Stein & Stein
[2000] FamCA 102
•16 February 2000
[2000] FamCA 102
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal No ALE13 of 1999
AT SYDNEY File No SY4180 of 1998
BETWEEN:
COLIN MERVYN STEIN
Appellant Husband
- and -
MICHELE STEIN
Respondent Wife
REASONS FOR JUDGMENT OF THE FULL COURT
CORAM: KAY, HOLDEN & DESSAU JJ
DATE OF HEARING: 17 November 1999
DATE OF JUDGMENT: 16 February 2000
APPEARANCES: Mr Lethbridge of Counsel, instructed by Broun Abrahams, Family Lawyers, Level 16, 338 Pitt Street, Sydney NSW 2000, appeared on behalf of the Appellant Husband.
Mr Millar of Counsel, instructed by Paul & Paul, Family Lawyers, 10th Floor, 179 Elizabeth Street, Sydney NSW 2000, appeared on behalf of the Respondent Wife.
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Coram: Kay, Holden and Dessau JJ.
Date of Hearing: 17 November 1999.
Date of Judgment: 16 February 2000.
MAINTENANCE OF A SPOUSE - Interim - Factors considered - s 75(2)(d) - Whether costs of support of children by claimant can be factored in to spousal maintenance order.
Kajewski and Kajewski (1978) FLC 90-472; Redman and Redman (1987) FLC 91-805; Branson and Branson ALE 4 of 1995 (unreported) 12 October 1995 the Full Court (Ellis, Baker and Anderson JJ ); Vautin and Vautin (1998) FLC 92-827 cited.
This was an application for leave to appeal against an order for the husband to pay to the wife interim spousal maintenance of $1,500 per week, pending the determination of the wife’s application for property settlement. The application for leave to appeal and the appeal were argued together. On appeal, the issue was the proper application of s 75(2)(d), in particular, whether an award of spousal maintenance can include moneys required by the payee to enable the payee to provide support for the children of the marriage.
The parties were married for 19 years. They came to live in Australia from South Africa in 1997. The husband, a chartered accountant, had conducted a successful furniture business in South Africa. During the marriage, the parties had a high standard of living. At trial, the four children of the marriage aged 17,14,12 and 9 years, lived with the wife and attended a private school.
The issue before the trial Judge was the quantum of spousal maintenance. The husband agreed to pay mortgage payments, private school fees and medical benefits in addition to the moneys payable pursuant to the child support assessment. The wife did not seek a departure order in respect of the child support assessment.
The trial Judge found a level of wealth well in excess of $20 million before a restructuring of trusts. Whilst it was the husband’s evidence that in January 1996 he had relinquished control over business assets to other members of his family, his Honour found that several millions of dollars had been made available to the husband since he migrated to Australia. On appeal, there was no challenge to the finding that the husband could afford to pay the spousal maintenance ordered.
In considering the spousal maintenance application, his Honour had regard to the wife’s obligation to maintain the children pursuant to s 75(2)(d). His Honour accepted that it was inappropriate to add to the wife’s spousal maintenance, the sum required to support the children which was in excess of the child support assessment, however, he took into account the fact that the wife had to do what she could to support the children as required by s 75(2)(d).
On Appeal the appellant contended that the learned trial Judge erred:
in law in finding that he should take into account the costs of support for the parties’ children pursuant to s 75(2)(d); and
in several respects in assessing the wife’s actual expenses.
Held - leave to appeal granted, appeal allowed and discretion re-exercised:
In the context of a spousal maintenance application, the consideration in s 75(2)(d) of “the commitments of each of the parties that are necessary to enable the party to support...a child that a party has a duty to maintain”, has greater significance in determining the capacity of a payer to provide support for the children rather than in determining the extent to which the other party requires support.
The obligation under the child support legislation is that parents share equitably in the support of their children. The wife had no ready access to any source of funds or earning capacity to support the children. The husband had access to vast amounts of wealth. The wife’s duty to maintain the children was only a duty to make an equitable contribution towards their support. The trial Judge did not evaluate the extent of the wife’s duty but it was probably non-existent given the vast amount of wealth available to the husband. Even if it was appropriate for the trial Judge to have taken into account the commitments of the wife necessary to support her children, it could not be said that her expenditure on the children, beyond that which she could obtain by way of child support, was necessary expenditure or an element of her self support.
His Honour erred in taking into account what he described as “the obligation to maintain the children pursuant to s 75(2)(d)”. In one sense the wife had no obligation to support the children because that obligation could be clearly met by an application for departure from an administrative assessment of child support. In another sense, even if she had an obligation to maintain the children, the fact that she was meeting that obligation could not be said to be a necessary element of the amount of support she needed for herself.
Discretion re-exercised
The wife’s evidence was that the expenditure attributable to her needs was $861.50. The wife also deposed that her actual expenditure was a significant reduction on her previous expenditure and that during the marriage the parties had a high standard of living. In re-exercising the discretion, the Full Court added her actual expenditure of $861.50 to an amount of $300 to reflect the wife’s share of the drop in the standard of living and ordered that the husband pay to the wife $1,160 spousal maintenance per week pending the determination of the wife’s application for property settlement.
5. Given the disparity in resources it was appropriate the Appellant pay the Respondent's costs even though the appeal was partly successful.
Leave to appeal granted.
Appeal allowed (subject to appellant paying filing fee) and discretion re-exercised.
Appellant to pay the respondent’s costs of the application for leave to appeal and the appeal as agreed or in default of agreement as taxed.
