Interim Maintenance Application
Where an interim maintenance application is made by a spouse, the family courts must be satisfied that sections 74 and 72 of the Family Law Act 975 (Cth) (“FLA”) apply.
Section 72 FLA sets out the right of a spouse to spousal maintenance. It provides that a party to a marriage is liable to maintain the other party where that first mentioned party is reasonably able to do so but only if the other party is unable to support herself or himself adequately. When considering any interim maintenance application, a court may find that a person cannot support himself or herself where for example that person has the care and control of a child of the marriage who is under 18 years of age or by reason of age or physical or mental incapacity for appropriate gainful employment.
In proceedings involving an interim maintenance application or an application for final orders including payment of spousal maintenance, the court may make such order as it considers proper for the provision of maintenance (Section 74 FLA).
Section 75 FLA sets out the matters that a court is to take into account when determining any claim for spousal maintenance. That section specifies that the court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit (Section 75(3) FLA). This means that when considering an interim maintenance application, the court cannot take into account any Centrelink special benefit payment or Newstart benefits when assessing whether to make an order for payment of spousal maintenance.
A party to a de facto relationship may also apply for payment of spousal maintenance.
If you would like some practical legal advice regarding your prospects on an interim maintenance application or regards defending such an application, contact our experienced Brisbane Family Lawyers or our North Brisbane family lawyers. We can assist you in all areas of family law, including regards maintenance claims, family law property settlement and parenting arrangements. It is important that you know where you stand so that you can make an informed decisions and retain control over how your family law issue is resolved. You are also welcome to read on for further information right now………
In the recent case, Varma & Menon [2018] FCCA 3715, before the Federal Circuit Court of Australia, the Court made an interim maintenance order for payment by the Husband of $200 per week in favour of the Wife. The parties were married for a short period and had lived together for some 16 months. It had been an arranged marriage where both parties were from India and now permanent residents of Australia. There was little property involved with the Wife seeking the return of jewellery and payment of maintenance on an interim basis of $2,000 per month.
The Husband earned some $2,000 per week.
The Court said that there was a real issue in dispute as to whether the Wife had made her best efforts to obtain employment and the extent to which the Wife is unable to support herself adequately.
In the event, the Court was satisfied that on the evidence, the Wife is not able to support herself adequately whilst the husband has capacity to contribute towards her maintenance. The Court was not satisfied that the Husband had capacity to pay $2,000 per month but that he did have capacity to pay $220 per week and made orders of interim maintenance on that basis.
Contact our family lawyers Brisbane or family lawyers Brisbane Northside for advice whether you wish to make or defend an interim maintenance application or regards any other family law issues. Our priority is assisting you to reach an amicable agreement with your former partner without the need to go to Court. If however court action becomes necessary, we have the experience to represent you at Court.
The information set out in this blog is not a substitute for legal advice. We recommend that you obtain advice tailored to your particular circumstances from our Brisbane family lawyers or our family lawyers Brisbane Northside.
