Surviving your divorce: Chapter 13- Maintenance

Having decided where the children are going to live, it is the responsibility of both the parties, according to their abilities, to provide physically, emotionally and financially for the children.

In practical terms, this will usually mean the husband paying maintenance to provide for the children.  That maintenance goes into the household where the children live, usually the wife’s household.

The amount of this maintenance is, initially anyway, determined by the Child Support Agency formula.  The Child Support Agency (CSA) provides a formula which works out the amount of maintenance to be paid based on the income of both of the parties and the needs of however many children are in that family.  This has, since its inception been contentious, and the formula was altered in 2008.  This, in fact, has made it more contentious.

The Courts can still override the formula, if for whatever reason; it is inappropriately low or high.

The CSA has its own enforcement process and can in fact take funds directly from bank accounts of parties to enforce the formula.

Being a Government Department however, and being subject to a relatively new regime, formulation management and enforcement can be a little haphazard with both sides often arguing that they are victims of the process.

The key to maintenance issues is to get an arrangement that works through communication and acting reasonably.

Couples that use maintenance as a threat or a weapon will never reach finalization of their issues, will spend tens of thousands of dollars that could be used for other purposes, arguing about the subject and inevitably both alienate their children to some extent over the issue.

Parties paying maintenance should remember that maintenance (unless it’s spousal maintenance), is for the benefit of the children.

The party receiving maintenance should ensure that maintenance is spent visibly for the benefit of the children in order to take any emotional heat out of this issue.

1.         INTERIM/EMERGENCY MEASURES

Occasionally the imbalance of access to money is so extreme and the amount of emotion is so strong, that one party will be completely without financial support.

Whilst there are Government facilities and funding available, direct action to secure access to jointly held funds is available.  Further, there are Court processes available to secure your access to those funds, and on going interim funds, if you are in this position.

Funds held jointly are just that, joint funds.  You have access to them and can, in certain circumstances, safely move those funds.  Take specific legal advice before doing so.

Your use of the funds will be taken into account in the division of any property but this will at least allow you to support yourself in those early stages.

If this is not possible and if you are being starved of access to money and other assets, an interim Court Order to release a lump sum to you (called a “Hogan Order” after the case first created it), can be made.

These Orders will force your Ex to release a lump sum to cover living expenses and legal fees while the matter is resolved.

2.         SPOUSAL MAINTENANCE

There are occasions when the Courts will recognize when it is appropriate given the history and background of the couple in question, that one party will pay maintenance directly for his or her spouse. 

This is not automatic.

The Courts recognize however that in many relationships, one party will have given up any chance of creating an earning capacity, and will be severely disadvantaged in separation.

The history of causes for the separation are irrelevant to this decision.

Rightly or wrongly, the Courts are no longer interested in who caused the separation or in punishing one party or the other for those actions.

It is absolutely incorrect under the current legislative framework to be thinking that the party who left or who “caused” the breakdown in the marriage should receive nothing.

The Courts will determine the amount of spousal maintenance, and perhaps a lump sum maintenance figure paid from the asset pool, based upon the relative positions of the parties, the asset pool, and the ability for both the parties to earn income in the future.  For example, if a Court determines that a party has no reasonable career prospects as a result of actions and decisions taken during the marriage, but that his or her partner had good earning capacity, it might tilt the asset pool in favour of that first party with no prospects.

The Courts (and therefore the Lawyers working in them) are increasingly considering however, that virtually everybody has some prospect of re-entering the work force (children permitting) at some stage, and in some way, and there is an increasing tendency to ensure that spousal maintenance and lump sum payments attributed to maintenance, are not a signal that one party or the other does not have to work in the future.

Spousal Maintenance is seen, increasingly as a short term scenario designed to assist during a transition period.

The important message is that remaining in a relationship because of financial fear about paying bills during the early months, is not a sensible approach to a problem.

