proper for the step-parent to have that duty: s.66D(1) of the Act.

2. Any duty of a step-parent to maintain a step-child is a secondary duty subject to the primary duty of the parents of that child to maintain the child and does not derogate from the primary duty of the parents to maintain the child: s.66D(2) of the Act.

3. A Court may order that a step-parent have a duty to maintain a child in the circumstances set out in sections 66M and 66N of the Act. Those sections provide:

   66M When step-parents have a duty to maintain

   (1) As stated in section 66D, a step-parent of a child has a duty of maintaining a child if, and only if, there is an order in force under this section.

   (2) A court having jurisdiction under this Part may, by order, determine that it is proper for a step-parent to have a duty of maintaining a step-child.

   (3) In making an order under subsection (2), the court must have regard to these (and no other) matters:

   (a) the matters referred to in sections 60F, 66B and 66C; and

   (b)the length and circumstances of the marriage to the relevant parent of the child; and

   (c)the relationship that has existed between the step-parent and the child; and

   (d)the arrangements that have existed for the maintenance of the child; and

   (e)any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

   66N  Determining financial contribution of step-parent

   In determining the financial contribution towards the financial support necessary for the maintenance of the child that should be made by a party to the proceedings who is a step-parent of the child, the court must take into account:  

   (a) the matters referred to in sections 60F, 66B, 66C, 66D and 66K; and  

   (b) the extent to which the primary duty of the parents to maintain the child is being, and can be fulfilled.

4. There are few decisions dealing with the circumstances in which a Court will make an order under s.66M. Those that do exist appear to fall into two categories. The first category is those where the parent of a child seeks an order that a step-parent pay maintenance in respect of that child. Generally speaking, in that category of cases, the parent and step-parent are estranged, no longer living together and are on opposite sides of the record. The second category of cases concern applications made where the parent and step-parent are not estranged and are living together in either a marriage or de facto relationship.  No order for maintenance is sought by the parent against the step-parent, other than an order that the step-parent have the duty to maintain the step-child.

5. Some of the decisions that fall into the first category of cases were conveniently summarised by Riethmuller FM in D’Andrea & Anderson [2004] FMCAfam 440 as follows:

   a)In Cooper and Cooper (1989) FLC 92-017 Mullane J declined to make a step-parent maintenance saying (at 77,340):

   The conclusions that I therefore reach are that the wife has not established that this is a proper situation for the husband to have a duty to support the step-children, and the reasons for that are: 

   (1) There is no evidence to establish that the financial support of the natural father is not available to them. No efforts have been made to locate him or obtain financial support from him and to make an order in those circumstances would be contrary to sec. 66A, 66B and subsec. 66G(3).

   (2) Relative to the age of the children the husband's association with them has been a very short one and of little significance in their lives. The marriage lasted only eight months, the children have had no contact with the husband for more than three years and there is every likelihood that they will have no contact with him in the future. There has been no arrangement for him to support the children before the marriage nor since the separation. 

   (3) The special circumstances which I referred to, namely the delay of more than three years during which period the husband has remarried without notice of this claim, and has also settled property matters with the wife.

   b)In Dodge and Krapf and Krapf (1991) FLC 92-214 the obligation was found to exist, but only to the extent that the biological parents could not fulfil that obligation, and in the circumstances no order was made against the step-father.

   c)In Day and Day (1993) FLC 92-333 Kay J reviewed a step-parent obligation that was the subject of an existing step-parent maintenance order. No steps had been taken to pursue the biological father. His Honour concluded that:

   In this matter cohabitation between the parties lasted only for two years or thereabouts. There have been post-cohabitation, another couple of years of access, and since then two years of no access to K. 

   As to the relationship that has existed between the appellant and the child, there was a satisfactory relationship for some four years. There has been a non-existent relationship for the last two years, and the child is now in the custody of her maternal grandparents. 

