Other Rules on Maintenance Orders

Sections 90SG to 90SJ outlines the specification, modification, and cessation rules on maintenance orders under the Family Law Act 1975. The Act sets out the law in Australia regarding maintenance orders. A maintenance order is a court order that requires one person (the payer) to provide financial support to another person (the recipient).

Section 90SG: Urgent Maintenance Cases

This section classifies which maintenance cases are urgent. Before the conclusion of the proceedings, the court may mandate the payment of a periodic sum or other amounts that it deems reasonable. Here are the instances when the court may urgently issue a maintenance order:

• The party is in immediate need of financial assistance.
• It is not practicable in the circumstances to determine immediately what order, if any, should be made.

Provided the parties comply with the geographical (section 90SD) and length of relationship requirements (section 90SB).

Section 90SH: Specification in Orders of Payments etc for Maintenance Purpose

One of the other rules on maintenance orders is the specification of the order of payments. This section lays out the requirements that the court must comply with when making orders of payments or other types of payments for maintenance purposes. If such order has the effect of requiring:

• payment of a lump sum, whether in one amount or by instalments
• the transfer or settlement of property

and the purpose of the payment, transfer, or settlement is to make a maintenance order for a party to a de facto relationship concerning the breakdown of the de facto relationship, the court must:

• express that the order is a maintenance order
• specify the portion of the payment
• specify the value of the portion of the property that is attributable to the maintenance of the party.

If the court fails to comply with such requirements, any payment, transfer or settlement in relation to this section shall not make a provision for the maintenance of a party to the relevant de facto relationship.

Section 90SI: Modification of Maintenance Orders

Another aspect of the other rules on maintenance orders is the modification of maintenance orders issued by the court. This section enumerates the instances when the court may modify a maintenance order for a party to a de facto relationship. The court may do any of the following:

• discharge the order if there is any just cause for so doing
• suspend its operation wholly or in part and either until further order or until a fixed time or the happening of some future event
• revive wholly or in part an order suspended
• vary the order to increase or decrease any amount ordered to be paid or in any other manner

When May The Court Exercise Its Jurisdiction?

1. in maintenance order proceedings
2. if there is a bankrupt party to the de facto relationship on the application of the bankruptcy trustee
3. if a party to the de facto relationship is a debtor to a personal insolvency agreement

Moreover, this section prohibits the court from making an order increasing or decreasing an amount ordered to be paid by a maintenance order unless these instances satisfy the court:

1. Since the order was made or last varied:
   • the circumstances of a person for whose benefit the order was made have changed
   • the circumstances of the person liable to make payments under the order have changed
   • in the case of an order that operates in favour of, or is binding on, a legal personal representative–the circumstances of the estate are such
   • the cost of living has changed to such an extent as to justify its doing so.
2. In a case where the order was made by consent, the amount ordered to be paid needs to be revised and needs to be adequate.
3. There was a withholding of the material facts from the court that made the order, or from a court that varied the order.
4. The material evidence previously given before the court was false.

Other Matters to Consider Under This Section

1. The court must consider any changes to the Consumer Price Index (CPI) made after the Australian Statistician last published it.

2. In considering the variation of an order, the court must only consider a change in the cost of living if at least 12 months have elapsed since the making of the order or concerning a change in the cost of living.

3. The court must take into account any prior payments and transfers or settlements of property made by a party to the de facto relationship or by the party’s bankruptcy trustee, to the other party or any other person for the benefit of the other party.

4. An order that reduces the periodic payment required by the order or discharges the order can retroact to any date the court deems suitable.

5. If an order that lowers the amount of a recurring payment is said to be retroactive to a certain date, any money paid under a second order since that date that would not have been due under the second order as changed by the first order is recoverable in a court with jurisdiction under this Act.

6. The court must take into consideration the provisions of section 90SF.

7. The discharge of an order does not affect the recovery of arrears due under the order at the time as at which the discharge takes effect.

Section 90SJ: Cessation of Maintenance Orders

Another aspect of other rules on maintenance orders is the cessation of maintenance orders. When does a maintenance order lose its effects? This section answers such a question. A maintenance order ceases to take effect upon the following:

• The death of the party, or
• The death of the person liable to make the payments under the order
• The marriage of the party unless in special circumstances, a court having jurisdiction under this Act otherwise orders.

Moreover, It is the duty of the person for whose benefit the order was made to inform without delay the person liable to make payments under the order of the date of the marriage. Any payment of money for a period after the marriage is recoverable in a court having jurisdiction under this Act.

In summary, the court has broad discretion in issuing an order based on the rules on maintenance orders, and the factors it considers will vary from case to case. However, the general principle is that the recipient should be able to maintain a standard of living as close as possible to the standard of living they enjoyed during the marriage or de facto relationship.

The issuance of de facto maintenance orders is only for a fixed period. These orders can be varied or terminated by the court at any time. If the parties’ circumstances change, the court may consider making a new maintenance order.

Seeking Legal Advice in Applying for a Maintenance Order

If you are considering applying for a maintenance order, it is crucial to seek legal advice. A lawyer can help you to understand your rights and options, and to prepare your application. Our team of family lawyers at JB Solicitors has the skills and experiences to:

• Help you to understand the financial implications of a maintenance order
• Help you to enforce a maintenance order
• Provide you with emotional support.

Contact us today.