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High Court of Australia |
JEFFERY v. JEFFERY [1949] HCA 28; (1949) 78 CLR 570
Matrimonial Causes
High Court of Australia
Latham C.J.(1), Dixon(2), McTiernan(3), Williams(4) and Webb(5) JJ.
CATCHWORDS
Matrimonial Causes - Dissolution of marriage - Alimony pendente lite - Application by wife before decree absolute - Application refused - Appeal to High Court as of right - Delay - Special leave to appeal - Appeal after decree absolute - Jurisdiction of Court - Ante-dating of judgment - Matrimonial Causes Act 1899-1943 (N.S.W.) (No. 14 of 1899 - No. 9 of 1943), ss. 5, 41, 42, 43 - Judiciary Act 1903-1948 (No. 6 of 1903 - No. 65 of 1948), s. 51 - High Court Rules, Order XXXVIII., r. 2; Part II., Section V., r. 1.
HEARING
Sydney, 1949, May 6; August 4. 4:8:1949DECISION
August 4.2. The petition was filed on 15th July 1947. The petitioner was in England and the respondent resides at Canberra. On 31st October 1947 the notice of motion for alimony pendente lite was served. Decree nisi was made on 25th May 1948. The motion for alimony pendente lite was heard and dismissed on 30th November 1948. The decree nisi became a decree absolute for dissolution of marriage as of course on 8th December 1948: Ordinance of the Australian Capital Territory No. 5 of 1938, s. 4. (at p578)
3. The New South Wales Matrimonial Causes Act 1899, subject to some amendments, is made applicable in the Australian Capital Territory by Matrimonial Causes Ordinance No. 22 of 1932. Section 41 of the Matrimonial Causes Act provides: - "Upon any petition for dissolution of marriage the Court shall have the same power to make interim orders for payment of money by way of alimony or otherwise to the wife as it has in a suit instituted for judicial separation." (at p578)
4. Section 42 is as follows: - "Where the application for judicial separation is by the wife the Court may make any order for alimony which it deems just." (at p578)
5. Section 43 authorizes orders for alimony upon or after making a decree for judicial separation. (at p578)
6. Alimony pendente lite is a provision for the proper maintenance of the wife during the pendency of the suit. Marriage continues up to the pronouncement of a decree absolute (see Brown v. Walters [1931] HCA 45; (1931) 46 CLR 290 ). Accordingly, an order can be made in respect of the period between service of petition and order absolute. A question arises in this case, however, as to the time at which such an order can be made - whether it can be made after decree absolute. In Latham v. Latham and Gethin [1861] EngR 496; (1861) 2 Sw & Tr 299 (164 ER 1011) it was held that such an order could not be made after decree nisi. This case, however, was overruled in Ellis v. Ellis (1883) 8 PD 188 where it was held that in a suit for dissolution of marriage the court has power to order alimony pendente lite after a decree nisi has been made. In Foden v. Foden (1894) P 307 there was an application for alimony pendente lite in a suit by a husband for nullity of marriage. The application was made after decree nisi and it was held that an order could be made. In the headnote to this case the decision is stated in the following words: "The application may be made by the wife after the decree nisi has been pronounced if the decree has not been made absolute." Lord Herschell L.C. said: "it was said that there was no pending suit, because a decree nisi had been made. That argument is, in my opinion, quite untenable. Till the decree nisi has been made absolute, the suit is clearly pending" (1894) P, at p 312 . This passage suggests that an order for alimony pendente lite can be made only during the pendency of the suit, and therefore not after decree absolute. But the actual decision related only to an application made after decree nisi, and therefore the case cannot be regarded as authority for the proposition that an order cannot be made after decree absolute. (at p579)
7. In M. v. M. (1928) P 123 however, there was, in my opinion, a definite decision on this point by Lord Merrivale P. In that case an application was made for alimony pendente lite after a decree for judicial separation - such a decree being a final decree, and not merely a decree nisi. It was held that the wife who had obtained the decree absolute was not entitled to an allotment of alimony pendente lite unless she obtained an order for it before the decree. Lord Merrivale stated that the practice of the court with respect to alimony pendente lite rested on the fact that the process resorted to "before decree" is a privileged procedure limited by the necessities of the case, and not the exercise of a substantive right such as gives a cause of action. "The necessity which can be so dealt with ceases when the decree is granted" (1928) P, at p 127 . His Lordship then stated that to make an order after decree absolute would be "a new departure," and the application was refused. Investigation of the authorities shows no case in which an order for alimony pendente lite has been made after order absolute in any matrimonial proceeding, and in view of the decision in M. v. M. (1928) P 123 I am of opinion that the proper principle to be applied is that there is no jurisdiction to grant alimony pendente lite after the petitioner has ceased to be a wife. When there is no lis pendens the jurisdiction of the court to grant alimony pendente lite disappears. (at p579)