   …

   In my view, given that this was a very short period of cohabitation, given that there has been since then a change in the custody of the child and a breakdown in the relationship between the child and the appellant, it is no longer in my view appropriate that the step-parent should bear any burden for the support of K.

   d)In Duncan and Duncan (1991) FLC 92-218 Murray J found that the husband was not earning enough income to justify an order.

   e)In Hill v Hill (Unreported, SA 88 of 2002, Kay J, 16/04/2003) an obligation was imposed, notwithstanding that the relationship had deteriorated to the point where the step-father was not seeing the child.  There was no evidence as to the capacity of the biological father. However this was not of great moment in the context of the case as it appears clear that the biological father would not have had any capacity (the wife brought the child with her form the Philippines where she had been living in an impoverished state before the marriage).  However, the extent to which the husband had assumed responsibility for the step-child is demonstrated by the fact that he was an Australian who married the wife in the Philippines and arranged for her (and the step-child) to live in Australia where they commenced cohabitation. 

6. There are other decisions that demonstrate the way in which the discretion under s.66M is to be exercised: Hayes v Hayes & Smith (unrep. Family Court of Australia, Johnston JR, SY7416 of 1987, 12 November, 1999), Anderson & Henry [2001] FCMAfam 281 and Altomare and Altomare (unrep. Family Court of Australia, Loughnan JR, SYF3478 of 2004, 9 December, 2005).

7. Before discussing the second category of cases, it is relevant to note that the duty to maintain a step-child is relevant to the assessment of child support pursuant to the CSA Act. Potentially, it is relevant in two ways. The first way in which it might be relevant arises from the definition of relevant dependant child found in s.5 of the CSA Act. Apart from any other aspect of the definition, a step-child can only be a relevant dependant child if there is in force an order under s.66M of the Act in respect of the step-child and the parent. The definition of relevant dependant child is relevant to the operation of ss.39, 48, 53 and 54B of the CSA Act, and may work to reduce the amount of child support a payer has to pay.

8. The second way in which the duty to maintain a step-child is relevant to the assessment of child support pursuant to the CSA Act arise from s.117(2)(a) of that Act. Section 117(2) sets out the grounds for departure from administrative assessment. One of the relevant grounds is that

   (a) that, in the special circumstances of the case, the capacity of either parent to provide financial support for the child is significantly reduced because of:

   (i) the duty of the parent to maintain any other child or another person; or

   (ii) special needs of any other child or another person that the parent has a duty to maintain; or

   (iii) commitments of the parent necessary to enable the parent to support:

   (A) himself or herself; or

   (B) any other child or another person that the parent has a duty to maintain; or

   (iv) high costs involved in enabling a parent to have contact with any other child or another person that the parent has a duty to maintain;

9. The duty to maintain another person or child referred to in s.117(2)(a) must be a legal duty to maintain that person or child.  The arguments and authorities in relation to this proposition are, with respect, helpfully summarised in KB v SK (2005) FLC 98-026. The only way a step-parent obtains a legal duty to maintain a step-child is through an order made pursuant to Part VII Division 7 of the Act: Bassingthwaite v Leane (1993) 16 FamLR 918, Bienke v Bienke-Robson (1997) 23 Fam LR 569 and Humphries v Humphries (1993) 17 Fam LR 120.

10. The second category of cases commences with the decision of McManus R in Mulvena v Mulvena (1999) 24 Fam LR 452. At the time of hearing that application, the applicant (Mr Mulvena) and the first respondent (Mrs Mulvena) were married and living in a marital relationship. The first respondent had a daughter from a former relationship who lived with them. The applicant sought an order that he was under a duty to support his step-daughter. The applicant had another child with a Ms Edwards, who was joined as a second respondent to the proceedings. There was in existence, an assessment of child support pursuant to the CSA Act in respect of the applicant’s child with Ms Edwards. Ms Edwards opposed the order sought by the applicant, but the first respondent (Mrs Mulvena) supported the application. The applicant pressed his claim to the order on the basis that a finding that he was under a duty to support his step-child would have consequences for the amount of support he would have to pay for his child with Ms Edwards.

