Kauiers, L.J. and Kauiers, E.S.

[1986] FamCA 2

In the marriage of KAUIERS, L.J. and KAUIERS, E.S.

(1986) FLC ¶91-708

Other publishers' citations: (1986) 11 FamLR 41

Full Court of the Family Court of Australia at Melbourne.

Judgment delivered 7 March 1986.

Before: Simpson, Lindenmayer and Gun JJ.

Simpson, Lindenmayer and Gun JJ.: Counsel for the husband argued the husband's appeal against his Honour's maintenance and property orders within the framework of para. 1(g) and para. 2(e) to (j) of the ``Particulars'' of the ``Grounds'' contained in the notice of appeal. Those paragraphs read as follows:

``1. The learned trial Judge gave insufficient weight in all the circumstances to:

...
(g) the wife's earning capacity.

2. The learned trial Judge erred in the exercise of his discretion in all the circumstances in:

...
(e) considering that this was not an appropriate case for the operation of sec. 81 of the Family Law Act (as amended);
(f) requiring the husband to pay by way of interim weekly maintenance for the wife the sum of $45;
(g) requiring the husband to pay the wife $15 travelling allowance upon the delivery of the children on each access occasion;
(h) ordering the husband to pay more weekly maintenance for the said children than had been sought by the wife;
(i) placing a value of $14,000 on the husband's car.
(j) ordering the husband to pay to the wife (inter alia) 60% of the value of the Raymond Island property.''

The only aspect of his Honour's property orders (para. (8) to (14) of his formal orders) which the husband ultimately attacked on appeal was that part of para. (9) and (11) thereof wherein his Honour ordered that the husband pay the wife $40,000 in exchange for a transfer of her interest in the former matrimonial home at Bayswater. Counsel for the husband submitted that the figure of $40,000 was arrived at on the basis of an incorrect finding of fact by his Honour as to the value of the motor vehicle which the husband was to retain. (See particularly 2(i) of the grounds of appeal set out above.) As previously noted, para. 7 of the orders sought in the notice of appeal, as amended by counsel for the husband during his submissions, sought the substitution of the figure $37,600 for the figure of $40,000 appearing in those paragraphs of his Honour's orders.

In order to understand this aspect of the appeal it is necessary to set out how his Honour arrived at the figure of $40,000 contained in his orders.

The assets of the parties, and their values, as found by his Honour, consist of the following:

Former matrimonial home at Bayswater:

net equity  $63,000
     Raymond Island block of land      17,400
     Caravan  3,500
     Husband's motor vehicle           14,000
     Wife's motor vehicle               2,750
  ----------
  Total     $100,650
  ----------

His Honour rounded off that total figure to $100,000.

On the basis of his findings as to contributions (which he found were equal) and the relevant sec. 75(2) factors (none of which were challenged) his Honour decided that a just and equitable division of those assets was one whereby the wife should receive 60% thereof and the husband 40%. That apportionment was not challenged by the husband. His Honour accordingly decided that the wife should receive assets or money to the value of approximately $60,000 and the husband to the value of approximately $40,000. He considered it appropriate that the wife receive, as part of the entitlement, the Raymond Island land and the motor vehicle in her possession which, together, would give her $20,000 (in round figures). Accordingly, he concluded that the husband must pay to the wife an additional $40,000 in return for a transfer of her interest in the former matrimonial home.

As we have already noted, the husband's only complaint about all this is as to his Honour's attribution of $14,000 to the value of the husband's motor vehicle. Counsel for the husband submitted that the only evidence as to the value of this vehicle should have led his Honour to a finding that it has a current value of only $10,000. If such a value were substituted for the value of $14,000 found by his Honour, the total value of the parties' assets would be reduced to $96,000, of which 60% equals $57,600, thus reducing the wife's entitlement by $2,400.

It may be said, with some force, that a difference of $2,400 in the overall context of this case is so slight as not to justify any interference by this Court with his Honour's orders. However, if his Honour's orders were the product of a clear mistake of fact or a clear error of principle, we would not only be justified in putting the matter right, but would be obliged to do so despite the relative smallness of the amount involved.

In support of his submissions on this aspect of the appeal counsel for the husband directed our attention first to an exchange in relation to this matter which took place between counsel and his Honour in the course of the proceedings before his Honour.

Counsel for the husband next directed our attention to the oral evidence of a gentleman engaged in the motor trade who inspected the husband's motor vehicle at the request of the wife's solicitors for the purpose of valuing it for the proceedings. In the end, his was the only expert evidence placed before his Honour as to the then current value of that vehicle. His evidence was that the ``retail'' value of the vehicle at that time was $13,000, and the ``wholesale'' or ``trade'' value was $10,000. He explained this evidence further by saying that the worth of the vehicle to a person who does not intend to sell it is ``what they would have to buy it again at'' which ``not being in the trade... would be $13,000''. In response to the husband's then counsel he said further that if someone had to realise the vehicle the best they would get for it ``from a dealership or off a person dealing in motor cars'' would be $10,000.

