1. SPOUSAL MAINTENANCE

2. ESTABLISHING A CLAIM: S 72 THRESHOLD Right of spouse to maintenance (1) A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether: (a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years; (b) by reason of age or physical or mental incapacity for appropriate gainful employment; or (c) for any other adequate reason; having regard to any relevant matter referred to in subsection 75(2).

3. FAMILY COURT ACT 205ZC. Right of de facto partner to maintenance — FLA s. 72 A de facto partner is liable to maintain the other de facto partner, to the extent that the first-mentioned partner is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether — (a) by reason of having the care and control of a child of the de facto relationship who has not attained the age of 18 years; or (b) by reason of age or physical or mental incapacity for appropriate gainful employment; or (c) for any other adequate reason, having regard to any relevant matter referred to in section 205ZD.section 205ZD.

4. Eliades and Eliades (1981) FLC 91-022 Parties NOT separated; wife sought maintenance to buy food In order to come within sec. 72, the applicant must establish whether she is able to support herself adequately. The test is whether by reason of earning capacity, capital or other sources of income which have accrued independently to the applicant, the applicant is in a position to look after herself. Here, the wife was unable to support herself adequately. The words of sec. 72 and 75(2) (esp 75(2)(g)) envisage that the Family Court can intervene on the question of maintenance even though the parties have not separated -> here, was appropriate for the Court to intervene; ordered $80/week to wife.

5. Bevan and Bevan (1995) FLC 92-600 Appeal of award to wife of $175/week at first instance. Trial Judge – “I must deal with the maintenance question on the basis of what is rather than what might be and leave the parties to their rights under section 83 in the event of changed circumstances, whether referable to the property settlement implementation or otherwise.” On appeal – Trial Judge ought to have considered the property settlement in awarding maintenance (s 75(2)(n)) -> re-exercise of discretion. “we would state the law as being that an award of spousal maintenance requires: 1. a threshold finding under s 72; 2. consideration of s 74 and s 75(2); 3. no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit; and 4. discretion exercised in accordance with the provisions of s 74, with ``reasonableness in the circumstances'' as the guiding principle.” -> spousal maintenance of $50/week ordered

6. Mitchell and Mitchell (1995) FLC 92-601 The threshold question of whether an applicant can support himself or herself “adequately” is not to be determined by reference to any fixed or absolute standard but having regard to the matters referred to in s 75(2). Nor is that question to be determined upon a “subsistence” level. Further, a maintenance applicant is not required to use up assets and capital to satisfy the requirement of “adequate support”. Where the line is drawn depends on the circumstances of the case. Here, the amount the wife was to receive from the property order did not disqualify her from maintenance. The court should take judicial notice of research in relation to economic consequences of marriage and its dissolution.

7. CONSIDERATION OF S75(2) FACTORS Matters to be taken into consideration in relation to spousal maintenance (1) In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2). (2) The matters to be so taken into account are: … (3) In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.

8. 205ZD. Maintenance orders — FLA s. 75 (and kinda 74 also) (1) A court may make such order as it considers proper for the maintenance of a de facto partner. (2) In exercising jurisdiction under this section, the court must take into account only the matters referred to in subsection (3). (3) The matters to be taken into account are — … (4) In exercising its jurisdiction under this section, a court must disregard any entitlement of the de facto partner whose maintenance is under consideration to an income tested pension, allowance or benefit. FAMILY COURT ACT

9. S74: EXERCISE OF DISCRETION The court may “make such order as it considers proper for the provision of maintenance in accordance with this Part”. Lump sum or periodic For a defined period or ongoing Interim or final Reducing over time …

10. First instance: Consistently with s 74, an order for maintenance should be proper. ‘Proper’ is defined in the Macquarie Dictionary 2nd Edition to mean appropriate to the...circumstances and this definition was adopted in Wilson and Wilson (1989) FLC 92-033. The maintenance should be at a level sufficient to enable the applicant to support him or herself adequately, since an order below that level would not remove the need for maintenance, as defined in s 72. -> Full Court said the argument may remain that the discretion under s 74 as to what is “proper” is so broad that no greater particularity than that provided by O’Ryan J (TJ) was necessary. Their Honours went on to say that what was meant by “proper” in s 74 was circumscribed by the provisions of the Act relating to maintenance. I would add that it is circumscribed also by the evidence that the parties present. In saying that, the Full Court went on to say: ”Adequacy is the key concept in determining whether the threshold set by s 72 has been crossed. But that concept is not left behind once the step into the s 74 enquiry as to what is “proper” is taken. Though application of the factors set out in s 75(2) may, in a given case, lead to a generous interpretation of needs that are “adequate” and of what is “proper”, the nexus between “adequate” and “proper” must remain. As Asche J said in Robinson and Willis (1982) FLC 91-215, “An order which is either insufficient or excessive in the circumstances is not “proper”. To determine what is sufficient let alone excessive, one has to look to the evidence. To do otherwise would not be proper. It is not permissible to “pluck a figure” KEY DEFINITIONS – ‘PROPER’: Brown and Brown (2007) FLC 93-316

11. KEY DEFINITIONS – ‘ADEQUATE’ Full Court in Brown and Brown (cited in Rollins-Wallis & Wallis [2008] FamCA 1272): The word “adequately” is not to be determined according to any fixed or absolute standard. The idea that “adequate” means a subsistence level has been firmly rejected. Where possible both spouses should continue to live after separation at the level which they previously enjoyed if this is reasonable, although the parties’ standard of living may have to be lower if financial resources are insufficient to maintain that standard. In some circumstances it may be reasonable for the parties to live at a higher standard than previously enjoyed. It is not necessary for an applicant for maintenance to use up all capital in order to satisfy the requirement that he/she is unable to support himself/herself adequately. However, an applicant is not entitled to live at a level of considerable luxury or comfort merely because the other party is very wealthy.

