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Spousal Maintenance Notes

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This is an extract of our Spousal Maintenance document, which we sell as part of our Family Law Notes collection written by the top tier of University Of New South Wales students.

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Table of Contents

Pages 14-3 Richardson, Bevan, Mitchell, Soblusky, Steinmetz Axtell Introductory provisions:

* Note: Part VIII containing s 72 FLA does not apply to: o Financial matters to which a financial agreement that is binding on the parties to the agreement apples (s 71A(1)(a)) or financial resources (s 71A(1)(b)).

* Definition of 'matrimonial cause: o Proceedings between the parties to a marriage with respect to maintenance of one of the parties to the marriage: s 4(1)(c) or o Proceedings between: (i) a party to a marriage; and (ii) the bankruptcy trustee of a bankrupt party to the marriage; with respect to the maintenance of the first-mentioned party: s 4(1) (caa). Summary of exam format

1. Time of instituting proceedings?
a. Within 12 months of the taking effect of the divorce order: s 44(3) FLA OR b. Leave can be granted under s 44(3) or (3A) if court is satisfied of matters in s 44(4) and exercises discretion: s 44(4).

2. Threshold consideration of right under s 72 FLA?

3. Court has power under s 74 FLA

4. Court must consider s 75(2) 3 in depth - 5 issues about spousal maintenance:

1. For what needs can you claim spousal maintenance? Do those needs have to arise out of the marriage or are they needs in a more general sense?
a. Read through s 75(2) b. Ie do those needs have to arise directly.

2. what types of excuses are relevant in limiting one's liability to pay the spousal maintenance?

3. To what extent are arguments about conduct or fault relevant in financial proceedings?
a. See soblusky, and steinmetz. b. Note that in s 75(2) there is no reference to 'conduct' c. Note s 75(2)(o) "any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account". 1 of 17

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d. Note: everything in s 75(2) has a significance for dividing up the property in addition to spousal maintenance.

4. Competing priorities?
a. What do you do when there isn't enough money to go around?
(eg Patterson). i. Someone may say that a party cannot pay because they have to look after ill parents. Or party needs more maintenance because they have to look after their parents. So is there any system for priorities to deal with this?
ii. Note s 75(2)(d).

1. But s 75(2)(d)(ii) 'duty' refers to LEGAL duty. Not a moral or ethical duty. Probably doesn't matter because

2. S 75(2)(e) 'the responsibilities of either party to support any other person' ? this must be taken into account by Court in relation to spousal maintenance.

5. What is the connection between the system of private support (eg spousal maintenance) and the system of public support (government social security) a. Can the husband say if required to pay maintenances - that the W should go on the pension. Let H do what H wants to do. 1 Instituted proceedings for SM in time? S 44(3) FLA (Richardson)

* First issue to consider: whether W or H institutes proceedings against spouse for property settlement and spousal maintenance orders within 12 months after the date on which the divorce order took effect: s 44(3) FLA

* Proceedings between parties to a marriage with respect to maintenance of parties to the marriage (para (c) definition of matrimonial cause in s 4(1) FLA) cannot be instituted 12 months after a divorce order has taken effect: s 44(3) - except by leave of the court.

* Leave can only be granted under s 44(3) or (3A) if the court is satisfied under s 44(4) that: (a) that hardship would be caused to a party to the relevant marriage or a child if leave were not granted; or (b) in the case of proceedings in relation to the maintenance of a party to a marriage---that, at the end of the period within which the proceedings could have been instituted without the leave of the court, the circumstances of the applicant were such that the applicant would have been unable to support himself or herself without an income tested pension, allowance or benefit. Principles

* Regard for following factors: o Length of delay: Richardson o Adequacy of explanation for delay: Richardson o Prejudice occasioned to R by reason of delay: Richardson 2 of 17