Spousal maintenance is far less common now than it was some years ago.  The Courts are increasingly taking the view that the parties should be encouraged to look for work, and that a reliance upon Spousal Maintenance continues and perpetuates the reliance of one party on another and a likelihood of continuing conflict.  Notwithstanding this, there are often circumstances where Spousal Maintenance, at the very least in an interim situation until the property can be resolved, is entirely appropriate.  You should seek advice as to whether this circumstance suits you.

3.         CHILD MAINTENANCE

It is a well established principle that both parents should contribute to maintaining the health, welfare, education and development of their children.  The most visible part of this is the non-residence parent paying maintenance.

The calculation and enforcement of maintenance for the vast majority of Australian separated couples, is now governed by a Federal organization called the Child Support Agency (CSA). 

In 2008 the formula which had been in place for several years which calculated the percentage of income which was to be paid in maintenance was changed. 

It was generally accepted that the change in formula created a re-balancing in favour of non-residence parents.

In effect, the formula sets out the starting point for maintenance payments, and for wage and salary earners actually monitors and transfers funds to see that maintenance is paid. 

This does not mean that the formula is correct in every case, and that the amount to be paid cannot be varied, up or down.

It is always open to either party, if there is evidence that the formula does not apply for some reason, to apply to the Court for a variation.  You will need to show that, for some reason, it is inappropriate to apply the formula.

This may be the because of serious medical needs of the children, or some other abnormal circumstance which increases or decreases the need for receipt of funds, or increases or decreases the availability of funds.

Maintenance is intended to be a balance between the resources of both of the parents and the needs of the children.

The formula is a broad brush attempt to meet this challenge, but as can be seen by the highly contentious response to the changes in 2008, this is not always seen to be the case.

When does Maintenance End?

Until several years ago it was generally accepted that when a child left School and turned 18 the maintenance obligations ended. 

That has recently been challenged, and it is now becoming accepted that where children continue to study after leaving School, both parents have a continuing obligation to contribute to that maintenance.  This is an emerging strain of law, and specific examples, rules and a frame work, are yet to fully emerge.

Suffice to say, at this stage, that the end of the maintenance obligation has become a little more fuzzy.

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Surviving your divorce: Chapter 12- Interim Applications

Provided that you can show sufficient reason, you may seek interim Orders (you do not have to do this in your initial application, it can be done at any time, but it is preferable to do so as early as possible).  An interim application simply means saying to the Court “we need these Orders now, and want them to apply until we can have a proper hearing”.

Interim Orders can be sought for lots of reasons including, the return of a child, a change of residence (custody) of a child, change of contact (access) arrangements, and to compel compliance with the Court process.

Increasingly, and particularly in the Federal Magistrates jurisdiction, non-compliance with a Court process and interim Orders, can often be accompanied by a costs Order.  In other Courts around Australia, if you do not comply with the Court process, your opponent will bring an application for an Order that you do so, and you will have to pay your opponent’s costs of bringing that application.  This has not been a feature in the Family Court and has led to widespread non-compliance with the Court process.  The Federal Magistrates Court is far less tolerant, and will more often order a lazy or non-compliant party to pay the costs of interim proceedings to compel compliance.

They generally relate to such issues as:-

(i)                Sole occupation of the home.

(ii)              Maintenance and interim funding for a party who has no means of financial support.

(iii)             Residence (formerly called Custody) for children.

(iv)             Contact (formerly called Access) relating to children.

These interim hearings are, not necessarily, an indicator of the outcome at a final hearing.

They involve reading the affidavit material of the parties, some argument by the Lawyers, and, sometimes, further evidence by the parties.

The Court has a very short period of time to make a decision, which will stand (unless it is appealed), until there is an opportunity to do a full assessment of the facts, at a hearing.

These interim applications can be very powerful; they can determine the entire outcome of the matter in some cases.

Proper time, effort and resources should be put into making or resisting any interim application, as they can often affect the position for many years, well past a trial date.

