Burmester v Burmester - [2018] NZHC 2728

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-000485

[2018] NZHC 2728

UNDER the Property (Relationships) Act 1976

BETWEEN

PETER BURMESTER

Appellant

AND

BEVERLEY JOY BURMESTER

First Respondent

ANNELIESE BURMESTER and SARAH BURMESTER

Second Respondents

Hearing: 19 October 2018

Counsel:

D A T Chambers QC for the first respondent Anneliese Burmester in person

N S Leader as counsel to assist the Court

Judgment:

19 October 2018

ORAL JUDGMENT OF KATZ J

(Contempt – Penalty)

Solicitors: Dyer Whitechurch, Auckland

Counsel:D Chambers QC, Bankside Chambers, Auckland N S Leader, Barrister, Whangarei

Copy to: Anneliese Burmester

BURMESTER v BURMESTER [2018] NZHC 2728 [19 October 2018]

Introduction

[1] On 7 September 2018, I found Anneliese Burmester in contempt of court1 (“Contempt Judgment”) for deliberately failing to comply with a court order (“the Partnership Order”) made in my judgment of 2 February 2018 (“Appeal Judgment”).2

[2] The purpose of today’s hearing is to determine an appropriate penalty. Ms Chambers QC, on behalf of the applicant, Mrs Beverley Burmester, seeks an order that Anneliese be committed to prison for a period of six weeks, subject to early termination if she complies with the Partnership Order.

Background

[3] The background is set out in both the Appeal Judgment and the Contempt Judgment. In summary, Mrs Burmester and her former husband, Peter Burmester, separated in 2011, following an almost 21-year marriage. Unfortunately, resolution of their relationship property issues proved to be both bitter and protracted, involving multiple (largely unsuccessful) appeals by Mr Burmester to this Court on interlocutory issues, as well as repeated adjournment applications. One of the couple’s two daughters (Sarah) aligned herself with her mother, while the other daughter (Anneliese) aligned herself with her father. Both daughters are now adults. Anneliese is aged 25.

[4] On 15 March 2017, Judge Burns delivered the Family Court’s substantive judgment in the relationship property proceedings. He decided in Mrs Burmester’s favour on most key issues.3 Mr Burmester appealed that decision to this Court. Mrs Burmester filed a cross-appeal. The cross-appeal sought orders broadly aimed at facilitating enforcement of the Family Court’s substantive orders, including, in particular, orders made in relation to the operation of a partnership between Mrs Burmester, Sarah and Anneliese, known as the ABS partnership.

1      Burmester v Burmester [2018] NZHC 2352 [Contempt judgment].
2      Burmester v Burmester [2018] NZHC 47, [2018] NZFLR 206 [Appeal judgment].
3      Burmester v Burmester [2017] NZFC 1817 [Family Court judgment].

[5] Anneliese and Sarah were parties to the proceedings in the Family Court, and were also joined as respondents to the appeal. They both elected, however, not to actively participate in the proceedings.

[6] The ABS Partnership is a German partnership established between Mrs Burmester, Sarah and Anneliese, when the family was living in Germany, for the purposes of managing the rental of a property in Germany. Mrs Burmester, Sarah and Anneliese each own one floor of the building. Mrs Burmester’s evidence in the Family Court was that Anneliese, at…

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 Burmester v Burmester

Details

AGLC: Burmester v Burmester [2018] NZHC 2728
Case: [2018] NZHC 2728
Decision Date: 19 October 2018

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Burmester v Burmester dealt with the contempt of court by Anneliese Burmester for her deliberate non-compliance with a court order concerning the operation of a partnership involving herself, her mother, and sister. The legal issues revolved around determining an appropriate penalty for Anneliese’s ongoing contempt of the Partnership Order, which was intended to facilitate the enforcement of the Family Court’s orders regarding the partnership’s management. The court considered the nature of the contempt, its seriousness, and whether it was deliberate and ongoing, alongside Anneliese’s personal circumstances and the influence of her father.

The court reasoned that while Anneliese’s contempt was indeed deliberate and ongoing, there were significant mitigating factors. It appeared that Anneliese was acting under the influence of her father, who had a history of non-compliance with court orders and was using her as an instrument in his disputes. Despite this, Anneliese, as an adult, still bore some responsibility for her actions. The court balanced these considerations and concluded that a further short term of imprisonment was appropriate. It ordered that Anneliese be committed to prison for an additional seven days, with the possibility of early release if she complied with the Partnership Order.

The final orders included a directive for Anneliese to be released from prison if she signed the required documents and provided them to her mother’s solicitors. The court also instructed the parties to file further memoranda regarding the costs of the contempt proceedings.

Orders