Brian Temple v. Dorothy Munro Temple

CACV000072/1977

Coram: Briggs, C.J., and Zimmern, J.

Date of Judgment: 29 September, 1978.

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JUDGMENT

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1. The parties were married in 1962 and there are three children of the marriage; the children are aged 14, 10 and 7 respectively and they are at present wards of court. Their care and custody have been granted to the husband.

2. The wife petitioned for a decree of divorce, which was granted and made absolute in 1977.

3. The wife brought proceedings for her maintenance against the husband and, initially, was awarded $2,000 per month by the Registrar. She then proceeded in the High Court and an order was made increasing that sum to $3,200. This appeal, the appellant being the husband, is against that finding.

4. It was common ground that the husband's sole income came from his salary. The judge heard evidence from the parties and also had before him several affirmations from each of the parties and exhibits, inter alia, showing the monthly bank balance sheets of the husband. Unfortunately, this court has not been supplied with a transcript of the evidence.

5. The husband's case was that he received, in cash, $8,201.35 per month. However, the trial judge drew the inference, both from the oral evidence which he heard and from the affirmations and exhibits that the correct sum was $10,750 per month. In his contract of service with his employers, the remuneration of the appellant was expressed to be $210,000 per year. That remuneration was intended to cover the rent of a furnished apartment, the wages of the servants, a sum for the education of the children, a sum for one round trip per year for the appellant and his family to the United Kingdom on annual leave, based on tourist air fares, and certain other matters. These were all paid by the employers of the husband and he was left with a sum in cash of $8,201.35 per month.

6. The judge based his finding on the inference that the husband would be able to economize so far as air fares were concerned by going on chartered flights. This is incorrect. The evidence was that the appellant would not receive any cash benefit so far as air fares were concerned if he chose to go on a chartered flight; he would not receive the difference between a chartered flight and a tourist class flight in cash.

7. It follows, of necessity, that the sum found by the judge is wrong. We think that, therefore, this appeal must be allowed and the position restored to what it was before the case came before the High Court. The effect is that the sum of $2,000 is substituted for the $3,200 awarded by the judge. The respondent wife is entitled to her costs.

Representation:

Rodway (J.S.M.) for appellant

Jackson-Lipkin, Q.C. & Stevenson (D.L.A.) for respondent