Blended family situations raise the question of how a step-parent’s contributions to a child (to whom they are not biologically related and have not legally adopted) are treated in family law divorce and property disputes.

Introduction

Divorce disputes and family law property settlements are governed by the Family Law Act 1975 (Cth).

The Family Law Act requires courts exercising family law jurisdiction (normally the Federal Circuit and Family Court of Australia or FCFCOA) to consider each party’s contributions to the marriage or relationship, including contributions as homemaker or parent to the “child of the marriage” (section 79 (4) (a) to (g)) or “child of the de facto relationship” (section 90SM (4) (a) to (g)). The definition of “child of the marriage” or “child of the de facto relationship” is set out in section 4 and sections 60F to 60HB of the Family Law Act, and includes a child that is a biological or adopted child of the parties. Notably, however, the Family Law Act does not explicitly mention step-children. These sections refer only to children of both parties.

Despite this silence, the Family Law Act provides a broad catch-all in the provisions dealing with “future needs” factors, namely:

• Section 79 (5) (v) (“future needs” considerations in family law property disputes involving married couples);

• Section 90SM (5) (w) ((“future needs” considerations in family law property disputes involving de facto couples;

• Section 75 (2) (r) (spousal maintenance considerations for disputes involving married couples); and

• Section 90SF (3) (u) (spousal maintenance considerations for disputes involving de facto couples), which all provide to the effect that the court may take into consideration any other “fact or circumstance” which, “in the opinion of the court, the justice of the case requires”.

This is supported by case law and authorities in the Federal Circuit and Family Court of Australia (and its predecessor the Family Court of Australia), which has long established that a step-parent’s financial or caregiving contributions to a non-biological child can be taken into account under this provision when dividing property. This ensures that real contributions to the welfare of a family (even for a child who is not the party’s own) are not ignored in a property settlement.

The legal considerations centre on the nature of the contribution and the parties’ legal obligations: in particular, the distinction between a biological parent’s duty to support their child and a step-parent’s voluntary assumption of that role. Below, is an outline of the legislative framework and leading cases that clarify how these contributions are treated, and the principles that guide the Federal Circuit and Family Court of Australia in such scenarios.

Legislative Framework

Under Part VIII of the Family Law Act (which deals with financial matters and property disputes involving married couples) and Part VIIIAB (which deals with financial matters and property disputes involving de facto couples), the Federal Circuit and Family Court of Australia in assessing a property division examines both parties’ contributions.

Section 79 (4) provides that “the court is to take into account the following considerations, so far as they are relevant:

 (a)  the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last – mentioned property, whether or not that last – mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;

 (b)  the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last – mentioned property, whether or not that last – mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;

 (c)  the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.

(ca) the effect of any family violence, to which one party to the marriage has subjected or exposed the other party, on the ability of a party to the marriage to make the kind of contributions referred to in paragraphs (a), (b) and (c);

 (d)  the effect of any proposed order upon the earning capacity of either party to the marriage.

 (f)  any other order made under this Act affecting a party to the marriage or a child of the marriage.

 (g)  any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided for a child of the marriage.”

Section 90SM (4) (a) to (g) of the Family Law Actprovides to a similar effect in relation to de facto relationship financial and property disputes, with respect to a “child of the de facto relationship”.

A “child of the marriage” or “child of the de facto relationship” is not defined in the Family Law Act but generally means a child of both parties or adopted by them.

As discussed above, sections 79 (5) (v) (“future needs” considerations for married couples in property disputes), section 90SM (5) (w) (“future needs” considerations for married couples in property disputes), section 75 (2) (r) (spousal maintenance considerations for married couples) and section 90SF (3) (u) (spousal maintenance considerations for de facto couples) provide avenues for the Federal Circuit and Family Court of Australia to take into consideration contributions made by a step-parent to non-biological children and to take into account the effect of children who are not children of the marriage or the de facto relationship on the parties’ respective circumstances and future needs. These provisions permit the court to take into consideration any other “fact or circumstance” which, “in the opinion of the court, the justice of the case requires”.

