Spousal maintenance ‘error’

Court erred by finding de facto wife could adequately support herself as she cut down her expenses – Reasonable standard of living under s 90SF(3)(g) does not mean subsistence

In Qin & Donato [2023] FedCFamC1A 223 (11 December 2023), Aldridge J, sitting in the appellate jurisdiction of the Federal Circuit and Family Court of Australia allowed an appeal against Judge Jenkins’ dismissal of a de facto wife’s application for interim maintenance.

The Court noted that the appeal book spanned 1951 pages, including 648 pages of invoices, in response to the de facto husband “taking issue with the costs of the appellant’s claimed household supplies, clothing, shoes, cleaning and other necessary commitments” ([4]).

The Court said (from [6]):

“In hearing interim spousal maintenance, the Court does not conduct an audit of the parties’ expenses … ( … )

[10] … [R]equiring precise proof of … ordinary everyday expenses … does not appear to be in accordance with [the] obligation under s 67 and s 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) … to conduct the proceedings according to law and as quickly, inexpensively and as efficiently as possible. … ”

As to the dismissal of periodic maintenance, the Court said (from [21]):


“After finding that the appellant’s expenses exceeded her income …, the … judge noted that the appellant was able to support herself without increasing her liabilities since 2 February 2022 (at [27]). ( … )

[23] This led to the finding that ‘the [appellant] appears to have been able to adequately support herself without additional support since February 2022’ (at [29]). ( … )

[27] … Whilst adequate needs can often be inferred from … expenses, such expenses may not extend to reasonable needs. A person with no income and who cannot pay any expenses, still has needs.

[28] … [W]hat are assessed to be ‘reasonable needs’ are to be assessed having regard to the parties’ previous standard of living. ( … )

[30] … [T]he … judge correctly identified the task as falling short of ‘ensuring’ that the previous standard of living was maintained, that standard remained relevant, albeit not determinative … ”

Craig Nicol and Keleigh Robinson are co-editors of The Family Law Book. Both are accredited specialists in family law (Queensland and Victoria, respectively). 

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