9. Maintenance 2010 Student Notes

9. Maintenance 2010 student notes

Parkinson, Chapter 13

Monahan/Young, Chapter 8

Issues:

In this topic we consider the specific provisions in Part VIII of the Family Law Act 1975 (Cath) in relation to the conditional right of spousal maintenance. By contrast we will consider the lack of a broad right for maintenance for de facto couples in NSW who separated before 1 March 2009. We also look at the new de facto provisions in the Family Law Act with respect to maintenance.

Desired Outcomes:

An appreciation and understanding of the concept that spouses and those de facto partners covered by the Family law Act have conditional rights and obligations to support one another financially during and following the breakdown of their relationship. In addition, an understanding that some specific provisions also exist in relation to the maintenance of de facto couples (in limited circumstances) and the liability of a father of a child to contribute to the birth-related expenses of the mother in circumstances where the father is not married to the mother.

(1) Spousal maintenance under the Family Law Act 1975

There are 3 three types of spousal maintenance orders available under the Family law Act:

· urgent maintenance pursuant to s 77 – where there is immediate need

· interim maintenance where the court is asked to exercise the jurisdiction and power in ss72,74,75(2) and 80(1)(h) making an order pending the disposal of proceedings or until further; and

· final maintenance where the court is asked to exercise the jurisdiction and power in ss72,74,75(2) and 80(1)(h) making a permanent order.

· Note also s77A in relation to specification of maintenance component.

(a) Spousal Liability

‘party to a marriage’: s 71
(conditional) right of support: s 72
payer spouse: ‘reasonably able’ to support payee spouse (i.e. has the means)
payee spouse: unable to support him/herself adequately (by reason of (a)-(c)]

[i.e. has the need)

Three categories in s 72:

Ø care of children

Ø age etc for gainful employment

Ø ‘any other adequate reason’

(b) Courts power to enforce liability

discretionary power: s 74
‘proper order’
Subject to examination of the so-called s 75(2) factors
also note s 80

(c) relevant considerations: s 75

section 75(1) ‘shall’
saction 75(2) ‘matters’:

a. age & health

b. income, property, financial resources, employment capacity

c. care of children

d. ‘commitments’

e. responsibility to support 3rd party

f. eligibility for pension, super etc

g. reasonable standard of living

h. education/training opportunity

ha. effect on debt recovery

j. extent applicant contributed to income etc of the other party

k. duration of marriage

l. need to protect ‘role of parent’

m. financial circumstances of partner

n. terms of s 79 order

an. Child support assessment

o. ‘any other fact or circumstance’

p. terms of any binding financial agreement

note s 75(3) disregard social security
also note effect of s 75(2)(o)

(d) Urgent Orders

Immediate need: s 77

Williamson and Williamson (1978) Fogarty J said at 77,650 that the application is determined “...on a rather pragmatic basis without any real hearing upon the merits” Chapman and Chapman (1979) Fogarty J at 78,570 said that there are somewhat “ad hoc procedures” necessarily involved

Ashton and Ashton (1982) FLC 91-285 Nigh Josiah ..”Section 77 serves the purpose of an order being made where the Court is unable to determine immediately what order should be made”.

[e] Specification in Orders

specify maintenance component: s 77A

(f) General Powers of the Court

‘menu’: s 80(1) - also note sis 80(2)-(3)

a. lump sum

b. periodic sum

be. Transfer property

c. secured sum

d. order execution of document

e. trustees

f. direct payments

h. permanent or fixed orders

I. Impose term and conditions

j. make an order by consent

k. a justice order

l. before or after a decree

(g) Cessation of Maintenance Liability

refer s 82
two situations

Ø death

Ø remarriage of beneficial spouse

(h) Modification of Order

refer s 83
discharge, suspend, revive or vary
change of circumstances
cost of living change
consent order not proper
material fact(s) withheld

(i) Maintenance Agreement

historically void
right to sue: s 119
definition: s 4(1)
‘s 86 agreement’

Ø registered only

Ø see (old rule O 26 r 1)

‘s 87 agreement’

Ø approved by court

Ø note s 87A

Ø also note s 87(4A)

(j) Financial Agreements

· now must use a 'financial agreement' see Family Law Amendment Act 2000 (refer Topic 6) but NOTE maintenance component in a financial agreement will not be valid if at the time it was entered into the payee was unable to support him/herself without an income tested pension or benefit.

· note s 90F(1A) re maintenance and need for income-tested pension

· Note de facto couples who separate after 1 March 2009 can also use financial agreements 6 Family Law Act 1975 (Cth), S90SA. A binding financial agreement can address maintenance, including contracting out of maintenance obligations provided that neither party are reliant on an income tested pension or benefit: Family Law Act 1975 (Cth), s90UI(2).