Below is a discussion of some of the cases addressing the Court’s discretion arising from the above statutory provisions.

Leading Authority: Robb & Robb

The leading authority on this issue is the decision of the Full Court of the Family Court in Robb and Robb [1994] FamCA 136 (per Lindenmayer, Finn and Joske JJ). In that case, the husband and wife had married in 1979, and the wife’s two daughters from a prior marriage lived with them for over a decade. The husband had provided both financial support and day-to-day care for these stepchildren during the marriage. At trial, the judge awarded the husband an extra share of the marital assets in recognition of his contributions to the stepchildren, treating it as a factor under section 75 (2) (o) of the Family Law Act (the then equivalent of section 75 (2) (r)). The wife appealed, arguing that her own contributions as a mother to those children should likewise have earned her additional weight in the property division. The Full Court firmly upheld the approach of crediting the step-parent’s contributions. Their Honours drew a sharp distinction between the wife’s and the husband’s positions. They noted the wife “had a legal duty to maintain the children of her prior marriage”, a duty which took primacy over anyone else’s (apart from the children’s father). In caring for her own children, the wife was merely discharging her legal obligation and thus not doing something “extra” warranting special credit. By contrast, the husband “had no such legal duty and was acting essentially as a volunteer assisting the wife in the discharge of her obligations”. In other words, the husband’s support for the stepchildren was beyond the call of any legal responsibility; he was contributing out of goodwill and commitment to the family, not because the law required him to. The Full Court held that the justice of the case clearly required the husband’s voluntary contribution to be recognised under s 75 (2) (o). Accordingly, it was appropriate to adjust the property division in the husband’s favour to reflect his financial and non-financial support of the stepchildren. The wife’s challenge was rejected: the court found no error in giving weight to the stepfather’s efforts while declining to reward the wife for fulfilling her normal parental duty. At [64] to [69] the Full Court held:

“64. In relation to ground 4, just as the husband’s contribution to the welfare (including the financial support) of the wife’s children of her former marriage, for the reasons given by his Honour in the passage from his judgment last quoted (with which we agree), could not be taken into account as a contribution by him under s.79 (4) (c), so too the wife’s contribution to the welfare of those children could not be taken into account on that basis. However, as his Honour did (in our view correctly) take the husband’s contribution to those children into account under s.75 (2) (o), the question arises whether he should have taken the wife’s contribution to the welfare of those children into account also, under that paragraph of s.75 (2). This raises the question whether the fact that a party to a marriage contributes during that marriage to the welfare of his or her own children of a prior marriage is a fact or circumstance which the justice of the case requires to be taken into account in that party’s favour, at least, in circumstances where the other party’s contribution to that welfare has been taken into account as a fact or circumstance in that party’s favour.

65. In considering whether the justice of a case requires some act done by a party to be taken into account under s.75 (2) (o), the Court should, we think, have regard primarily to the existence or otherwise of any legal obligations, as between the parties, in relation to the doing of that act, and also, perhaps, to ordinary notions of justice and equity between the parties.

66. In this case, the wife had a legal duty to maintain the children of her prior marriage, which duty had primacy over the duty of any other person, other than the children’s father, to so maintain them: ss.66A and 66B of the Act. The husband, on the other hand, had no legal duty to maintain these children at any time during the marriage because, by s.66G, a step-parent has such a duty only if he or she is a guardian of the child, or has custody of the child by an order of a court, or a court having jurisdiction under Part VII of the Act by order determines that it is proper for the step-parent to have that duty. None of those pre-conditions existed in this case.

