Glover, Rodney Charles v Walker, Kelly Maree
[1998] TASSC 106
•3 September 1998
106/1998
PARTIES: GLOVER, Rodney Charles
v
WALKER, Kelly Maree
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 3/1998
DELIVERED: 3 September 1998
HEARING DATE/S: 14 August 1998
JUDGMENT OF: Underwood J
CATCHWORDS:
Family Law and Child Welfare - De facto relationship - The legislation - Meaning of "without just cause and excuse".
Maintenance Act 1967 (Tas), s16(1).
Maddock v Beckett [1961] Tas SR 46, discussed.
Renton v Renton (1918) 25 CLR 291, applied.
Bain v Bain (1923 - 1924) 33 CLR 317, referred to.
Aust Dig Family Law and Child Welfare [105]
Family Law and Child Welfare - De facto relationship - The legislation - Factors relevant to the exercise of a discretion to make an order.
Maintenance Act 1967 (Tas), s8.
Aust Dig Family Law and Child Welfare [105]
REPRESENTATION:
Counsel:
Applicant: A M Blow QC
Respondent: P E Barker
Solicitors:
Applicant: Stephenson and Murray
Respondent: Doolan and Brothers
Judgment category classification:
Court Computer Code:
Judgment ID Number: 106/1998
Number of pages: 13
Serial No 106/1998
File No LCA 3/1998
RODNEY CHARLES GLOVER v KELLY MAREE WALKER
REASONS FOR JUDGMENT UNDERWOOD J
3 September 1998
On 7 January 1998 an order was made in a court of petty sessions that the applicant pay the respondent $8,210 for her maintenance. This motion seeks a review of that order.
The authority to make the order
By a complaint sworn on 29 August 1997, the respondent alleged that:
she had cohabited with the applicant for a period commencing on or about 1 April 1996 and ending on 23 May 1997; and
since the commencement of that cohabitation, the applicant had, without just cause or excuse, left her without adequate means of support provided by him;
contrary to the provisions of the Maintenance Act 1967 ("the Act"), s16(1).
The Act, s16(1) provides:
"16 — (1) Where, on a complaint made by or on behalf of a woman, a court is satisfied that she has cohabited with a man for a period of at least 12 months, and is satisfied, in accordance with this section, that, since the commencement of that period of cohabitation, the man —
(a) has, without just cause or excuse, left her or any child of theirs without adequate means of support provided by him;
(b) is, without just cause or excuse, about to remove out of the State leaving her or any such child without adequate means of support provided by him;
(c) has, without just cause or excuse, deserted her;
(d) has been guilty of such cruelty or misconduct to her as to render it unreasonable to expect her to live with him; or
(e) has, for a period of not less than 12 months immediately before the making of the complaint, habitually been intoxicated —
the court may make such of the orders as are specified in subsection (2) as it considers the circumstances of the case require."
Quite properly, counsel did not dispute that leaving without means of support does not necessarily connote a physical leaving of one party by the other. In Renton v Renton (1918) 25 CLR 291, Barton J said, at 297:
"The judgment of this Court in the recent case of Weiler v Weiler (1918) 25 CLR 109 shows the sense in which the Matrimonial Causes Act 1899 of New South Wales uses the words 'has left' (his wife) 'habitually without means of support'. It is really no act of locomotion that is aimed at, but the failure to provide the adequate support."
The same view was expressed in Chantler v Chantler (1906) 4 CLR 585 and Usher v Usher (1901) 27 VLR 163.
Before the respondent was entitled to a favourable exercise of the judicial discretion conferred by the Act, s16(1), she had to prove that:
she had cohabited with the applicant for at least twelve months;
since the commencement of that period, the applicant had left her without adequate means of support provided by him; and
such leaving was without just cause or excuse.