12. SPOUSAL MAINTENANCE & PROPERTY ORDERS: RELATED CONCEPTS Spousal maintenance must be considered in light of property orders – s 75(2) Same factors considered for spousal maintenance as for adjustments in property orders Can’t “double dip” Conversely, in making a property order, the court must consider any other order made under the Act “affecting a party of the marriage” (s 74(4)(f)) – eg spousal maintenance! “maintenance component” of s 79 order cf order for lump sum maintenance – see later slide

13. DIFFERENCES Different consequences attach to maintenance and property obligations concerning their respective enforceability after the death of one or both parties (s 82(1), (2) and 79(8)(c)). Maintenance provisions are capable of variation under s 83 whereas property provisions cannot be varied. Maintenance rights have special protection in the event of a bankruptcy

14. S 77A – SPECIFICATION IN ORDERS Where a party receives a transfer of property or payment of a lump sum which includes provision for the maintenance of the party, the order MUST say that it is an order to which s 77A applies, and specify the portion of the payment that is a provision of maintenance. In any application for social security/benefits, the maintenance received by the party will be taken into account. A party may still make a later application for maintenance - s 80(2) - The making of an order of a kind referred to in para 1(ba), or of any other order under this part, in relation to maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.” Section 80(1)(ba) sets out that a court, in exercising its powers under Pt VIII, may “order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage”.

15. S 77A – WHY WHY WHY? It applies only to s 79 orders made after 1 April 1988. If an order has as one of its purposes, to make provision for the maintenance of a party to the marriage the court must state: – that the order is of a kind to which the section applies, and – the portion of the payment or the value of the portion of the property, attributable to the provision of maintenance for the party. If the order does not state the above matters the payment does not make any provision for maintenance of the party. If the order is made by consent, agreement needs to be reached between the parties on the apportionment of benefits retained by or transferred to a party between property provision and maintenance provision. The section is not clear as to exactly what type of maintenance provision is intended. There was initially some uncertainty but it now seems to be clear that it is intended in a narrow sense. The maintenance provision is only required to be specified where the order contains: – a capital provision calculated specifically by reference to the capitalisation of a periodic maintenance amount; or – a provision specifically intended to be for maintenance. – It is incorrect to assess the entitlements of the parties under s 79 and then identify a portion of a party’s entitlements as within s 77A. Any s 77A component is in addition to that party’s entitlements under s 79. It does not protect against later spousal maintenance orders as s 80(2) states.

16. CESSATION OF SPOUSAL MAINTENANCE: s 82 Cessation of spousal maintenance orders Upon the death of either party - unless order made pre-commencement of s 38 of the Family Law Amendment Act 1983 if the order is expressed to continue in force throughout the life of the person for whose benefit the order was made or for a period that had not expired at the time of the death of the person liable to make payments under the order and, in that case, the order is binding upon the legal personal representative of the deceased person. upon the re-marriage of the party - unless in special circumstances a court having jurisdiction under this Act otherwise orders. (6) Where a re-marriage referred to in subsection (4) takes place, it is the duty of the person for whose benefit the order was made to inform without delay the person liable to make payments under the order of the date of the re-marriage.re-marriagemadere-marriage (7) Any moneys paid in respect of a period after the event referred to in subsection (4) may be recovered in a court having jurisdiction under this Act. (8) Nothing in this section affects the recovery of arrears due under an order at the time when the order ceased to have effect.

17. VARIATION – S 83 …the court may, subject to section 111AA: (c) discharge the order if there is any just cause for so doing; (d) suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event; (e) revive wholly or in part an order suspended under paragraph (d); or (f) subject to subsection (2), vary the order so as to increase or decrease any amount ordered to be paid or in any other manner. (1A) The court's jurisdiction under subsection (1) may be exercised:court (a) in any case--in proceedings with respect to the maintenance of a party to the marriage; orproceedingspartymarriage (b) if there is a bankrupt party to the marriage--on the application of the bankruptcy trustee; orpartymarriagebankruptcy trustee (c) if a party to the marriage is a debtor subject to a personal insolvency agreement--on the application of the trustee of the agreement.partymarriagedebtor subject to a personal insolvency agreementtrustee (2) The court shall not make an order increasing or decreasing an amount ordered to be paid by an order unless it is satisfied: …court

18. RESGITRABLE MAINTENANCE LIABILITIES S 86 – can’t register maintenance agreements anymore (since 27 December 2000) But – existing agreements registered under this part are still valid S 87(1) - Subject to this section, a maintenance agreement may make provision to the effect that the agreement shall operate, in relation to the financial matters dealt within the agreement, in substitution for any rights of the parties to the agreement under this Part. Must have been approved by a court (this section also no longer applies)

19. URGENT CF INTERIM MAINTENANCE Urgent – s 77 - Where, in proceedings with respect to the maintenance of a party to a marriage, it appears to the court that the party is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable. High threshold for urgency Only considered when not all evidence is to hand; may be made ex parte – cf interim maintenance