8. The application for alimony was heard eight days before the decree became absolute and accordingly at that time the Supreme Court had jurisdiction to make the order sought. It is submitted, however, for the respondent that this Court, dealing with the matter after decree absolute, cannot now allow the appeal and make an order for alimony. It is contended that this Court must consider the circumstances of the case as they now actually exist, including the fact of the decree absolute. On the other side reference is made to Victorian Stevedoring and General Contracting Co. Pty. Ltd. v. Dignan [1931] HCA 34; (1931) 46 CLR 73 where the distinction between an appeal and the rehearing of a case was emphasized and it was held that upon an appeal, strictly so called, the only judgment which could properly be given was the judgment which ought to have been given at the original hearing and that the law as it existed at the date of the original hearing should be applied in the determination of the appeal, even if since the original hearing the law had been altered or repealed. But this principle cannot be extended so far as to produce the result that the court ignores all events which have happened after the original hearing: for example, the death or the bankruptcy of a party would not be ignored by the court. Similarly, where the maintenance of a particular status, e.g. that of a married person, is a necessary element in jurisdiction (as in the present case) such a change cannot be treated as of no relevance. At the present time the appellant is no longer the wife of the respondent and therefore (it is argued) no court can now make an order for alimony pendente lite against him though an order for permanent alimony can be made: see Matrimonial Causes Act, s. 43. (at p580)
9. The Rules of the High Court, Order XXXVIII., rule 2, provide that "When a judgment is pronounced by the Court, the entry of the judgment shall be dated as of the day on which such judgment is pronounced, unless the Court otherwise orders, and the judgment shall take effect from that date: Provided that by special leave of the Court a judgment may be ante-dated or post-dated." This provision is made applicable to a judgment given by the Court in its appellate jurisdiction by Appeal Rules, Section V., rule 1. Accordingly a judgment now given by the Court (in the absence of such special leave) must bear the date of the day upon which it is given, and the judgment takes effect so as to bind the parties only as from the day when it is pronounced. A court should not ante-date a judgment so as to produce the effect of giving jurisdiction which it would not otherwise possess (In re Keystone Knitting Mills' Trade Mark (1929) 1 Ch 92 ). But the jurisdiction of the court to hear the appeal is beyond doubt. The court has jurisdiction under the Judiciary Act 1903-1948, s. 37, to give "such judgment as ought to have been given in the first instance." It is therefore the duty of this Court upon appeal to make such order as in its opinion the Supreme Court should have made when the application was made to it. Ante-dating an order made upon the appeal would not have the effect of giving jurisdiction which otherwise would not exist. The decree nisi has been made absolute and as, in the absence of a special order, the order of this Court would take effect only from the day when it is pronounced (when the petitioner is no longer a wife) the Court cannot, in my opinion, properly make such an order unless it gives leave for the order to be ante-dated. (at p580)
10. In the present case if the order is ante-dated to the day upon which the decision of the Supreme Court was given there can be no doubt as to the effectiveness of the order, and the only question is whether the Court ought to ante-date the order. The delay in hearing the appeal was not in any way the fault of the appellant. If the appeal had been heard within eight days after the decision in the Supreme Court no question could have arisen as to the propriety of this court making such order as it thought proper. The rule to be applied is actus curiae neminem gravabit, and, accordingly, I am of opinion that if the Court should think proper to make an order for alimony it should be ante-dated to 30th November 1948. (at p581)
11. I come now to the merits of the appeal. The parties were married in 1921. The respondent husband lives in a house at Canberra which he owns and has an income by way of pension and returns from investments which, after payment of income tax, is about 670 pounds a year. The wife at the time of the application to the Supreme Court was forty-nine years old and the husband sixty-seven years old. There were two children of the marriage - both self-supporting. Since 1944 the wife had lived in England and had not been supported by her husband. Her father supported her. Shortly before the filing of the petition her father died. He had, however, before his death, given her War Savings Certificates of an ultimate value of 750 pounds. She had supported herself by cashing some of these certificates in advance of maturity and at the time of the application still possessed certificates worth 400 pounds upon maturity. At that time they were worth about 300 pounds. Under her father's will she had a vested interest after the death of her mother, who was eighty-nine years of age, in one half of her father's estate, which estate was valued at about 16,000 pounds. Simpson J. in these circumstances held that as alimony pendente lite is only intended to be a provision to enable the wife to support herself during the pendency of her suit, there was no necessity for an order, and that in the absence of such necessity no order should be made. (at p581)