On the hearing of the motion to review there was no dispute that the facts, as found by the learned magistrate, established the first and second elements. In the court below it was common ground that the parties had cohabited for a period of more than twelve months and that since the separation on 23 May 1997, the applicant had paid the respondent nothing. The applicant's claim was that he was not obliged to pay any maintenance because, at the date of separation, the respondent was a self-employed business woman, without children and well able to support herself. The applicant's argument was that the respondent's financial situation was such that he had just cause or excuse for not providing her with any maintenance. In other words, the applicant contended his leaving of the respondent without means of support provided by him was not without just cause or excuse. Section 17 provides, in the following terms, that upon a determination of whether there had been a leaving without means of support provided by the applicant, the means and earning capacity of the respondent shall be disregarded:
"17 — In determining for the purposes of this Division whether a person (in this section referred to as the 'defendant') has left, or is about to leave, another person (in this section referred to as the 'complaining party') without adequate means of support provided by the first-mentioned person, the court —
(a) shall, subject to paragraph (b), have regard to the accustomed condition in life of the defendant and the complaining party and, if the complaining party is a child of the family, also of the parent that is not the defendant;
(b) shall disregard the means and earning capacity of the complaining party; and
(c) may disregard any money paid by the defendant to or for the benefit of the complaining party during the pendency of proceedings unless the court is satisfied that the defendant intends in good faith to continue to provide adequate means of support for the complaining party."
Thus, the applicant conceded that because s17 required the court to ignore the respondent's assets, income and earning capacity when determining whether she had been left without means of support provided by him, the evidence established that he had left the respondent without adequate means of support provided by him. However, he maintained that such leaving was not "without just cause or excuse" because:
no matrimonial tie bound the parties to live together; and
the respondent had adequate means to support herself.
The threshold question is the meaning of the expression "without just cause or excuse", as enacted in the Act, s16(1).
The history of the legislation
Since 1837 there has been statutory provision in this State for the making of a maintenance order in favour of a woman who, for a continuous period of not less than twelve months, has cohabited with, but not been married to, a man (a "de facto wife"). See Act of Council (1837), s4, which provided for the maintenance of deserted wives and children. Although it may be thought by some that this reflects progressive thinking on the part of the State's early legislators, a better view seems to be that the provision was merely evidentiary in nature, enacted in order to overcome the difficulty of proving the existence of some marriages in early colonial Tasmania. See Maddock v Beckett [1961] Tas SR 46 at 52; Dickey Family Law, 2nd edn 199 - 200.
Whatever its basis may have been, a legislative provision in one form or another, making provision for the maintenance for de facto wives, has been part of the statutory law of Tasmania since 1837. It was enacted in the Maintenance Act 1919, s4, in the following terms:
"Any woman with whom any man is proved to have cohabited for a period of Twelve Months immediately previous to the act complained of, and to have deserted her, or left her without means of support, or been guilty of cruelty towards her, and has caused her on that account alone to leave him (unless she shall have subsequently committed adultery with another man) —
may apply to a police magistrate for orders under this Part."
The Maintenance Act 1921 maintained the provision with respect to maintenance for de facto wives but enacted it in a different form. That Act, s5, provided:
"(1) This Part shall be applicable as well in respect of any wife as of any woman with whom any man is proved to have cohabited for a period of twelve months immediately prior to the commission of the act of which she complains; and such woman shall, for the purposes of this Part, and Part V, be deemed to be the wife of such a man. [emphasis added]
(2) The word 'adultery' used in relation to any such women as last aforesaid shall, for the purposes of this Part, extend to and include any act which would amount to adultery if such women were legally married to such man, "
Section 6 provided that a justice may issue a summons upon a complaint (inter alia) that any wife has been left by her husband without means of support. Burbury CJ considered the nature and extent of s5(1) in Maddock v Beckett (supra). At 53, his Honour drew attention to the words in s5(1), "immediately prior to the commission of the act of which she complains" and concluded that:
"The purpose of the statutory provision that a woman must prove that she had cohabited with a man for a period of twelve months immediately before the act complained of as a prerequisite of her entitlement to claim maintenance as a wife is no doubt to limit the protection of the legislature to subsisting illicit relationships. In the case of a lawful matrimonial relationship the duty of a husband to maintain his wife (unless he can justify his failure to do so upon some matrimonial offence committed by her or upon some other ground) persists at least as long as the ties of marriage continue. The statutory matrimonial offences of leaving without means of support, desertion, cruelty, drunkenness and adultery remain offences so long as they remain married. But in the case of an illicit relationship the intention of the legislature under s 5 appears to be to constitute these acts offences against the woman partner in the relationship for the purpose of enabling her to claim maintenance only if the man commits one or other of these acts while the relationship is subsisting." [Original emphasis.]
Today, many people would no doubt regard the language used by his Honour as inappropriate. This is no criticism of a former Chief Justice of this Court but a reflection on how dramatically the mores of Australian society have changed in less than four decades although, as will be seen, in the same period, there have been no corresponding changes to the legislation governing the rights of couples who choose to live together outside wedlock.
