Burnside v Burnside HC Auckland M.725-sd01

[2001] NZHC 562

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M.725-SD01

BETWEEN BRIAN JOHN BURNSIDE of Papakura, Company Director
Plaintiff

AND LAUREL JANE BURNSIDE of Papakura, Mother
Defendant

Application: 27 June 2001

Counsel: R Asher QC for Plaintiff
L Soljan for Defendant

Judgment: 27 June 2001

ORAL JUDGMENT OF LAURENSON J.

Solicitors: D Amodeo, Inder Lynch DX EP76504, Papakura
R Asher QC, DX CX10258, Auckland
L Soljan, Shieff Angland, DX CP19036, Auckland

[1] This is an application pursuant to ss.27, 28A and 28B of the Matrimonial Property Act 1976 wherein the plaintiff, Mr Burnside, seeks an occupation order in respect of what was previously the matrimonial home. The application arises against the background of a typically distressing breakdown of a marriage with all the difficulties that entails, including, in particular, the needs of three children, a girl aged 12 and two boys aged 14 and 16.

[2] Since the notification of the marriage breakup to the plaintiff, Mr Burnside, he has occupied another property to which he has access. With the passing of time the two boys have chosen to live with him, as has the young girl, who still maintains contact with her mother, the respondent.

[3] At some point the respondent chose to go to Australia for “time out” and is apparently living in Sydney with her sister.

[4] In the meantime, on 23 May 2001, the plaintiff filed substantive proceedings under the Act seeking the usual orders required to determine the position of the parties. Included in this proceeding is a specific prayer for an order seeking the grant to the plaintiff of the right to personally occupy the matrimonial home with the two older children of the marriage. It seems that this proceeding was not served on the defendant until about 1 June 2001, at a time when she was in Australia. A further application specifically addressing the question of occupation, was filed on 20 June 2001 and it appears this application has only been received by the defendant within the last few days. What is important is that an address for service has now been filed on her behalf dated 26 June 2001.

[5] Also in the meantime, I am informed, applications have been filed in the Family Court to determine such matters as access and custody in relation to the children. Counsel has been appointed to act on their behalf.

[6] As I have noted, this application has been made pursuant to s.27 of the Act. This states:

“27. Occupation orders - (1) The Court may make an order granting to the husband or the wife, for such period or periods and on such terms and subject to such conditions as the Court thinks fit, the right personally to occupy the matrimonial home or any other premises forming part of the matrimonial property.

(2) Where an order is made under subsection (1) of this section, the person in whose favour it is made shall be entitled, to the exclusion of the other spouse, personally to occupy the matrimonial home or the other premises to which the order relates.”

[7] Section 28A states:

“28A. Factors affecting occupation orders and orders with respect to tenancy - (1) The Court -

(a) In determining whether to make an order under section 27(1) or section 28(1) of this Act; and

(b) In determining, in relation to an order made under section 27(1) of this Act, the period or periods the terms (if any), and the conditions (if any) of the order, -

shall have particular regard to the need to provide a home for any minor dependent child of the marriage and may also have regard to all other relevant circumstances.

(2) Nothing in this section shall limit the generality of section 26(l) of this Act.”

[8] Section 26 requires the Court to have particular regard for the interests of children.

[9] The factual situation appears to be that the defendant is presently residing in Sydney, and the three children of the marriage are presently residing with the plaintiff in another property in Auckland which is, apparently, far less attractive as a family home than the matrimonial home which is in issue.

[10] Quite apart from the physical environs, the matrimonial home is the home to which the children are accustomed and from which they derive their comfort, something which they will sorely need at this time. There are also practical matters such as the children’s computers and other belongings still being held in the matrimonial home.

[11] Ms Soljan, appearing for the defendant, has pointed out, quite correctly, that the defendant has had little time to respond to the specific application for occupation and that there are difficulties in maintaining communication between solicitor and client.

[12] Be that as it may, and addressing the particular concern required of me pursuant to s.26 and s.28B, I can see nothing at this stage to justify those children, in the company of the plaintiff, being prevented from returning to their home. I confess I have a concern at the way this matter has developed in terms of the time which the defendant has had to reply. To a degree this concern is ameliorated by reason of the fact the defendant has had notice of the application in the form of the original substantive proceeding which clearly made reference to this order being sought. I believe that the position can be accommodated by conditions being set to preserve the defendant’s position in the event that she wishes to dispute the order which I now propose making.

[13] I wish to make it clear that Ms Soljan, recognising the difficulties that she has had in obtaining instructions, has made it clear that it is the defendant’s intention, to dispute whether an occupation order should be made. I therefore make it clear that the orders which follow are not made by consent.

[14] Having said this, and having previously indicated my thought that it was appropriate to make orders as sought, Ms Soljan then assisted the Court, in company with Mr Asher QC, to determine conditions appropriate to the situation. From my point of view I have two concerns:

[a] To ensure that the children are provided for on the best possible basis in relation to the question of accommodation;

[b] to ensure that if the plaintiff and the children are to have the occupation of the home previously occupied by the defendant, this should not effectively place an impediment to her returning to New Zealand in the event she wishes to do so.

[15] I am satisfied that the conditions previously discussed with counsel, and now formulated by counsel, adequately meet the two concerns held by me. I also note that the property in question is registered in the names of four trustees, including the plaintiff and respondent.

[16] There will accordingly be an order pursuant to s.27 of the Matrimonial Property Act 1976 granting the plaintiff the right personally to occupy the matrimonial home at 115 Pararekau Rd, Papakura with the three children of the marriage, and to have the use of all or any of the household furniture or household appliances, effects or equipment in the matrimonial home, subject to the following conditions:

[a] The three children to be living in the matrimonial home (subject to short vacancies, e.g. school holidays);

[b] The parties to have the right to apply to the Court to review the orders on 24 hours’ notice;

[c] The matter to be called on the Duty Judge List on 18 July 2001;

[d] The Trustees of the B.J. and L.J. Burnside Family Trust, and Keith Willoughby, Barrister and Solicitor of Hesketh Henry, to be served with all papers filed to date, and to file such papers and make such appearance on 18 July 2001, as they consider appropriate;

[e] The plaintiff to place the sum of $1,200.00 with David Amodeo of Inder Lynch, towards the defendant’s accommodation costs with a direction that it be paid towards the defendant’s initial accommodation, the said money to be paid to any motel, landlord or other proprietor notified by the defendant’s solicitors;

[f] The plaintiff to meet all the outgoings on the property.

[17] In the meantime, in accordance with Condition [c] above, the matter is to be adjourned to the Duty Judge List on 18 July 2001 for mention.

[18] If a memorandum is provided from counsel, including Mr Willoughby, before that date, and including reference to the Trustees’ position, the matter can be adjourned on a consent basis without appearances.

[19] Any question of costs at this stage is reserved.