12. I do not agree with the suggestion contained in George v. George (1867) LR 1 P & D 553, at p 554 and other cases that the wife should never be allowed to improve her position by obtaining an order for alimony pendente lite. Such a proposition appears to me to ignore the obvious purpose of such alimony, namely, to make provision for a petitioning wife who otherwise would be unable to support herself properly. An order for alimony pendente lite always improves the financial position of a wife. Accordingly I am unable to accept one of the grounds upon which the learned judge rejected the application. It would be wrong to lay down a rule that as long as a wife had any means whatever she could not obtain an order for alimony pendente lite. She is not bound to exhaust the whole of a small capital in order to maintain herself during the pendency of a suit. Each case must be considered in all its circumstances and particularly with regard to the station in life and the financial position of each of the parties. In the present case it appears to me to be unreasonable to expect the wife to expend the major part of the not large sum represented by the war savings certificates to support herself during the suit, even though she has an expectation upon the death of her mother of coming into possession of a substantial amount of property, and even though that prospect is a not distant prospect owing to the advanced age of the life tenant. In my opinion leave to appeal should be granted and an order should be made for a moderate allowance, from the date of service of the petition to the date of the decree absolute, of 3 pounds per week and in my opinion the order should be ante-dated to 30th November 1948. (at p582)
DIXON J. This is a motion for special leave to appeal pursuant to s. 51 (1) (d) of the Seat of Government Supreme Court Act 1933-1945. The order from which it is sought to appeal is an order of the Supreme Court of the Australian Capital Territory pronounced on 30th November 1948 whereby an application by a wife petitioning for divorce for alimony pendente lite was dismissed. Apparently an appeal might have been brought within fourteen days of the order as of right, as a result of the Matrimonial Causes Ordinance 1932, as amended, which applies the Matrimonial Causes Act of New South Wales, as amended, to the Australian Capital Territory. In this application of the Act the reference in s. 82 to an appeal to the Full Court becomes a reference to an appeal to the High Court, and, of course, in relation to the original or general jurisdiction in matrimonial causes, references to the Supreme Court become references to the Supreme Court of the Australian Capital Territory. (at p582)
2. But the petitioner lives in England and before her authority to appeal was obtained by her proctors here, the time limited for an appeal as of right had passed. In a proper case the Court grants special leave to a party who has lost an appeal as of right owing to failure duly to exercise it, if there was an intention to appeal and the failure duly to do so has not prejudiced the opposite party and is not due to such a fault of the applicant as to deprive him of any title to indulgence or relief. In the present case the respondent appeared to oppose the application but he did not rely as a ground of opposition upon the existence of an appeal as of right which the applicant had failed to pursue within the time limited. The application was argued fully on both sides, with a view, as I understood, to making it unnecessary if the Court thought the application should be granted, to argue again the substantive appeal. The parties were married at Brighton, England, on 28th December 1921, the husband then being forty and the wife twenty-two years of age. The children of the marriage are two daughters, one born on 21st October 1924 and the other on 1st July 1928. The husband was in the service of the Government of India. The wife was the only daughter of a London accountant, who was not without means. Before her marriage her father had made a will by which he disposed of his estate in favour of his wife for life and after her death for his daughter and his son in equal shares. When he died on 22nd June 1947 this will came into operation. The appellant lived in India with her husband for some years, but apparently this period was broken by visits to England of some duration. At length in 1936, when after a joint visit to England her husband returned to India, she remained behind with her two daughters, who were at school. His service was in the State of Manipur in Assam and he was stationed at Imphal. He remitted an allowance for the maintenance of his wife and daughters and provided for the latter's schooling. For a time he wrote frequently, recounting the doings and gossip of the station. But as time advanced his communications appear to have shown more concern with the financial than with any other side of their relations and he reduced the rate of allowance. Up to the end of 1936 he had allowed his wife from 8 pounds to 10 pounds a week while she was in England. But at the end of 1936 he began on a much lower scale. In 1938 the allowance seems still further to have been reduced and to have been fixed at 3 pounds a week. In April 1940 he was to leave Imphal and retire from the service on a pension and in anticipation of the consequent reduction of his income he requested her to agree to an allowance of 2 pounds a week with an addition of 1 pound 5s. a week for any period