The passage from Maddock that I have just cited refers to the "duty of a husband to maintain his wife" as the foundation for the legislative provisions. It has always been a fundamental tenet of the common law that "the husband is bound to provide his wife with necessaries by law" per Blackstone Laws of England Vol 1, 430. See also McGowan v McGowan [1948] 2 All ER 1032 at 1034; Gurasz v Gurasz [1970] P 11 at 16. By a statutory fiction, the Maintenance Act 1921, s5, imposed this duty upon a man who had cohabited with a woman for not less than twelve months, but at the same time limited the latter's right to enforce the duty to the time during which the relationship subsisted. In Maddock, Burbury CJ said at 54:
"But the legislature only makes it an offence for a man to leave his concubine without means of support or to have sexual intercourse with another woman as bases of liability for maintenance if one or the other of these acts is committed while the relationship exists."
In 1959, the Federal Parliament, no doubt reflecting then current societal attitudes, enacted the Matrimonial Causes Act. It came into force on 1 February 1961 and, for the first time, made provision for divorce upon a ground — five years' separation — not based on a matrimonial wrong. This first step towards the abolition of fault based relief was somewhat tentative, for all the well established fault based grounds were retained in the 1959 Act. However, this legislation was the precursor to the Family Law Act 1975 (Cth) which, of course, banished the concept of matrimonial wrongs from the civil matrimonial law.
On 1 March 1968, seven years after the Commonwealth Act commenced, the Maintenance Act 1967 (Tas) came into operation. (Statutory Rule 21/1968.) It repealed the Maintenance Act 1921. The concept of deeming de facto wives to be de jure wives, enacted in the 1921 Act, s5, was swept away and new provisions were made with respect to the maintenance of the former. However, the fundamental concept that had always underpinned the liability to pay maintenance, namely, matrimonial fault, was retained. Although the legislature re-enacted the provision for the maintenance of husbands as well as for wives, in the case of a complaint by the former based on the ground that his wife had left him without adequate means of support, the husband was additionally required to prove that he was unable to provide adequate means of support for his family; the Act, s12(1)), the same progressive thinking was not extended to what Burbury CJ had described as "illicit relationships." The relevant sections of the Act have not been altered since their enactment over thirty years ago. They might be considered anachronistic and completely out of step with the maintenance provisions enacted in the Family Law Act 1976, which emasculated the Act by rendering inoperative all its provisions relating to married persons and children.
The Act abolished the rule enacted by the 1921 Act, s5, as expounded in Maddock's case, that entitlement to an order subsisted only during the continuance of the relationship. The expression "immediately prior to the act of which she complains" does not appear in the Act. Section 16(3) was enacted in its place. It provides that (except in the case of a child) no complaint shall be made after the expiration of six months from the end of the period of cohabitation. The only other relevant changes that the Act made to the 1921 statutory provisions are:
_the introduction of the words "without just cause or excuse" as a qualification of the matrimonial offences of leaving without adequate means of support and desertion;
_the addition of the words "provided by him" after the words "without adequate means of support"; and
_the enactment of s17 which provides, as I have noted, (inter alia) that in determining whether a party has been left without means of support the court shall disregard the means and earning capacity of that party.
These provisions apply without distinction to married and de facto couples.
The meaning of "without just cause or excuse"
In my opinion, the changes made by the Act to the 1921 provisions concerning de facto wives are no more than an application to de facto couples of the common law principles applicable to married couples. As I have already observed, the common law imposes on a husband an obligation to maintain his wife. This obligation persists as an incident of the marriage contract regardless of the wife's means and earning capacity. In Kinnear v Kinnear (1904) 21 WN (NSW) 162, the Chief Justice said, at 164 - 165:
"It is clear that the first duty which a husband undertakes towards his wife is to maintain and support her see Read v Legard (6 Exch 636). At page 642, Mr [sic] Baron Alderson says, 'By the marriage contract the parties contracted a relation which gave the wife certain rights which the law recognises. It is only necessary for us to say that one of them is that the wife is entitled to be supported according to the state and condition of the husband.' It seems to be clear that even though a married woman has separate estate, her husband is liable for necessaries supplied. She may refuse to contribute any part of her separate means towards the common expenses of the household, and she may accumulate her dividends for her own personal benefit : see Lush on Husband and Wife, 178, 305. It follows, therefore, that the possession of private income by the wife does not exonerate the husband from the discharge of his duty to support and provide necessaries for the wife. He still remains liable for necessaries supplied to her, and it is not answer for him to say 'my wife has ample private means'."
