By: Madison Elle Reinhardt
Can a claim for spousal maintenance include child related expenses? The short answer, is no.
A common mistake in spousal maintenance applications is adding children’s expenses (such as school fees, activities and other child costs) into the spousal maintenance amount being sought.
In Australian Family Law, a spousal maintenance claim involves two main questions:
- Can the person applying for spousal maintenance support themselves adequately; and
- Does the other person have the capacity to pay.
As such, the Courts note that it is important to separate:
- the person making the application for spousal maintenance own expenses; and
- the children’s expenses as much as possible.
The reality is, the parent and child/children usually live together, so some costs overlap. For example, housing, electricity, fuel/transport and groceries are shared household costs. Australian Courts recognise that a strict line between the parent’s costs and the children’s costs cannot always be drawn clearly.
In Stein v Stein, the Full Court made clear that the court’s power to order spousal maintenance is not the same thing as making orders for child support. The key point is that spousal maintenance is about the applicant’s self-support. Even if the court looks at the applicant’s commitments relating to children, the Full Court said that money the applicant spends on the children over and above what could be obtained through a proper child support assessment cannot be treated as necessary spending for the applicant’s own self-support.
The Family Court isn’t the place to ask for extra child support. Child support is dealt with separately through the Child Support Agency. As such, a spousal maintenance application should not be used as a way to seek additional payments of expenses that are solely attributable to the child/children.