Counsel for the husband submitted that on the basis of that evidence the only finding of fact that his Honour could make as to the value of that vehicle was $10,000. We do not agree with that submission. We think that it would have been equally open to his Honour, on that evidence, to find a value of $13,000 for it. However, his Honour did neither, but attributed a value of $14,000 to it. In doing so his Honour clearly demonstrated his awareness that he was attributing to it a value somewhat higher than its strict market value, but he explained his reasons for doing so in his judgment as follows.

Firstly, his Honour said this:

``The only one of those which requires explanation is the figure of $14,000 in respect of the car. That was purchased late last year for approximately that figure. The other orders which I propose to make involve a declaration of the dissolution of the partnership and a declaration that the husband is the present owner of all the assets, which of course fundamentally include this car.

Counsel for the husband was, I think, correct in his view that in ordinary circumstances the correct approach to valuation of that car would have been $10,000, namely what you would get for it if you sold it on the market, but I was attracted in this particular case to the matter raised by counsel for the wife, namely, that this is really a partnership asset and that was approximately its value at the time that the partnership should be treated as being dissolved.

The orders which I am proposing to make in respect to the business are relatively favourable to the husband, but I do that for pragmatic reasons and an incident of that is the slightly higher valuation of that car that it would be appropriate but, in any event, the difference is only $4,000 and in the order of things, in the ultimate, that will not have a great deal of impact.''

The evidence established that it had been bought in about October or November 1984 for $16,000, and that at the date of the hearing before his Honour, some 10 or 11 months later, it had travelled about 49,000 kilometres.

His Honour dealt with the partnership assets. He described it as ``a difficult matter to deal with in relation to assets''. He found that it was a partnership, and that each party was an equal owner of the assets of that partnership. He rejected (in our view correctly) what we would describe as the customary argument advanced by the husband that it was set up as a partnership purely for tax purposes. He went on to say that the wife made a contribution to the running of the business, but that ``clearly the husband's contribution in that field is very much greater''.

He then turned to the question of the value of the partnership, which he described as ``not an easy matter to decide''. He pointed out that ``the business is simply a name attached to the husband's capacity in this field'' and that ``nobody would buy this business unless Mr Kauiers came with it''. He therefore concluded, correctly in our opinion, that ``it really has no value so far as goodwill is concerned''.

He then turned his attention to the tangible assets of the business, and noted that there was ``$33,000 approximately in the capital account of the business''. This is an obvious reference to the balance sheet of the partnership which, as at 30 June 1984, showed net assets of $30,336. He then stated that ``about $20,000 of that went towards the purchase of the motor car, or the trade-in of the motor car, and the purchase of Raymond Island, which would leave only about $15,000, which itself would be liable for tax''. Again, his Honour's figures were not quite accurate, as the amount expended on the motor vehicle was $10,000 ($16,000 less $6,000 trade-in on a previous vehicle) and the cost of the Raymond Island land was approximately $14,000, making a total of $24,000 which would reduce the partnership net assets to $6,000. Nevertheless, his Honour was quite correct in finding that the business had assets other than the motor vehicle.

The depreciation schedule attached to the 1984/85 income tax return of the husband which became an exhibit before his Honour shows tangible assets with a written down value as at 30 June 1985 of $18,173, of which $13,218 relates to the motor vehicle. That suggests other tangible assets having a book value of about $5,000.

His Honour then said:

``The wife is, I think, entitled to consideration in that area but, on the other hand, I am not going to treat it as a separate figure.''

Thus it will be seen, in effect, that in attributing to the husband's motor vehicle a value somewhat in excess of its actual market value, his Honour made a small allowance to the wife in respect of the assets of the partnership business, which assets he allowed the husband to retain. It may have been better, and less open to attack, for his Honour, in listing the assets to be specifically divided, to have included the husband's motor vehicle at a slightly lower figure, and then to have added to the result so arrived at a small component for the wife's contributions to the business, which the husband was to retain in its entirety. However, it appears to us that the result would not have been materially different, and the approach adopted by his Honour was not an unreasonable one in all the circumstances. In our opinion, therefore, this aspect of the husband's appeal is not made out.

That brings us to a consideration of the husband's appeal against his Honour's orders as to the maintenance for the wife and the children, and the payment of the access travelling allowance.

In relation to the order for the wife's maintenance, counsel for the husband's first submission was that there was no application before his Honour for periodic maintenance for the wife. We do not accept that submission. It is true that the appeal book does not include any formal application wherein a specific claim for periodic maintenance for the wife was made, but such a claim clearly had been made in her application to the Wodonga Magistrates Court, and an order was made in that respect by that Court. Asche J.'s order of 26 February 1985 discharged the Magistrate's order, but made what is clearly an interim order for maintenance of the wife in the sum of $25 per week. Although there is no clear indication in the appeal book that the proceedings instituted in the Magistrates Court were transferred to this Court, we think the clear inference from para. 6 of Asche J.'s order is that he considered the wife's periodic maintenance application as being still alive, and that inference is reinforced by the subsequent order of 27 June 1985, particularly para. 1 and 3 thereof.