This common law obligation does not apply to de facto wives of course, but there was no need to apply it to them by statutory enactment in the 1921 Act because, s5 of that Act deemed de facto wives to be de jure wives for the purposes of the relevant parts of that Act. However, the deeming provision was not re-enacted in the Act and separate provisions were enacted for spouses and de facto wives. To ensure that the common law duty imposed upon a married man to maintain his wife, regardless of her means and earning capacity, applied to de facto couples, it was necessary to enact provisions to that effect in the sections dealing with de facto wives. As I have noted, those provisions are expressed to apply equally to married persons and de facto wives but I assume that was to avoid any risk of misunderstanding that might arise if they were enacted to apply only to de facto wives.
The expression "without just cause or excuse", introduced into the legislative scheme by the Act, ss11, 12, 13, 15, 16 and 19, to qualify the offences of leaving without adequate means of support and desertion, is a reference to fault on the part of the complainant. Just cause has always been a defence to a claim for relief based upon a matrimonial wrong. As to what constitutes just cause or excuse has been the subject of debate from time to time. The provisions of the Maintenance Act 1921, s6, were considered in Mansfield v Mansfield (1931) 26 Tas LR 149. In that case, the wife laid a complaint alleging that her husband had left her without means of support. She sought a separation order and a maintenance order. The husband contended that his wife had committed adultery and had been guilty of misconduct. The Act, s13, provided that proof of a complainant's adultery was a bar to relief. The words "without just cause or excuse" were not enacted in the 1921 Act. The learned magistrate was not satisfied that the complainant had committed adultery and doubted whether any other conduct could constitute a defence as the statute only provided for adultery as a defence. Nicholls CJ said, at 151:
"These magisterial separation orders are an extension of the law and give to Magistrates power to grant a decree of judicial separation. In my opinion, they are subject to all the considerations attaching to the contract of marriage which govern the Courts in granting judicial separations. I should say that one of these clearly is that a petitioner (and therefore a complainant) who is shown to have caused, by her own misconduct, the behaviour of the defendant upon which she bases her claim for relief, has forfeited her right to the assistance of the Court."
Discouraging appellate challenge, the learned Chief Justice portentously concluded his reasons for judgment, "I have had the advantage of consulting my colleagues. They take the same view as I do"!
In Bain v Bain (1923 - 1924) 33 CLR 317 the High Court made it clear at 322 et seq that conduct not amounting to a matrimonial offence could constitute just cause or excuse for the commission of a matrimonial offence. The question is whether the conduct of the deserted party was such that it justified the desertion. Intention is irrelevant. The judgment of the court in Magaard v Magaard (1958 - 1959) 32 ALJR 204 referred to Bain with approval and went on at 204:
"Where on the other hand, the question is as to 'just cause on excuse', [as opposed to desertion] no inquiry into intention need be undertaken. The misconduct must be grave, but the only question is as to the reasonableness of the respondent in the light of the petitioner's conduct viewed objectively."
In Kolliner v Kolliner [1971] VR 770 McInerney J examined the meaning of the expression "without just cause or excuse" as enacted in the Maintenance Act 1965 (Vic), in circumstances indistinguishable from the Act, ss11, 12, 13, 15, 16 and 19. At 773 his Honour observed that, as the expression was used to qualify both desertion and leaving without means of support, there arose the suggestion that it has the same meaning with respect to those two offences. I respectfully agree. He went on to say:
"If, therefore, the court is satisfied that the wife's conduct constituted just cause or excuse for the husband leaving her or failing to provide her with means of support, she must fail in her claim for maintenance. [His Honour dealt with the onus of proof on this issue and concluded that it fell upon the wife]
The Maintenance Act 1965 thus preserves the settled doctrine that one spouse could be guilty of conduct which afforded the other just cause or excuse for leaving the offending spouse."
McInerney J then proceeded to examine the authorities to ascertain what constituted conduct justifying a leaving without means or desertion. He referred to a number of authorities including Bain v Bain (supra) and held that conduct short of a matrimonial offence could constitute just cause or excuse for desertion or leaving without means of support. He concluded at 775:
"Whether in any given case the conduct can be regarded as sufficiently grave as to make it reasonable for the other party to withdraw from the matrimonial relationship and live separately and apart is a matter to be determined by the tribunal of fact."
