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27 Child & Fam. L. Q. 129 (2015)
Earning Capacity and Maintenance in Anglo-Australian Family Law: Different Paths, Same Destination

handle is hein.journals/chilflq27 and id is 129 raw text is: 129 'Earning capacity' and maintenance in Anglo-Australian family law: different paths, same destination? Lisa Young and Nick Wikeley* Keywords: Child support - earning capacity - spousal maintenance - family law This article considers the treatment of earning capacity in child and spousal maintenance law in Australia and the UK. It argues that in both jurisdictions the legislatures have retreated from this important concept as it relates to child support without providing any clear rationale for this shift. In the case of spousal maintenance, however, there has been no such shift. The article considers the justification for this different treatment and argues that there is a need for reconsideration of the law as it relates to earning capacity in child support law. Introduction In assessing liability for spousal and child maintenance, should account be taken of how much the spouses or parents could earn, rather than simply what they do earn? Many governments accept that income should be imputed to individuals in appropriate cases.' This is not surprising given what underpins the central tenets of many child support systems: the interests of children in receiving proper financial support, fairness between parents in meeting the financial needs of their children, and the goal of relieving the state of the burden of supporting children whose parents have the capacity to fulfil that obligation. Similar factors underpin schemes relating to spousal maintenance. Nonetheless, assessment of the capacity to provide financial support to another person on the basis of imputed income will always be controversial (not least amongst payer lobby groups), although the mere fact that decisions which have the effect of imputing income attract more litigation is not in itself evidence of an unfair law.2 Decisions as to how best to frame maintenance legislation should be articulated, justified and directed at achieving the overall aims of that legislation. This is no less the case when considering the role earning capacity should play in assessing maintenance liabilities, not least because a failure to take earning capacity properly into account can result in unfairness for family members. While it might be assumed that provisions directed at earning capacity invariably advantage women and disadvantage men, it should be noted that consideration of earning capacity in the context of spousal support routinely focuses on the payee, most usually Lisa Young is an Associate Professor, School of Law, Murdoch University, Australia. Nick Wikeley is a judge of the Upper Tribunal (Administrative Appeals Chamber) and Emeritus Professor, School of Law, University of Southampton. The authors would like to thank the two anonymous reviewers and the editor for their valuable comments on earlier drafts of this article; all errors of course remain those of the authors. 1 See, for example, Federal Child Support Guidelines s 19 (Canada); Child Support Act 1991, s 105(2)(c)(i) (New Zealand); for commentary on the position in the USA; see D W Griffin, 'Earning capacity and imputing income for child support calculations: a survey of law and outline of practice tips' (2014) 26 Journal of the American Academy of Matrimonial Lawyers 365. 2 As noted by the Canadian Department of Justice in relation to their s 19: Children Come First: A report to Parliament reviewing the provisions and operation of the Federal Child Support Guidelines Volume 2 available at http://www.justice. gc,ca/eng/rp-pr/fl-lf/child-enfant/rp/v2/v2_5.html (last accessed 9 April 2015).

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