Reportable
Introduction
This is an application for leave to appeal against an order for interim spousal maintenance made by Steele J on 7 July 1999.
The relevant order was as follows:-
“3.That pending determination of the wife’s application for property settlement, the husband do pay direct to the wife (or to the credit of any bank account as she may direct in writing) interim spouse maintenance in the sum of $1,500.00 per week, first payment in 7 days and weekly thereafter.”
The appeal by the husband raises one distinct issue, namely whether an award of spousal maintenance can include moneys required by the payee to enable the payee to provide support for the children of the marriage.
Background
The parties married on 3 December 1978. They came to live in Australia from South Africa in January 1997. They separated on 23 January 1998. At trial their four children were aged 17, 14, 12, and 9 years, respectively. The children were living with the wife and attending a private school. The husband was a chartered accountant who had conducted a successful furniture business in South Africa, whilst the wife had not worked in paid employment since the marriage.
The proceedings before the trial Judge consisted of two distinct forms of relief sought by the wife, one for the provision of funds to enable her to properly present her property case, and the other seeking spousal maintenance. No departure order was sought in respect of an existing administrative assessment of child support.
The Judgment
The hearing before Steele J lasted four days. His Honour concluded that the husband should provide the wife with $125,000, such sum to be utilised on account of the costs of the wife in prosecuting her claim, and that upon the hearing of the wife’s application for property settlement, the trial Judge determine in what proportions the said sum be allocated towards the amount to be received by the wife by way of adjustment of property rights and/or the amount to be received by the wife in respect of her costs. He also made the order for interim spousal maintenance of $1,500 per week after saying (emphasis added):-
"Section 74 of the Act provides the foundation for the making of orders for spousal maintenance.
Section 72 provides that a party to the marriage is liable to maintain the other party to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that party is unable to support himself or herself adequately, whether by reason of having the care and control of a child of the marriage or by reason of age or physical or mental incapacity for gainful employment or for any other reason, having regard to any relevant matters referred to in Section 75(2).
Section 75(2) sets out a number of matters which the Court must take into account in exercising the jurisdiction pursuant to Section 74. Section 72 establishes a threshold question before the power in Section 74 may be exercised and that threshold is whether the Applicant for spousal maintenance is unable to support himself or herself adequately by reason of the matters set out in the section but having regard to any relevant matters in Section 75(2).
The Full Court has held that the question of whether the Applicant for spousal maintenance could support herself adequately, was not determined by reference to any fixed or absolute standard. It was to be determined, having regard to the matters referred to in Section 75(2) – see Mitchell v. Mitchell 1995 19 FamLR 44. The guiding principle is one of reasonableness. There is no principle that the pre-separation standard of living is automatically awarded but the level of maintenance awarded, should not be at a mere subsistence level – see Bevan v. Bevan (1995) 19 FamLR 35. There is no issue in this case that the wife passes the threshold test. The husband concedes that the wife is entitled to a payment for spousal maintenance, the only issue is the quantum of that payment.
There is no question that the parties, both prior to their migration to Australia and after settling in Australia but before separation, have lived the lifestyle appropriate to the level of wealth available before restructuring through the Trusts. That level of wealth is considerable and apparently well in excess of $20 million. The husband, no doubt, has worked hard and there is no suggestion that the spending prior to separation was extravagant. Nonetheless, it was commensurate with what might be expected of a family who are very well off indeed.
The real issue appears to be that the husband suggests that in circumstances where the Company is making losses, and he has no legal rights to any funds from the various overseas assets, the wife should severely curtail the spending for herself and the four children. The wife resides, of course, in the former matrimonial home with the children, three of whom are teenagers, or nearly so. The financial standards which have applied to the living of the family during the nearly twenty years of marriage, have been considerable. It must be difficult for the wife to suddenly curtail her own spending and that of the children. I think as a matter of necessity, she has endeavoured to do so.
The husband has an income from Colman of $2,077 gross per week (before tax) and receives tax-free benefits of $205 per week (the majority of which is superannuation). He pays $600 per week to his de facto spouse in whose home he resides towards accommodation, food, and other expenses.
The assessment for child support which the husband pays is $130 per week. The husband pays the school fees for the children (at a private school where, no doubt, he wishes them to continue attending), the mortgage on the home and medical benefits cover for the family, totalling $1,172.38 per week. Notwithstanding those contributions, I have no doubt that the sum of $130.80 per week which the husband pays for child support, goes little way towards meeting the costs for food and day to day expenses for the children, including things such as school excursions. The husband has by virtue of the standard of living experienced by the children in South Africa and by placing them in a private school in Sydney, caused the children to become used to a standard of living and to expenditure, even for the purpose of socialising with their friends at a modest level which would be well beyond the wife’s capacity if she was limited to spousal maintenance at the level for which the husband contends of $320 per week.
Section 75(2) requires that in determining the level of spousal maintenance I have regard not just to the income of the parties but to their property and financial resources about which much has already been said.
