Tips for a Maintenance Application

28 October 2019 

By Sherlene Heng

To obtain spousal maintenance in Perth / Western Australia, we look to Section 72 of the Family Law Act 1975 (section 205ZC of the Family Court Act 1997 for de facto couples) which states

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).

If no agreement can be reached for maintenance the person seeking same can make an application to Court. Unfortunately this can be an extremely intrusive process into that person’s personal life and can descend into the Court having to make a determination about matters, for instance:

“In relation to new release movies on Foxtel, and bearing in mind that the wife no longer has the husband’s companionship in the evenings and at other times… I am of the view that the husband should indeed meet the cost of new release movies… it seems reasonable, however, to place some form of limit on the number of new release movies the wife can order”

Foley & Foley [2016] FCWA 68

Tips

Here are a few short tips to help prepare for a maintenance claim:

  1. If not working full time, explain what factors prevent you from doing so. If applying for work, keep copies of all your applications and responses. If working for yourself, make a detailed schedule of times worked and what steps are being taken to increase your business.
  1. It is clearly not uncommon that someone seeking maintenance may not have the ability to pay for their expenses at the time they make the claim (as if they could afford it, this might preclude a claim for maintenance). If possible, locate all previous receipts for expenses during the relationship, sort them into categories, put them into a table, and determine a weekly average. The more evidence you can give your lawyer the better, but don’t do it in a piecemeal manner. 72 emails about Amazon purchases will increase your legal costs and frustrate your lawyer. This is particularly so if an expense you are claiming seems ‘out of the ordinary’ or ‘unreasonable’. For instance, if you spend $350 per week on laser treatment and have done so over a period of time, go back into your records and find evidence that it is in fact something commonly done during the relationship.
  2. Don’t forget that while having funds e.g. savings is considered by the Court, a Court can determine that you are not necessarily required to resort to those funds, so don’t leave it too late to speak to your lawyer or to negotiate with the other party. The Court lists are long, and you don’t want to be in a situation where you are down to your last hundred dollars and have no way to meet your expenses.
  1. Have you tried to resolve the dispute? Having discussions with the other person/other person’s lawyer is really important and a negotiated outcome is always preferable where possible. The costs of making a maintenance application can be prohibitive and a lawyer can also assist you to consider alternatives.

We’re Here to Help

Family law matters can be difficult and complex. If you require any assistance with a family law dispute, always contact a legal practitioner who will be able to help.

O’Sullivan Davies has practitioners experienced in dealing with spousal and de facto maintenance claims. More information about our services can be found at our About Us page here.

Disclaimer

This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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