For present purposes it is unnecessary to consider further what conduct can constitute just cause or excuse for committing a matrimonial wrong, in this case, leaving without means of support. Litherland, Maintenance of Deserted Wives and Children (2nd edn) devotes a whole chapter to this topic at 271 - 280. The only conduct relied upon by the applicant to constitute just cause or excuse for leaving the respondent without means of support provided by him, was that she was possessed of assets, income and earning capacity. No magistrate acting reasonably and properly instructed as to the law, could find that that state of affairs constituted conduct justifying or excusing the applicant leaving the respondent without means of support. It is true, as Mr Blow QC contended on behalf of the applicant, absent marriage, there was nothing that required the parties to continue to live together. Indeed, there are some in our society who would say that it was wrong for them to live together out of wedlock. But Mr Blow's contention has no force for the Act clearly creates the fiction with consequential obligations, that where a woman has cohabited with a man for a period of at least twelve months, she is his wife for the purposes of the Act. Leaving such a woman without means of support provided by him is a matrimonial wrong which is not excused or justified by the fact that the woman has means and earning capacity. An argument to the contrary flies in the face of fundamental common law principle as enacted in the Act, s17.
Accordingly, I hold that the means, assets and earning capacity of the respondent did not afford just cause or excuse for the applicant's admitted leaving without means of support.
Grounds 1 and 2
The resolution of the threshold question of statutory interpretation does not however, dispose of the motion to review. It does dispose of ground 1 which provides:
"It was not reasonably open to the learned Magistrate to find that the Applicant's leaving of the Respondent without adequate means of support provided by him was without just cause or excuse because of the following circumstances:
(a) The parties were neither married nor legally obliged to continue to cohabit;
(b) The Applicant chose to cease to cohabit with the respondent."
For the reasons I have given ground 1 is not made out.
Ground 2 provides:
"The learned Magistrate erred in law in concluding that the Respondent had proved that she was entitled to a maintenance order without considering:-
(a)Whether the Applicant's leaving of the Respondent without adequate means of support provided by him was without just cause or excuse; and
(b)Whether the means and needs of both parties were such that it was appropriate to make a maintenance order against the Applicant for the benefit of the Respondent."
Ground 2(a) is clearly established. In his reasons for judgment the learned magistrate found that the applicant had left the respondent without means of support provided by him and proceeded to conclude that "the complainant has proved that she is entitled to a maintenance order." He did not consider whether the complainant had proved that such leaving was without just cause or excuse. However, such error alone does not entitle the applicant to succeed on the motion for, as I have said, there was no evidence of any disentitling conduct on the part of the respondent and accordingly, the error did not result in any miscarriage of justice for the only finding reasonably open to the learned magistrate was that the leaving was without just cause or excuse.
Ground 2(b) is linked to grounds 3 and 5.
Grounds 3 and 5
"3 The means and needs of the parties were such that it was not reasonable for the learned Magistrate to make a Maintenance order against the Applicant for the benefit of the Respondent.
5 The learned Magistrate erred in law in holding that:-
(a)the way the Maintenance Act 1967 was structured required him to ignore the complainant's means and earning capacity in assessing the quantum of maintenance; and
(b)That that requirement, together with the requirement under s 18(1)(a) of that Act to take account of the complainant's accustomed condition in life, tilted the balance in the complainant's favour compared to the situation under the Family Law Act 1975."
Grounds 2(b), 3 and 5 all concern those words of the Act, s16, that confer the power to make an order in discretionary terms, and s18(1) which provides:
"In determining the amount that a person is to be required to pay under a maintenance order made under this Division the court shall have regard to —
(a)the accustomed condition in life of the person for whose benefit the order is made; and
(b)the whole financial position of the parties to the order, and their respective means and earning capacities, and the ability of the person against whom the order is made to make the payments required by the order —
but in ascertaining the financial position of the person for whose benefit the order is made the court shall disregard any money that a complaining party has earned, is earning, or may earn solely or mainly because of the conduct or reasonably anticipated conduct of the person against whom the order is made, and any savings arising from those moneys, unless, in the special circumstances of the case, the court thinks it proper to take those moneys and savings into consideration."