during which either of the children should spend her holidays with her mother. To this the applicant replied that she could not agree but if that was all he intended to allow her she must take it. However, before he received her answer, he had left Imphal and had come to Australia. He settled in Canberra. His choice seems to have been determined partly by climate and partly by a belief that in the Australian Capital Territory he need pay no income tax. For some years, if his statement is to be accepted, this belief remained uncorrected. But at length his misapprehension was effectually removed by an assessment. His source of income was partly a pension from the Indian Government and partly the income from investments, some Australian and some not. The pension amounts to A600 pounds and the income from investments to about A250 pounds, that is disregarding income tax. For three or four years after he arrived in Australia he made payments to his wife which probably were intended to represent 3 pounds a week. It is said that if they are averaged they give about 200 pounds a year, though this is hardly borne out by the bank account. But after April 1944 all payments stopped. On this taking place the applicant went to live with her father, who supported her. On his death his establishment was disposed of. His widow, who is now eighty-nine, was senile and, as I gather, had become mentally as well as physically incapable. She was sent to a nursing home and in September 1947 the applicant found herself homeless and with no income at all. Upon the death of her mother she will become entitled to a half-share in her father's estate, which was valued at 16,000 pounds, but during her mother's life she takes nothing. Her mother's senility made it impossible, no doubt, for the applicant to obtain any relief from that quarter. Her only resources consisted in 750 units of War Savings Certificates which her father had given her in 1942 and 1943. He had, she said, given them to her in case he was killed in an air raid, so that she could obtain money by turning them into cash. Every 100 units were equal to 75 pounds if cashed. She moved into a furnished flat and lived there for five months on the proceeds of 250 units of the certificates, which she had turned into cash. The rent was four guineas a week. Then, alarmed at the dwindling of her resources, she left that for a bed-sitting room at Ovingdean, for which she paid 27s. 6d. a week. In 1936 a suite of furniture had been bought for about 130 pounds and this she still possessed. Her daughters were both at work. The elder maintained herself. The younger was training as a nurse and received only 4 pounds a month, but she had board and lodging. The applicant herself, although she had discussed the possibility of finding employment, had not done so, for the reason, she said, that her health was unequal to it. (at p584)
3. In the communications between the parties before the death of the applicant's father there seems to have been some discussion of divorce, and in 1946 the applicant apparently had petitioned in the Probate Divorce and Admiralty Division for a dissolution of their marriage. But her husband had established a domicile in Australia. Whether for this or for some other reason the proceedings came to nothing. The applicant, however, decided to present a petition in Australia, presumably before her father died. At all events, on 15th July 1947, three weeks after his death, a petition for dissolution on the ground of desertion was filed on her behalf in the Supreme Court of the Australian Capital Territory. On 31st October 1947 her proctors filed a notice of motion for alimony pendente lite. The hearing of the application was much delayed. Unfortunately, it was considered necessary to issue a commission to England for the taking of her evidence and that of her daughters upon the application. The suit came on to be heard before the application. It was undefended and a decree nisi was pronounced. The hearing of the application did not take place until eight days before the date upon which the decree would become absolute. It is hard, however, to see why these delays, which were not to be laid at the petitioner's door, should prejudice her application for alimony pendente lite. The respondent opposed the grant of alimony pendente lite on the ground that for a number of years she had subsisted without any contribution to her support on his part, that her resources were sufficient to maintain her during the progress of the suit, that she should not be permitted to use a petition for dissolution as a means of improving her financial position by obtaining an order for alimony and that his own income, after meeting taxes, was insufficient for his needs. As to the last ground, or element, he seems to have received in 1948 an assessment for 172 pounds 9s. for tax for the previous financial year and to have paid it. But it is possible that he is faced with the burden of arrears of tax. He has a house of his own in Canberra. He has a housekeeper to whom, as he says, he pays a salary, although "as a matter of convenience" she is known as Mrs. Jeffery. In addition, he finds it necessary to employ a charwoman. The cost of living is high. He must live with a certain measure of comfort. There are fares too, and to keep fit he must belong to the golf club. Modest as these demands are, they eat up his income. (at p585)
