It is not uncommon for family law clients to be confused about the differences between child support and spousal maintenance. Although they are both intended to achieve a similar goal, which is a payment towards a party’s financial support where there is a need, they are assessed in very different ways. Child support may be paid by one party to the other to assist with supporting a child or children of the relationship after separation. On the other hand, spousal maintenance may be required to be paid by one spouse to the other if they are not able to meet their own financial needs after separation, whether on a short term or long term basis.
Both child support and spousal maintenance can be useful tools in providing financial support to a spouse who may not have an income sufficient to support themselves and the children after separation.
In this article, Alison Ross and Rina Biswas outline the first steps to seeking child support and spousal maintenance, and why it is important to try to separate the financial needs of the children and the financial needs of the parties, even if it is difficult to completely distinguish between these expenses.
How to seek child support
Child support is most commonly sought by application to the child support division of Services Australia. If not agreed, child support is assessed using a formula which considers each party’s income, the ages of the children and the children’s living arrangements. Prior to bringing an application for an assessment, it can be useful to estimate the amount of child support that may be payable by using the online child support estimator tool, which can also be found through the Services Australia website. This can provide some guidance on the amount of child support a party may be entitled to.
Obtaining an assessment for child support through Services Australia is largely a process that parties are able to take without legal assistance, unless there are any particularly complex issues which arise. Child support may be paid by private collection between the parties or, alternatively, Services Australia can monitor the payment of child support.
How to seek spousal maintenance
If not agreed between the parties, a party seeking spousal maintenance needs to make an application to the Federal Circuit and Family Court of Australia.
Spousal maintenance can be sought on an interim or a final basis. Interim spousal maintenance is to apply for short period of time, such as until the parties are able to finalise their property settlement. Final spousal maintenance orders may apply for a longer period of time, such as until children are school aged so that the party with care of the children can obtain full time work again, overcomes a health issue or until a party undertakes training to assist them to gain employment.
If an application is made for spousal maintenance, the Court will consider the applicant’s ability to support themselves and whether they have a need for spousal maintenance. For example, if a party is unable to meet their usual weekly expenditure from their weekly income, then they may have a need for financial support from the other party to meet the shortfall between their income and expenses.
The Court will then consider the other party’s capacity to meet a spousal maintenance order. For example, they will consider whether it is likely that the other party will have surplus funds available to them from their income each week after meeting their reasonable weekly expenses.
There are also many other factors that the Court can take into account when considering spousal maintenance, which are outlined in section 75(2) of the Family Law Act 1975 (Cth) including the age and state of health of the parties, the income of the parties and their capacity to obtain employment and care arrangements for children.
There are different types of spousal maintenance that can be sought, or agreed between parties, depending on their particular circumstances, for example:
- a periodic payment order, such as weekly, fortnightly or monthly payment that correlates to the meeting the amount of the shortfall between a party’s income and their expenses each week;
- a direct contribution to expenses, for example payments towards the mortgage, electricity, utilities, loan repayments or other non-periodic costs; or
- a lump sum order.
Child support versus spousal maintenance when bringing a spousal maintenance application
An important issue to keep in mind when bringing a spousal maintenance application, is that the children’s expenses and the parties’ expenses should be differentiated in the application. If you are applying for spousal maintenance, the amount of spousal maintenance sought should be limited to your expenses only and any expenses related to the children should not be confused with or included as part of your expenses as far as practicable.
This can be tricky where there is some overlap between a party’s expenses and children’s expenses. For example, it can be difficult to distinguish completely between expenditure for housing, electricity, fuel, transport, and even food and groceries. However, it is important to discern between these expenses as much as possible. This issue was considered in the case of Stein & Stein [2000] FamCA 102, and it was held in that case that the level of support the wife needed for herself was not dependent upon the support she needed to give to the children, and when determining the quantum of spousal maintenance, the Court said that “it could not be said that the expenditure of monies on the children by the wife over and above the monies she would be able to obtain by way of appropriate assessment of child support could be seen as necessary expenditure by the wife.”
However, the Court has also separately indicated that if the application for spousal maintenance is for an interim order, rather than a final order, the Court has more discretion to consider an overlap between the children’s and a party’s expenditure. In the matter of Drysdale & Drysdale [2011] FamCAFC 85, the Court determined that an inability of the wife to differentiate her expenses from the children’s expenses was not fatal to her interim spousal maintenance application.
In any event, careful consideration is needed when bringing an application of this nature to ensure that the information provided to the Court is presented properly to enable the Court to make an appropriate spousal maintenance order, which is separate to a party’s ability to apply for child support.
If you have recently separated from your spouse and are having trouble meeting your living expenses, or expenses for the children, then contact our Family and Relationships Law team who will be able to assist you and provide more information about the options available to alleviate your financial stress.