Section 17 required the learned magistrate to disregard the means and earning capacity of the respondent for the purposes of determining whether she had been left without means of support. Once that had been found, the issue was whether the discretion should be exercised in favour of the respondent and, if yes, the quantum of the order. On this issue, s18(1) required that the means, assets and earning capacity of both parties (excepting those described in the concluding proviso to s18(1) — not arising in this case), together with the accustomed condition in life of the respondent, be taken into consideration. In this respect there was error. The learned magistrate felt he was obliged to ignore the respondent's means and earning capacity upon a consideration of quantum. That is clear from this passage in his reasons for judgment:
"… I find myself convinced that the complainant should receive periodic maintenance. Frankly, I am surprised at this outcome. It is somewhat contrary to my own personal views which are more in line with Mr Murray's submissions. However, the way the Act is structured which requires me to ignore the complainant's means and earning capacity and to take account of her accustomed condition in life which I take to mean to refer [sic] to her standard of living before [sic] and during cohabitation tilt the balance in her favour compared to the situation under the Family Law Act."
It appears from that passage that the learned magistrate mistakenly applied the provisions of the Act, s17, instead of s18, to his consideration of the quantum of any order. It is very difficult to see how he made this error. Just three pages before that passage appears in the transcript of the learned magistrate's reasons for judgment, there appears a correct statement of the law. His Worship found that the respondent was entitled to an order and said:
"The more difficult and I think the more lively issue in the trial is what order should be made. Section 18(1)(a) contains the same element as s17(a) already commented upon. Section 18(1)(b) requires me to take into account the whole financial position of the parties to the order, their respective means and earning capacities and the ability of the defendant to make the payments. I am, unless in the special circumstances of the case I think it appropriate to take them into account, to disregard money the complainant has, is earning or may earn because of the defendant's conduct."
Why the learned magistrate made two contradictory statements of law within moments of each other is a mystery. However, whatever the reason, he clearly fell into error. Accordingly, ground 5 is made out, but that still does not dispose of the motion to review. Mr Blow QC, submitted that upon error being established, the complaint should not be remitted for determination in accordance with law because the evidence concerning the financial position of the parties and the respondent's accustomed condition in life was such that no magistrate properly instructed as to the law, and acting reasonably, would have exercised his discretion in favour of the respondent to make any order, notwithstanding proof of the leaving without just cause or excuse. In order to deal with this submission it is necessary to refer to some of the facts.
The facts
The learned magistrate resolved the issue of credit in favour of the respondent. For reasons he set out, the learned magistrate said, "I propose … to conclude this matter on the basis of the complainant's evidence." No challenge is made to that finding, and, accordingly, I shall refer to the account given by the respondent where it is in conflict with that given by the applicant.
At the date of the hearing in the court below, the respondent, a single woman, was aged 29 years. She said that she met the applicant in November 1995. She then lived in Launceston where she carried on her own business as a hearing aid specialist. The applicant lived in Wynyard. He was a legal practitioner employed by a firm of solicitors in Burnie. The respondent's business required her to visit Burnie once a fortnight, but not long after meeting the applicant, the visits became weekly. By December 1995, the respondent was spending almost half of each week on the north-west coast. She stayed with the applicant at his home in Jackson Street, Wynyard. On 1 April 1996, there was an argument which led to the respondent taking her belongings and leaving Jackson Street. Immediately, there followed a reconciliation. The applicant asked the respondent to transfer her business to the north-west coast and live with him in a permanent relationship. She agreed. Declarations of love were exchanged and the same day the applicant and the respondent commenced to live together. According to the respondent, the applicant said that he knew that the move from Launceston would have an adverse effect on her business and to off-set this, he was prepared to absorb the relocation costs and support her for three to four years until she re-established her business. The Jackson Street property was sold and a house at 10 Bridge Street, Wynyard, was bought. The idea was that the parties would live in the Bridge Street property and the respondent would use part of it for the purposes of her business. After less than twelve months, the relationship soured. The applicant began staying away from the house until the early hours of the morning. It appeared that he had met another woman. On 23 May 1997, there was a major argument and the applicant asked the respondent to leave the house. He thereupon left the house and three weeks later, after making necessary arrangements, the respondent also left.