11. In the course of his reasons, McManus R said this, at p. 456:

    Section 66M is part of Division 7 of the Act. The purpose of the Division is to make provision for child maintenance and it places upon parents the primary duty to be responsible for the financial support of their children. The purpose of s 66M is to provide for those cases in which a parent cannot meet this duty and it is appropriate, in the circumstances of the case, to impose a secondary duty on a step-parent. It can be said, then, that if there is no application for child maintenance, there can be no duty imposed under s 66M. That is to say, the duty only exists in conjunction with an application asserting a right to child maintenance.

    …

    This conclusion is supported by the words of s 66N which clearly assume there is an application under Division 7. The same result can be reached by asking what right corresponds to the duty in s 66M and the answer to that is an application for child maintenance. That is because a determination under s 66M(2) is preliminary to an enquiry into what financial support, if any, the step- parent ought to provide. Therefore, the application fails at this point. If I am wrong in that view, the application still does not satisfy the provisions of s 66M(3).

12. Similar circumstances pertained in Wijayaratnam & Wijayaratnam (unrep. Family Court of Australia, Wilczek J., DG3701 of 1999,

    
    

    16 February, 2000). In that case, the applicant and the respondent were married and living together. The respondent had a child from a previous relationship, but the father of her child was said to have passed away. The applicant had two other children from a previous relationship, in respect of whom there was in place an assessment of child support pursuant to the CSA Act. The applicant sought a declaration pursuant to s.66M of the Act. Wilczek J. pointed out that there is no provision in s.66M for the making of a “declaration” that a particular person has a duty to maintain a particular step-child. In his Honour’s view, s.66M(2) of the Act makes it clear that the Court may by order determine that it is proper for a step-parent to have a duty to maintain a step-child, having regard to the matters set out in s.66M(3) of the Act. However, his Honour said at para 11:

    11.    Before such an issue arises at all, namely for the Court to look at the matters to be taken into account under s.66M(3), in order to determine whether it is or is not proper for a step-parent to have a duty of maintaining a stepchild, there must, in my view, be a proper application before the Court and such application would normally be from the parent of the stepchild, namely the husband’s wife.  Query whether there would need to be a genuine dispute between the husband and his present wife concerning stepchild maintenance issues before this Court would consider it appropriate to deal with such an application.

1. His Honour also referred to the decision in Mulvena v Mulvena without disapproval, describing it as “A very relevant decision” (at para 20).

2. Against that background is the third case in the series, that of Facey & Facey [2001] FMCAfam 1. In that case Baumann FM considered an application by a mother for an order against her husband that he maintain her child from an earlier relationship (his step-child) pursuant to s.66M of the Act. Together, they had another child who was not the subject of the application. No other orders were sought.

3. The respondent had another child with a Ms McKenzie (the second respondent to the application). There was in place an assessment of child support pursuant to the CSA Act in respect of that child. Ms McKenzie did not participate in the hearing.

4. His Honour recorded that the catalyst for the application was the inability, as a matter of law, of the Child Support Agency to take into account any moral obligation the respondent had assumed for the support of his step-child when making an administrative assessment of child support in respect of his child with Ms McKenzie.  His responsibility to support the child of he and the applicant could, of course, be taken into account.

5. His Honour reviewed the authorities that establish that there is no duty upon a step-parent to support a step-child unless there is an order under s.66M of the Act. His Honour also recorded that s.66C of the Act imposes a primary duty upon parents to support their children and that duty has a priority over the moral commitment a parent may feel towards the children of any new partner. His Honour thought that those authorities and the provisions of the Act made it plain that a step-parent of a child only obtains a legal duty to maintain the child if a Court by order under s.66M determines that it is proper for the step-parent to have that duty.

6. His Honour was referred to Mulvena & Mulvena.  Of that decision his Honour said:

   18.    Whilst I am not strictly bound by the decision, it has some weight being the considered and reasoned view of an experienced senior Registrar of the Family Court (as he then was).  I have however, formed a contrary view.  I believe the Court has a power to make a finding under s66M(2), without there being at that time an application for child maintenance.  In my view it is clear that before an applicant can expect to have a determination, or quantification of level of financial contribution by a step-parent, under s66N, a threshold finding under s66M(2) is required.  If an applicant cannot satisfy a Court that a duty should be imposed, then no determination under s66N is necessary. 