67. Accordingly, in contributing to the support of these children the wife was merely honouring a legal obligation which she owed to the children, whilst the husband, in making his contribution, was acting essentially as a volunteer assisting the wife in the discharge of her legal obligations. Upon that basis, whilst we consider the justice of the case clearly required the husband’s contribution to be taken into account under s.75 (2) (o), the same cannot be said of the wife’s contribution. In making that contribution the wife was in no way discharging or assisting to discharge any legal obligation of the husband.

68. Turning, then, to ordinary notions of justice and equity, we are of the view that such notions do not call for any allowance to be made in the wife’s favour, in the property proceedings between the husband and wife, because she honoured her legal obligation to maintain her own children of a prior marriage. We believe that a failure to make such an allowance would not offend the ordinary reasonable man or woman’s notions of justice.

69. In our view, therefore, his Honour did not err in failing to give any weight to the wife’s contributions to the welfare of her own pre-marital children.”

Application in Subsequent Cases

Since Robb & Robb, the Court has consistently applied its reasoning, while emphasising that each case turns on its facts. The principle was soon affirmed in cases like Jarrott & Jarrott [2007] FamCA 1002, where the Family Court (per Cronin J) considered the husband’s payment of his stepson’s private school fees as a relevant contribution when assessing the overall division. Their Honour concluded at [35]:

“35. Having settled in R, the husband continued to work in his chosen career as a public servant. E commenced private school in L. E attended school initially as a day pupil in Year 7 but boarded there in Years 8 and 9 and then ultimately completed his schooling for Years 10, 11 and 12 at a private school in Melbourne as a boarder. There was considerable debate between the parties as to who paid what towards those expenses. The wife maintained that her parents continued to pay the tuition fees for E and I accept that that happened. However, I also accept that there were other expenses associated with the education such as boarding costs, uniforms and the like and that the parties each covered those expenses. On any view, it was an expensive exercise. Having regard to the views of the Full Court in Robb[3], I accept that that was a contribution made by the husband and I propose to take that into account in my global assessment of the respective contributions of the parties.”

Likewise, in R & H [2003] FamCA 125, the Full Court of the Family Court (per Nicholason CJ, Kay & Brown JJ) reiterated that a step-parent’s voluntary support can be allowed as a factor in an appropriate case. In R & H, the trial judge had given a modest adjustment for the husband’s contributions to his stepchild, and on appeal the Full Court upheld that approach, cautioning that there is no automatic formula for such adjustments. The appellate court warned against “double counting” or assuming that any support to stepchildren categorically warrants a specific extra percentage of the assets. Their Honours observed that if all other contributions between the spouses were equal, the mere fact that one party’s income was spent partially on stepchildren does not necessarily make that party worse off. One cannot necessarily conclude that, absent the step-children, the parties would be any the richer. In other words, the financial impact of caring for stepchildren is often hard to isolate, and courts should be careful not to overcompensate. The existence of a step-parent contribution is thus a discretionary consideration, not a guaranteed credit. The weight given will depend on factors like the length of time the step-parent supported the child, the degree of financial burden or care assumed, and whether the step-parent’s involvement meaningfully exceeded what the biological parent (or child support from the other parent) provided. At [21] to [24], the Court made the following observations:

“21. An adjustive exercise under s 79 is not an accounting exercise. The Court has to weigh up and evaluate the various contributions made at different times, all of which have to be taken into account in determining an appropriate division of the available pool of assets. They include not only capital introduced into the relationship, but also earnings during the relationship, physical labour expended upon improving or conserving assets, and services performed in the role of homemaker and parent. The process of evaluating these diverse contributions and attributing weight to them is not a scientific one. Minds will differ significantly on where weight should be placed. An appellate court cannot simply substitute its own assessment for that of the trial Judge unless it can be demonstrated that the trial Judge has erred on the facts or on the application of the law or has reached a result which is plainly unjust.