The wife, of course, has an obligation to maintain the children pursuant to Section 75(2)(d). That is a matter to which I must have regard. It has been submitted that it would be inappropriate for me to calculate the level of child support required and simply add the sum required to support the children which is in excess of child support assessment to the wife’s maintenance. I accept that such a course should not be adopted. Nonetheless, the fact that the wife has to do what she can to support the children, is a factor which I take into account as sub-section 75(2)(d) requires me to do. She has no capacity to earn income. A detailed approach has been taken to the wife’s expenditure. She has been taken through item by item, most of the items in her Form 17. It has been suggested to her that, for example, where the car is used not for her own purposes, but for the purposes of herself and for taking the children to and from school, the proportion appropriate for her use should be one-fifth. I do not accept that type of approach. It seems to me that the wife is entitled to a car for her use as a minimum and if the cost of maintaining the car is to be partly disregarded because of the benefit to the children, then the proportion to be disregarded should, in my view, be relatively small having regard that all the principal costs are incurred in providing the car to the wife. That is an example only of the type of approach which I have taken to an assessment of her needs. Having regard to what was said by Nygh J. in Schotte v. Schotte (19 April 1991 – Unreported) and by the Full Court in Wilson 13 FamLR 205, it appears to be unnecessary for me to go through item by item the claim made by the wife.
I record that I am satisfied that the wife is entitled to have a cleaner, especially given the physical problems of which she complains and which I accept.
Having regard to the whole of the circumstances and having regard to the husband’s capacity to pay, which by reference to his resources earlier referred to, I find is considerable, I would award to the wife a weekly sum of $1,500 per week. This sum is ordered on the basis that the husband pays the sums totalling $1,172.38 per week earlier referred to."
Earlier in his judgment his Honour had made findings that the husband had, until January 1996, been in direct control of many millions of dollars. He said:-
"In early 1996 the husband from South Africa, filed a migration application to support the migration of himself and his family to Australia. That application disclosed that as at 28 February 1995 the husband had net assets just in excess of $20 million and as at 15 January 1996, a projected annual income in excess of $2.7 million. The husband says that he included in those figures the assets of the trust and his own on a consolidated basis described as his “personal net assets” because at the time he was a Trustee of the Colin Stein Family Trust and had the power to remove Trustees."
In his reasons for judgment the trial Judge proceeded on the agreed basis that the husband would pay interim spousal maintenance. The issue was quantum. The wife sought a payment of $3,000 per week. The husband agreed to pay mortgage payments, private school fees and medical benefits costs totalling $1,172.38 per week and $320 per week by way of spousal maintenance. He made it clear that he would continue to pay Child Support in accordance with an assessment of $130.80 per week.
Much of his Honour’s judgment covered issues which involved the husband’s capacity to pay maintenance. His Honour found that in 1996 or 1997 the husband had disposed of his interest in the furniture business for a sum equivalent to approximately AUS$20 million. He referred to the husband’s business activities in South Africa having “created significant wealth”. He found a level of wealth “apparently well in excess of $20 million” before a restructuring of trusts and found the husband’s capacity to pay to be “considerable”. His Honour found there to be
“a serious question about whether the available income stream from South Africa is limited to approximately $89,000 per month as the husband asserts”
and concluded that if the husband “genuinely wished to have made available to him resources of significant magnitude, he would be able to do so”. There was no challenge in this appeal to the findings concerning the husband's capacity to pay the maintenance as ordered.
Whilst it was the husband's evidence that in January 1996 he had relinquished control over the assets in favour of other members of his family, his Honour found that several millions of dollars had been made available to the husband in Australia since he migrated here.
The orders concerning the provision of the $125,000 were not the subject of the appeal, nor was there any challenge before us as to the findings that the husband could afford to pay the spousal maintenance as ordered. The appeal was limited to whether or not the trial Judge could include the expenses of the children in the maintenance order.
Grounds of Appeal
There were four grounds of appeal in the husband’s draft notice of appeal as follows:-
"1.That the learned Trial Judge erred in law in finding in an application for spousal maintenance the [sic] he should take into account costs of support of the parties’ children pursuant to section 75(2)(d) of the Family Law Act...
2.That the learned Trial Judge erred in making an order for spousal maintenance which was for an amount in excess of the amount claimed by the wife to be necessary to meet her own needs.
3.That the learned Trial Judge erred in his application of the principles as contained in Schotte v Schotte (unreported – 19 April 1991) and in Wilson v Wilson 13 Fam LR 205.
4.That the learned Trial Judge erred in failing to have any or any sufficient regard to the wife’s oral evidence and concessions made in that evidence regarding her needs.”
The order sought was as follows:-
“1.That order 3 made 7 July 1999 be discharged and in lieu the court order that the husband pending determination of the wife’s application for property settlement pay direct to the wife by way of interim spousal maintenance the amount of $500 per week first such payment to be made within 7 days and weekly thereafter.”
At the heart of the proposed appeal lies the issue (set out in Ground 1) as to the proper application of s. 75(2)(d) of the Family Law Act 1975 and whether or not the costs of support of the parties’ children should be taken into account in assessing the wife’s needs for spousal maintenance.
The secondary matter before us traversed Grounds 2, 3 and 4 of the proposed appeal, relating to several aspects of assessment of the wife’s actual expenses.
By agreement, the application for leave to appeal was argued together with the grounds of appeal.
Relevant Legislative History
In order to properly consider the effect of s 75(2)(d) we consider it appropriate to refer to the relevant legislative history.
Prior to 1987 the power of a court to make orders for both spousal maintenance and children's maintenance was to be found within the provisions of Part VIII of the Family Law Act 1975 ("the FLA".)
Section 72 established the right of a spouse to maintenance.
Section 73 created the liability of parents to maintain their children.
Section 74 empowered the Court in proceedings with respect to "the maintenance of a party to a marriage or of a child of a marriage" to make such order as it thought proper.
Section 75 listed the matters which the Court was obliged to take into account in exercising s 74 jurisdiction.
