The decisions in some cases under the Family Law Act do not raise new issues of principle or have significantly different facts but remind us of the correct approach that needs to be taken in similar cases.

A recent example of this is the case of Sadlier & Sadlier which was a case for interim spouse maintenance filed by the wife. The first point to emerge from the case was the difference between urgent spouse maintenance and interim spouse maintenance. This may seem trivial but it can create important problems. The two kinds of application are treated differently, or should be, by judges. In this case what was brought before the court was an application for urgent maintenance. In those cases the applicant has to show that there is an immediate need of financial assistance but there might not be sufficient evidence, given the urgency of the case, fully to justify an interim or final maintenance order and therefore the order should be for a short period only. These are really stop gap orders. 

Unfortunately in the present case the judge, and the lawyers for both parties, seemed uncertain about what kind of case they were running, or was being run, and referred to it as an interim maintenance case some of the time, and an urgent spouse maintenance case at other times, despite it having been prepared as an urgent case. The ultimate order that was made was for interim maintenance and that carries a different demand for the applicant.

This case reminds us of the fundamental priniciples:

• the court has to find that the applicant is unable to support hiself/herself adequately for one of the reasons set out in the relevant section of the Family Law Act (section 72). If the answer is no, then the application fails.

• If the answer is yes, then the court has to decide after looking at the income and reasonable expenditure of the other party how much the other party can contribute to the applicant's support. If there is no such ability to contribute then the application fails.

• If the need is established, and the ability of the other party to contribute is established, then it has to be reasonable that the other party should contribute.

In this particular case the judge confused urgent and interim applications, and made interim orders on an urgent application. The appeal court found that this was unfair to the husband.

Second, the judge paid much less attention to the wife's need and simply looked at the husband's capacity to pay. He had to identify the wife's need before considering the husband's capacity to meet it. Therefore there was error here too. Third, is assessing the husband's capacity to pay, the judge did not take into account a legitimate tax debt and therefore misunderstood his actual capacity. The appeal was successful. 

Disclaimer: The articles on this page are correct at the time of writing but changes in the law or procedure  may affect the accuracy of the information. Should you require any specific legal advice please contact Pearson Emerson Family Law