The Court has power under section 74(1) of the Family Law Act 1975 (“the Act”) to order interim maintenance and power under section 77 to order urgent maintenance.
Unlike the requirements of the Act for interim spousal maintenance, an application for urgent spousal maintenance is consider without detailed enquiry required by an ordinary application for maintenance. An Application for urgent maintenance, is not required to satisfy the threshold requirements of section 72(1) or address considerations in section 75(2) of the Act; however, that is not to say these considerations are entirely irrelevant.
In Hall v Hall [2016] HCA 23 the Court observed the Court established the power to make an interim order under section 74(1) is separate and distinct from the power to make an urgent order that is separately conferred by section 77 of the Act.
Deconstructing section 77, the High Court found in applications for urgent spousal maintenance the Court must be satisfied upon three limbs:
a. first, it must appear to the Court that “a party to the marriage is in immediate need of financial assistance”;
b. second, it must be “not practicable in the circumstances to determine immediately what order, if any, should be made”; and
c. finally, if those criteria are satisfied, the Court must determine what “periodic sum or other sums as the court considers reasonable”.
(See also Malcolm v Malcolm (1977) FLC 90-220 and Chapman v Chapman [1979] FamCA 14)
Urgent maintenance orders are often referred to as “stop-gap” orders and are ordered to assist with an immediate need of the spouse until a hearing can be set down for spousal maintenance. (See also 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 made upon consideration of the threshold test under section 72 and the sections 74 and 75(2) factors. In Kajewski v Kajewski (1978) FLC 90-471, Lindenmayer J found in applications for interim maintenance, the Court must make:
a. first, an enquiry as to whether the party seeking maintenance is unable to support themselves adequately by virtue of care and control of a child to the marriage, age, physical or mental incapacity for appropriate gainful employment or any other reasons;
b. second, an enquiry as to the means and reasonable needs of the other party, and the extent of their ability to contribute towards the support of the applicant;
c. finally, a further enquiry as to the extent that it is reasonable that the other party should pay maintenance.
Orders for urgent spousal maintenance should ordinarily be for a defined period or of a relatively short duration. Orders for interim spousal maintenance will be made for a duration that the Court considers proper.
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