Paid Parental Leave
Paid parental leave payments and spousal maintenance.
Alliance Family Law monitors the legal obligations of our clients to make sure they don’t fall foul of the many rules that have to be complied with. Contact us for advice. Are you considering making an application for spousal maintenance from your former spouse? There are many factors to consider in respect of an application for spousal maintenance, and one factor which can affect outcomes is whether you receive any Government “income tested pensions, allowances or benefits”.
This is because under the law, such payments are not required to be taken into account when a court is assessing the parties’ incomes. However, a recent case in the family courts has held that paid parental leave (PPL) payments are not to be regarded as such income tested payments, and therefore must be included when calculating the PPL-receiving party’s income. The outcome in this case was that the amount of spousal maintenance the husband has to pay is reduced by the amount of PPL the wife is to receive. Let’s take a quick look at this case.
Paid parental leave Fannon & Salzer.
The case of Fannon & Salzer (court-appointed pseudonyms) is complex, but at its core it is a dispute over the amount of spousal maintenance a husband has to pay his ex-wife. The wife was set to receive paid parental leave payments under the Paid Parental Leave Act 2010, through Centrelink. The court was now tasked with the question: are such payments “an income tested pension, allowance or benefit” when it comes to section 75(3) of the Family Law Act which deals with spousal maintenance? The court held that such payments are not such income tested payments and must therefore be taken into account as part of the wife’s income.
Paid parental leave payments and the law
With unsatisfactory evidence from either the husband or wife regarding this issue, the court turned to a consideration of various legislation to determine an outcome. It was noted that the Family Law Act 1975 defines “income tested pension, allowance or benefit” to include a set of prescribed payments. The Family Law Regulations 1984 also prescribe what are “income tested pensions, allowances or benefits”. Neither of these definitions include paid parental leave payments. Nor is there anything in the Paid Parental Leave Act 2010 which provides that such payments are to be treated as an “income tested pension, allowance or benefit” for the purposes of the Family Law Act or Regulations.
This led the court to find that the PPL payments could not be regarded as income tested pensions, allowances or benefits and as such, needed to be taken into account as part of the wife’s “income”.
Who can apply for spousal maintenance?
Spousal maintenance can be ordered in cases where spouses are unable to support themselves adequately due to either having care of a child of the marriage under 18 years of age, or by reason of age, physical or mental incapacity are unable to obtain gainful employment, or “for any other adequate reason” – this latter giving the courts a wide discretion of potential factors to consider. It’s also important to note that the payer must also be assessed as having the capacity to pay.
In this case, the wife was able to demonstrate that she was unable to support herself and that the husband had the capacity to pay. Note that the wife has a new partner and child with him. The new partner does contribute financially to the care of their child, but only on a voluntary and ad hoc basis. However, the court did take into account such payments by the new partner.
Also, it was not argued that the wife and her new partner are de factos for the purposes of family law. This is an important feature of spousal maintenance applications, because if a spouse is cohabiting in a de facto relationship with a new partner, that can affect the outcome and/or quantum of spousal maintenance ordered to be paid.
What does a court look at in deciding on spousal maintenance?
Four matters the court has to consider when deciding if it should make an order for spousal maintenance are:
- To what extent can a spouse support themselves?
- What are their reasonable needs?
- What capacity does the paying spouse have to meet an order?
- What is a reasonable order to make?
Note, though, that the onus is always on the applicant for spousal maintenance (here, the wife) to establish they can’t support themselves.
For more information on how to apply for spousal maintenance, please read our blog here, or give us a call to discuss your options.
If you would like assistance with a family law matter, please contact Canberra family lawyer Cristina Huesch or one of our other experienced solicitors here at Alliance Family Law on (02) 6223 2400. Our contact form.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
