M and M
[2007] FMCAfam 881
•23 October 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & M | [2007] FMCAfam 881 |
| FAMILY LAW – Child maintenance – duty to maintain step-child. |
| Family Law Act 1975, ss.60F, 66B, 66C, 66D & 66M |
| Applicant: | A M M |
| Respondent: | A J M |
| File Number: | NCM 2186 of 2006 |
| Judgment of: | Lucev FM |
| Hearing dates: | 28 September & 2 October 2007 |
| Date of Last Submission: | 28 September & 2 October 2007 |
| Delivered at: | Melbourne via telephone to Port Macquarie |
| Delivered on: | 23 October 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr Byrnes |
| Solicitors for the Applicant: | Byrnes Lawyers |
| Counsel for the Respondent: | Ms Cooper |
| Solicitors for the Respondent: | Priest McCarron Solicitors |
ORDERS
The Court determines that it is proper for A J M (“Respondent”), the step-parent of C I J M, born 1992 (“the Child”) to have a duty to support the Child.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
NCM 2186 of 2006
| A M M |
Applicant
And
| A J M |
Respondent
REASONS FOR JUDGMENT
Issue
The issue in this case is whether the Respondent as a step parent has a duty to maintain a child. The child is the son of the Applicant, from whom the Respondent has separated.
Section 66M
Section 66M of the Family Law Act, 1975 (Cth)[1] provides as follows:
[1] “FL Act”.
“(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.”
Facts
There are a number of undisputed facts in this case. They are as follows:
a)that from the commencement of cohabitation between the Applicant and Respondent in about 1993 the Respondent regarded the Child born 1992, prior to the Applicant – Respondent relationship and of whom the Respondent is not the biological father, as his own Child;
b)shortly after the commencement of cohabitation the Applicant saw a solicitor concerning the Respondent adopting or becoming the guardian of the Child;
c)whilst consulting the solicitor the Respondent said words to the effect that he regarded the Child as his own son and wanted to adopt him or be appointed his guardian;
d)the adoption was unable to be finalised but the Respondent reiterated that so far as he was concerned the Child was his son and he would look after him;
e)the Child has the Respondent’s surname, that surname being given to him by deed poll, and in relation to which there was a name change ceremony at the time the Applicant and Respondent were married in 1995;
f)the Child has had no contact with his biological father and does not know who his biological father is;
g)the Respondent has referred to the Child as his son throughout the relationship between the Applicant and the Respondent;
h)following the Applicant and Respondent separating the Respondent confirmed to the Child that he was still his father and would continue to voluntarily support him;
i)the Child was told that the Respondent was not his biological father (but there is a dispute as to when, namely, whether it was when the Child commenced primary school or was 10 years old, but for practical purposes the Court does not consider that it matters);
j)notwithstanding that the Child was aware that the Respondent was not his biological father the Respondent reiterated that the Child was his son and that he would always treat him that way;
k)the Respondent agreed to pay child support for the Child after separation on the basis that the Respondent considered the Child as his own son, and in that regard did not distinguish between the Child and another younger child of the Applicant and Respondent born during their marriage;
l)following separation the Respondent has paid the Applicant an amount varying between $500 and $650 per week by way of child support, but from 9 August 2007 the payment has dropped to $224 per week; and
m)the Applicant’s weekly income is $951.50 a week and weekly expenses are $1438.
There is a dispute as to whether the Applicant knows who the Child’s biological father is. The Applicant says she does not know.[2] The Respondent contends that the Applicant does know and that her moral standards would not have allowed her to have a single night sexual encounter with a man she did not know.[3] This is said about the Applicant in relation to a period prior to her relationship with the Respondent. Perhaps the single night sexual encounter was an aberration, perhaps the Applicant’s moral standards changed after the encounter, the pregnancy and birth of the Child. Whatever happened, the evidence is such that at this interim stage, without the benefit of cross-examination, there is no way that the Court can reach a conclusion as to who the biological father of the Child is, or if the Applicant knows who is the biological father.
[2] Applicant’s Affidavit, 8 February 2007, para. 6.
[3] Respondent’s Affidavit, 24 September 2007, paras. 7 and 8.
The Respondent has not recently spent time with the Child, and the Child’s relationship with the Respondent soured significantly after the Respondent separated from the Applicant and took up with a new partner.[4] Whilst the Court makes no moral judgment the Court observes that that is probably not an altogether unnatural reaction from a male teenager when a “father” leaves a mother for another woman, and it is a reaction which might equally come from a father’s natural (or biological) child as a step-child.
[4] See, for example, Respondent’s Affidavit, 24 September 2007, paras. 5 and 6.
The above appear to be the relevant facts for present purposes, interim orders only being sought.
Consideration
The factors to be considered are mandated by s.66M(3) of the FL Act.
Section 60F of the FL Act is not relevant in this case.
The Court has regard to the objects outlined in s.66B of the and the duty imposed by s.66C of that Act; as well as the provisions of s.66D related to the duties of step-parents concerning child maintenance.
In this case the Applicant and Respondent were married and lived together for more than a decade. They married when the Child was three years old, and the Respondent prior to, at the time of, and during the marriage, and even subsequent to separation, acknowledged his role as a parent to the Child. Even though the Child became aware, at some point, that the Respondent was not his biological father, the relationship continued as it had always been, as one of father and son. The Respondent, to his credit, has acknowledged this, but in any event it shines through the evidence. The subsequent souring of the relationship might have occurred even if the Child was a biological child. For practical purposes this has been and can continue to be seen as a father-son relationship between Respondent and Child.
The Respondent has until recently, properly and again to his credit, paid to maintain the Child (and has done so on the same basis as for his own biological child of the marriage).
The Court does not consider that there is sufficient in the facts and considerations outlined above to constitute special circumstances which, if not taken into account, would result in injustice or hardship to any person. In that regard the Court has also considered the available evidence concerning the parties’ financial circumstances to the extent relevant for consideration of special circumstances.
Conclusion
The Court considers it is proper for the Respondent to have a duty to support the Child, and will so order.
The order will operate on an interim basis until a final hearing by, or other orders of, the Court.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate: M Hewitt
Date: 23 October 2007
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