   19. Because of the inability at law for the Child Support Agency to consider any duty of a step-parent pursuant to the Child Support Assessment Act without it being a legal duty, it is clear that in addition to the purpose of s66M identified by Registrar McManus, a further purpose can be identified – namely a judicial determination, in appropriate cases where regard has been given to the factors in s66M(3), that it is proper to impose a duty on a step-parent.

   20. The existence of any duty does not of itself effect the quantum of any payment of child support for other children. It merely would require that duty to be taken into account in respect of the administrative assessment or any application for review, administrative departure or judicial departure. This seems to reflect the evolving intention of the legislation where the definition of “relevant dependent child” (as defined by s5 of the Child Support (Assessment) Act now provides (as amended by Child Support Legislation Amendment Act 1998) that it also means a step-child and that, in the case of a step-child, the definition only applies if:

   “(i)    an order is in force under s66M of the Family Law Act 1975 in relation to the parent and the step-child.”

7. Brewster FM was confronted by a similar situation in Harvey & Harvey & Reyes-Firmani [2003] FMCAfam 320. The applicant (parent) and the first respondent (step-parent) were married and still in that relationship at the time the application was heard. The applicant had one child (the relevant step-child) who lived with her and the first respondent. The second respondent was the mother of a child whose father was the first respondent. There was no application before the Court that the first respondent pay to the applicant any specific sum for child maintenance. All that was sought was an order that he have a duty to maintain his step-child.

8. Although the application was not opposed by the first respondent, his Honour approached the matter on the basis that it was a defended application for step-child maintenance by the applicant against the first-respondent. His Honour determined that if the circumstances were such that he would not make the order sought by the applicant in contested proceedings, he should not make it in the present proceedings, uncontested as they were by the first respondent. His Honour decided that he would not have made the order in contested proceedings, even if the order would have had no effect upon the first respondent’s liability for child support under the CSA Act. His Honour made that determination having regard to s.66M(3) of the Act and the factors to be taken into account when exercising the discretion conferred by s.66M(2).

9. Although obiter, his Honour said, at para 28 and following:

   28.    Furthermore I doubt that it is possible to make a declaration as sought by Ms Harvey without it being linked to an application for a child maintenance order.  Part VII of the Family Law Act is essentially concerned with parenting orders. Section 64B(5) provides that when a parenting order is made in relation to child maintenance it is a child maintenance order. Section 66H I believe makes it clear that making a child maintenance order involves determining the precise financial contribution that a parent or step-parent should make for the maintenance of a child. It is implicit in this that the power of the Court is limited to the making of a specific order for a specific sum of money. This is also reflected in section 66N. Section 66M is in effect the gateway to an order being made pursuant to section 66G. It is not a “stand alone” section.

   29.    There appears to be a fundamental inconsistency between the provisions of the Family Law Act (as I read them) and the Child Support (Assessment) Act.  The Family Law Act, as I have indicated, envisages a section 66M application as a forerunner to the making of an order for child maintenance. It is not surprising that the provisions of the Act lead to this conclusion. There are indications in the headings that this is what was intended. Division 7 of Part VII of the Act was enacted against a backdrop of orders in the past having being made in litigation between separated parties in which orders for a specific amount of child maintenance was sought. Indeed the heading of Division 7 is “Child maintenance orders.” and Subdivision D in which section 66M is found is headed “Applying for and making child maintenance orders.” Section 66A which explains what the Division does refers to “child maintenance orders.” It seems clear to me that the legislature intended the Act to be read in the context I have read it. On the other hand it appears that when the legislature came to enact the Child Support (Assessment) Act it did not read the Family Law Act in this way. This is because of the definition of “relevant dependant child” contained in section 5. That section provides as follows:

   Relevant dependant child, in relation to a liable parent, means a child or step-child of the parent, but only if:

(a)the parent:

(i)    is the sole or principal provider of ongoing daily care for the child or step-child; or

