The Legal Practitioner's Guide

6.2.4 Orders under section 66M of the Family Law Act 1975

The definition of 'relevant dependent child' (section 5 Child Support (Assessment Act) 1989 ) includes a child for whom a s66M order is in force. This anticipates that such an order could exist in it's own right. It is generally held that section 66M is not a specific source of power to require the payment of child maintenance. Rather, it is a provision which enables the court to make a finding/declaration that a person has a duty to maintain a step child. Such a finding may then support a contemporaneous application under section 66F of the Family Law Act 1975 for the payment of child maintenance. It is therefore suggested that where a 'step-child' order is made, the s66M finding is contained in the pre-amble and the order for child maintenance within the main body of the order.

Where such an order is made, a CSA customer may apply for an adjustment to their child support income. In effect, the parent will be assessed as having a relevant dependent child, and will therefore have a relevant dependent child amount deducted from their adjusted taxable income when CSA calculates child support for their other child support children. Under the new formula, both parents can have their adjusted taxable income adjusted by the costs relating to a relevant dependent child.

Suggested draft terms

The court has found that [step-parent's name], has a duty to maintain [step-child's name] pursuant to section 66M of the Family Law Act 1975.

It is ordered:

• That from [start date], [step-parent's name] shall pay child maintenance for [step-child's name] to [step-child's parent's name] at the rate of $x per [week, fortnight, month, etc].
• The amount of child maintenance payable under clause 2 will increase from [day and month] each year, in accordance with variations in the consumer price index for [specify capital city]. [Or use another method of indexing the payment as set out in 4.4.2(b).]

Tips and problems

The payer must be a 'step-parent'
To be able to get an order under section 66M the person must be married, or have been married to a parent of the step-child (section 4 of the Family Law Act 1975). Persons in de facto relationships are not able to get orders under section 66M for children of their partner that are in their care.

There must be proceedings for child maintenance on foot
For an order to be made under section 66M of the Family Law Act 1975 there must be proceedings between the child's parent and the person about child maintenance (Mulvena and Mulvena and Butler and Edwards [1999] FamCA 280).

Things the court must take into account
In making an order under section 66M of the Family Law Act 1975 the court has to take into account:

• the objects and principles of the legislation;
• the length and circumstances of the marriage;
• the relationship between the step-parent and the child;
• the arrangements for the maintenance of the child; and
• any special circumstances which would result in injustice or hardship to any person.

If a person is living with their spouse and step-child there may be no basis for the court to order that the step-parent pay child maintenance for the step-child. To order payment in that situation would usually be an artificial device to reduce child support payable by the step-parent. To make an order in those circumstances would not meet the objects of the provision.

Note: where an application for child maintenance is made under s66M and the respondent consents or does not oppose the orders sought, the applicant is required to include various matters in the supporting affidavit, including any obligation or potential obligation of each party for child support for any other child (Family Law Rules, rule 4.16 (2a). See also service requirements (Family Law Rules, rule 4.16 (2b).

See The Guide: CSA Law and Policy (CSA's online technical resource), chapter 4.3.4 for more information.

If you are seeking consent orders you must advise other people who may be affected
Regardless of the fact that the step-parent and his or her spouse consent to an order it can only be made if notice has been provided to those who may be affected by it. The Family Law Rules 2004 [Rule 4.23] and the Federal Magistrates Court Rules 2001 [Rule 25A.07] require that the applicant serve a copy of the application on each respondent, a parent of the child and the Child Support Registrar. A hearing will generally be required to enable the rights of those persons to be considered.

Consequences of an order under section 66M
An order under section 66M may mean that a parent's assessed income for child support (for children from another relationship) is reduced and as a consequence that parent pays less or receives more child support for his or her other children (see definition of a relevant dependant child in section 5 and see also section 39 Assessment Act). However, step-parents should be made aware of the consequences of an order under section 66M. An order under section 66M means that the step-parent has a legal duty to maintain the step-child. Should he or she separate from their spouse (the parent of the step-child) they may be required to pay child maintenance for the step-child. The order can be registered with the CSA for collection because it is a 'registrable maintenance liability' within the meaning of section 17(1) of the Child Support (Registration and Collection) Act 1988.

Can a step-child be taken into account in changing a child support assessment?
If a person has a legal duty to maintain a step-child (because they are a relevant dependent child due to an order under section 66M) they may be able to seek a further adjustment of their child support assessment if their step-child has special needs that affect their capacity to financially support their child support children (sections 98B, 98C and 117(2)(a)(ii)).

A person can also apply to CSA for a change of assessment if their capacity to provide financial support for the children of the child support assessment is significantly reduced because of their responsibility to maintain a 'resident child'.

This provision allows a parent to have their financial responsibility for a child recognised in their child support assessment if:

• the child lives with them, but is not their biological or adopted child;
• they have lived with the parent of the child for two years;
• neither of the child's biological parents can provide financial support for the child due to death, ill health, or caring responsibilities; and
• the child is under 18, not a member of couple, and requires financial assistance.

See section 117(10) of the Assessment Act for the full definition of a 'resident child'. It is not necessary to establish legal responsibility for the child, nor for the person to be married to the child's parent. Note that a parent will not be found to be unable to provide financial support simply because they pay a minimal amount of child support or do not comply with child support obligations.

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