4. The learned judge of the Supreme Court of the Australian Capital Territory dismissed the application of the petitioner for alimony pendente lite. His Honour's ultimate ground for doing so is expressed in his conclusion. His conclusion was that he did not see any reason for altering the state of affairs, which had existed from the time the petition was brought until that day. In a preceding passage his Honour had said that the making of an order for alimony pendente lite must depend upon two elements, the necessity of the wife and, secondly, whether she was already sufficiently supported. He observed that care must be taken to see that the wife does not better her financial position temporarily by simply instituting a suit. His Honour referred to Grose v. Grose (1939) 57 WN (NSW) 14 and Mighall v. Mighall (1929) VLR 105 as authorities confirmatory of his view. These grounds do not appear to me to be at all satisfactory, more particularly in their application to the facts of the case. (at p585)
5. The helpless condition in which a wife was left by the rules of the common law governing the capacity of a married woman and the vesting of her personal property in her husband may have been the origin of the practice of the Ecclesiastical Courts of granting alimony pendente lite. But in spite of the many changes affecting the status of a married woman, she is entitled to look to her husband to maintain her unless her need for maintenance is adequately supplied. "Though the juristic capacity of married women has been broadly speaking equalized in recent years with that of other citizens the changes made have not eliminated some of their privileges. The course of events, mainly legislative, which has given to married women capacity to contract and to sue and be sued, has not abrogated certain elementary rules of law as to the consequences of marriage": per Lord Merrivale in Dewe v. Dewe (1928) P 113, at p 119 . So long as the wife was a competent suitor in the Ecclesiastical Courts it was the general practice of those courts to require the husband to make provision according to his means for her maintenance and the costs of her suit: per Lord Merrivale in Welton v. Welton (1927) P 162, at p 169 . Dr. Lushington stated it as a well established principle of law that when the fact of marriage is acknowledged or proved alimony follows as a matter of course, except where a wife has a provision of her own sufficient for her condition in life and proportionate to the means of her husband (Miles v. Chilton (Falsely calling herself Miles) [1849] EngR 217; (1849) 1 Rob Ecc 684, at p 700 [1849] EngR 217; (163 ER 1178, at p 1184) . Section 42 of the Matrimonial Causes Act provides that where the application for judicial separation is by the wife the court may make any order for alimony which it deems just, and s. 41 provides that upon the petition for dissolution of marriage the court shall have the same power to make interim orders for payment of money by way of alimony or otherwise to the wife as in a suit for judicial separation. The result is to confer upon the court a power to order alimony pendente lite as it shall deem just. Bonney J. has well described this as "a mandate to exercise a discretion in the light of the facts" (Stephenson v. Stephenson (1941) 14 ALJ 403 ). The court can therefore act with greater freedom perhaps than the Ecclesiastical Courts, though s. 42 deals with a matter to which the direction contained in s. 5 applies, namely, the direction to proceed and act and give relief on principles and rules which in the opinion of the court shall be as nearly as may be conformable to the principles and rules on which the Ecclesiastical Courts of England acted and gave relief but subject to the provisions contained in the Act and to the rules and orders under the Act. (at p586)
6. While the purpose of alimony pendente lite was to provide for the wife's maintenance during the progress of the suit, it replaced and still replaces the provision to which a wife was entitled under the general law. In the absence, therefore, of some countervailing circumstance, such as the sufficiency of the resources at her own command, the lack of means of her husband coupled with her ability to support herself, disqualifying conduct on her own part, or other reason to the contrary, she will normally be given alimony pending the suit. (at p587)
7. When during a long period of separation the wife has dispensed with support from her husband a presumption naturally arises that she does not need it. Where facts are not shown which explain the absence of any request on her part for support from him and make her need for alimony appear, the court may well think that to make the suit the occasion of altering a situation that has gone on so long is not just. The references which are to be found in a number of places in the authorities to a refusal to allow the suit to be used for placing the wife in a better financial position than before its institution do not relate to wives who depended upon their husbands for support but have been left by them without adequate maintenance and yet have managed somehow to live. (at p587)
8. In the present case the applicant depended for years on the allowance her husband made to her. She expressed her dissent from its reduction and when at length he failed to make the payments she returned to her father and mother, looked after them and was supported by them. Two years had scarcely passed before she petitioned for dissolution of marriage, though it is true in the wrong jurisdiction. No presumption appears to me to arise from these facts that she did not need her husband's support. But if such a presumption did arise, its effect was at once destroyed by the death of her father and the loss by her of all means of subsistence except for resort to the War Savings Certificates. (at p587)
