Following separation, the way parties share their income changes. It is not uncommon for one party to be earning considerably more than the other, especially when one of the parties has ceased working to care for children.
Spousal maintenance can be sought urgently and on an interim ongoing basis.
The threshold which must be satisfied in relation to any order for spousal maintenance is twofold:
- A lack of adequate support being experienced by one party; and
- The other party having capacity to pay.
The Court must also consider a range of other factors including the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for gainful employment.
If the Court is satisfied that one party has need and the other party has capacity to meet some of that payment, the Court can then Order such payment as it deems fit. There is a huge amount of discretion in this area and this can be reviewed.
Disclosure may not have occurred. Documents may not have been filed.
It is the job of the Applicant – i.e. the person seeking the funds, to establish their expenses and their understanding of the other party – the respondent’s – financial circumstances.
How are applications dealt with?
Almost all, if not all, applications for interim spousal maintenance are dealt with ‘on the papers’ there is no cross-examination of either party. The evidence must go into significant detail for the Court to be satisfied enough to make an order. Neither the Federal Circuit Court of Australia nor the Family Court of Australia have capacity to deal with cross-examination on all interim issues.
As stated above, if there is limited evidence, the Court is likely to be conservative in the orders it makes and make them for as short a time as possible. Orders will be made for filing of further documents and provision of disclosure and the matter may come back for a further interim hearing once this has occurred.
Affidavit & Annexure Limits
Parties should be aware that there are strict rules around the length that Affidavits can be and the amount of annexures. This application will be listed before a Judge who has 20 plus other matters to deal with. The Court does not enjoy receiving lengthy affidavits and we would suggest that the evidence should hit the high points and not go into detail about much else.
In the Federal Circuit Court of Australia, parties are to keep any Affidavit under 10 pages and cannot contain more than 5 annexures. It is good to keep the evidence short and sharp and deal only in facts, not generalisation.
Dismissal of Applications
If the case is not made out, the case law tells us that the Application should be dismissed.
We have made applications and responded to applications for clients and have had success representing clients on both sides.
Contact us if maintenance is an issue for you.