According to the respondent, the applicant gave her $700 - $750 each fortnight during the time she and the applicant lived together, and with this money she bought the household necessities, food, paid the electricity bills and so on. The respondent continued her business but said that the re-location caused a drop in her income. The respondent said that she and the applicant lived a pleasant lifestyle until just before the end of the year they spent together. She referred to them dining out, entertaining friends and undertaking some modest travel. The respondent kept her unit in Launceston. The applicant used it when he had to go to Launceston on business, as did the respondent. With the concurrence of the applicant, the respondent drew no monies from her business during the time they were together. In October 1996, the applicant and the respondent bought and sold some property. It is unnecessary to go into the detailed evidence about these sales and purchases. The respondent told the learned magistrate:
"When he asked me to leave, he said that he would um provide me with white goods being a fridge, a washing machine, a heater and a vacuum cleaner and he also said he would provide me with $100 per week until I got my feet on the ground. But he also said to me that if I told anybody that he was giving me any money, that money would cease immediately."
After the separation the applicant made no payments to the respondent, or for the benefit of the respondent other than a telephone bill for which the parties were jointly liable. The respondent gave evidence of expenses she incurred in moving her business and how her income had dropped. In her evidence-in-chief, the respondent said that in 1995 the income from her business was $29,000 per annum net before tax, but during the year she was with the applicant, it "dropped back down to almost approximately $20,000". This evidence is somewhat at variance with the profit and loss statement of the business which was tendered in evidence. It shows that for the year ended 30 June 1995, the net profit, before tax, was $28,277, but for the year ended 30 June 1996, during only three months of which the parties lived together, the net profit, before tax, was $21,410. The inference may be that the drop in income was due to her spending more time on the north-west coast, both before and after 1 April 1996. In any event, any diminution in the income from the respondent's business during the year that the parties lived together was off-set by the applicant's payment of housekeeping which enabled the respondent to avoid drawing any of the business income.
By agreement, the parties filed financial statements in the form prescribed by the Family Law Rules, O17, r2. The respondent's form sets out her financial position as at the date it was sworn, 4 December 1997. In it the respondent stated that she owned two properties, both of which were subject to a mortgage. These properties, a car and other minor assets were stated to have a total value of $193,775. The statement of liabilities disclosed a figure of $141,960. Thus, at December 1997, the respondent's assets exceeded her liabilities by $51,815. An analysis of the respondent's evidence showed that at the date of the separation, her assets exceeded her liabilities by something in the order of $46,000. None of these figures are precise, but it is clear that at the time the applicant left the respondent without means of support, the respondent's assets exceeded her liabilities by something in the order of $50,000.
As to her income, the statement disclosed rental income of $130 per week, and estimated drawings from the business in the sum of $300 per week. Weekly expenses are shown to be $758. The gross earnings of the business are not disclosed. The expenses include weekly tax of $67 (the sum payable on a weekly income of $395) and provisional tax in the sum of $79. In her oral evidence, the respondent said that she was drawing an average of $300 per week to cover expenses. She said that she had to save to pay her provisional tax bill, but a little later said that she had "an off-set mortgage account" with a credit which would be used to pay provisional tax.
In cross-examination, the respondent said that prior to going to live with the applicant, she was able to support herself and proud of the business she built up. There followed this question and answer:
"Is it your case that as a result of a relationship with Mr Glover of some fourteen months, that you are no longer able to support yourself. Is that your case?
My case is that Mr Glover made a promise to support me in return for me bringing my business down here to be with him. He made that request. We discussed it like I'd mentioned to you before."
As the cross-examination progressed, it appeared that some of the expenses that the respondent claimed she had incurred were exaggerated to some degree. Further cross-examination disclosed that, in reality, the respondent's claim was to enforce the promise she said the applicant had made to provide her with some white goods and to pay her $100 per week until she got on her feet. She said:
"I want Mr Glover to um, to do for me what he said he would do"
and
"Okay, I was happy for Mr Glover to pay me $5,000 and that was it."
It appears that, at least in part, the learned magistrate determined the respondent's complaint upon the basis that the applicant's promises should be enforced by order of the court. He said:
"I have concluded that the category of expenses which I am satisfied the defendant said he would pay for, should form part of the order namely, the refrigerator,, bed, washing machine, heater and vacuum cleaner. $3,000 is claimed under this heading and I accept, although there is not specific evidence for it, that this is a reasonable amount for such a claim. It can, I think be afforded by the defendant."