Furthermore, the wife's counsel at the hearing before his Honour, informed the Court that he had asked his Honour to make an order for $120 per week on the basis of $40 for the wife and $40 for each child, and that no objection was forthcoming from the husband's then counsel that there was no application before his Honour for periodic maintenance of the wife. We accept that assurance.

Finally, nowhere in the particulars of the husband's grounds of appeal is it asserted that no application for periodic maintenance of the wife was before his Honour.

In all of the circumstances we have no doubt that there was effectively an application for such an order before his Honour and that both parties were fully aware of that fact. The absence of any formal application is merely a technical defect which, had an objection been taken, his Honour could have cured by granting leave to file such an application instanter. This is not therefore an objection which can be successfully raised on appeal.

Before turning to the balance of counsel for the husband's submissions on the maintenance aspect of the appeal, it is necessary to recount something of the process by which his Honour reached the result embodied in para. (5) and (6) of his orders.

After dealing with the issues of custody, access and related matters, his Honour turned to the questions of property and maintenance. He then proceeded to make findings as to the present income and earning capacity of each party. He set out, first, the wife's ``present position'' which he summarised as follows:

``she receives a pension, in round figures on a weekly basis of about $147, together with a family allowance and handicap allowance which come to about another $30 per week, together with the maintenance which is being paid under the existing orders, namely $85 per week.''

There is no comment we need to make in relation to that summary except to say that the total of the family allowance and handicap allowance then being received by the wife was slightly higher than indicated by his Honour, namely $32.39 per week.

He then discussed the husband's position which, essentially, was that he ran a business as his sole business and only source of income. His Honour described it as ``a very successful business'', and found that ``the net profit before tax for the financial year just finished (i.e. 1984/85) was about $45,000 and he (the husband) could anticipate that continuing or improving in the future''.

He then referred to the effect which the dissolution of the partnership in respect of that business would have on the liability for income tax, and to the fact that the husband had received an income tax assessment which, including provisional tax, amounted to about $24,000. The exhibit which established that fact shows that that amount is payable by 1 April 1986 and may be reviewed (as to the 1985/86 provisional tax component of $13,896) at any time prior to 31 March 1986. His Honour next referred to the agreement between the husband and wife of December 1984 containing the three proposals to which we have previously referred, which agreement his Honour described as ``a very generous financial agreement''. He then said this:

``That obviously represented an indication by the husband of his capacity to pay maintenance at a relatively high rate.''

Then, after referring to some other matters which we need not mention, his Honour went on to say this:

``I propose to reverse the usual order of dealing with these matters because I think it is a preferable way of doing it. I will deal with the question of maintenance first. I do not think this is a case where the public should have a high level of involvement if at all; social security payments are intended to be a supplement where the family concerned does not have within itself the financial capacity to look after its members. Nor do I think that this is an appropriate case to bring in to play sec. 81; firstly, because the parties have only separated a relatively short time; secondly, because the parties' circumstances are still uncertain, and, thirdly, because it can only be brought into play if one were to heavily involve the public purse, and I do not think that is an appropriate course to adopt.''

His Honour then made the following findings as to the wife's earning capacity:

``So far as the wife's earning capacity is concerned, she is qualified as a hairdresser. She gave two reasons for not involving herself in that field. The first relates to the care of the children, although they are still at school, and there is validity in that, but only to the extent that it would limit her work hours as distinct from totally disqualifying her. The second was the evidence by her that an injury to her back prevents her from standing, which is necessarily involved in hairdressing business.''

His Honour then referred to the ``remarkable omission'' of any medical evidence as to the wife's alleged back complaint, and said:

``I am not prepared to accept her own evidence on this issue; I think she has an earning capacity in that area and I would anticipate that she would employ that earning capacity in the future.''

His Honour then concluded his deliberations on the question of maintenance with the following statements:

``I therefore propose to make the order in respect of the wife an interim order, and in respect to the children a final order. The total will be $135 per week, which is $45 for each of the three persons concerned. Counsel for the wife had urged $120 and is not usual to order in most cases more than is asked for, but counsel for the wife's suggestion was predicated on a very much higher percentage division of property than I intend to order, and I took it to be a package proposal by counsel for the wife rather than one which is compartmentalised.

Secondly, counsel for the wife — and this is no criticism of him — may not have had the concern of the public purse that I have.''

In his argument in support of this part of the appeal counsel for the husband submitted that his Honour, in approaching the matter in the way he did as set out above, made a number of fundamental errors which are not in accord with the Family Law Act, specifically sec. 72, 74 and 75(2)(n) thereof.

