Need a ‘clean break’? Reviewing the financial relationship between former spouses24 March 2017 | International Family Law
Family Court of Australia discharges overseas spouse and child maintenance orders to end financial obligations between former spouses once and for all in matter of Naczek v Dowler  FAMCA 105
In this February 2017 decision involving the variation of an overseas spouse maintenance order, the Family Court of Australia placed significance on the ‘clean break’ provision contained in Section 81 of the Family Law Act Cth (1975). Section 81 not only extends to charging the court with the duty to, as far as practicable, make orders to finally determine the financial relationship between former spouses, but also orders that will avoid further court proceedings between them.
The circumstances of this particular case related to an original order made in the United Kingdom which provided for spouse maintenance for Ms Dowler at AUD72,800 per annum and child maintenance for the two children of the family of $16,380 plus all relevant school fees. That Order was based on Ms Dowler living in Australia with the two children of the family. By the time of the application Mr Naczek was living in Australia working at a major Australian bank and the children’s living arrangements had changed such that one child had reached the age of 18 and was living with Mr Naczek and the younger child was no longer living with Ms Dowler full time but spending 5 out of 14 nights and half of the school holidays with Mr Naczek. Given the changed circumstances the Court considered Ms Dowler had fewer obligations with respect to the children, she had the capacity for employment using her formal qualifications as a health professional and the Court accepted that over recent years Ms Dowler had various streams of income including unidentified income of AUD20,000 from a PayPal account.
Whilst a ‘clean break’ may be the Legislature and the Court’s end goal, it will not come about simply because the order was made offshore. It is necessary for any applicant to show just cause to discharge an order which the Court will then consider having reference to what would be regarded as right and proper in Australia in accordance with provisions of the Family Law Act. Alternatively, an order can be varied where there has been a change in circumstance.
Typically, for public policy reasons, clean break provisions are unlikely to apply to child maintenance orders. However, in this case, the Court held no reservation in discharging an overseas child maintenance order given the available remedy of making application to the Child Support Agency for a child support assessment. Again it is necessary to show just cause to discharge a child maintenance order. An overseas maintenance order, can be varied in circumstances including where there is a change in circumstances or change in cost of living to the extent that a change is justified.
Finding the requisite just cause, the Court discharged both the spouse maintenance order of AUD72,800 per annum and the child maintenance order of AUD16,380 per annum, succinctly summarising the reasons, stating:
‘The orders were focussed on a different time and different set of circumstances … the situation has now changed … and the situation justifies a review.’
Angie Todd 杜颜芝 is Special Counsel at Barry.Nilsson. International, and holds Australian and Hong Kong legal practising certificates.