Redman & Redman

[1987] FamCA 2

In the marriage of REDMAN, J.M. and REDMAN, Y.A.

(1987) FLC ¶91-805

Other publishers' citations: (1987) 11 FamLR 411

Full Court of the Family Court of Australia at Sydney.

Judgment delivered 27 February 1987.

Before: Evatt C.J., Lindenmayer and Nygh JJ.

Evatt C.J., Lindenmayer and Nygh JJ.: This is an appeal from a judgment of the Honourable Miss Justice Lawrie given on 25 August 1986.

The parties were married on 4 July 1970. Two children were born of the marriage: X, born 11 December 1970 and Y, born 13 July 1973. The parties separated under the one roof on 21 May 1985. On 26 April 1986 Maxwell J. ordered the husband to vacate the former matrimonial home. He did so on 22 May 1986 and has occupied separate premises since then.

Prior to the husband leaving the house, he used to pay the wife housekeeping of $220 per week. She also had the use of a charge account with Grace Bros to cover the children's clothing. The husband paid the children's school fees at private schools and the outgoings on the home.

After he vacated the premises, he reduced the housekeeping allowance to $165 per week. On 12 June 1986 he further reduced it to $60 per week on the basis of $30 per child. He continued to pay the school fees and the outgoings on the house. He supplied the wife with a petrol account at a maximum of $50 per month and limited her charge account to $100 per month.

On 4 November 1985 the wife filed an application for guardianship, custody, child maintenance and orders for property settlement. So far as relevant to the present proceedings, she sought an order in para. (b) for child maintenance at the rate of $100 per week per child together with school fees and in para. (d) an order for interim maintenance at the rate of $400 per week for herself.

On 9 July 1986 the wife filed an application in which she sought by way of urgent wife and child maintenance the sum of $400 per week.

That application was set down for hearing before Lawrie J. on 25 August 1986. However, when he opened his client's case, counsel for the wife, indicated that he was proceeding with the matter as an application for interim maintenance. To make clear that this was not a mere slip of the tongue, he indicated that he was proceeding on the original application of 4 November 1985, treating the application of 9 July 1986 as merely the vehicle which brought the matter into the list before her Honour.

Based on the figures supplied in the Statement of Financial Circumstances filed by the wife, her Honour calculated that her food and general household expenses amounted to $220, that she required $76.90 ``on clothing for herself and the children'', she had expenditure of $34.60 per week for electricity and car running expenses of $67.30, making a total of $398.80. She concluded:

``In my opinion, it is not unreasonable to look at this woman's weekly outgoings as being somewhere in the region of $400 for herself and the children.''

Her Honour continued:

``Therefore, in those circumstances, I believe that the wife's application for $400 per week is not an unreasonable application. There is also, however, an application for child maintenance. However, because the children's expenses have not been separated from the wife's expenses in the Statement of Financial Circumstances, and also because the husband has taken on the burden of supporting the children's schooling and the incidentals, I do not propose to make the orders that were sought in relation to the child maintenance. However, I do propose to make the order of $400 per week until further order, as asked.''

Her Honour also ordered that the husband pay the taxed costs of the wife's application on the ground that he did on 6 June 1986 arbitrarily, though through his control of the family finances, completely cut off any means of maintenance which the wife might have had, leaving her with no alternative but to make the application for maintenance.

From those orders the husband has appealed. The amended grounds of appeal which, by leave of the respondent, were filed in the Court raise no objection to her Honour's findings as to the reasonableness of the order for $400 or as to the husband's capacity to pay the amount. What it objects to is the global nature of the order made by her Honour awarding, by way of spousal maintenance, a sum which, on her Honour's own reasoning, covers the needs of both the wife and the children.

It was argued that on the authorities of this Court, her Honour could not have awarded, by way of wife maintenance as such, more than a sum found to be referable solely to the wife's personal expenditure and that, if the wife was in need of financial support for the children, evidence should have been placed before the Court as to the financial needs of each child.

We do not have the benefit of a transcript of the submissions made to her Honour by the then counsel for the husband. However, from what counsel for the wife told us, it would seem that no objection was raised on behalf of the husband in his submission that her Honour could not proceed to make orders either for the maintenance of the wife or of each of the children because such separate evidence was lacking. It might be a short answer to the appellant that this Court should not decide a case ``by reference to matters which were not raised as issues upon trial'': see Dixon C.J., McTiernan and Menzies JJ. in Saffron v. Société Minière Cafrika (1958) 100 C.L.R. 231 at p. 240.

However, because of the importance of the issues raised for the conduct of future applications for maintenance, it is necessary to consider the issues on their merits.