Firstly, he submitted that in accordance with sec. 72 of the Act the husband is liable to maintain the wife only to the extent that she is unable to support herself adequately. He pointed out that his Honour found that the wife has an earning capacity as a hairdresser which, although limited by her responsibility for the care of the children, is not totally destroyed thereby, and that she will probably employ that earning capacity in the future. He said that his Honour clearly recognised the fact that the wife's incapacity to support herself adequately is temporary by expressly making the order for maintenance as ``an interim order''. He submitted that in those circumstances his Honour ought to have put a time limit on the order for the wife's maintenance (sometimes called ``a sunset clause'') so that the onus would be on the wife to approach the Court for an extension of the order if, within that time limit, she were unable to exercise the earning capacity which his Honour found that she has. He submitted that by making the order in the form which he did his Honour effectively put the onus upon the husband to keep himself informed, as best he can, of the wife's attempts to obtain employment and of any employment which she may obtain, and to bring the matter back to the Court for the discharge or variation of the order on the basis thereof. This, he submitted, was unfair to the husband (in view of his Honour's findings) and impracticable.

In support of these submissions counsel for the husband relied upon the case of Astbury and Astbury (1978) FLC ¶90-494. In that case, there was an existing order for the maintenance of the wife under the repealed Matrimonial Causes Act 1959. The husband applied, under sec. 83(1)(c) of the Act to discharge that order. The wife applied, under sec. 83(1)(f) to increase the maintenance. At first instance Maxwell J. found that there had been a sufficient change of circumstances to give her jurisdiction under sec. 83. She considered that the main issue was the wife's ability to secure suitable employment, and found that the wife had the appropriate capacity for gainful employment once she had applied her mind to overcoming certain slight difficulties in this regard. Her Honour accordingly extended the existing order until the end of the then current year (a period of about five months) to allow her time to find employment. On appeal by the wife, the Full Court (Evatt C.J., Asche S.J. and Bell J.) held that her Honour had not erred in reaching the conclusion she came to, and said that if the wife were unable to obtain a job after the exercise of due diligence, she could approach the Court again. The appeal was therefore dismissed except that the trial Judge's order was varied by adding a provision that either party have liberty to apply to a single Judge with regard to maintenance on 14 days notice.

Counsel for the wife made a number of submissions in reply to these submissions of counsel for the husband, as follows:

Firstly, he directed our attention to the transcript where it is recorded that, following the delivery of his Honour's judgment and the announcement by him of the orders which he proposed to make, then counsel for the husband queried whether his Honour would indicate any fixed period for which the wife's maintenance should continue or whether it should continue ``as long as the wife refuses or fails to work''. To that query his Honour responded:

``No, I do not want to pre-empt any subsequent application but the evidence before me did not enable me to say that the wife should be currently working. I expressed my views as to her capacity to do so and the matter ought to be reviewed in three months or six months time but I am not prepared to go beyond that. It depends on factors about which — I mean I do not know what the hairdressing scene in Wodonga is and all sorts of factors.''

Counsel for the wife submitted that this indicated that his Honour had considered the option of a self-terminating order for the wife's maintenance and, in the exercise of his discretion, rejected it. He submitted that Astbury's case was but an instance of the exercise by Maxwell J. of the discretion in the opposite sense, which the Full Court found involved no error, and is therefore no authority for the interference by this Court with his Honour's negative exercise of that discretion in this case.

Counsel for the wife further submitted that the circumstances of this case are a little extraordinary, firstly, because of B's [child of the marriage] handicap which sometimes requires the wife to attend school to clean him after he has soiled his clothing, and secondly, because of the amount of litigation which the parties had been involved in during the short period since separation. He submitted that his Honour exercised his discretion in the way he did in order to try to curtail further litigation between the parties within a relatively short period.

In reply to these last submissions, counsel for the husband pointed out, in our view correctly, that in the absence of a ``sunset clause'' in relation to the wife's maintenance, further litigation between the parties within a relatively short period of time is almost certain, whereas the existence of such a clause would make such litigation less likely.

In relation to this matter, we see some merit in the submissions of both counsel, but we are more attracted to counsel for the husband's argument. The proceedings before his Honour were not interim proceedings. The wife sought a permanent order for her maintenance, and the husband opposed it. His Honour clearly thought that the wife's incapacity to support herself adequately was temporary, or he would not have made the order for her maintenance as an interim order only. Although sec. 81 may not be strictly applicable to the circumstances of this case (as the marriage between the parties is still subsisting, at least in the legal sense) the intention of the legislature as to the avoidance of unnecessary litigation between separated spouses is exemplified in that section. Furthermore, the exchange between his Honour and the then counsel for the husband, to which we have referred and which occurred after his Honour had delivered his judgment and announced his orders, can be but little support for the submission of counsel for the wife that he considered the ``sunset clause'' option and rejected it in the exercise of his discretion. There is nothing in his Honour's reasons for judgment to indicate that he did actually consider that option before arriving at the decision embodied in his orders.

