A person may have a legal duty to maintain another person

The words 'duty to maintain' are limited to a legal duty and do not include what is only a moral obligation to maintain another person (Vick and Hartcher (1991) FLC 92-262).

The principles established in Vick and Hartcher were later adopted in Dwyer v McGuire (1993) FLC 92-420 where it was found that a husband had no legal duty to support his elderly parents and sister.

Examples

A person may have a legal duty to maintain another person if:

  • they are supporting their husband or wife in accordance with section 72 of the Family Law Act;
  • they are supporting a de-facto partner in accordance with section 90SF of the Family Law Act or section 205ZC of the Family Court Act 1997 (WA);
  • they are paying spousal maintenance to a former husband or wife in accordance with an order made under the Family Law Act, or by a foreign court;
  • they are paying maintenance to a former de-facto partner in accordance with an order made under the Family Law Act or the Family Court Act 1997 (WA), or by a foreign court;
  • the person is male and is supporting the mother of his child (to whom he is not married, nor in a de facto relationship) for the childbirth maintenance period;
  • they are supporting a child (including a step-child) who is a relevant dependent child;
  • they are supporting an adult child in accordance with section 66L of the Family Law Act;
  • they are paying child maintenance for a child (including a step-child) in accordance with a court order made under the Family Law Act, or by a foreign court (i.e. not an administrative assessment of child support);
  • they have an obligation to support a child under State legislation (for example an order for child maintenance made under the Family Court Act 1997 (WA)); or
  • the Family Court has made consent orders recognising Kupai Omasker (the Torres Strait Islander traditional practice of adoption).

A person does not have a legal duty to support a person for whom they have provided an 'assurance of support' as a condition of that other person's migration to Australia. An assurance of support is the assuror's undertaking to repay the Commonwealth for certain entitlements that the assuree may claim while in Australia. It does not create a legally enforceable duty for the assuror to support the assuree.

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Alan Weiss

18th March, 2020

Alan Weiss developed aussiedivorce.com.au after he experienced himself how devastating divorce proceedings can be. I witnessed firsthand my own future security, and that of my familys, being destroyed by acrimonious and costly divorce litigation. I created aussiedivorce.com.au to help people avoid an experience like this and lose thousands of dollars. Instead the aussiedivorce.com.au system will assist them in getting on with their lives.