The argument for the husband proceeded first of all on the premise that there is a fundamental difference between applications for urgent maintenance under sec. 77 and applications for interim maintenance. Counsel for the husband conceded that on an application under sec. 77 a global order such as her Honour made could have been sustained. But he argued that, as was pointed out by Nygh J. in Ashton and Ashton (1982) FLC ¶91-285 at p. 77,613; (1982) 8 Fam. L.R. 675 at p. 678, an application for interim maintenance is basically the same as an application for maintenance under sec. 74 differing only ``in that the order sought is an order until further order''.

It followed, so it was argued, that the general principles relevant to applications for maintenance under sec. 74 were applicable to an application for interim maintenance. Further it was pointed out that an application for spousal maintenance has to meet the threshold requirement of sec. 72 whereas an application for child maintenance is not subject to that threshold, because sec. 73 directs that the parties maintain the children according to their respective financial resources. Hence, a party who is quite able to support the children out of his or her own resources, can still call upon the other party to share that cost. The relevant considerations also differ: in relation to children there are the additional considerations set out in sec. 76(1).

Hence, it was argued, that it was important that upon an application for both spousal and child maintenance, whether it be interim or permanent, separate orders be made under each heading. We are in general agreement with that submission.

The next step in the argument was that it is not possible to make an order for spousal maintenance which includes expenditure not exclusively referable to that spouse and it is not possible to make an order for child maintenance in the absence of evidence as to the needs of the child or children concerned. This submission was based on the decision of the Full Court in Paradine and Paradine (1981) FLC ¶91-056; (1981) 7 Fam. L.R. 125. In that case the learned trial Judge had dealt with an application to vary child maintenance. The only evidence filed by the applicant wife set out the general costs of the household constituted by her and the two children of the marriage. There was no evidence, other than the payment of school fees, specifically referable to the needs of the children. Her Honour attributed one-third of the expenses listed by the wife to the children and made an order varying substantially the existing maintenance order.

The Full Court by majority (Simpson and Yuill JJ., Gun J. dissenting) upheld the appeal by the husband and set the order of variation aside. Simpson J., at FLC p. 76,455; Fam. L.R. p. 126 stated:

``In my view, the wife failed to establish the overall financial needs of the child. It is not difficult to understand how her Honour failed to direct her attention to that aspect. No doubt the attention of the trial Judge and of the solicitor for the wife was focused on what were the issues really in contention between the parties, namely the question of the husband's liability to contribute towards the private school fees and his capacity to pay maintenance.

In the absence of evidence of even the most general nature giving some estimate of the needs of the subject child, apart from educational expenses, I do not consider it was open to her Honour to extrapolate the expenses of the child from the wife's Statement of Financial Circumstances which sets out the joint expenses of the wife and the two children of the marriage for the year ended 30 June 1979.''

In Mee and Ferguson (1986) FLC ¶91-716 at p. 75,196; (1986) 10 Fam. L.R. 971 at p. 976, the Full Court in a joint judgment of Asche A.C.J., Fogarty and Cook JJ. adverted to this issue at FLC p. 75,196; Fam. L.R. p. 976:

``As to (a) above, the essential first step is to ascertain in financial terms the needs of the child in question. This will obviously vary with the circumstances of the individual case, taking into account amongst other circumstances the age and sex of the child, the relevant standard of living and any special factors applicable in that particular case. Very often in maintenance cases this aspect is neglected and very imprecise evidence is given, a problem referred to by the Full Court in Paradine and Paradine (1981) FLC ¶91-056; (1981) 7 Fam. L.R. 125. Often it seems to be assumed that by inference or intuition courts are able to form a view without actual evidence.

We need not examine this aspect further in this case because here precise evidence was given of these matters, both general and specific, and the amount of their `financial needs' was a matter virtually of concession on the hearing of the appeal before us.

Nevertheless it must be emphasised that evidence must be called on this issue. The recent publication by the Institute of Family Studies — `The Cost of Children in Australia' — would provide a useful guide provided that it was admitted into evidence. It demonstrates what most custodians know, namely the very high cost of maintaining a child in our society, and that the courts may be lagging behind reality.''

In this case, it was pointed out, no evidence was called on this issue and her Honour specifically stated that she was unable on the evidence to separate the children's expenses from those of the wife.

The first point which should be made is that in Paradine, as well as in Mee and Ferguson the Full Court was concerned with applications to vary an existing order for child maintenance. Hence, what was at issue was the question to what extent, if at all, the expenses in relation to the child or children in question had increased. That was the situation to which their Honours addressed themselves in the remarks which we have cited. Mee was particularly concerned to ensure that claims for child maintenance had regard to the actual costs of the care and upbringing of a child and were not determined by a rule of thumb which might not take account of the underlying costs. This is of great importance where child maintenance alone is being asked for and is intended to ensure a proper level of contribution to the other parent.