Having regard to all of these matters we are of the opinion that his Honour erred in the exercise of his discretion in making an interim order for the wife's maintenance, in the circumstances of this case, rather than an order for a specific limited period with, perhaps, a reservation of liberty to the wife to apply for an extension of the order if she could show circumstances justifying such an extension. Such an order would put the onus on the wife where, in accordance with his Honour's findings, we think it properly belongs. In our opinion, an appropriate period of time for the operation of such an order would have been six to nine months from the date of his Honour's orders, but having regard to the time which has now elapsed, we think that we should fix 31 August 1986 as the date for the cessation of operation of this order. That should give the wife ample time to take all reasonable steps to obtain some suitable employment.

Counsel for the husband's next submission was that his Honour erred in principle in making orders for the maintenance of the wife and children in a total sum of $135 per week when a total of only $120 was sought by the wife's counsel, which his Honour appeared to do solely on the basis of protecting the public purse. He submitted that it is not a proper function of the Court, in considering applications for maintenance, to make orders beyond those sought by the applicant, for the purpose of protecting the public purse in the form of the Department of Social Security.

We think that there is some merit in this submission. In the first place, by sec. 75(2)(f) of the Act one of the matters which the Court is required to take into account in exercising its jurisdiction under sec. 74 of the Act is the eligibility of either party for a pension, allowance or benefit under any law of the Commonwealth. This does not mean, that in assessing maintenance for a wife or children the Court should look first to the benefits which may be payable under such a law to or in respect of that wife or children, and order the payment by the husband of only such sum as is required to ``top up'' the pension entitlement to a level commensurate with the needs of the wife or children. What is required, however, is that the Court evaluate, realistically, the capacity of the husband to contribute to the maintenance of the wife and/or children, and then fix a fair and reasonable level of maintenance having regard to that capacity, the needs of the wife and/or children, and the eligibility of the wife and/or children for such a benefit.

In the instant case his Honour appears to have undertaken no detailed examination either of the husband's capacity to pay maintenance or of the wife's needs for herself or the children. Counsel for the husband submitted that his Honour seems simply to have picked the figure of $135 per week out of the air. We are sure, however, that he did not in fact do so. Nevertheless, his Honour has not explained his sums, and the fact remains that he appears to have been unduly influenced, in fixing the quantum of maintenance, by a desire to protect the public purse. In our opinion, that was not a proper matter for his Honour to take into consideration in the way, and with the emphasis, that he did.

Counsel for the husband next submitted that his Honour erred in principle in dealing with the question of maintenance before he had dealt with the property question, and that by so doing he deprived himself of the opportunity to consider the provisions of sec. 75(2)(n) of the Act which require the Court, in exercising its jurisdiction as to maintenance, to consider ``the terms of any order made or proposed to be made under sec. 79 in relation to the property of the parties''. In support of that submission he relied upon the authority of the cases of Pastrikos and Pastrikos (1980) FLC ¶90-897 and Anast and Anastopoulos (1982) FLC ¶91-201.

It is true that in those cases the Full Court said that questions of property should be dealt with before questions of maintenance, because the amount of money or property which the spouse claiming maintenance may receive in respect of the former may affect the quantum of that spouse's needs as to the latter, or, in a particular case, may obviate altogether the necessity for any maintenance for that spouse. We do not think, however, that those cases lay down, as a binding principle of law, that the Court must always consider and announce its proposed property orders before considering what, if any, maintenance orders should be made for the claimant spouse or children. Whether the failure to follow what may be described as ``the usual course'' of considering and announcing the proposed property orders before turning to the question of maintenance amounts to an error of discretion must depend upon the circumstances of the particular case.

In this case his Honour acknowledged that he was reversing ``the usual order'' in dealing with the wife's claim for maintenance for herself and the children before dealing with her property claim. No doubt he had in mind at the time the orders which he proposed to make in relation to property. However, in dealing with the maintenance question he made no mention of his proposed property orders, and, more importantly, he did not mention, and does not appear to have taken into account, the effect which his proposed property orders would have, either on the wife's needs or on the husband's capacity to pay maintenance. It appears to us that in considering the question of maintenance his Honour did not pay regard to the provisions of sec. 75(2)(n) of the Act to which we have referred.

As we have already noted above, his Honour undertook no detailed analysis of either the wife's needs or the husband's capacity to pay before announcing his proposed maintenance orders. In relation to the husband's capacity to pay, he appears to have placed heavy reliance upon the earlier agreement between the parties as an indication of the husband's capacity to pay ``at a relatively high rate''. That agreement, however, was not reached, as his Honour's orders were, in the context of a contemporaneous obligation by the husband to pay to the wife a substantial sum of money in respect of her property entitlement. In our opinion the obligation imposed upon the husband, by his Honour's property orders, to raise and pay to the wife a sum of $40,000 within a period of five months must have a serious effect upon the husband's capacity to pay periodic maintenance for the wife and children, and his Honour does not appear to have taken that into account in arriving at his proposed maintenance orders. In our opinion, therefore, his Honour erred in the exercise of his discretion as to maintenance.