Ground 4
The motion to review, ground 4, alleges that error attended that passage in that the learned magistrate gave no, or no adequate reasons, for that conclusion; and that if he took into account the applicant's promise to provide the items referred to, he should not have done so. The inference is plain that the learned magistrate made the order for $3,000 because the applicant had promised to provide the respondent with the items referred to after she left the home. Evidence of the promise is not irrelevant, for it goes to the issue of need and the means of the applicant to satisfy the respondent's needs, but unsupported by consideration, the promise is, of course, unenforceable. The jurisdiction conferred by the Act, 16(1), is to make the orders specified in subs(2) which relevantly is confined to making a maintenance order "for the benefit of [the respondent]". There is no power under the Act to order a settlement of property. Although erroneous reasoning attended the making of the order to pay $3,000, ground 4, as pleaded, is not made out.
Ground 7
After indicating that an order would be made that the applicant pay the respondent $3,000, the learned magistrate turned "to the claim for periodic maintenance which resolved into a claim for $100 a week for 12 months after separation." Earlier, he had referred to the respondent's savings from her business during the year that the parties cohabited. He said, in effect, that these savings were spent on expenses incurred with respect to the business before the parties separated. The motion to review, ground 7, alleges that this finding was an error of fact. This ground is made out. Mr Barker, for the respondent, made no submission to the contrary. The evidence clearly established that, at the date of separation, the respondent had one bank account with a credit of $18,000 and another with a credit of $8,790. Only the latter was reduced shortly after the separation (to $1,000) by payments of business expenses incurred prior to separation. The balance in the other account formed part of the respondent's assets of approximately $50,000 that she held at the date of separation.
Ground 6
The learned magistrate said that "no more should be required to be paid than a sum or sums designed to reinstate the complainant into something like the position that she might have been in had the relationship not taken place." The motion, ground 6, alleges that this statement is an error of law. It is established. What periodic sum will be sufficient to put the deserted wife in the position she would have been in had she not married or cohabited with her husband or partner, is not the appropriate test to determine the quantum of a maintenance order. The Act, s3, provides that "maintenance in relation to any person, includes the lodging, feeding, clothing, education, and training of that person and the provision of medical treatment for him." As to the quantum of a maintenance order, s18 requires that the accustomed condition in life of the respondent and the whole of the financial circumstances of both parties, their respective means and earning capacities and the ability of the applicant to meet any order, all have to be taken into account. Thus, no general rule can be formulated. Each case will turn upon its own facts.
Conclusion
The making of the impugned order was tainted with many errors and cannot stand, but I have reached the conclusion that I cannot determine this matter myself as I am empowered to do by virtue of the Justices Act 1959, s110(2). The applicant's statement of affairs discloses that he has the capacity to meet any reasonable order that might be made, but there are insufficient findings of fact made with respect to the respondent's accustomed condition in life and her financial position to enable me to conclude, as Mr Blow QC urged me to conclude, that on the evidence, no magistrate acting reasonably and properly instructed as to the law, could have made a maintenance order in favour of the respondent. The position is exacerbated by the fact that the particulars of the respondent's complaint, delivered before the hearing, and a great deal of the evidence at the hearing, was directed to the issue of how much the respondent had lost by her decision to move from Launceston to Wynyard in order to enter into the relationship. Although such evidence is probably admissible, it misses the essential issue which, once the leaving without means has been established, is the accustomed condition of the respondent while in the relationship, and her means, earning capacity and general financial position at the time of separation. For the purposes of the Act, s18, it is immaterial whether the parties are married or in a de facto relationship. I mention this because it would obviously be inappropriate upon an enquiry into what is an appropriate amount of maintenance, to place reliance on the financial cost to the wife of entry into marriage. The respondent's statement of affairs disclosed that at the date it was made, her weekly liabilities exceeded her weekly income by some $300. The learned magistrate made no findings other than to state in general terms that the respondent's lifestyle was not lavish "and represents a considerable contrast as in diminution or down grading when compared to her situation before separation." However, he went on to address irrelevant criteria by saying, "it is relevant that she did, financially speaking, disadvantage herself by moving to Wynyard …". His Worship finished that sentence with the words, "and think this fact is reflected in the promise that I find was made concerning the payment of $100 per week." The making of that promise is relevant if it is accompanied by a finding that it was a reflection of what the applicant perceived to be the needs of the respondent upon separation. It is unfortunate that I feel unable to finally dispose of this matter, for the amount involved is relatively small and the costs to date must be quite considerable. However, as I see it, the matter will have to be re-heard.
The motion to review is allowed. The order made on 16 February 1998 (erroneously dated 7 January 1998) is quashed. The respondent's complaint sworn on 29 August 1997 is remitted to another magistrate for re-hearing in accordance with law.
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