There are three types of maintenance in the realms of Family Law:
- Spousal maintenance;
- Child support; and
- Child maintenance.
Spousal maintenance is an obligation incurred between partners, either defacto or married. For married partners it arises upon saying when you get married “in sickness and in health, richer and poorer so all you have to do is part”. It is reflected in Section 72 of the Family Law Act. For defacto partners, it arises after two years of cohabitation (more than a third of which is in Western Australia). It is an issue of the respective abilities of each of the parties to look after themselves over and above any division of property. Normally it has reference to income disparity, however that is only one of the areas the Court takes into consideration. Inability to work because of children, health, age and length of time out of the workforce are also other things that can be taken into consideration. It is a function of a party being able to show that they have a certain level need (which is an addition and subtraction exercise), then that person showing that they are not able to meet that need from their own resources having reference to the law, and then showing that the other person is able to meet the shortfall. It is not a case of purely showing that the other person is able to meet that shortfall without having regard to the first two steps.
Child support is governed by the Child Support Agency. It is a function of the respective parties’ income, the number of children, and the number of each nights that each parent has with the children. It is a statutory formula and it is best to contact the Child Support Agency directly to find out what a child support obligation may be. Their number is 131 272. You can contact the Child Support Agency directly, they will need your Tax File Number. They will give you a reference number however you can ask them if they can just provide the information without actually collecting money or going any further. Child support stops for each child when that child turns 18.
Child maintenance is in relation to expenses over and above child support. Alternatively in relation to children over the age of 18, private school fees, medical and some dental costs etc are child maintenance issues because they are not covered by child support. Additionally if a child over the age of 18 is a financial burden on one party or the other because of either physical or mental capacity, or for educational reasons (tertiary education), then child maintenance can be sought, although there is no guarantee. Each case forms on its own facts. The attitude of the child to the parent from whom the contribution is sought can be relevant. These claims are quite rarely successful in the Family Court these days as the Court’s attitude tends to be that if one parent looks after the children after the age of 18, then that is their choice and it is not something that should necessarily be referred to the other parent. The Court firmly takes the view that children over the age of 18 should be financially autonomous.
Gibson & Gibson Family Lawyers Perth, can assist you with any questions in relation to the above, please contact their Family Law section for more details.