Interim Spousal Maintenance: Do You Have To Be Destitute?

The entitlement to claim interim spousal maintenance derives from Section 72 of the Family Law Act 1975 (Cth).

In respect of such an application it is reasonable for the primary caring parent to adjust her / his capacity for paid employment because of the needs of the child.  Equally it is no less reasonable for the other parent to alter his / her circumstances in order to build and maintain his / her relationship with their child. (See Planey & Hunt [2012] FamCA 46 per Ryan J)

Further the Respondent only has a liability to maintain the Applicant to the extent that he / she is reasonably able to do so. (See Galatsis & Galatsis [2007] FamCA 328 per Cronin J at paras 42 and 44;  Plongeon & Plongeon [2007] FMCAfam 456 (25 July 2007) per Lucev FM)

Relevant Criteria
Your affidavit material in any such application is its crux. It ought to include a properly completed Financial Statement of your client. It should also address the following relevant criteria:

• Has the Applicant established that she / he is unable to support herself / himself adequately by reason of one of the factors referred to in s 72(1)?
• What were the reasonable needs of the Applicant?
• The capacity of the Respondent to meet an order for interim spousal maintenance.
• The extent to which any injustices in the application for interim spousal maintenance can be considered and corrected at the final hearing.
• Why the discretion ought be exercised to order interim spousal maintenance.

Defences
Should the Respondent to an application for interim spousal maintenance wish to resist it, the following “defences” are available to the Respondent:

• The Applicant is able to support himself / herself; or
• The Respondent lacks the capacity to pay the requested interim spousal maintenance.

(See Saxena & Saxena [2006] FamCA 588; (2006) FLC 93-268 per Coleman J at para 39; Galatsis & Galatsis [2007] FamCA 328 per Cronin J at paras 42 and 44; Plongeon & Plongeon [2007] FMCAfam 456 (25 July 2007) per Lucev FM; Planey & Hunt [2012] FamCA 46 per Ryan J)

Conclusion
The only evidence before the Court will be that provided by the parties in their affidavit material. Representations from the Bar table are not evidence and therefore are not something on which a Court can found an order. Put the best foot of your client forward in that affidavit material. It will make my job easier when I am asked to put the best case of the client to the Court at the hearing of the Application.