Section 76 included additional considerations which the Court had to take into account in cases concerning maintenance of children.
The Family Law Amendment Act 1987 ("the 1987 Act") which came into effect on 1 January 1988 made significant structural rearrangements within the FLA.
Sections 73 and 76 were repealed.
Section 74 was amended to remove any reference to the maintenance of a child of a marriage.
The heading of Part VIII was amended so as to read "Property, Spousal Maintenance and Maintenance Agreements" rather than "Maintenance and Property" as had previously existed.
The heading to s 74 was amended from "Powers of Court in Maintenance Proceedings" to "Powers of Court in Spousal Maintenance Proceedings".
A new division (Division 6) was included in Part VII of the Act, dealing with maintenance of children.
When first enacted, s 72, under the heading "Right of spouse to maintenance" read:-
"A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately, whether by reason of having the care or control of a child of the marriage who has not attained the age of 18 years, or by reason of age or physical or mental incapacity for appropriate gainful employment or for any other adequate reason having regard to any relevant matter referred to in sub-section 75(2)."
The current version of s 72 was enacted by the s 34 of the Family Law Amendment Act 1983 No. 72 of 1983. It now reads:-
"A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party is reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately whether -
(a)by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;
(b)by reason of age or physical or mental incapacity for appropriate gainful employment; or
(c)for any other adequate reason,
having regard to any relevant matter referred to in sub-section 75(2)''.
Section 73 FLA provided:-
"Maintenance of children.
"The parties to a marriage are liable, according to their respective financial resources, to maintain the children of the marriage who have not attained the age of 18 years."
That section was repealed by s 37 of the 1987 Act.
In 1989 the Child Support (Assessment) Act was enacted and there were further consequential amendments made to the FLA. Section 66BA prohibited a court from exercising FLA jurisdiction to make orders for the maintenance of a child if an application could be made for administrative assessment under the Child Support (Assessment) Act.
In 1995, s 66BA was repealed and replaced by s 66E, which section clarified some confusion which had arisen over whether the prohibition initially contained was limited to cases where the applicant for relief had also to be an applicant for administrative assessment of child support or whether it was sufficient that the applicant for relief from the Court was the parent liable to pay under an administrative assessment. This section, however, continued the prohibition against the making of any orders for child maintenance under Part VII of the FLA if an application could be brought under the Child Support (Assessment) Act 1989 for administrative assessment of child support.
Section 74 FLA provided:-
"Powers of court in maintenance proceedings.
In proceedings with respect to the maintenance of a party to a marriage or of a child of a marriage, the court may make such order as it thinks proper for the provision of maintenance in accordance with this Part."
In 1987 the Family Law Amendment Act omitted the words "or of a child of a marriage" from s 74 and changed the word "thinks" to "considers".
The present s 74 reads:-
"Powers of court in spousal maintenance proceedings
"In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part."
When originally enacted in 1975, s 75 read:-
"Matters to be taken into consideration in proceedings with respect to maintenance.
(1) In exercising jurisdiction under this Part, the court shall take into account only the matters referred to in sub-section (2).
(2) The matters to be so taken into account are-
(a)the age and state of health of each of the parties;
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(d)the financial needs and obligations of each of the parties;
(e)the responsibilities of either party to support any other person;
(f)the eligibility of either party for a pension, allowance or benefit under any law of Australia or of a State or Territory or under any superannuation fund or scheme, or the rate of any such pension, allowance or benefit being paid to either party;
(g)where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
(i)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
(l)the need to protect the position of a woman who wishes only to continue her role as a wife and mother;
(m)if the party whose maintenance is under consideration is cohabiting with another person-the financial circumstances relating to the cohabitation;
(n)the terms of any order made or proposed to be made under section 79 in relation to the property of the parties; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account."
The 1987 amendments included a new s 75(2)(d) which read:-
"(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain;"
The explanatory memorandum that accompanied the Family Law Amendment Bill in the House of Representatives said:-
"Clause 39 Matters to be taken into consideration in relation to spousal maintenance
189. This clause amends section 75 of the Principal Act, which at present sets out the matters that are to be taken into account in the making of spousal and child maintenance orders. As a result of the insertion by clause 28 of new sections 66A - 66N which deal separately with child maintenance, section 75 will in the future apply only to spousal maintenance proceedings.
190. Present paragraph 75(2)(d) provides that one of the matters which the court must take into account in assessing maintenance is the financial needs and obligations of each of the parties'. Sub-clause 39(a) amends paragraph 75(2)(d) to refer to the commitments of each of the parties that are necessary to enable the party to support himself or herself and any child or another person that the party has a duty to maintain. This amendment is made to maintain consistency with the criteria for child maintenance."
Nothing in the explanatory memorandum points to an intention to alter the principles discussed in Kajewski (see below) and Redman (see below). As will be seen from the discussion below the inclusion of a consideration of the obligation to maintain other people makes sense when considering the resources available to support the claimant. It does not throw any relevant light onto the issue of the extent to which the claimant might require support.
The Child Support (Assessment) Act 1989 added to s 75(2) the following consideration:-
“(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, or is to provide for a child of the marriage;...”.
The Child Support Legislation Amendment Act 1994 further amended
s 75(2)(na) in this manner:-
"Omit “or is to provide”, substitute “is to provide, or might be liable to provide in the future."
The current provisions of s 75 are:-
"Matters to be taken into consideration in relation to spousal maintenance
(1)In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in sub-section (2).
