When parties have been married or lived in a de facto relationship, a party may make a claim for the other party to provide financial support in certain circumstances.
The relevant sections of the Family Law Act are:
• Sections 72 – Right of spouse to maintenance;
• Section 74 – Power of Court in spousal maintenance proceedings;
• Section 75 – Matters to be taken into consideration in relation to spousal maintenance; and
• Section 77 – Urgent spousal maintenance cases.
The relevant sections in a de facto relationship are as follows:
• Section 90SB – When this division applies – length of relationship, etc.;
• Section 90SE – Power of Court in spouse maintenance proceedings;
• Section 90SF – Matters to be taken into consideration in relation to maintenance; and
• Section 90SG – Urgent spouse maintenance cases.
FAMILY LAW RULES
Each party to a case in the Family Court is required to make a genuine effort to resolve the dispute (pre-action procedures do not apply in the Federal Circuit Court).
Sets out the evidence to be provided.
Duty of disclosure – documents.
URGENT OR INTERIM (SECTION 77[IN MARRIAGES] SECTION 90G [DE FACTO])
Such an application is intended to be available only in circumstances where there is immediate need and where there is insufficient time to properly put before the Court all relevant evidence to support an interim application. An application for interim maintenance is basically different from an application for urgent maintenance.
On an application for interim maintenance, the application can only be heard after each party has had the opportunity to adduce evidence, that is to say, the normal procedure for the filing of Affidavits by both parties and the filing of Financial Statements must be observed.
Different criteria apply in application for urgent as opposed to interim maintenance.
• Whether there is an immediate need for financial assistance (Malcolm & Malcolm FLC90-220);
• Practicability of making an Order in the circumstances;
• The period of the Order which should be for a relatively short duration (Chapman & Chapman FLC90-671); and
• Urgent maintenance Orders are often referred to as “stop gap” orders (Paige & Paige FLC91-806) provides to assist with an immediate need of the spouse until a hearing can be set down for spousal maintenance Orders.
To reiterate, the purpose of an urgent spouse maintenance order is to provide financial assistance for some immediate need until there can be a hearing for interim spouse maintenance. The Judge needs to make a finding at first instance that the husband/wife is unable to support themselves adequately and make findings as to the husband/wife’s reasonable needs.
PRACTICAL CONSIDERATIONS INCLUDING DELAY
Most applications for spouse maintenance are commenced in the Federal Circuit Court. Some Judges will entertain an interim hearing on the first return date. Some will permit cross-examination. It is difficult to ascertain whether a Judge will deal with the matter on the first return date or adjourn it to another date for hearing.
The success of your claim depends on being able to justify the sum sought as well as proving the other party has capacity.
Often, the application is determined on the papers. It makes the quality of the material filed in support of the application, even more important.
To improve the prospects of the matter settling on the first return date, it is essential to have as much disclosure as possible.
Before finalising the application, ensure you have admissible evidence to satisfy the essential components of the application:
1. That your client cannot support herself/himself adequately by reason of a matter in Section 72;
2. That his/her reasonable weekly needs are established by admissible evidence; and
3. That the other party has the capacity to contribute is established by admissible evidence.
Your client’s case is enhanced if the evidence is persuasive.
The Judge has to make findings on the evidence. If there is no evidence, no findings can be made.
Medical evidence will be required to support a submission that you are unable to work by reason of ill health and the medical evidence should address the following:
• Dates of consultations;
• Symptoms observed or complained about by the patient;
• Diagnosis by reference to the factual matters set out in the Report;
• Treatment provided or recommended;
• Prognosis; and
• Whether the condition/s will impact on the ability of the patient to engage in employment and if so, in what way and for what period.
If you are unable to work because of age or inadequate skills, it will not be sufficient to merely make that assertion. You will need to apply for employment within your capability and prove that employment is not available for you. You will need to provide evidence of the jobs applied for and the results of those applications. If necessary, annex them to an Affidavit or seek to tender them on the day of the hearing.
Before filing an application, ensure you have disclosed source documents that can be relied upon to justify the sum claimed for “reasonable needs”.
Ensure that the sum claimed for spouse maintenance is separate from the sum necessary for child support (Stein & Stein FLC93-004).
Any questions? Don’t hesitate to contact us.