22. There is a danger of double counting in too readily making such an adjustment. . Where each party brings in equivalent capital and the efforts of each party during the course of the marriage are seen to be equal, the fact that children from another relationship benefited in some way by support given to them arising out of that relationship, does not necessarily lead to the conclusion that a further adjustment should be made on behalf of the non-parent. One cannot necessarily conclude that, absent the step-children, the parties would be any the richer. Their quality of life may have been enhanced in terms of expenditure on themselves rather than on the children, or there may have been opportunity for capital gain or savings, but these things are merely speculative. Ultimately it is a matter for the discretion of the trial Judge.

23. There are further difficulties with the so-called Robb v Robb concept. Whilst it is true that a step-parent has no legal obligation to support a step-child unless an order has been made under s 66M of the Family Law Act, a moral obligation may well be created before then. In any event, the relationship between a step-parent and a step-child is not necessarily a one way street. Nor is it one upon which it is necessarily appropriate to put any commercial value.

24. Bearing in mind that the facts of this case outlined above are not the subject of any challenge by the parties, we are of the view that it would be inappropriate for this Court to interfere with the adjustment for this factor made by the trial Judge.”

Recent decisions in the Federal Circuit and Family Court of Australia continue to apply these principles:

In Elford & Elford [2016] FamCAFC, the Full Court of the Family Court (per Bryant CJ, Murphy and Cronin JJ), held at [35]:

“35. In Robb and Robb [1994] FamCA 136; (1995) FLC 92-555, this Court made the point that because s 79(4)(c) refers, relevantly, to contributions made to “contributions to the family constituted by the parties to the marriage and any children of the marriage”, contributions of the type made here by the husband to children who were not his, needed to be taken up by reference to s 75(2)(o). Although not recognised in those terms by his Honour, he was plainly alive to that distinction and gave consideration both to the important s 79(4)(c) contributions made by the wife and to the husband’s “contributions” to children who were not his, albeit that this needed to occur by reference to s 79(4)(e) rather than s 79(4)(c).”

In Alston & Alston [2021] FedCFamC1A 96, the wife had helped care for the husband’s three children from a prior relationship, and the trial judge explicitly applied Robb & Robb. The wife received a small adjustment to the asset division in recognition of her role as stepmother, an outcome the appellate court noted was consistent with authority. The Full Court (per McClelland DCJ, Williams and Wilson JJ) at [82] to [84] held as follows:

“82 As previously noted, the primary judge determined that, in accordance with the principles adumbrated in Robb and Robb, there should be an adjustment of 2.5 per cent to the respondent as a result of the fact that she provided care to the appellant’s three children from his earlier relationship when they spent time with the parties during the earlier years of their marriage (at [127]–[128]).

83 It is the appellant’s case that the respondent did not, in submissions to the primary judge, refer to Robb and Robb. However, that case had been the subject of discussion between the primary judge and the solicitor-advocate for the respondent during the course of the proceedings. This was in circumstances where it was clear that the respondent claimed, as a recognition of contribution on her part, that she cared for the three children. As noted in the respondent’s Summary of Argument filed on 1 November 2021 at paragraphs 40 to 41, the respondent was not challenged on her evidence as set out at the trial.

84 The manner in which the primary judge recognised the respondent’s contribution in providing care for the appellant’s children from his previous relationship was consistent with the authorities. The authorities are quite clear that such a contribution, in assisting in the care of a non-biological child, should be assessed as a factor of potential relevance under s 75 (2) (o) of the Act, rather than as contributions made pursuant to s 79 (4) (e).[11]”

Conversely, in Ferman & Lapham [2022] FedCFamC2F 415 (a de facto property case), a step-father’s claim for an adjustment was rejected: although he had provided some financial support for his partner’s children, the de facto relationship was short and his work commitments meant he spent limited time with the family. Kearney J, while “assessing in a meaningful way” his contributions under the de facto equivalent of s 75 (2) (o), ultimately found that the circumstances did not warrant any Robb & Robb adjustment in his favour. These examples illustrate that the magnitude of any adjustment will vary. The court will look at matters such as whether the step-parent effectively stepped into a parental role over many years (as in Robb or Jarrott), or only intermittently; whether the step-parent’s contributions saved the other party significant expense; and whether the step-parent had no legal obligation while the other parent received support from elsewhere. It is also relevant whether the step-parent’s involvement continued post-separation or ended when the relationship broke down. Ultimately, the decision is an exercise of the court’s wide discretion to reach a “just and equitable” result on the facts – with the step-parent’s role being one part of that equation. At [187] to [189], Kearney J concluded:

“187 I have had regard to the de facto husband’s contributions towards the non-biological children forming part of the relationship. Given the de facto wife’s evidence about her role in caring for the children of the de facto husband, I have also had regard to her contributions, albeit these were quite limited in circumstances where those children did not live full-time in the household and sensibly in my view, perhaps that is why a tactical decision was not made to strongly pursue this issue in cross-examination.

188 Turning back then to the de facto husband’s contention, his contribution in assisting in the care of CC and EE as his non-biological children and in providing financial support for them must be assessed in a meaningful way pursuant to s90SF(3)(r) (see Zaruba & Zaruba [2017] FamCAFC 19 at [53] and In the Marriage of Robb and Robb [2994] FamCA 136). In that regard I note that it is uncontroversial that the children lived primarily with the de facto wife and she received little to no child support from the children’s father during the de facto relationship, but that post-separation she did receive a significant lump sum.

189 However, circumstances which weigh against the de facto husband’s contribution are the short duration of the relationship and his large absences from the H Street, Suburb J home in the first half of the de facto relationship (due to his work commitments in the Region DDD). For these reasons, I am not satisfied that a Robb & Robb contribution favours the de facto husband.”

By way of further example, in the recent case of Scaletta & Scaletta [2023] FedCFamC2F 1290, Judge Eldershaw at [106] found that:

“106. The evidence establishes that the wife undertook cooking and domestic chores for the benefit of Mr O when he stayed some weekends and was at the business after school each afternoon. This sounds as an adjustment in favour of the wife: Robb & Robb (1995) FLC 92- 555.”

Conclusion

In summary, Australian family law recognises that contributions made by a person to a child who is not their biological child can affect the division of property between separating spouses or partners. A biological parent is expected to maintain his or her child, so that effort is already priced into the relationship; by contrast, a step-parent who assumes responsibility for a stepchild is effectively acting gratuitously (absent a rare court-imposed duty).

The guiding principle, established by the Full Court in Robb & Robb, is that a step-parent’s voluntary support – financial, material, or caregiving – for their spouse’s child is a relevant contribution that the court may account for, usually under the “justice of the case” rubric now found in sections 79 (5) (v) (future needs considerations for married couples in property disputes), section 90SM (5) (w) (future needs considerations for married couples in property disputes), section 75 (2) (r) (spousal maintenance considerations for married couples) and section 90SF (3) (u) (spousal maintenance considerations for de facto couples), which provide avenues for the Federal Circuit and Family Court of Australia to take into consideration contributions made by a step-parent to non-biological children and to take into account the effect of children who are not children of the marriage or the de facto relationship on the parties’ respective circumstances and future needs. These provisions permit the court to take into consideration any other “fact or circumstance” which, “in the opinion of the court, the justice of the case requires”.

The amount of any adjustment, however, is case-specific and modest in many instances – courts are careful to avoid double-counting or speculative calculations. The step-parent’s contributions will be weighed alongside all other contributions (financial and non-financial) and the parties’ “future needs” to reach an overall “just and equitable” outcome.

The best divorce lawyers and family lawyers in Sydney are familiar with the legal principles discussed above; if you are involved in a parenting (child custody) or family law property settlement dispute and are in need of expert legal advice from skilled lawyers, you may rest assured that our lawyers at Gramelis Attorneys are well-versed and experienced in dealing with complex divorce (property settlements and parenting (custody)) disputes of all kinds.

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