(2) The matters to be so taken into account are -
(a)the age and state of health of each of the parties;
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
(e)the responsibilities of either party to support any other person;
(f)subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under -
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
(g)where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
(l)the need to protect a party who wishes to continue that party's role as a parent;
(m)if either party is cohabiting with another person - the financial circumstances relating to the cohabitation;
(n)the terms of any order made or proposed to be made under section 79 in relation to the property of the parties;
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
(3) In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit."
Section 76 FLA (which section was repealed by the 1987 Act) provided:-
"Maintenance of children.
(1) In determining-
(a)whether to make an order for the maintenance of a child of a marriage; or
(b)the period for which such an order should continue in force or the amount of any payment to be required to be made under such an order, the court shall, in addition to the matters referred to in section 75, take into account-
(c)the income, earning capacity, property and other financial resources of the child;
(d)the financial needs of the child; and
(e)the manner in which the child is being, and in which the parties to the marriage expected the child to be, educated or trained.
(2) Subject to sub-section (3)-
(a)an order shall not be made for the maintenance of a child who has attained the age of 18 years; and
(b)an order for the maintenance of a child ceases to be in force when the child attains the age of 18 years.
(3) The court may-
(a)provide in an order for the maintenance of a child who has not attained the age of 18 years that the order shall continue in force until a day that is later than, or for a period that extends beyond, the day on which the child will attain that age; or
(b)make an order for the maintenance of a child who has attained the age of 18 years, being an order that is expressed to continue in force until a day, or for a period, specified in the order, if the court is satisfied that the provision of the maintenance is necessary to enable the child to complete his education (including vocational training or apprenticeship) or because he is mentally or physically handicapped, and, in that case, the order continues in force until that day or the expiration of that period, as the case may be."
As previously mentioned, in 1987 the child maintenance powers were removed to Part VII of the Act.
In summary the provisions of the legislation relevant to the issues in this matter appear to be (emphasis added):-
"72 A party to a marriage is liable to maintain the other party...if, and only if, that other party is unable to support herself...adequately...having regard to any relevant matter referred to in sub-section 75(2)."
"74. In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part."
"75. (1) In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in sub-section (2).
(2) The matters to be so taken into account are -
(a)the age and state of health of each of the parties;
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain;
(e)the responsibilities of either party to support any other person;
...
(g)where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable;
...
(l)the need to protect a party who wishes to continue that party's role as a parent;
...
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account."
Relevant cases
There appear to be only four cases (3 reported) which touch on the issue of the extent to which it is appropriate to take into account the obligations of an applicant for maintenance to provide support for the children of the marriage.
In Kajewski and Kajewski (1978) FLC 90-472, Lindenmayer J dealt with an appeal from a magistrate's order for the payment of spousal maintenance. One of the matters argued was whether or not it was appropriate for the magistrate to have taken into account expenses of the wife which related to the children. His Honour said at 77,426-7:-
"...it is quite clear that the figures taken by the Magistrate as the wife's expenses are the expenses which relate not only to herself but also to the two children who reside with her. This emerges clearly from pt. A sec. (3) of her Form 19 and from her oral testimony, especially at pages 13 to 14 of the depositions, where she gave evidence as to the apportionment of some of those expenses between herself and the children. In my opinion, the Magistrate was in error in so approaching his task in the circumstances of this case. There were no proceedings before him in relation to the maintenance of either of the children, and his only legitimate concern therefore was with the needs of the wife in respect of her own maintenance. Such a strict approach may be thought to involve some hardship upon the wife, but any other approach would involve an injustice to the husband. The wife chose to seek an increase in her own maintenance only, and not that of the child M. If, as a result of the strict approach which I propose, the wife were to feel herself disadvantaged, the remedy would lie in her own hands in the form of an application for increased maintenance for M..."
In a further pre-1987 amendments case of Redman (1987) FLC 91-805; (1987) 11 Fam LR 411 the Full Court (Evatt CJ, Lindenmayer and Nygh JJ) allowed an appeal against an order made by Lawrie J for $400 per week interim maintenance, which sum was a global sum including the wife's needs and those of her children. Their Honour's said at FLC 76,079-81; Fam LR 413-5:-
"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 standing 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 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. ...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.
...
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."
In Branson and Branson Appeal ALE4 of 1995 (unreported) 12 October 1995, the Full Court (Ellis, Baker and Anderson JJ) rejected an application for leave to appeal against orders which provided interim spousal maintenance for the wife at the rate of $4,125 per month. That figure had been calculated by allocating to the wife 55 per cent of the reasonable expenses of the household and the other 45 per cent to the needs of the children. This ratio had been one selected by the wife herself in the affidavit sworn in support of her application. The Full Court quoted extensively from the judgment in Redman and Redman (1987) FLC 91-805 at 76,081 and concluded:-
"Having regard to the fact that the application before the trial Judge related to both interim spousal maintenance and interim child support, the observations to which we have referred in Redman and Redman (supra) at 76,081 are apposite. The trial Judge was obliged to make some assessment based on the evidence of the reasonable needs of the wife and as to how to allocate certain of the relevant expenses. In the circumstances of this case, being an application for interim maintenance, we are not satisfied that the approach adopted by the trial Judge in determining the reasonable needs of the wife as opposed to the reasonable needs of the children was not open to her."
