What is the test for a "settled intention" under the Family Law Act?

Cosgrove J. found, at p. 382, that the evidence of the wife was “overwhelmingly supportive and conclusive” that the first test of a “settled intention” under the Family Law Act had been met “on a balance of probabilities or by the test of preponderance”. Cosgrove J. relied on Spring v. Spring, supra, where Mendes da Costa U.F.C.J. stated at p. 749 that “the word ‘settled’, in my opinion, denotes quality and not duration”.

On the facts, Cosgrove J. found at p. 383 that there had not been a subsequent change in the husband’s intention to treat the three children as members of his family in the first five years of the marriage but “a subsequent deterioration in their relationship between the parties”. Cosgrove J. rejected the argument that the “tolerance” of the husband towards the children was “a convenience which flowed from the strong attraction between the husband and the wife”. Cosgrove J. concluded at p. 384 that the husband had, from the outset, intended to treat the wife’s three children as members of his family. He commented at p. 384 that the husband had not seen the children since the separation but quoted Mendes da Costa U.F.C.J. in Spring v. Spring, supra at p. 752: “The husband has not seen the children since the parties’ separation, nor has he expressed any desire to visit them. It may be that he has ceased to hold the settled intention that he initially possessed. However, even if he has so changed his intention, he cannot thereby cast aside the support obligations that his conduct created.”