Summary of principles

· s. 74 empowers the Court to make aspousal maintenanceorder

· s.72 delineates the circumstances in which that power may be exercised.

· applicant must satisfy the threshold tests demonstrating an inability to support

him/herself adequately, and establish the capacity of the other spouse

to pay maintenance.

· under s 74 the Court must have regard to relevant sub-sections of s 75(2)

· must disregard any entitlement to an income tested pension or benefit (s 75(3)).

· under s 80 can order payment of periodical or lump sum maintenance.

· ceases on the death of either party, and on remarriage of the payee except in special

circumstances.

· s 83 allows the court to discharge, suspend, or revive wholly or in part an order, or to vary an order so as to increase or decrease the sum payable if certain factors in s 83(2) are satisfied

· court must have regard to the terms of a property order made or proposed to be made under s 79: see Bevan v Bevan (1995);

· different approaches in the cases about the requirement for a spouse to apply his or her capital to meet living expenses rather than such needs being met by a spousal maintenance order: see W & W (1997); Bevan & Bevan at 81,980

· If application for property settlement and spousal maintenance both on foot, court must determine application for property settlement first because that latter exercise establishes the background against which s. 74 must operate, that is, the financial circumstances of the parties. The result of the s. 79 order may be such that the applicant for maintenance can no longer be described as being “unable to support himself or herself adequately” because he or she may have sufficient assets which, with or without income arising from the investment or use of those assets, will provide an adequate level of support. It also defines the other party's capacity to meet any order: Clauson & Clauson (1995)

· necessary to determine the issue of periodic maintenance first because this type of lump sum maintenance is the capitalization of that conclusion

Soblusky and Soblusky [1976] FLC 90-124 (PP)

Astbury and Astbury [1978] FLC 90-494

Clauson and Clauson [1995] FLC 92-595

Bevan and Bevan [1995] FLC 92-600

*Mitchell and Mitchell [1995] FLC 92-601 (PP)

DJM v JLM [1998] FLC 92-816

Caska v Caska [1998] FLC 92-826

* Vautin v Vautin [1998] FLC 92-827 (PP)

Kiesinger and Paget [2008] FamCAFC 23

(2) Child-bearing expenses under the Family Law Act 1975

(a) Liability of father to contribute if not married to mother

Part VII Division 8 Subdiv B
reasonable expenses: s 67B

(b) Who may institute proceedings

birth mother: s 67F

(c) Court’s power

as it thinks ‘proper’: s 67D

(d) Other matters

time limits: s 67G
urgent order: s 67E

(3) Maintenance for de facto partners under the Family Law Act 1975

Applies to couples who separate after 1 March 2009 (or who opt in)

(a) Jurisdictional requirements

De facto financial cause defined in s 4

Court only has jurisdiction to deal with maintenance after the breakdown of the relationship

(b) Threshold issues

Relationship must have lasted at least 2 years unless one of the exceptions applies; s90SB

Time limit must make application within 2 years of the end of the relationship unless applicant obtains leave. Under s44(6) the court has the discretion to provide an extension if the applicant would not have been able to support himself or herself without an income tested person, allowance or benefit.

Geographical requirements: s90SD

Threshold requirements maintenance

s90SE sets out the Court’s powers in maintenance proceedings concerning de facto relationships. Section 90SE is in similar terms to s 74 in relation to married couples.

Section 90SF sets out the factors a court is to take into account in relation to maintenance. Section 90SF(1) sets out the principles to be applied. These are in the same terms as s 72.

Section 90SF(3) sets out the matters to be considered when making a maintenance order. These are the virtually same matters which are set out in s75(2) with respect to married couples.

Urgent maintenance: s90SG. The requirements are identical to s 77.

S90SH specifies the types of orders for payments which can be made such as a lump sum or transfer of property. This is the equivalent of s77A for married couples.

Section 90SI deals with modification of maintenance orders. This is the equivalent of s 83.

Section 90SJ deals with cessation of maintenance orders. This is the equivalent of s 82.

(4) Maintenance under the Property (Relationships) Act 1984 (NSW)

(a) Jurisdictional requirements

definitions: ss 3-5
relevant courts: s 9, 10
Part III ‘hurdles’

Ø residence: s 15

Ø two-year relationship: s 17

Ø two-year time limit: s 18

b) No general right to maintenance

prohibition: s 26

limited rights: s 27
child care: s 27(1)(a)
education/training (rehabilitative): s 27(1)(b)

(d) Relevant considerations

five matters: s 27(2)

a. income etc

b. needs and obligations

c. responsibilities

d. property order

e. child maintenance

Interim maintenance: s 28