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o strengths of applicant's case: Richardson o degree of hardship that would be suffered unless leave is granted: Richardson o from Richardson - where there is an absent of any property at the time when proceedings should have been instituted, this does not as a matter of law preclude the grant of leave under s 44(3) to institute proceedings at a subsequent time when some property has become available for distribution between the parties: Richardson. However discretion to grant leave should be exercised with great care. Rationale for provision: Power should be exercised liberally in order to avoid hardship but in a manner that does not render nugatory the requirement for proceedings to be instituted within 12 months: Whitford; Richardson In circumstances where it is an application for leave under s 44(3)

Principles for when appealing discretionary decisions:

* Must show that trial judge ignored relevance evidence or misunderstand or misapplied a legal principle: Richardson, citing House v King. Not that individual judges on appeal would have reached a different outcome. Case:

* Richardson. Here there were multiple reasons why W delayed bringing proceedings for 13 years: (a) sick with chronic fatigue syndrome and depression (b) H voluntarily provided accommodation from her (probably from insistence of children. (c) Her impetus for seeking leave was that he had decided to sell unit where she was living, not that he had just become rich with the lottery. o Argument: injustice to bring claim now when he had provided assistance previously: reply: not an injustice if he has to now provide assistance by a court order. No evidence led about his present financial position.

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2 Threshold consideration in s 72(1) FLA (Patterson ; Mitchell; Soblusky )

* Right of spouse to maintenance is found in s 72 FLA. o 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: s 72(1)(a) (b) by reason of age or physical or mental incapacity for appropriate gainful employment: s 72(1)(b) OR (c) for any other adequate reason: s 72(1)(c) Having regard to any relevant matter referred to in s 75(2). Factors to take into account:

* Have regard to any relevant matter referred to in s 75(2) in determining whether or not the party seeking spousal maintenance is unable to support themselves adequately: Mitchell

* 'Adequate': This is not to be determined on a subsistence level: Mitchell o No fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit: Mitchell o Discretion exercised in accordance with the provisions of s 74 with 'reasonableness in the circumstances' as the guiding principle: Mitchell

* s 75(2) matters: (see below) o s 75(2)(n): Bevan it is an error for the judge not to have regard to the terms of any order made or proposed to be made under s 79 in relation to the property of the parties
? however in Mitchell the applicant had a property order in her favour - but given her age, legal fees, expenses of removal, the need to purchase a new home or unit, it would have been reasonable to set aside some of the money for future contingencies and as a nest egg. $200k house. Didn't disqualify her from receiving a maintenance order. o S 75(2)(j) and (k) - eg if husband acquires and develops skill during marriage while W sacrifices professional skills to care for family - this can be relevant: Mitchell

* Judicial notice: can take judicial notice of the research that indicates that mothers who are the primary carers of dependent children inevitably drop out of the paid work-force and consequently suffer financial deprivation which is exacerbated by marriage breakdown. Can take judicial notice of the research as a form of background information with which to construe evidence in particular cases: Mitchell

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Cases

* in Patterson - the H argued that: (1) W could still work full-time if she wanted to, and position at old school still open and available (2) kids had relatives in area (3) he was fully occupied in a expensive flat with gf who wasn't paying rent. Court agreed with W: (1) not reasonable to expect her to go back to school where he worked. (2) not reasonable to expect W to exploit relatives for free babysitting. (3) not reasonable for H to spend all money on new gf. No evidence GF unable to work.

* In Patterson: W had training as school teacher, but only working in sandwich shop. Thus not making full use of training. Some spousal maintenance was a reasonable result of the case. Made order in first instance for 3 months while wife was to look for more lucrative employment.

* In Mitchell o Trial judge took an optimistic view of W (50 now, 20 years at home) being able to go back into the workforce. Given her age and lack of experienced in specialized field of nurses over three decades - question whether she could obtain employemtn in competition with other more appropriately qualified and younger persons. Big step to conclude that she would be able to obtain full time employment. o The FFCA - the trial judge should be able to take judicial notice of the research as a form of background information within which to then construe the evidence on the record. Recommended a similar approach in spousal maintenance cases.This body of research is not a substitute for the specific couple in the circumstances.

* In Soblusky o Held that Husband di not have any real capacity to make any payment by way of maintenance to his wife and in our view it is inappropriate to make an order for maintenance where there is no real capcity to meet the terms.

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