(ii)  has major contact with the child or step-child; and

(b)the child or step-child is under 18 and is not a member of a couple; and

(c)in the case of a step-child;

(i) an order is in force under section 66M of the Family Law Act 1975 in relation to the parent and the step child; or

(ii)  (the balance of the definition is not relevant)

30.    This definition and the rationale behind it are difficult to understand.  It is apparent that it envisages an order under section 66M being made without a child maintenance order also being made.  Given what is in paragraph (a)(i) it does not seem to envisage the parent and step-parent of the dependant child living together.  If it were otherwise then there would be no issue of major contact and in most cases, of which this is one, the step-parent would not be the sole or principal provider of ongoing daily care for the step-child.  Those duties would normally be shared by the parent and step-parent.  It seems to envisage a situation where the step-parent and the parent have separated (or where the parent has died) and the child remains with the step-parent or the step-parent exercises major contact.  In the former situation there could be no question of there being an order for child maintenance.  In the latter situation there could be some anomalous outcomes.  A respondent to an application for step-child maintenance might have his liability to pay that maintenance reduced by reason of his having major contact and then get a double benefit in that his child support assessment for his own children would also reduce.

1. In Petersen v Marangelli (unrep. Family Court of Australia, O’Reilly J. BRF4668 of 2003, 29 June, 2004) the applicants sought a declaration that one of them (the step-father) had a duty to maintain the children of the other (the mother).  The respondent to the application was the male applicant’s former partner, with whom he had two children.  She supported the application.

2. O’Reilly J. considered that relevantly the legislative intention revealed by Part VII, Division 7 of the Act was that an application for child maintenance might on some occasions be coupled with an application under s.66M of the Act, but that “the court should not embark upon any determination under s 66M unless in the context of, and thus ancillary to, the hearing and determination of an application for a child maintenance order under s 66F” (at para. 25).

3. As there was only an application for an order that the male applicant have a duty to maintain the female applicant’s children, the application failed.  There was no substantive application for child maintenance.

4. Her Honour went on to determine that if it was necessary to consider the application further, she would nonetheless dismiss it because the order sought was in the nature of a declaration.  Her Honour recorded at para 30:

   Section 66M contains a discretion whether or not to make a determination. Although s 66M is couched as a determination, the exercise of discretion under it may be likened to the exercise of a discretion when a court is invited to give declaratory relief. In this regard, it is well established that “judicial pronouncements ought not to be issued unless there are circumstances that call for their making”, and that, before making a declaration, there must be a real and not a theoretical question, the person raising it must have a real interest to raise it, and that he or she must be able to secure a “proper contradictor”, that is to say, some one presently existing who has a true interest to oppose the declaration sought. Forster v Jododex Australia Pty Limited (1972) 127 CLR 421 at 437-8 per Gibbs J, citing with approval Lord Radcliffe in Ibeneweka v Egbuna [1964] 1WLR 219 at 225 and Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438 at 448. See also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 581-2 per Mason CJ, Dawson, Toohey and Gaudron JJ; Breen v Williams (1996) 186 CLR 71 at 87-8 per Dawson and Toohey JJ; and Oil Basins Ltd v Commonwealth of Australia (1993) 178 CLR 643 at 648-50 per Dawson J.

5. Her Honour considered some of the cases I have referred to above, and expressly approved of Mulvena.

6. The final case in the series is Finley v Courtney (unrep. Family Court of Australia, Faulks J., CAF620 of 2004, 18 July, 2005).  Mr Finley and Ms Courtney lived together.  Ms Courtney had some children from an earlier relationship.  Mr Finley had some other children from an earlier relationship with Ms Hudson.  Those children lived with Ms Hudson.

7. Mr Finley and Ms Courtney secured some consent orders from the Family Court that, they thought, would be sufficient to require the Child Support Agency to take into account the support Mr Finley gave to his step-children when assessing child support for the Hudson children. The consent orders, it seems, were expressed to be made pursuant to s.66M of the Act.