9. The learned judge's reference to the need of taking care to see that the wife did not better her financial position temporarily by simply instituting a suit appears to me to be quite misconceived. Again, the fact that she had no sufficient means of maintaining herself after her father's death is, I think, abundantly clear. The War Savings Certificates her father had given her lest he be killed provided her with a slender capital resource for an emergency. Normally a wife is not expected to exhaust her capital to maintain herself, in exoneration of her husband's obligation (cf. Bowerman v. Bowerman (1913) 31 WN (NSW) 9 ). No doubt it would be wrong to lay it down that never will the possession by a wife of capital suffice to provide her with adequate means of maintaining herself so that an order for alimony pendente lite should not be made. Circumstances vary infinitely and there is no warrant for fettering the discretion which the statute confers upon the court to act as it deems just. But it would be unreasonable to expect a woman to use up a small capital fund held against an emergency and to treat the existence of the fund as a ground for refusing alimony pending suit. Prima facie, moreover, maintenance is an affair of income. The conclusion which his Honour reached that no reason could be seen for altering the state of affairs which had existed from the beginning of the suit does not take into account the fact that from the beginning of the suit the petitioner strove to obtain an order altering the very circumstances obtaining when the petition was filed. It is ironical that the opposition of the respondent and the long delay which ensued before her application could be heard should be treated by the court as a reason for refusing it. Because of the delay she was forced to change her standard of living and also to use up portion of her very small capital. Surely these are grounds for making an order to take effect from the service of the citation, not for refusing alimony. (at p588)
10. In my opinion the reasons for the order under appeal are untenable. The respondent's complaint that his net income is insufficient for his own needs cannot on the figures be entertained as a ground for refusing an order. I think that an order for some moderate sum ought to have been made in the Supreme Court of the Australian Capital Territory. It was objected, however, by the respondent that it was now too late to reverse the order of that Court dismissing the application and to make an order for alimony pendente lite. The ground of the objection is that since the order appealed from was made, the decree nisi in the suit has been made absolute. It is contended that as the suit is at an end an order relating to the pendency of the suit cannot be made. The decision of Lord Merrivale in M. v. M. (1928) P 123 is relied upon for the proposition. That decision is based upon the view that alimony pendente lite was granted for the purpose of ensuring that the wife should be heard in the cause, that it was not granted in satisfaction of any substantive right and that it was a transitory proceeding limited by the necessities of the case, which ended with decree absolute. I am not certain that his Lordship attached sufficient weight to the retroactive nature of orders for alimony pendente lite and to the unrestricted ambit of the statutory power to grant such alimony. Further, the general rule expressed in the maxim actus curiae neminem gravabit should apply where the difficulty arises from a course of judicial action. It is evident that one aspect of an order for alimony pendente lite is the recoupment to the wife of expenditure on maintenance she has incurred or made from other sources before the order is granted. The jurisdiction of the court is not at an end when the decree nisi is made absolute and it is not altogether true that the purpose of the remedy has gone. The wife may have lived on credit in the expectation of an order and her resources may have been depleted. But however this may be I am of opinion that in exercising our appellate jurisdiction we should not act on the view that the decree absolute superseded our power of correcting the error of the learned judge. Our jurisdiction is to review the decrees, judgments, orders or sentences appealed from and if we think they are erroneous to do what ought to have been done. We cannot always ignore subsequent events when we come to make an order in lieu of an order appealed from that we are prepared to discharge. For instance we could not order a new trial after setting aside a judgment if a party had died and the cause of action had not survived: Ryan v. Davies Brothers Ltd. (1921) 29 CLR 527 . But in such a case as the present there is no reason why we should not do what in our opinion the court below ought to have done. (at p589)
11. The question at what amount the alimony pendente lite should be fixed is one which we should decide. Having regard to the net income of the husband, to the scale of past allowances to the wife and to the mode of life she adopted, I would fix it at 3 pounds a week from the service of the citation until the making of the decree absolute. (at p589)
12. I think special leave to appeal should be granted. The appeal pursuant to such special leave should be allowed with costs, and so much of the order below as dismissed the motion for alimony pendente lite should be discharged and an order to the foregoing effect substituted. (at p589)