More recently, in Vautin (1998) FLC 92-827, Smithers J had dealt with an application for variation of periodic child maintenance but adjourned for a separate hearing an application by the wife for lump sum spousal maintenance. The matter came on for hearing before Kay J and one of the matters which the wife sought to rely upon was the cost to her of maintaining the children. Kay J said:-
“In this case the legislation now reflects that consideration in s 75(n) (sic.), and I take into account the fact that the wife has already received the house. It seems to me I should also pay some attention although not much, having regard to the very great disparity, to the fact that the wife is about to receive a legacy of $37,000 from her son’s estate, and that those moneys are available to her for meeting some of her expressed current needs and some of her future needs.
It has been urged upon me that I should give consideration to the fact that these children are costing the wife by virtue of discretionary expenditure significantly more than the sums awarded by Smithers J by way of periodic maintenance. It seems to me that whilst I have to take into account in considering an exercise s 74 power (sic.), commitments of a person necessary to enable them to support another child that a person has a duty to maintain, I am of the view that the nature of that expenditure has already been a matter dealt with by Smithers J and it would be double-dipping for me to say to the husband, 'Whilst you have managed to persuade Smithers J that your contribution for periodic maintenance should only be $250 you will pay the rest of the costs to the wife of keeping the children by way of a lump sum'.”
On the hearing of an appeal by the husband, Fogarty and Burton JJ (with whom Finn J agreed on matters of principle but not on the outcome) said at 85,424-5 (emphasis added):-
"[47] In relation to the wife herself the evidence was that she was unable to work, that the periodic maintenance was barely sufficient to meet her day to day needs, her general financial circumstances were 'very poor', and that she needed a 'buffer' against unforeseen emergencies and additional non-recurring expenditure for herself and within the home and, in effect, a better but still modest standard of living for herself. No attempt was made to quantify this expense either for the preceding year or as a projection into the future and neither before Kay J nor before us was there any attempt made by counsel to explain how the figure of $50,000 was calculated or to put alternate figures or calculations. On the other hand, there was no cross-examination of the wife about these matters.
[48] A major reason that the trial Judge rejected this aspect was that he considered that lump sum maintenance for the wife should not encompass expenditure by her on the children beyond what was being paid for their support by the husband. His Honour’s view in the passage which we have quoted at par 23 was that this would amount to 'double dipping' and it is apparent from the transcript of discussion between him and counsel at the trial that he took the view that if the order for the children was inadequate, having regard to their proper needs in the circumstances of a case like this and their father’s capacity to pay, this was a matter of a variation of their order rather than a basis for a lump sum maintenance order in favour of the wife. It may have been more appropriate, given the wife’s evidence of her major expenditure for the two children, that the claim for lump sum maintenance should have been for the children as well as for the wife. But the claim has never been formulated in that way and we can only deal with his Honour’s rejection of the claim that proceeded before him.
[49] Section 75(2)(c) refers, as a relevant consideration, to the care of a child who has not attained the age of 18 years (which is not the case here) and par (d) refers to the commitment of a party to support “a child … that the party has a duty to maintain”. As to the question whether “duty” means a legal duty only or may include a moral duty see the discussion in Vick and Hartcher (1991) FLC 92-262, [(1991) 15 Fam LR 149]; Bassingthwaighte and Leane (1993) FLC 92-410; [(1993) 16 Fam LR 918] and Bienke v Bienke-Robson (1997) FLC 92-786 [(1998) 23 Fam LR 569].
[50]...We are of the view that it was open to the trial Judge to reject this aspect of the wife’s claim for the reasons he gave. In addition, there may also be the difficulty of calculating the amount in any reliable way and ensuring that it is used for that purpose. If this aspect was to be pursued, it appears to us that the proper course would have been to call the two children to give evidence of their additional expenditure, their plans for the future and any employment they may be able to obtain. It is unfortunate that all the claims were not heard by the same judge who may have been able to approach the matter in a broader way. It may also be unfortunate that the lump sum claim was confined to a payment to the mother, but that is the situation which we have before us."
In Vautin the majority of the Full Court increased the trial Judge's order by providing for (at 85,426):-
"an additional lump sum order for the wife to provide her with some capital to meet her inevitable non-periodic but reasonable expenditure for her own support in the next few years."
Conclusions
It must be borne in mind that the proceedings before the trial Judge were proceedings for spousal maintenance. There were no proceedings before the trial Judge for departure from administrative assessment of child support, although it may be reasonable to speculate that if such proceedings had been brought an order might properly have been made which would have visited the entire costs of supporting the children upon the husband.
The obligation under the child support legislation is that parents share equitably in the support of their children. That legislation requires that consideration be given to the proper needs of the children and the income-earning capacity, property and financial resources of each of the parents. The wife had no ready access to any source of funds nor any earning capacity which she could utilise to provide for the children's support. The husband had access to vast amounts of wealth.
In this case the findings as to the husband's wealth were such that it would be almost inevitable that, at least on an interim basis, the husband would be called upon to bear the entire cost of meeting the reasonable needs of the children. However, there was no child support application before his Honour.
In determining the quantum of spousal maintenance, his Honour was obliged to take into account under s 75(2)(na) not only child support which a parent is providing, but child support which a parent might be liable to provide in the future.
Section 75(2) serves many masters. It contains matters to be considered in both s 74 (spousal maintenance) and s 79 (alteration of property) proceedings. It contains matters relevant to the capacity of the payer to make maintenance payments, and to the needs of the payee to receive them. It contains matters which are relevant to comparing the situation of the parties when deciding what an appropriate adjustment of property interests should be. But its provisions must be read as ancillary to the power being exercised in each case. The maintenance power is to be found within the confines of ss 72 and 74, the property power within the confines of s 79 sub-ss (1) and (2).