8. When the consent orders were brought to the attention of the Agency by Mr Finley, the Agency took them into account as Mr Finley had hoped and his child support assessment in respect of the Hudson children was affected.  Ms Hudson subsequently objected and the Agency reversed its decision.  Mr Finley applied for further orders to ensure that the Agency took into account his support of his step-children.

9. Faulks J referred to Mulvena v Mulvena, Harvey & Harvey & Reyes-Firmani and Peterson v Marangelli and said:

   14 Without going too deeply into those decisions, each of them takes the view that s 66M is part of a division of the Family Law Act which relates to child maintenance and is only properly capable of being constructed as being a part of contested proceedings between a person such as Mr Finley in this case and Ms Courtney in this case. In other words, if Mr Finley and Ms Courtney were to separate and Ms Courtney were to seek child maintenance under Div 7 of the Family Law Act from Mr Finley then this would be part of such proceedings given that he was a step-parent. I think that in particular the reasoning of Brewster J is persuasive on this point and I believe that in general terms, while the rules seem to contemplate the proposition that there might be an application for orders by consent under s 66M, that is a misconstruction of the effect of the section and I accept Brewster J's conclusions that the section 66M is only properly capable of being interpreted as being part of contested proceedings between a parent of children and the step-parent of those children.

10. His Honour went onto to consider the matters set out in s.66M(3) of the Act in the event that his primary conclusion was wrong. His Honour was pressed with an argument on behalf of Ms Hudson that if the order sought by Mr Finley was made, it would result in a reduction in the child support received by her in respect of her children with Mr Finley. His Honour, however, discounted that argument on the basis that what was to be taken into account under s.66M(3)(e) was undue hardship to any person.  Whilst a reduction in child support might cause Ms Hudson hardship, it could not be said that it would be undue hardship, especially given that the reduction would occur by operation of a legislatively prescribed formula.

11. His Honour then examined the proposition that if an order was made under s.66M of the Act, there would be a change in the child support assessment for the Hudson children. His Honour pointed out that any change would occur via the operation of s.39 of the CSA Act. That section has operation in respect of relevant dependent children as that term is defined in s.5 of the CSA Act. His Honour considered that section and the sections that define the phrase major contact (ss.8(3) and 8A(5) of the CSA Act). After referring to s.8(3), his Honour said, at para. 22 and following:

    22 That section is only capable of reasonable construction in the context of a separation between two parents about the children the subject of the order and in the context of this matter could only refer, if it were applicable at all, to the children of Ms Hudson, not those of Ms Courtney.  Similarly, s 8A(5) provides:

    “If a carer has care of the children for at least 60 per cent but less than 70 per cent of the nights in the 12 months immediately after the start of the child support period concerned he or she is taken to have care of the child for 65 per cent of the nights in the child support period and is referred to in this Act as having major contact with the child.”

    23 Again, that section in my opinion is only capable of logical construction in circumstances where we are referring to children in this case such as those of Ms Hudson, not of Ms Courtney. Accordingly, in my opinion, it would not be feasible or would not be possible, even if there were a determination under s 66M which I believe I cannot make for the reasons I have indicated above, that under s 39 of the Child Support Assessment Act Mr Finley could be found to have a relevant dependent child such as to bring about a reduction of his child support formula.

Discussion

1. None of the abovementioned decisions is binding upon me, although they are all of considerable persuasive value.  There are two decisions of this Court that appear at odds with each other.

2. The ratio in Mulvena, Wijayaratnam, Finley and Petersen is that there must be an application for a child maintenance order on foot before an application for an order under s.66M of the Act can succeed. That was not the ratio of Harvey, but the obiter comments of Brewster FM to that effect were applied in the ratio in Finley.

3. The decision in Facey is on its own in the sense that it holds that an order under s.66M can be made without there being a substantive application for child maintenance on foot. The basis of that decision is that such an order would permit the legal duty to support step-children to be taken into account “in respect of the administrative assessment or any application for review, administrative departure or judicial departure”. That is to say, the purpose to which s.66M is directed is therefore not limited to applications under Part VII, Division 7, but it has a broader purpose that helps define when it is appropriate to take into account under the administrative regime for the assessment of child support a duty to support step-children. Although Faulks J. in the obiter comments set out above thought that a s.66M order could have no effect upon an administrative assessment under the CSA Act, his Honour's comments do not deal with applications for departure from the administrative formula based upon s.117(2)(a) of the CSA.