Counsel for the husband made other submissions in support of his argument that his Honour's exercise of his discretion as to maintenance proceeded upon wrong principles but in view of our opinions expressed above on the points already discussed it is unnecessary to consider those further submissions. What we have already said is sufficient to lead us to the conclusion that his Honour's exercise of discretion as to maintenance miscarried, and that the appeal in this respect must succeed. It remains for us to exercise our discretion in the matter, in lieu of his Honour's, there being sufficient material in the evidence before his Honour to enable us to do so without remitting the matter for rehearing.

Before examining the parties' respective financial circumstances for the purpose of assessing the proper quantum of maintenance to be paid by the husband, it is convenient to mention the matter of the access travelling allowance provided by his Honour's order No. 2(e), which was also the subject of appeal by the husband. Counsel for the husband made a number of submissions in support of the husband's appeal against this order. In summary they amount to this:

The husband is required to travel from Melbourne to Wodonga and return (a round trip of 200 miles) on each occasion of access, at his own expense. In addition, by para. 2(e) of his Honour's orders, he is required to contribute $15 towards the wife's expenses of bringing the children down to Melbourne on each access occasion and returning herself to Wodonga. Thus the husband is required to shoulder almost the entire burden of the combined travelling expenses of both parties for the purposes of access. The only reason for the whole expenditure is the wife's unilateral determination, for no good reason, to live in Wodonga. It is therefore unjust that the husband be required to bear not only his own expenses of access travel but a substantial part of the wife's expenses as well.

Whilst we acknowledge the force of those submissions, we think it was open to his Honour, in the reasonable exercise of his discretion, to make the order which he did in this respect having regard to the relative financial circumstances of the parties. The appeal against this order therefore cannot succeed. It is, however, important to take this expenditure by the husband (which will amount to about $6 per week) into account when considering the quantum of maintenance for the wife and children, and we propose to do so.

Turning, then, to the question of maintenance, it seems to us that the relative financial circumstances of the parties following compliance with his Honour's property orders will be as follows:

The wife

Ignoring household furniture and personal effects she will have assets to the value of approximately $60,000, made up of the Raymond Island land, the motor vehicle and the $40,000 in cash received from the husband. She will have no significant liabilities.

She has a capacity to earn income as a hairdresser which his Honour found that she will exercise in the future. It seems unlikely, however, that she will be able to work full-time, at least until the children are somewhat older.

What she will do with her capital we do not know. If she were to invest the $40,000 it would return her an income of at least $6,000 per annum (at 15%) or $115 per week. It is probably more likely, however, that she will utilise that fund, possibly with the addition of the proceeds of sale of the Raymond Island land (a total of about $57,000) to acquire a home for herself and the children. That would relieve her of the obligation to pay rent (currently $90 per week) but that obligation would, no doubt, be replaced by an obligation to make mortgage repayments. Assuming that such repayments did not exceed the level of her current rental she would be no better off as regards her immediate income and expenditure but would be building up an asset for the future and thus improving her ultimate financial position.

According to her most recent statement of financial circumstances the wife has current expenses for herself and the children (including rental) totalling $237 per week. None of those expenses appears excessive. That figure, however, does not include anything in respect of laundry and cleaning, clothing, child care and education, or entertainment. If a modest allowance is made for all of those items, it seems unlikely that she could fully and adequately support herself and the children on much less than about $285 per week.

The wife's current income from social security payments (viz. pension, family allowance and handicapped child allowance) totals about $180 per week. Thus there is a shortfall between her income and her reasonable expenditure of at least $105 per week. Her immediate need for a contribution, by way of maintenance from the husband, is therefore clearly established.

The husband

Following compliance with his Honour's property orders the husband will have, ignoring household furniture and personal effects, assets to a gross value of approximately $80,000 (being equity in former matrimonial home $63,000; caravan $3,500 and motor vehicle $14,000) subject to some further depreciation of the motor vehicle. However, he will have an additional liability of $40,000 representing moneys borrowed to pay out the wife's entitlement, leaving him with net assets of $40,000.

His present earning capacity, as assessed by his Honour, is about $45,000 per annum (before tax) from the business. Income tax payable on that income amounts to about $17,500 per annum on current tax scales, leaving him a net after tax income of about $27,500 per annum, or approximately $530 per week.

In his most recent statement of financial circumstances he lists current weekly expenses (excluding tax and maintenance payments) of $355.95. Included in that total is $7.50 per week for the wife's access travel allowance, which should be approximately $6 per week, reducing the total to $354.45. Included in that total also is a weekly sum of $97.88 in respect of the wife's 1983/84 taxation liability. We do not know whether that obligation is still continuing, but it is not a permanent recurring liability, and we therefore propose to deduct it thus reducing his total expenses to $256.57 per week. Whilst none of the other items which go to make up that total seem excessive, we think that by some judicious economies he could reduce his level of personal expenditure slightly to around $250 per week.

