The principle of estoppel, child support and other matters:

The Law Report (ABC Radio National) of 13 February 1996 included an interview with Michael Evans. He is a New South Wales barrister who appeared in the Supreme Court representing the plaintiff in a case to obtain child support from the partner of a lesbian relationship. The two children had been conceived by artificial insemination. The Court ruled in favour of payment of child support. (Click here for the full transcript.)

The key aspect of interest to me is the following statement by Michael Evans, which describes estoppel, the fundamental principle on which his case was based.

In this case it was an equitable principle of estoppel which basically is that where a person makes a promise or gives a representation which causes another person to adopt an assumption that some legal rights are going to be recognised or awarded, that person enacts in reliance on the representation or the promise, and in the circumstances the Court takes the view that it's wrong or unconscionable of the person who made the promise, to go back on it. It can hold them to it; you can say they're estopped from insisting on their strict legal rights, and they're bound to - as it were - keep good the promise.

If it can be said that a partner has an obligation on the basis of an unwritten, possibly even unspoken, understanding, then this should apply to other things also. It was determined by the Court that the plaintiff had reason to expect financial support from the defendant to help cover the costs of the children. It would be ligitimate to ask what expectations the defendant had in return. I would think that there would possibly be two expectations:

i) the defendant would have continuing contact with the children in a parenting or quasi-parenting role

ii) any money paid to cover the costs of the children would be used for the benefit of the children

To put this into more general terms and for the more common father and mother couples, the obligation to pay child support on the one hand would be associated with obligations of i) close and regular access or joint custody, and ii) accountability in the use of child support received by the custodiual parent. In other words, and bearing in mind that most liable parents are fathers -

When a couple agree to have children, the father has reason to believe that he will be an active parent participating in those children's lives, and to expect that money provided for the children will be used for the benefit of the children. In New Zealand, there is no presumption in favour of joint custody, relatively few separated parents have a joint custody arrangement (see here), and the Justice Department does not favour such arrangements (see here). Family Courts appear to put the well-being of custodial mothers ahead of contact between children and fathers (see here).

As a related example, in article <4jvof8$i2@usenet7.interramp.com> to newsgroup alt.child-support and others, Stephanie Smith writes:

In Johnson v. Calvert, 851 P.2d 776 (Cal. 1993), the court had to decide who should be considered the legal mother between two women who fit the definition of "natural" mother under California law -- the gestational mother and the genetic mother (it was a surrogacy case). The court stated that in these matters *intent* to create the child should control, and agreed with the following quote:

"The mental concept of the child is a controlling factor of its creation, and the originators of that concept merit full credit as creators. The mental concept must be recognized as independently valuable; it creates expectations in the initiating parents of a child, and it creates expectations in society for adequate performance on the part of the initiators as parents of the child." 851 P.2d at 783 (citation omitted).

Stuart Birks

10 April, 1996