Interim applications are also an opportunity for the parties to sort out the issue at hand, and a whole range of other issues. 

Interim Orders

At an interim hearing interim Orders may be made (but sometimes are not).  Those interim Orders will remain in place until further interim Orders change them, or until there is a hearing.  Courts are reluctant to make interim Orders that vary the existing arrangements, particularly as there is often little opportunity for a proper hearing of all the facts.  Interim Orders are made however and you should discuss with your adviser whether interim Orders will help your case, and are likely to be achieved.  A filed application for interim Orders may lead to you paying your opponent’s costs, so these applications should not be made lightly.

Interim applications bring the parties and their Lawyers into contact; there is forced association on the interim application day (the return date).  On the return date, the parties have to interact, and this may well be an opportunity to settle all of the matters between the parties.  It is quite common for an interim application to bring the parties together and for that day to turn into final orders disposing of all of the issues between them.  This opportunity, if it is presented, and it fits with your strategy, should be seized.  The amount of time, effort and cost and anxiety to be saved is well worth considering.

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Surviving your Divorce: Chapter 11- Court Proceedings

Understanding the building blocks of your Court action and the Rules that apply, will bring your anxiety levels down, keep the number of questions to your Lawyer down and thereby reducing your costs.

1. Filing Fees:

Your adviser will have to draw and settle (finalise) the Court documents. If they are particularly complex, they may in fact be settled by Counsel (checked and finalised by a Barrister). You will then have to pay a filing fee to the Federal Government to be able to lodge and commence your Court action. Occasionally these filing fees are waved on financial funds. Those documents are then served upon your Ex partner, and the Court process takes over according to the Court Rules.

2. Understanding the building blocks:

Application
This document sets out what you want from the Court. It is a fairly complex document, and, whilst it can be amended, it is essential that it contains all of the orders that you want from the Court. It may seek interim Orders, that is, things that you want the Court to decide on straight away without the need for a full hearing, such as a change in residence (previously called custody) for children, or an interim release of funds to assist you to meet expenses or legal fees (commonly called a Hogan application).

It is important to discuss the terms of the application which are available.

Affidavit
This is your version of the facts. This will often be a long and complex document, but there are times when tactically there is a benefit to holding some information to be filed at a later date, if you believe that a short affidavit is conducive to getting an offer, the order that you want, or some other beneficial outcome. You should discuss with your adviser the content of this affidavit, but make sure that the adviser KNOWS EVERYTHING.

Written instructions can save time, effort and cost. You can also keep your costs down if you have the ability to have the draft documents emailed to you and make highlighted edited comments to finalise the affidavit.

Statement of Financial Circumstances:
All parties need to file this very detailed document. It gives the Court a great deal of information regarding the financial position of both the parties. It is designed to make sure that the Court knows exactly what the relative positions of the parties are.

It is vital to make sure that you understand the content of this document (and the document filed by your Ex), and to ensure that both of them are accurate.

Being caught providing inaccurate or incomplete documentation can have dire consequences for your action and the outcomes you want.

If you have any doubts about the content of this document, make sure that your Lawyer is aware of your questions and make sure that the answers satisfy you. You will be the one, at Trial, answering questions about what was intended by the documents that you file and serve. There are your documents not those of your adviser and though you should listen to the opinions of your adviser, ultimately the contents of these documents need to suit you.

Counselling Orders
On top of the compulsory pre-litigation steps which must be complied with before your Court proceedings can be commenced, the Court will still often order counselling, and you should participate in any kind of counselling process which is designed to either:-

a) improve your outlook so that you can take a more balanced and constructive view of the dispute; or
b) likely to end in a resolution.

Private counselling is also available and encouraged by most Lawyers as it keeps costs down, keeps clients focused on the most important issues, and shortens the life of disputes. Contrary to most opinions, a short, well constructed and quickly finished dispute is far more profitable for a Lawyer than a long drawn out saga with combative parties who are not interested in settling.




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