A significant additional expense of the husband which will follow from compliance with his Honour's orders will be the repayment of the sum of $40,000 which he will have to borrow to pay out the wife's entitlement. At current trading bank interest rates, the interest alone on such a borrowing would probably amount to at least $8,000 per annum, or approximately $150 per week. It seems most unlikely, in the present economic climate, that he could obtain an extension of his housing loan for this purpose. Assuming that he borrows the $40,000 on a trading bank loan repayable over, say 10 years, it seems likely that his weekly repayments of capital and interest (allowing for declining interest on the reducing capital sum) would amount to at least $180 per week and possibly considerably more. If that sum is added to his adjusted weekly expenses of $250 per week, his total weekly outgoings, excluding maintenance payments, come to at least $430, leaving a maximum of $100 per week available for maintenance payments. We think that he should be left with a little leeway, particularly in view of the uncertainty as to his loan repayments, and accordingly assess his reasonable capacity to contribute to the support of his wife and children at a maximum of $90 per week.

If the wife receives that total sum from the husband it appears to us that her pension entitlement, on the current applicable scale, would be $115.90 per week, on top of which she will continue to receive the $32.39 per week in respect of family allowance and handicap allowance, giving her a total income then of $238.29 per week. The figure of $115.90 for her pension may seem a little surprising in view of the fact that, as his Honour found, she is currently receiving about $147 per week which is calculated upon the basis of the interim maintenance orders totalling $85 per week. The explanation, however, is to be found in the wife's evidence that she receives a supplementary rental allowance of $30 per week which is included in his Honour's figure of $147 per week. If she continues to receive that after the determination of these proceedings, her total income from all sources will be $268.29 per week. However, it seems very doubtful if that allowance will continue once she receives her $40,000 from the husband. Certainly it will cease if she uses that money to acquire a home for her occupation.

No doubt, the receipt by the wife of $90 per week from the husband will not alleviate all her problems, and her financial circumstances will remain tight. Furthermore, when the component for her own maintenance ceases, as we propose, on 31 August 1986, her position will deteriorate even further unless, in the meantime, she begins to exercise the earning capacity which his Honour found that she has. Be all that as it may, however, the Court cannot be all things to all people, but can only work within the parameters set by the financial circumstances of the particular parties, including, in particular, the capacity of the husband to pay. His finances, likewise, will be very strained, and it is not the function of this Court to drive the husband into bankruptcy in order to extract from him every cent for which the wife can possibly establish a need.

In the result, we conclude that orders requiring the husband to pay more than $90 per week by way of maintenance, once he has become liable to pay interest on the $40,000 payable by him under the property orders, are not justified. We therefore propose to vary his Honour's orders as to maintenance by reducing the husband's total liability from $135 per week to $90 per week, but only from the date upon which he becomes liable to pay interest to the wife on her property entitlement.

Although there is scant evidence upon which we can arrive at a proper apportionment of the total sum of $90 per week between the wife and children, we must do the best we can. Having regard to the fact that the wife's maintenance will cut out in six months time we think it better to load the apportionment in favour of the children in the hope that there will not need to be an immediate application for an upward variation of their maintenance at the expiration of that period. We therefore propose to apportion the total sum of $90 as to $20 for the wife and $35 for each child.

For the foregoing reasons we propose to allow the husband's appeal as to maintenance and to substitute for his Honour's orders Nos. (5) and (6) the orders which are set out below.

Two further matters arise for our consideration consequential to the appeal.

The first matter is the question of the time for payment by the husband of the $40,000 referred to in his Honour's property orders. In accordance with those orders, the time for payment of that sum expires on or about 24 February 1986. Although no formal application has been made to us to extend that time, we are of the opinion that, having regard to the appeal and its success as regards maintenance, there should be a modest extension of that period. We therefore propose to extend the time for that payment until 30 April 1986. However, the wife should not be prejudiced, as regards interest, by the fact of the husband's appeal. We shall therefore allow the interest component fixed by his Honour to run from the original date fixed by his Honour.

The second and final matter for our consideration is a question of costs, and it arises in this way:

As noted earlier in these reasons, the husband's original notice of appeal was sadly lacking in particulars as to the grounds of the appeal. This caused the wife's legal advisers some concern in relation to the preparation of her case in answer to the appeal. Accordingly, letters were written to the husband's solicitors seeking further particulars of the grounds intended to be relied upon in arguing the appeal. No response being received, the wife's solicitors caused to be filed, on 20 December 1985, a document styled ``request for further and better particulars of notice of appeal filed on 10 October 1985''. That document was served upon the husband's solicitors on 2 January 1986. It sought the delivery, within 21 days, of particulars of the very general grounds set out in the original notice of appeal.