In this case, however, the wife was seeking maintenance in respect of herself and the children. She presented evidence relating to the expenses of the joint household and her Honour's findings as to this expenditure were not challenged on appeal. It cannot therefore be said that the costs of the household were assessed in any arbitrary or unrealistic manner. Nor was it necessary at that stage to split off definitively the costs of the children.

In the second place, this was an interim order. Whilst we agree with the view expressed in Ashton that in principle such an order is one under sec. 74, to which the principles of sec. 72 or sec. 73 may be applicable, as the case may be, the very fact that the order is limited in time imports certain different considerations. One of these is that such an order is intended to be reconsidered, quite apart from a variation under sec. 83. As Nygh J. said in Ashton, the most common purpose of an interim order is to make provision for the spouse and children pending the determination of the property settlement. If a so-called permanent order is made on that occasion, that is not a variation under sec. 83 and does not have to be justified as such, but it is a fresh order made upon the termination of the interim order. Another consequence is that on an application for interim maintenance the court conducts ``not as final or exhaustive a hearing as would be the case if one were hearing the matter finally'': Williamson and Williamson (1978) FLC ¶90-505; (1978) 4 Fam. L.R. 355 at FLC p. 77,650; Fam. L.R. p. 359 per Fogarty J. The evidence need not be so extensive and the findings not so precise. Having regard to those factors, and the general injunction of sec. 97(3), the court should in such matters have a greater degree of flexibility than it possesses in applications for maintenance which are intended to last for an indefinite period and can only be varied under sec. 83.

In the third place, a strict line between costs referable to the custodial parent and those referable to the children cannot always be drawn with clarity. Some expenditure relating to the household as a whole, such as the provision of housing, electricity, fuel, transport, and possibly food and groceries, cannot be strictly divided. Where an application is made which covers both the custodial parent and the children those expenses can with some justification be allocated under either heading. They are relevant to spousal maintenance in pursuance of sec. 75(2) para. (c) (d) and (e). In such a case it will be difficult to stipulate with any precision how the maintenance should be allocated or to challenge any such allocation if it is made. It may be different if a custodian who is able to support himself/herself adequately, seeks an order for child maintenance which includes part of the cost of housing and the like. Here again, if the matter is likely to be reviewed in the near future there may be no need for a full and detailed examination of the issues.

Finally, in this case there was some material from which an inference could be drawn as to the needs of the children. The husband, in his affidavit of 24 July 1986 states: ``I admit I have reduced the amount being paid to the applicant to $60 per week, being $30 per week each child''. See also his solicitor's letter of 3 June 1986 where the payment is described as: ``maintenance''.

This must be taken as an admission on the part of the husband that the needs of the children as such amount to at least $30 each. The wife also in her affidavit of 19 August 1986, para. 2.2 gives evidence she spent an average of $150 to $200 per month with Grace Bros on purchases ``strictly for the needs of the children''. She alleged that this was the result of a stipulation by the husband that she confine her purchases with that firm on that basis. On this material there is some basis for concluding that the needs referable to the children amount to at least $50 per week each, that is to say, the amount of $30 per child allocated by the husband in cash and the purchasing needs alleged by the wife of approximately $40 per week for both children with Grace Bros.

In our view her Honour could and should have made some allocation in respect of the maintenance of the wife and of the children. To that extent the appeal should be allowed and fresh orders substituted which will apportion the order made by her Honour as to $300 for the wife and $50 for each of the children.

So far as the order for costs is concerned, her Honour in our view was quite correct in concluding that the wife's application was the direct result of the husband's action in unilaterally reducing maintenance. It was his action which precipitated her application of 6 July 1986. The argument that he did not cut all financial support provided by him for the children is not in our mind an answer to this charge. There is no suggestion of any immediate financial necessity to reduce the maintenance paid to the wife. The proceedings therefore were avoidable and the husband bears the responsibility for this. In those circumstances he should pay.

We would allow the appeal in part by substituting for the existing order No. 1 the following order:

1. That until further order of the Court the husband pay into the current bank account of the wife at the Lindfield Branch of the ANZ Bank the sum of $400 per week, consisting of $300 maintenance in respect of the wife and $50 per week maintenance for each of the children, and that the husband bear the costs incurred in the funds reaching such account.

2. Otherwise, that the appeal by the husband be dismissed.