4. Mulvena and Harvey proceed on the basis that an order under s.66M of the Act is not a child maintenance order.  A child maintenance order is a parenting order which deals with the maintenance of a child: (ss.64B(5) and 64B(2)(f) of the Act). A parenting order is an order made under Part VII of the Act and which deals with one or some of the matters set out in s.64B(2) of the Act: s.64B(1) of the Act. Section 64B(5), however, does not require that the order have any particular content, other than to deal with the maintenance of a child before it meets the definition of a child maintenance order.

5. At first glance an order under s.66M that it is proper for a step-parent to have a duty of maintaining a step-child is within the definition of a child maintenance order in s.64B(5) of the Act. It deals with the maintenance of the child the subject of it, by recognising and imposing a duty to provide maintenance for that child.

6. There is no express provision in the Act that requires a child maintenance order to have any particular content. Section 66G provides that in proceedings for a child maintenance order, the court may, subject to Division 7, make such child maintenance order as it thinks proper. The types of orders that a court may make are set out in s.66P of the Act. Generally speaking, orders are made for the payment of a sum of money to the applicant, either on a periodic basis or as a lump sum. Transfers of property and the establishment of trusts are also types of child maintenance orders: Hayne v Hayne (1994) FLC 92-512.

1. There appears to be no express restriction on the type of orders that can be made by way of "maintenance of a child". Section 66P(j) provides that the Court make any other order, whether or not of the same nature as those referred to in paragraphs 66P(a) to 66P(i), that it considers appropriate.

2. The term "maintenance" is not defined in the Act. In Hayne v Hayne  Mullane J. collects some of the decisions in which judicial consideration has been given to the term "maintenance".  His Honour records:

   It is also clear from the case law in the area of trusts and elsewhere that maintenance is not limited to bare subsistence expenses.  Maintenance has been held to include food, clothing, custody, safe conduct, transport, lodging, care, medicine and other necessaries. e.g.  Mullins v Surrey County Treasurer LR 7 App Cas 1, R v Dolby (1892) 2 QB 301, Fitch v Bermondsey 73 L.J.K.B. 985, Ross v Ross 23 Rettie (HL) 67 per Halsbury C.

   The English Court of Appeal in Acworth v Acworth (1943) P 21 at 22 held per Scott LJ:

   Maintenance is a very wide word and in my view it should be read as covering everything which a wife may within reason want to do with the income which she enjoys. It includes much more than food, lodging, clothes, travelling and so on.  It includes, for instance, charity and making arrangements for the future, thus incurring various liabilities in her discretion and it is wrong to limit it to any particular form of expenditure.

   Harman J. in Re Borthwick (deceased): Borthwick & Anor v Beauvais & Ors (1949) 1 All ER 472 at 475 held:

   Maintenance does not only mean the food a wife puts in her mouth.  It also means her clothes, the house in which she lives, and the money which she is to have in her pocket, all of which vary according to the means of her husband.  Maintenance cannot mean only mere subsistence.

   In Australia, Mayo J of the Supreme Court of South Australia has held:

   Maintenance means the act of maintaining and denotes the regular supply of food, clothing and lodging, the provision of the necessaries and of the conveniences of life, the quality and quantity of wearing apparel and to a lesser degree the amount and nature of food as well as the size, situation and furnishing of the place of abode will in each case depend in part on the standing of the parties, their wealth and the environment to which they in their married state have been accustomed.  These factors to provide for existence and comfort in ordinary circumstances where people live in amity together are supplied partly in specie and partly by money wherewith other such things wanted may be acquired.  But maintenance may also be lawfully provided for either wholly in kind, house furnishings, clothing, food, recreation and entertainment or entirely by the payment to a dependant of moneys with which to procure what is necessary. The jurisdiction whereby monetary contribution for maintenance is ordered is, of course, in constant use but the enforcement of support by the provision of other media is less familiar.  This may be expected to be in the form of preventing some right of maintenance presently enjoyed from being interrupted or precluding the wife or husband as the case may be from being molested in the enjoyment of the right.