No response having been received to that notice by 4 February 1986, the wife's solicitors caused to be filed on that date an application, returnable before a single Judge of the Melbourne Registry of this Court, seeking an order for the delivery of the asked for particulars. That application came on for hearing before Walsh J. on 11 February 1986. In the meantime, however, the husband's solicitors had filed, on 10 February 1986, and presumably served either on that or the next day, the amended notice of appeal, upon which the appeal was eventually argued. Accordingly, Walsh J. was not called upon to adjudicate upon the wife's application, but, by consent, he adjourned it to 18 February 1986 before this Full Court, and reserved the question of the costs of that day.

Counsel for the wife accordingly asked us for an order that the husband pay the wife's reserved costs of that application, the quantum of which he assessed, on instructions at $500. This application was resisted by counsel on behalf of the husband.

Counsel for the wife conceded that the provisions of O. 19 of the Family Law Rules relating to particulars do not apply to a notice of appeal and we agree with that. He submitted that the Rules are therefore silent as to this matter, and that accordingly sec. 38(2) of the Act comes into play. That section provides, in effect, that when the Family Law Rules are insufficient as to a matter of practice and procedure, then the Rules of the High Court apply, mutatis mutandis, so far as they are capable of application. He then sought to rely upon O. 20 rr. 6 and 7 of the High Court Rules which deal with particulars.

In our opinion, counsel for the wife's submissions are invalid, and the application brought before Walsh J. was ill-conceived and incompetent. A basic flaw in counsel for the wife's argument, in our opinion, is that, the Family Law Rules are not silent on this matter. Order 32 r. 1(4)(b) of those Rules provides:

``The notice of appeal shall state —

...

(b) briefly, but specifically, the grounds relied upon in support of the appeal.''

If, as the wife claimed, the husband's original notice of appeal did not comply with that Rule, then that was a matter in respect of which she could complain to the Full Court if it remained unremedied when the appeal was called on for hearing. In that event she could have sought, and in all probability would have obtained, an order for the dismissal of the appeal. Alternatively, the husband may then have sought leave to file an amended notice to comply with the Rule, which leave, if granted, would no doubt have been granted on terms as to an adjournment of the appeal with costs against the husband. None of these things happened, of course, because the husband filed and served an amended notice of appeal in sufficient time before the hearing of the appeal to prevent the wife's being prejudiced thereby in relation to the conduct of the appeal. The wife's application of 4 February 1986, was therefore premature.

In my event, we are of the opinion that the original notice of appeal having been filed, the conduct of the appeal was in the hands of the Full Court, and it would have been inappropriate for a single Judge to make an order such as was sought in the wife's application of 4 February 1986.

In the result, we are of the opinion that the wife is not entitled to an order for the payment by the husband of the costs reserved by Walsh J. on 11 February 1986, and we shall therefore make no order as to those costs.

The orders of the Court therefore are as follows:

1. That the husband's appeal against para. (1), (2), (9) and (11) of the orders of Fogarty J. of 23 September 1985, be dismissed.
2. That the husband's appeal against para. (5) and (6) of the said orders of Fogarty J. be allowed.
3. That the said para. (5) and (6) be set aside, and that in lieu thereof it be ordered as follows:

``(5)(a) That the husband pay, to the clerk of the Magistrates' Court at Wodonga, for payment out to the wife for the maintenance of the wife, the sum of $45 per week until 24 February 1986, and thereafter the sum of $20 per week, the first payment (of $45) to be made on or before 27 September 1985 and subsequent payments weekly thereafter, all such payments to cease on 31 August 1986, unless the Court in the meantime otherwise orders;
(b) that the wife have liberty to apply for an extension of the said payments for her maintenance beyond 31 August 1986, upon 14 days notice in writing to the husband.
(6) That the husband pay to the said clerk of the court, for payment out to the wife, for the maintenance of the said children the sum of $45 per week each (a total of $90 per week) until 24 February 1986 and thereafter the sum of $35 per week each (a total of $70 per week) the first payment (of $90) to be made on or before 27 September 1985, and subsequent payments weekly thereafter.''

4. That notwithstanding order No. 1 hereof, para. (9) of the said orders of Fogarty J. be varied by deleting therefrom the words ``within five (5) months of this date'' and substituting therefor the words ``on or before 30 April 1986'', and by deleting therefrom the words ``from the due date'' and substituting therefor the words ``from 24 February 1986''.
5. That there be no order as to the costs reserved to this Court by the order of Walsh J. of 11 February 1986.
6. That the Court grants to the appellant/husband a certificate in respect of the appeal pursuant to sec. 9 of the Federal Proceedings (Costs) Act 1981, being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the said Act to the appellant/husband in respect of the costs incurred by the appellant in relation to the appeal.
7. That the Court grants, to the respondent/wife a costs certificate in respect of the appeal pursuant to sec. 6 of the Federal Proceedings (Costs) Act 1981, being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the said Act to the respondent/wife in respect of the costs incurred by the respondent in relation to the appeal.