Provision of Temporary and Urgent Spousal Maintenance
Under section 74(1) of the Family Law Act 1975 ("the Act"), the Court holds the authority to grant interim maintenance, and under section 77, the power to grant urgent maintenance.
Unlike the stringent requirements for interim spousal maintenance as outlined in the Act, an application for urgent spousal maintenance is processed without the detailed inquiry necessitated by a standard maintenance application. While an application for urgent maintenance is not obligated to meet the threshold criteria of section 72(1) or address the considerations outlined in section 75(2) of the Act, it's important to note that these factors still hold relevance.
In the case of Hall v Hall [2016] HCA 23, the Court underscored that the power to issue an interim order under section 74(1) is distinct from the power to issue an urgent order, which is separately conferred by section 77 of the Act.
Breaking down section 77, the High Court determined that in applications for urgent spousal maintenance, the Court must satisfy three conditions:
- Firstly, it must be evident to the Court that "a party to the marriage is in immediate need of financial assistance."
- Secondly, it must be "impractical in the circumstances to promptly determine what order, if any, should be made."
- Finally, if these criteria are met, the Court must decide on "a periodic sum or other sums as the court deems reasonable."
(Refer also to Malcolm v Malcolm (1977) FLC 90-220 and Chapman v Chapman [1979] FamCA 14)
Urgent maintenance orders are often termed "stop-gap" orders and are issued to address an immediate need of the spouse until a hearing can be scheduled for spousal maintenance. (Refer also to Page v Page (1987) FLC 91-806, Ashton v Ashton (1982) FLC 91-285 and Sadlier v Sadlier [2015] FamCAFC 130)
Interim maintenance applications are evaluated based on the threshold test outlined in section 72 and the factors specified in sections 74 and 75(2). In Kajewski v Kajewski (1978) FLC 90-471, Lindenmayer J stated that in applications for interim maintenance, the Court must:
- Firstly, inquire whether the party seeking maintenance is incapable of adequately supporting themselves due to child care responsibilities, age, physical or mental incapacity for suitable employment, or other factors.
- Secondly, investigate the means and reasonable needs of the other party, and their ability to contribute towards the support of the applicant.
- Lastly, assess the extent to which it is reasonable for the other party to provide maintenance.
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