In Queensland, adopting a step-child is a serious decision that is regulated by the Family Law Act 1975 (Cth), and the Adoption Act 2009 (Qld). The adoption is the final legal step that permanently breaks the legal relationship between the child and their non-custodial parent and creates a relationship with a ‘legal status’ with a new custodial parent.
How does the law determine a “step-parent”?
We look at the Adoption Act 2009 (Qld), which determines that a “step-parent” must:
- Be over 18 years of age;
- Reside in Queensland Be an Australian citizen (or the spouse of an Australian citizen);
- Be married to the child’s custodial parent;
- Be in a heterosexual relationship with the child’s custodial parent; and
- Have resided with the child and the child’s custodial parent for a period no less than 3 years.
To proceed with adopting a ‘step-child’ there are certain conditions that must be met. The child must be at least 5 years old, but not more than 17 years old.
To do this, the parent must seek the Court’s permission to make an application to adopt the step-child. The order of the Court granting leave must accompany the application.
Another condition to consider for adoption to be successful, is that both the child’s biological mother and father must approve the adoption without the recommendation of Adoption Services.
Although this is no easy feat as there are legal and social consequences on the relationship between the child and their non-custodial parent and for this reason applications for adoption of a step-child are not often granted.
If you are considering an adoption, bear in mind that adoption is not the only way to give legal effect to your relationship with your step-child.
An easier and more accepted method is to apply to the court to make a parenting order instead. A parenting order will preserve the legal relationship between the child and the non-custodial parent and also give the step-parent parental responsibility for the child. In this case, the parenting order gives the relationship the desired legal status without requiring an application to be made for adoption.
State of Victoria: a broader definition of ‘step child’
In the case of Bail v Scott-Mackenzie  VSC 563 the Court demonstrates the law’s changing perspective toward de facto relationships in equalling the status of such domestic relationships to the status of marriage.
Consequently, the children of such relationships are now gaining greater standing, being recognised as the “stepchildren” of the domestic partners of their natural parents, even when that natural parent never marries that partner, or predeceases that partner by years.
In Victoria, the legislature supports a wider meaning of the word “stepchild” to include the child of the deceased’s domestic partner.
Under section 90A of the Act, “an application for a family provision order may be made to the Court by, or on behalf of, an eligible person.” Section 90(f) of the Act provides that an “eligible person” can be defined to include a “stepchild” of the deceased.
Derham AJ held that by applying the process of statutory interpretation to the statute, stepchild in the context of the Act had adopted a wider meaning to include the child of a domestic partner.
- The Oxford Dictionary Meaning of “Stepchild” includes the Child of a Domestic Partner
In considering the natural and ordinary meaning of the word “stepchild”, his Honour considered the 1993 New Short Oxford Dictionary. This text defined “stepdaughter” as “a daughter, by another marriage or relationship of one’s husband or wife or loosely the person with whom one lives as if married.”
From this dictionary definition, his Honour determined support does exist for a stepchild to be ordinarily defined as the daughter or son of a domestic partner.
This meaning could only be applied at law, however, if it did not violate the principles of Popple v Rowe  1 VR 651. Popple provides that a Court should not accept a wider meaning of words or terms in a statute if that word or term can properly be described as “popular, loose and flexible” and a “meaning which the legislature should not be taken to intend.”
2. The Provisions, Purpose and Explanatory Memorandum Support the Wider Meaning of “Stepchild”
His Honour considered the purpose and provisions of the Act to determine whether the Legislature intended for a “stepchild” to include a child of a domestic partner.. He also considered the Act’s Explanatory Memorandum.
His Honour also observed that section 90 of the Act also lists a “spouse or de facto partner” as an eligible person who can make a claim under a will of a deceased estate. His Honour held that this legislative drafting – that both a spouse and de facto partner were viewed equally in the eyes of the law – “indicate[d] an intention … to embrace a more modern meaning of the word stepchild as including a child of a person who is the deceased’s unmarried domestic partner.” This supported the purpose of the Act, which is to provide relief to applicants who should have been appointed beneficiaries under a will.
His Honour also noted that the “Explanatory Memorandum aids in the interpretation”. The Explanatory Memorandum explains that the (then) new inclusion of the term “stepchild”, as opposed to only a “child”, as an eligible person under the Act pointed to an overall expansion of the meaning of who can benefit under a will. For this reason, Ms Bail’s request for a wide construing of the term stepchild should be included.
Thus, the meaning of stepchild as including the children of de facto partners, was not “popular or loose” but one which the parliament intended.
Did the term “stepchild” persist after Ms Holmes’s Death?
His Honour had to consider whether Ms Bail’s status as the Deceased’s stepchild finished after her mother’s death (and consequential dissolution of the de facto relationship). That is, to be able to claim under the Deceased’s Will, did Ms Bail’s mother still have to be alive and in a de facto relationship at the time of the Deceased’s death?
In Queensland, s 40A(3) of the Succession Act 1981 (Qld) provides that a person’s status as a stepchild does not end merely due to the death of the stepchild’s parent.
With no similar provision in the Victorian legislation, His Honour considered this legislation as well as relevant case law, applying Deane J’s conclusion in Re Cook that,
“[I]f the marriage is undissolved at the time of the death of the natural parent, the relationship of affinity between stepparent and stepchild will continue”.
Thus, because the relationship between Ms Bail’s natural parent and stepparent did not dissolve by means of breakdown, but rather due to the death of her mother, Ms Bail was considered a stepchild within the meaning of the Act.
If you have any questions about adopting your step-child or your family law issue, please contact our office for your free initial consultation with one of our family lawyers.