M is for maintenance – A-Z of Family Law

Maintenance of a party in family law proceedings is an issue that arises in many financial disputes, particularly on an interim basis.

It is logical that it arises: consider situations where parties separate and one parent has the primary care of minor children, where one party has the majority of the financial resources in their name, where one party is unable to immediately earn an income.

Maintenance orders can be made in proceedings related to marriages (Part VIII of the Family Law Act 1975 (Cth) (‘the Act’), sections 72 to 77A) or de-facto relationships (Part VIIIAB of the Act, subdivision B), with analogous legislation and considerations for each.

Many published decisions can be found online about maintenance, predominantly at an interim stage (i.e. where maintenance is paid until a final order is made).

Analysing such a decision is the most efficient way to examine how the law is applied to the particular facts of a case.

In the matter of Roth & Roth [2024] FedCFamC2F 111 within Division 2 of the Federal Circuit and Family Court of Australia, Judge Turnbull was required to determine, among other things, a wife’s interim application for spousal maintenance.

The relevant facts of the case were as follows:

• The wife’s position was that she could not earn income due to her health, to support which an affidavit of her doctor was filed
• The wife had also not worked for several years and had not been the primary income-earner during the marriage
• The husband was the primary income-earner, and controlled a company that was a significant financial resource and appeared to have considerable profits
• The husband believed that the wife could meet her own needs with her own resources and through a reduction of expenses
• Each party asserted that their expenses were greater than their income

Judge Turnbull turned to the Act when considering the wife’s claim. Section 74 empowers the Court in relation to maintenance proceedings, whilst section cements the right of a party to apply for maintenance. Section 72 sets out what is essentially a two-step test: that a spouse is unable to support themselves adequately, and that the other spouse is able to maintain the first spouse. Finally, section 75(2) provides an extensive summary of the relevant factors a court may have consideration of when determining an application.

Various key decisions were referred to within the judgment, including:

• Mitchell and Mitchell (1995) FLC 92-601 (That threshold is whether the applicant “is unable to support herself or himself adequately”)
• Hall v Hall [2016] HCA 23 (summarising the four key issues: extent to which a spouse cannot support themselves, that spouse’s reasonable needs, capacity of the other spouse to meet order, what order is reasonable under section 75(2))
• Bevan & Bevan (1995) FLC 92-30 (maintenance should not be at a subsistence level, and a party seeking maintenance doesn’t need to deplete their resources first)
• Maroney & Maroney [2009] FamCAFC 45 (capacity to pay isn’t confined to income, capital may be considered)

Using these decisions and more recent decisions, such as Qin & Donato [2023] FedCFamC1A 223, to ground the legal principles, Judge Turnbull proceeded with a thorough analysis of the wife’s financial statement to determine the shortfall, if any.

Once this was established, a finding was necessary as to whether the wife was unable to support herself. Such a finding resulted, based on her financial statement, her health preventing employment, and reference to the parties’ previous standard of living.

Judge Turnbull was then required to consider whether the husband could meet a maintenance order. A similar process ensued, with the husband’s financial statement examined, and capacity was found to be present through his own income as well as his control of a related, profitable company.

Orders were ultimately made such that, among other things, the husband would pay maintenance to the wife.

The Roth & Roth decision is a straightforward, efficient example of how an interim spousal maintenance application is approached:

1. The parties’ respective financial statements are key to determining need and capacity. Expenses will be examined closely.

2. A party may well have need, but an order is unlikely to be made unless the other party has the capacity to meet such an order.

3. A party does not need to use up their own financial resources, nor necessarily lower their standard of living.