McTIERNAN J. The main question is whether the refusal of the wife's application for alimony pendente lite was an erroneous exercise of the discretion which the Supreme Court has under the statutory provisions which applied to this proceeding. These provisions are contained in ss. 5, 41, and 42 of the Matrimonial Causes Act 1899, as amended, of New South Wales. The Matrimonial Causes Ordinance, No. 22 of 1932, as amended, of the Australian Capital Territory made it necessary for the Supreme Court to proceed on and give relief in accordance with the terms of the above sections. (at p589)
2. The wife invoked the jurisdiction given the court by the terms of s. 41. This section says that upon a petition for dissolution of marriage the court shall have the same power to make interim orders for the payment of alimony or otherwise to the wife as the court has in a suit instituted for judicial separation. The power is defined by s. 42, which says that in that suit, if instituted by a wife, the court may make any order for alimony which it deems just. A proceeding for alimony pendente lite is within the terms of s. 5, but if this section contains anything inconsistent with s. 42, the provisions of the latter would prevail. They contain the measure of the jurisdiction given to the court. It has jurisdiction to make any order for the payment of alimony pending the suit which the court deems just. Upon the terms of these sections the order is not as of course. But the refusal to make it may, in some circumstances, be contrary to the statute and not an exercise of the discretion given to the court: for example the refusal of an application by a wellconducted wife who has insufficient money to provide for her subsistence and livelihood pending suit if her husband has the means to do so. (at p590)
3. It has been shown that the interim order which the court is empowered to make is for the payment of money by way of alimony. In Leslie v. Leslie (1911) P 203, at p 205 the President said "The amount of the alimony, and indeed in some degree the question of whether or not it should be allowed at all, is of discretion in the Court, a discretion to be exercised judicially according to established principles of law, and upon an equitable view of all the circumstances of the particular case." It is argued for the wife that it is plain upon a consideration of the facts of the case and the reasons of the Supreme Court for declining to make an order that the dismissal of the application was an erroneous exercise of the discretion given to the court. It is argued for the husband, on the other hand, that it was within the judicial discretion of the court to refuse to make the order, but it was conceded that there was nothing in the case to prevent the court from making the order, and that an exercise of the court's discretion in favour of the wife would not necessarily have been wrong. The evidence shows that at the time the wife filed this notice of motion her means actually consisted only of the residue of the bonds given to her by her father, the value of which was then about 400 pounds. The question is whether it was just to leave the wife to support herself entirely by these bonds. The interest on them was, of course, insufficient. I think that in the circumstances it was unreasonable and unjust to compel her to subsist and maintain herself during the pendency of the suit entirely on the proceeds of the bonds rather than to order her husband to make a just allowance to her for her subsistence and livelihood during that period out of his ample estate. The primary questions were the wife's need of further means of support and the ability of the husband to provide the means. In my judgment the court did not give due weight to the fact that if no order was made the wife's only means of support until the termination of the suit would be this diminishing residue of bonds. They were her only reserves, and I think it was not just to leave her entirely dependent upon them. To leave her in that position was, I think, to compel her to live precariously: cf. Welton v. Welton (1927) P 162, at p 178 . The learned judge said that "Care must be taken to see that the wife does not better her financial postion temporarily." A just order for alimony pendente lite necessarily imporves the financial position of the wife during the pendency of the suit. But the prior question is: Would her means, if no order was made, be sufficient to provide for her until the suit terminates? If not, the fact that her financial position would be improved by an order cannot be a good reason for refusing to make it. As to the consideration mentioned by the learned judge, see Welton v. Welton (1927) P, at p 178 per Lord Hanworth: and as to the basis of the wife's right, see Leslie v. Leslie (1911) P, at p 205 . In my judgment the learned judge misapplied or gave undue weight to the principle that a wife is not entitled to use an application for alimony pendente lite merely to improve her financial position. I am of the opinion that an order ought to have been made upon the wife's application. For that reason leave to appeal should be given. (at p591)
