Do you require to prove all expenses when seeking interim spousal maintenance? Qin & Donato [2023] FedCFamC1A223
Introduction
If you are in the process of seeking an interim spousal maintenance order from the Federal Circuit and Family Court, you may wish to read this article to help you collect evidence and prepare your affidavit.
A recent appeal judgment confirms the evidentiary level the applicant needs to meet when seeking interim spousal maintenance.
In Qin & Donato [2023] FedCFamC1A223, the wife’s weekly income was $762, and her expenses were $1,348, leaving a deficit of $586.
The primary judge dismissed the wife’s application other than allowing a lump sum payment of over $8,000 from the husband to the wife because:-
The wife was able to support herself without increasing her liabilities;
The wife’s previous standard of living was not determinative;
The wife’s shortfall of $586 had not hit a subsistence level.
The wife appealed and the appeal was allowed.
Do you need to prove all expenses when seeking interim spousal maintenance?
The husband took issue with the costs of the wife’s claimed household supplies, clothing, shoes, cleaning and other necessary commitments.
In response, the wife submitted 648 pages of invoices showing her necessary living expenses.
The Court said,
In hearing interim spousal maintenance, the Court does not conduct an audit of the parties’ expenses or require extensive proof of every expense. … The evidence need not be so extensive and the findings not so precise.
To show you have reasonable needs, do you have to show you have paid for all expenses but you cannot pay?
A person’s expenses may show the person’s needs, but not all needs. A person with no income cannot afford all reasonable needs but still has needs. When deciding “reasonable needs”, the court will have regard to the parties’ standard of living prior to separation.
Do you need to show a shortfall to a subsistence level?
The appeal judge agrees that the wife’s previous standard of living is relevant but not determinative. However, his Honour refused that the shortfall has to hit a subsistence level. An applicant only needs to show he or she has reasonable needs in all of the circumstances, not subsistence.
Take away from this case
When preparing your interim spousal maintenance case:-
Show in your affidavit and financial statement your reasonable needs, such as your mortgage payments/rents, utility bills, insurance premium, food, transport, leisure expenses, children’s expenses;
Do not exaggerate your expenses. If your family never spent over $10,000 per year on clothing before separation, you may not wish to say to the court that you now need to purchase $10,000 worth of clothes per year just for yourself unless you have compelling reasons.
Do not underestimate your reasonable expenses. If you spent $300 per week on groceries for you and your children before separation, but could only afford $100 after separation, you may wish to put your groceries needs as $300;
Avoid sending all of your living expenses bills to your lawyers or attaching them to your affidavit. This would increase your unnecessary legal costs and create difficulties for a judge or Registrar to quickly understand your case. Speak to your lawyer and identify the big-ticket bills you need to collate for your spousal maintenance case.
If you would like to discuss your family law case, please make an appointment with us today.
Source from Qin & Donato [2023] FedCFamC1A223, Qin &Donato (No 2) [2023] FedCamC2F 1214