It seems to us that in the context of an application for spousal maintenance the consideration in s 75(2)(d) of
"the commitments of each of the parties that are necessary to enable the party to support...a child...that the party has a duty to maintain"
has greater significance in determining the capacity of a payer to provide support rather than in determining the extent to which the other party requires support. In a maintenance case if, for example, a husband is called upon to pay maintenance for his wife, the Court must determine his capacity to pay that maintenance having regard to his obligation to support his children. The level of support that the wife needs for herself is not dependent upon the level of support she must give to others. In a property case however, the extent to which a division of property may be seen as being appropriate might only properly be measured by examining all the demands that each spouse has to meet.
By way of example, s 66M makes it clear that a step-parent does not have a duty to maintain step-children, other than in the circumstances which the Court is required to take into account under s 66M. It would not be a proper application of
s 75(2)(d) to create a liability of a father to support his step-children via the device of a maintenance application by his estranged wife on the basis that she has a duty to maintain her children and that she requires the provision of maintenance for herself so that she can in turn support her children.
Whilst the legislation permits the Court in exercising its s 74 power to take into account only the various matters set out in s 75(2), the legislation gives little guide as to the manner in which they are to be so taken into account. The power exercised under s 74 is to make such order as the Court considers proper for the provision of maintenance of a party to a marriage. This is not to be confused with the power of the Court to make orders for the maintenance of children or step-children under the provisions of Part VII of the Act nor for the provision of child support under the Child Support (Assessment) Act.
There is, however, an overlap between the various sections. In order to avoid "double dipping", s 117 of the Child Support (Assessment) Act enables the Court to take into account in proceedings for a departure order:
"any payments...made or to be made (whether under this Act, the Family Law Act 1975 or otherwise) by the liable parent...to the carer entitled to child support...for the benefit of the child."
As already indicated, s 75(2)(na) enables the Court, in determining an application for spousal maintenance, to take into account any child support that has been provided, is being provided or might be liable to be provided in the future.
Each relevant area of legislation requires different considerations. The obligation to maintain children under Part VII of the Family Law Act is, like the obligation to provide child support under the Child Support (Assessment) Act, an obligation which has priority over all commitments of a parent other than commitments necessary to enable the parent to support himself or herself or any other child or other person that parent has a duty to maintain and is not of a lower priority than a duty of a parent to maintain any other child or any other person.
Child maintenance is to be determined having regard to the matters set out in ss 66J and 66K of the Family Law Act, whilst child support is governed generally by the provisions of the Child Support (Assessment) Act, and in respect of any application for departure from administrative assessment, by the provisions of s 117. The matters to be taken into account under both Part VII of the Family Law Act and under the relevant sections of the Child Support (Assessment) Act are not identical to matters to be given consideration in respect of claims for spousal maintenance.
Spousal maintenance is ultimately governed by the provisions of ss 72 and 74, namely there being no right to spousal maintenance unless there is a capacity to meet it and an inability by the claimant to meet the claimant's own self-support.
In this case, the wife's duty to maintain her own children was only a duty to make an equitable contribution towards their support. The extent of that equitable contribution had not been evaluated by the trial Judge but could probably be said to have been non-existent having regard to the vast amount of wealth available to the husband. On that analysis, even if it was appropriate for the trial Judge to have taken into account the commitments of the wife necessary to enable the wife to support her children, it could not be said that the expenditure of monies on the children by the wife over and above the monies she would be able to obtain by way of appropriate assessment of child support could be seen as necessary expenditure by the wife. It certainly could not be seen as an element of her self-support.
In our view, we must conclude that his Honour erred when taking into account what his Honour described as "the obligation to maintain the children pursuant to
s 75(2)(d)". In one sense the wife had no obligation to support the children because that obligation could be clearly met by an application for departure from administrative assessment of child support. In another sense, even if she had an obligation to maintain those children, the fact that she was meeting that obligation could not be said to be a necessary element of the amount of support she needed for herself.
The discretion re-exercised
The application for leave to appeal appeared to proceed on the basis that if the appeal was to be allowed we should exercise our own discretion for that of the trial Judge rather than remit the matter for further consideration.
The wife claimed expenses for the family of $3,349 after some "belt tightening". It was conceded that the husband was meeting $1,172 of those expenses and paying $130 child support. This left the wife with a shortfall of $2,047. Without providing any analysis as to why his Honour chose the figure he did, his Honour awarded the sum of $1,500 per week.
The wife had been taken through each of the items on her September Form 17 in cross-examination. She was not re-examined about any concessions she appeared to make. It was submitted by counsel for the husband that the concessions made in that cross-examination were such that the total amount of expenditure ultimately attributable to the support of the wife was $822.50. Counsel for the wife accepted that the schedule was an accurate account of the cross-examination except for a claim for $39 for computer and cable television expenses which should have been attributed to the wife rather than the children. The effect of that submission was that counsel for the wife accepted that the sums clearly attributable to the wife's maintenance as compared to that of the children, on the evidence that was before the trial Judge would amount to $861.50.
As indicated in Redman, the line between costs referrable to the parent and those referrable to the children cannot be drawn with clarity. Whilst the wife made certain concessions in cross-examination, an examination of those concessions still left, in our view, ample room for the exercise of judicial discretion. For example, she estimated the cost of the food for the household at $340 per week. Cross-examination went as follows:-
"MR LETHBRIDGE:...Is it appropriate that where you tell us you spend $340 a week for food in item 6, that again how much you spend on yourself we should divide 340 by five? --- I think it would be very difficult to divide it equally by five.