4. This Court has jurisdiction upon the appeal to give such judgment as ought to have been given by the Supreme Court upon the wife's application: Judiciary Act, s. 37. A decree absolute has been made in the suit. But the suit was pending at the time she filed her notice of motion for alimony pendente lite. The Supreme Court should, in my opinion, have made an order for the payment of alimony to the wife from the date of the service of the citation until the final decree (see Clifton v. Clifton (1878) 1 SCR (NS) (NSW) (D) 21 ; Ellis v. Ellis (1883) 8 PD 188 ). In my opinion the Court should upon this appeal make an order to that effect and the amount of alimony should be at the rate of 3 pounds per week. Special leave to appeal should be granted and the appeal allowed. (at p591)
WILLIAMS J. I agree that special leave to appeal should be granted and that an order should be made for the payment of a moderate weekly sum as alimony pendente lite from the date of the service of the petition to the date of decree absolute. But I do not agree that under ss. 41 and 42 of the Matrimonial Causes Act 1899 (N.S.W.) the court has no jurisdiction to make an order for the payment of alimony pendente lite after decree absolute. The order can of course only provide for the payment of such alimony up to that date, but I can see no reason why proceedings taken before that date to obtain the order should not be heard and determined either before or after that date. In Latham v. Latham and Gethin [1861] EngR 496; (1861) 2 Sw & Tr 299 (164 ER 1011) it was held that alimony pendente lite could only be allowed up to the date of the decree nisi. That case was overruled by Ellis v. Ellis (1883) 8 PD 188 where it was held that the court could allow such alimony during the further period between the decree nisi and the decree absolute. But Ellis v. Ellis (1883) 8 PD 188 did not decide that an order for the payment of alimony pendente lite could only be made before the decree nisi was made absolute. (at p592)
2. I do not regard the case of M. v. M. (1928) P 123 as a decision that the court has no jurisdiction to make such an order after decree absolute. Lord Merrivale said "To give a direction now for inquiry as to the wife's maintenance during the period from March to November 1927, while the litigation was proceeding, would be a new departure, and in view of the hardships which often arise where a husband is petitioner it would involve mischievous consequences. The application, therefore, is refused" (1928) P, at p 127 . His Lordship therefore did not say that he had no jurisdiction to make the order but, as I read his judgment, refused it in the exercise of his discretion. There is also the decision of Gordon J. in Davis v. Davis (1910) 27 WN (NSW) 186 . His Honour there held that after decree absolute the court cannot make an order for alimony pendente lite. With all respect I cannot agree with this decision. In the course of his judgment his Honour said, in reference to Ellis v. Ellis (1883) 8 PD 188 : "Both Cotton L.J., and Bowen L.J., took the view that after decree absolute no order could be made for alimony pendente lite. And it seems to me that the pendency of a lis must ex hypothesi be a condition precedent to the making of an order for alimony pendente lite." I can find nothing in the judgments of Cotton L.J. and Bowen L.J. in Ellis v. Ellis (1883) 8 PD 188 which indicates that they took this view. Their Lordships were concerned only with the question whether alimony pendente lite could be granted in respect of the period between decree nisi and decree absolute and were not concerned with the question whether an order could be made after decree absolute. There are no words in ss. 41 or 42 of the Act to limit the power of the court to make orders to the period before decree absolute, and in my opinion the court has jurisdiction to make an order for alimony pendente lite after decree absolute where the proceedings have been commenced before that date. In this way proper effect is given to the principle that the court will not allow unavoidable delays in litigation to interfere with the rights of the parties (In re Scad, Ltd. (1941) Ch 386 ). (at p593)
WEBB J. I agree with the Chief Justice that leave to appeal should be granted and that an order should be made for 3 pounds per week and be ante-dated to 30th November 1948, when the motion for alimony pendente lite was heard. (at p593)
2. Simpson J. did not take into account the fact that the petitioner was not satisfied to provide for her own maintenance without a demand on the respondent for support. Had she been so satisfied the rule that prevents a wife from improving her financial position temporarily by receiving alimony pendente lite might have justified the dismissal of the motion. But on the facts here the principle of law applicable was that stated in Miles v. Chilton (1849) 1 Rob Ecc, at p 700 (163 ER, at p 1184) referred to by Dixon J.,namely, that alimony follows as a matter of course except where the wife has a provision of her own sufficient for her condition in life and proportionate to the means of her husband. The petitioner did not have such a provision. (at p593)
ORDER
Grant special leave to appeal from the order of the Supreme Court. By consent treat the motion for special leave as the hearing of the appeal. Allow appeal with costs. Discharge order of the Supreme Court. In lieu thereof order that the respondent pay petitioner a weekly sum of 3 pounds by way of alimony pendente lite from the date of the service of the petition, indorsed with the citation, to the date of the decree nisi for dissolution being made absolute. Order that the respondent pay the petitioner's costs of the application to the Supreme Court for alimony pendente lite including the costs of taking evidence on commission.
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