Hayson, I.C. and Hayson, I.

[1987] FamCA 13

In the marriage of HAYSON, I.C. and HAYSON, I.

(1987) FLC ¶91-819

Other publishers' citations: (1987) 11 FamLR 593 (1987) 89 FLR 469

In the Full Court of the Family Court of Australia at Sydney.

Judgment delivered 19 June 1987.

Before: Simpson, Fogarty and Lindenmayer JJ.

Simpson, Fogarty and Lindenmayer JJ.: For the purposes of this judgment we will refer to the parties as husband and wife respectively, although they have been divorced since 1983.

By notice of appeal dated 19 January 1987 the husband has appealed against orders that were made by Mr Justice Ross-Jones on 9 January 1987 after a hearing before his Honour on that day. His Honour ordered inter alia as follows:

``1. That within seven days from this date and weekly thereafter the husband pay by way of urgent maintenance the sum of $440 per week and that from such sum the husband pay direct or as the wife may in writing direct to Lidan Realty (N.S.W.) Pty. Ltd. being the agents of the premises occupied by the wife the present weekly rental of $240.90 and that the balance thereof be paid direct to the wife.

2. That the said maintenance continue until one calendar month after the filing and serving of the affidavit of discovery of the husband which complies with the Family Law Rules and that in the event that such affidavit does not so comply then such maintenance continue until such rules are complied with.''

The background facts so far as they appear from the material before us indicate that the parties separated no later than mid-1980 and that since the end of 1981 the three children of the marriage (now aged 17, 14 and 9) have been in the custody of the husband. The parties were divorced in January 1983. The husband remarried in 1984.

There have been outstanding property and maintenance proceedings between the parties since approximately 1982 or 1983 in this Court, but the relevant application with which we are concerned is an application filed by the wife on 28 May 1986. In that application the wife sought ``pursuant to the provisions of sec. 77 of the Family Law Act the respondent husband pay maintenance to the applicant wife in the sum of $600 per week and that the respondent husband pay to the applicant wife the sum of $10,000''. The latter aspect of that application, that is the application for lump sum maintenance, was not pursued before the trial Judge and we are not concerned with that in this appeal.

The application before his Honour was a proceeding under sec. 77 of the Family Law Act which provides, so far as is relevant, that in maintenance proceedings ``where... it appears to the court that the party or child is in immediate need of financial assistance, but it is not practicable in the circumstances to determine immediately what order, if any, should be made, the court may order the payment, pending the disposal of the proceedings, of such periodic sum or other sums as the court considers reasonable''.

This provision and the distinction between it and an interim maintenance proceeding under sec. 80 and a permanent maintenance proceeding under sec. 72 and 74 have been the subject of a number of decisions in this Court. In this regard reference need only be made to cases such as Malcolm and Malcolm (1977) FLC ¶90-220, Williamson and Williamson (1978) FLC ¶90-505, and Chapman and Chapman (1979) FLC ¶90-671. Those cases demonstrate that the section relates to ``relief of immediate needs'', ``present pressing needs'', that the order is intended to be ``in the nature of a stop-gap order'', and is intended to ``deal with urgent situations''.

It appears that for a number of years prior to the filing of the present application the husband had been voluntarily paying maintenance to the wife for her support and that for more than one year leading up to May 1986 those payments had been at the rate of $300 per week. Prior to May 1986 the wife had been living in a number of different premises, largely with friends or acquaintances. In May 1986 she obtained a six month lease of a three bedroom home in Mosman at a rental of $240.90 per week. On any view that is a substantial outlay for rent by a person living alone and dependent upon her former husband for her support. She did not inform her former husband beforehand of her intention to take that accommodation or the reasons which apparently led her to do so. Almost immediately after entering into the lease the wife instituted the present application, and that was the proceeding which ultimately came on for hearing before Ross-Jones J. on 9 January 1987.

At the hearing the wife sought an order under sec. 77 for the amount of $600 per week. Ross-Jones J. made an order under that section for $440 per week, that order to expire in the circumstances set out above.

[His Honour discussed a number of submissions made by senior counsel for the husband and continued...]

The major submission made by senior counsel for the husband was that in this case there was no proper basis for an order under sec. 77. In this regard he referred to the circumstance that for several years leading up to the trial the husband had been paying maintenance voluntarily and at the rate of $300 per week for over 12 months. The wife's case for an order for an amount in excess of that was based upon the leasing by her of the premises at Mosman. It was, in effect, the wife's case that as it was appropriate and reasonable for her to take those premises, the difference between the amount of the rent and the $300 was such that she was in urgent need of additional maintenance from her husband for her own support.

The trial Judge concluded that it was not unreasonable for the wife to have taken a lease of those premises. He expressed that view in the following passage:

``But I accept at this stage of the proceedings that it is not unreasonable for her to seek premises in close proximity to the residence of the children, three of whom are still living with their father. I do not think it unreasonable that she should have a 3 bedroom house and be able to accommodate the children if and when they stay with her. It is not at all clear as to when and how often the children do in fact stay with her but undoubtedly one or more of them do stay from time to time and she is hopeful that the three of them will do so in the future. At this stage I do not consider that arrangement for her living to be unreasonable.''

That conclusion by the trial Judge was open to him on the whole of the evidence, but does not necessarily answer the issue raised by senior counsel for the husband.

Prior to the wife taking those premises the amount paid to her was in the circumstances appropriate, or at least was such that it would have prevented a successful application under sec. 77. The wife may have had good reason for taking those premises (despite their apparently high rental) because they were near to where the children were living and were an appropriate size to enable the children to stay overnight on access. In a proceeding for interim or permanent maintenance it may be that the Court would have allowed the whole of that amount as an appropriate expense by the wife as part of her needs.

However, it appears to us that that is different from saying that sec. 77 can be used in the way in which it was used in this case as a vehicle to obtain this order.

As the authorities to which we have previously referred demonstrate, sec. 77 is intended to have a narrow ``stop-gap'' application and is aimed at the ``relief of immediate needs''. That was not the situation in which the wife was placed in May 1986. Her taking of this lease, particularly without any prior discussion with or warning to the husband, cannot properly be characterised as ``immediate needs'' so as to call into play the particular provisions contained in sec. 77.

We conclude, therefore, that it was not appropriate for his Honour to have made an order under sec. 77 and consequently that the appeal must be allowed.

In those circumstances it is unnecessary for us to consider other aspects raised by senior counsel for the husband during the course of this appeal, which include the arguments which he addressed as to the form of the order, the quantum beyond $300, and whether, in any event, the order has terminated under para. 2.

The effect of the discharge of the order is that there has been an amount in excess of $300 paid by the husband since 9 January 1987. Senior counsel for the husband indicated that his client did not seek an order for the repayment of that excess provided that it was clear that upon the hearing of any subsequent property proceeding between the parties it was open to the husband to have that aspect taken into account at that point. Consequently, it is unnecessary for us to make any order in relation to that aspect.

Senior counsel for the husband indicated that in the event that the appeal was allowed, his client did not seek any order for costs. There is, in our view, no basis for an order for costs in favour of the wife.

We order as follows:

1. The appeal is allowed.
2. Paragraphs 1 and 2 of the order made on 9 January 1987 are discharged, and the application of the wife filed 28 May 1986 is dismissed.