   (Kallin v Kallin (1944) SASR 73 at 75)

3. Having regard to the very wide meaning of "maintenance", in my view an order under s.66M(2) of the Act is a parenting order that deals with the maintenance of a child and is, therefore, a child maintenance order in its own right. That is so because the order imposes a duty to maintain the child the subject of it, where no duty hitherto existed. The precise content of the duty may not be an issue for the parties to it while they remain on good terms, but the content could arguably be defined with more precision if need be by subsequent application.

4. Mulvena proceeds on the basis that the purpose of s.66M is to provide for those cases in which a parent cannot meet his or her primary duty to maintain the relevant child (s.66C of the Act) and it is appropriate, in the circumstances of the case, to impose a secondary duty on a step-parent. In my view, however, that that is the only purpose of s.66M is not at all clear. In Hayes v Hayes & Smith (above) Johnston JR was asked to make an order against a step-father, notwithstanding that the biological father of the relevant child was able to make adequate financial contribution to the maintenance of that child. The Judicial Registrar expressly rejected an argument that because the child's natural parents were able to adequately support him, no order under s.66M(2) should be made. Ultimately, an order for periodic maintenance was made against the step-father.

5. Thus, it is not necessary to show that a child cannot be supported by his parents before a duty to maintain that child will be imposed upon a step-parent. What needs to be established is that, having regard to s.66M(3) it is proper that there be such a duty.

6. Whether the Court must then go on to consider the matters set out in s.66N of the Act depends upon the nature of the order sought by the applicant. If the order sought is for financial contribution towards the maintenance of the child, the matters set out in s.66N become relevant. At that point the extent to which the primary duty of the parents to maintain the child is being and can be fulfilled becomes relevant to determining the financial contribution towards the maintenance of the child that should be made by the step-parent: s.66N(b).

7. In my view, the failure of the present application to seek any orders other than an order under s.66M(2) of the Act does not preclude the making of such an order. An application for an order for periodic payments, for example, is not necessary before the court has jurisdiction to make an order under s.66M(2) of the Act.

The exercise of the discretion – s.66M(3)

1. Making an order under s.66M(2) is discretionary. Section 66M(3) bears on the exercise of the discretion and is in the following terms:

   (3) In making an order under subsection (2), the court must have regard to these (and no other) matters:

   (a) the matters referred to in sections 60F, 66B and 66C; and

   (b) the length and circumstances of the marriage to the relevant parent of the child; and

   (c) the relationship that has existed between the step-parent and the child; and

   (d) the arrangements that have existed for the maintenance of the child; and

   (e) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

2. There is no evidence before me as to the financial circumstances of Mr Pearson and what capacity, if any, he has to discharge his primary responsibility to provide support for the children the subject of this application (see s.66C(1) of the Act).

3. There is no evidence as to the financial circumstances of either applicant.  There is little probative evidence of the relationship between the male applicant and the step-children.  The only evidence is his self-serving statement that "The children and I have a happy, healthy and loving relationship, especially as there is no contact or interest from their birth father".

4. The applicants have been married since 25 June, 2005 - so for a little more than one year.  There is no evidence of the nature and extent of their relationship prior to that date.  There is no evidence of the arrangements that have existed for the maintenance of the children in the past, particularly before the applicants formed their relationship.

5. Neither applicant pointed to any special circumstances which, if not taken into account, would result in injustice or undue hardship to them or the children.  Indeed, the male applicant expressly disavowed the suggestion that the intent of this application was to enable him to reduce his child support payments to the respondent for his children that live with her.  Thus, it is difficult to see that there would be any injustice or undue hardship to the applicant or the children if the order sought was not made.

Conclusion

1. The application must be dismissed.  There is no basis in the evidence to support the making of the order sought by the applicants.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate:  S. Haysom

Date:  22 September 2006