ARS v SJS - [2022] NZHC 22

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-001742

[2022] NZHC 22

UNDER The District Court Act 2016 and the Family Proceedings Act 1980

BETWEEN

ARS

Appellant

AND

SJS

Respondent

Hearing: 24 November 2021

Appearances:

P J Morgan QC for the Appellant S J Tee for the Respondent

Judgment:

17 January 2022

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 17 January 2022 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Thackeray Chambers, Hamilton Braun Bond & Lomas, Hamilton Morton Tee & Co, Auckland

ARS v SJS [Maintenance: division of functions and high standard of living] [2022] NZHC 22 [17 January 2022]

Introduction

[1] ARS appeals the decision of Judge D A Burns given in the Family Court on 9 August 2021 in which the Judge ordered the appellant to pay maintenance of $1,500 per week to his former wife, SJS, from the date of their separation in January 2019 to the date of dissolution of their marriage in April 2021, less a period of 10 months for which maintenance had already been paid.1

Relevant background

[2] The appellant and the respondent, who had known each other for some years previously, began a relationship in early 2012. The appellant proposed on 1 April 2012. The parties married on 6 October 2012. It was a second marriage for the appellant, who was 54 at the time. It was a third marriage for the respondent, who was
50. Both the appellant and the respondent had children by their earlier marriages, but the children were not dependent on their respective parents by the time of the marriage.

[3] Prior to the marriage, the respondent had lived in Whangamatā, where she had moved with her former husband after returning from the United Kingdom in 2010. Before going to the United Kingdom in 2006, the respondent had lived in Auckland and Hamilton. In Auckland, the respondent had trained as a beauty therapist and had opened her first business in 1998. The respondent sold that business when she moved to Hamilton in 2005 to live with her then partner.

[4] While living in Whangamatā, the respondent had operated an agency for a hair products business selling hair care products to pharmacies and supermarkets in New Zealand. The respondent had also started a beauty care business in Whangamatā.

[5] The appellant is a businessperson and company director. He is also the settlor, a trustee and a beneficiary of two family trusts; namely, a property trust and a trading trust, which earns income and makes distributions to the appellant, his children from his first marriage, and his grandchildren.

1 SJS v ARS [2021] NZFC 7728.

[6]The appellant’s direct personal income is modest: it was $42,000 in 2019 and

$54,000 in 2020. However, advances from the trading trust meet the shortfall between the appellant’s living expenses and his income. In 2019, the appellant drew
$1,025,000 from the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ARS v SJS

Details

AGLC: ARS v SJS [2022] NZHC 22
Case: [2022] NZHC 22
Decision Date: 17 January 2022

CaseChat Overview and Summary

In ARS v SJS, the High Court considered an appeal against a Family Court order that the appellant pay his former wife spousal maintenance. The court was required to determine whether the Family Court Judge had erred in fact or law in ordering the appellant to pay maintenance of $1,500 per week from the date of separation until the date of dissolution of the marriage. The court had to examine the Family Court Judge's findings on the respondent's reasonable needs, whether any qualifying circumstances applied, and the duration of the maintenance order. The court found that the Family Court Judge had not erred in ordering the appellant to pay spousal maintenance. The court held that the respondent had established that she was in need and that there were two qualifying circumstances justifying maintenance under s 63 of the Family Proceedings Act 1980. The court found that the duration of the maintenance order was reasonable, given the parties' standard of living during their marriage and the time it would take for the respondent to adjust to the separation. The court varied the maintenance order to reflect the respondent's recalculated weekly costs. The appeal was dismissed, and the respondent was entitled to costs on a 2B basis.

Orders