Case: Federal Magistrates Court: Order to maintain step-child refused

Case: Federal Magistrates Court: Order to maintain step-child refused

In the just reported (!) case of Haden and Haden and Farnsworth [2003], the mother of a child, Mrs Haden sought that an order that her husband, the child’s step-father, pay child maintenance for her child, T. The purpose of the application was to claim T as a dependent of Mr Haden, and thereby decrease the amount of child support payable by Mr Haden to Ms Farnsworth, the mother of his two children.

There were previous orders for Mr Haden to be jointly responsible with Mrs Haden for the care of T, and for T to live with them.

The application by Mrs Haden was refused:

I decide this case primarily on the basis that had Mr and Ms Haden had separated and Ms Haden filed an opposed application seeking that Mr Haden pay child maintenance for T. I would not have made an order under section 66M even if it did not impact on Mr Haden’s liability under the Child Support (Assessment) Act. T was born in 1989. Mr Haden joined the family in April 2001 and did not marry T’s mother until December of that year. At the date Ms Haden filed her application in this case Mr Haden had therefore only been living in the same household as T for less than a year. In any event it is the length of the marriage, not the relationship, that is relevant under section 66M(3) and at the time the application was filed Mr Haden had been married to T’s mother for only three months. In these circumstances I would not have considered it appropriate to make an order for step-parent maintenance. Of course the lamentable delay in handing down this judgment has meant that more time has elapsed between the date of the marriage and the consideration of matters under section 66M(3). However it is still a short marriage, less than two years, and were this a contested application for child maintenance my decision would have been the same.
I do not believe that the (earlier) Orders are relevant to the determination of this case. The only matters I am to take into account are those set out in section 66M(3). The existence of such orders is not a matter covered by that subsection.
I believe I should approach this case on the same basis as if it were a defended child maintenance application. It does not seem to me to be appropriate, given the implications involved in this case in making an order under section 66M, to make an order which would not have been made had it been opposed by the step-father simply on the basis that it is not opposed by him.
I take into account paragraph (e) of section 66M(3). In my opinion Mr Haden’s voluntary assuming the responsibility for maintaining T and having orders made such that it impacts on his primary duty to maintain M and J would result in injustice and undue hardship to Ms Farnsworth. The child support payable of $659 a month equates to about $76 per child per week. On the basis of published research concerning the cost of raising children I conclude that this would be less than half the total cost of maintaining each of these children. Ms Farnsworth earns a modest income. Any reduction in child support will have a significant impact.
Furthermore I doubt that it is possible to make a declaration as sought by Ms Haden 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.
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.

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