How much do you say you need for yourself as opposed to the amount you spend on the children?--- Very near equal.
When you say equal, do you say you spend the same amount on each of them as you spend on yourself--- Yes.
So it is correct is it not to do as I suggested that we should divide the food item by five?---Yes.
Likewise the amount you have for household supplies, what do you include there?---Cleaning materials.
And would it be appropriate that that be divided by five also?---Yes."
In many circumstances a statement of financial circumstances (Form 17) includes only actual expenditure and that can often fall short of adequate support or meeting a standard of living that is reasonable in all of the circumstances. In addition to the matters set out in the Form 17, the wife's application was supported by an affidavit filed 25 September 1998. The matters deposed to in the affidavit were not the subject of cross-examination. She said that the parties had come from South Africa in January 1997. Whilst they were living in South Africa:
"...no expense was spared for our lifestyle...I estimate that in a period of seven days of housekeeping requirements between us we expended the equivalent of $1,500 on the husband and myself and our children's immediate housekeeping family needs for fees and household supplies and facilities."
She deposed to extensive overseas holidays with the entire family. Upon arrival in Australia the family occupied two hotel suites at the Swiss Grand Hotel in Bondi Beach for three weeks at an approximate cost of $11,000 all up. The wife was given duplicates of the husband's Amex and ANZ Visa card. A $61,000 Toyota Tarago was purchased for the wife and a $109,000 BMW 5 Series was purchased for the husband.
"26.When we came to Australia the husband continued as he had in South Africa to give me whatever moneys I needed whenever I needed them for housekeeping purposes. He also put money into my cheque account whenever I asked for it.
27.At my request the husband usually deposited approximately $5,000.00 to the credit of my cheque account, I would say every two or three months. I used my cheque account to pay only for my personal grooming expenses and for the children's haircuts; and for children's books, and to pay for extracurricular activities for the children namely:
i. ballet lessons;
ii. netball; and
iv (sic) maths lessons.
The husband and I used our credit cards for most other family expenses. He attended to monthly payments of credit card facilities. I refer to my financial statement filed on 3 April, 1998 and say that same reflects the level at which the family household has been managed by me until about that date."
The wife deposed further in paragraph 42:-
"I have reduced my expenditure as much as possible, cutting down on activities and expenditure which was normal during cohabitation. Nevertheless my expenditure for myself and the children in 30 weeks from the beginning of March until now has been over $60,000 or about $2,250 per week. In view of my financial position I have reduced my expenditure by over $500 per week. I have the need in order to maintain the same standard of living to increase my expenditure over and above that shown in my updated financial statement sworn today."
Even though the wife made concessions in cross-examination concerning the division of household expenditure on a per capita basis between herself and the children, we view those concessions as being based on a false premise. Such an approach does not equate with reality. It is unlikely that the cost of heating or lighting the wife's house would be reduced by 80% if the children were not at home. It is unlikely that the food and household supplies bill could be similarly apportioned. As set out in Redman above the apportionment of general household expenditure between members of the household is a difficult task which cannot be precisely undertaken. Whilst some differentiation is needed between the claimant wife's needs and those of he children, a strict arithmetical approach on a per capita basis will not necessarily adequately reflect the reasonable needs of the claimant.
Were it not for the absence of re-examination on the proportion of household expenditure attributable to the wife's needs, and the absence of any submissions at the appeal that we should reach conclusions about such expenditure which were contrary to her concessions, we would be minded to attribute a greater proportion than she conceded. However, we feel obliged, in the circumstances, to act on the evidence, as it was left to stand.
The wife deposed in her affidavit that the Form 17 being cross-examined upon represented her actual expenditure after she had cut down significantly on what she had been used to spending. She deposed to having reduced her household expenditure by over $500 per week. Given the unchallenged findings of the trial Judge as to the capacity of the husband to meet the amount ordered, and given the wife's unchallenged evidence as to the standard of living the parties had enjoyed throughout the marriage, independently of the findings of the trial Judge we would assess that the amount needed to enable the wife to live at a standard of living that in all the circumstances was reasonable would be the sum of $1,160 per week.
This sum is arrived at by starting with the concessions made by counsel for the husband that the cross-examination of the wife on her current Form 17 resulted in the wife requiring $822.50 per week. We add on the computer expenses and cable television of $39 per week and then make a further allowance of say $300 per week to reflect the wife's share of the drop in the standard of living as deposed to. For convenience we round these sums down to a total of $1,160.
Costs.
Notwithstanding that the appellant has been partly successful in this appeal, given the huge disparity of financial resources it is appropriate that the appellant pay the respondent's costs of the application for leave to appeal and the appeal as agreed or in default of agreement as taxed.
Orders
1.That leave to appeal be granted, and, subject to the payment of the appropriate filing fee
(a) the appeal be allowed;
(b) that Order 3 of the orders made by the Honourable Justice Steele on 7 July 1999 be varied by substituting therein the sum of $1,160 for the sum of $1,500.
2.That the appellant pay the respondent's costs of the application for leave to appeal and the appeal as agreed or in default of agreement as taxed.
Key Legal Topics
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Civil Procedure
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Commercial Law
Legal Concepts
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Appeal
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Jurisdiction
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Costs
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Res Judicata
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