Cleaver v Cleaver

[2019] NZHC 1994

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000991

[2019] NZHC 1994

UNDER

The Family Proceedings Act 1980

IN THE MATTER

of an appeal from a decision of the Family Court at Auckland dated 29 April 2019 and delivered on 29 April 2019

BETWEEN

FERGUS DONALD CLEAVER

Appellant

AND

SARA VALENTINA TALAT CLEAVER

Respondent

Hearing:	14 August 2019
Appearances:	B P C Carter for the Appellant I Blackford for the Respondent
Judgment:	15 August 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 15 August 2019 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

CLEAVER v CLEAVER [2019] NZHC 1994 [15 August 2019]

[1]                 The  appellant,  Fergus  Cleaver,  has  appealed  a  reserved  judgment  of  His Honour D A Burns in the Family Court at Auckland.1

[2]                 The primary issue identified in the appeal is that Judge Burns erred by adjourning the respondents, Sara Cleaver’s application for past and future spousal maintenance orders, and required that application to be heard in conjunction with applications under the Property (Relationships) Act 1976 (“the Act”).

Background

[3]                 Mrs Cleaver’s application had proceeded before Judge Burns at a hearing that involved the presentation of evidence  and submissions by both  parties, however  His Honour declined to make any orders with regard to past maintenance on the basis:2

I have reached the conclusion that it would be unsafe to make an award for past spousal maintenance because of the adjustments that need to be made contemporaneously under s 18B for post-separation adjustments and also the sale of capital items. On the basis of the evidence before me and taking the final submissions into account which reinforce my view that a full audit is required and may require some accounting analysis in order to determine an appropriate final figure. Accordingly I am going to adjourn the application for past maintenance to be heard at the same time as any proceedings under the [Act] so the adjustments can be determined together. I encourage the parties to look at the situation and try and reach an agreement between themselves. There can then be a global inquiry.

[4]                 Judge Burns reached a similar conclusion in respect of the application for future maintenance,3 and instead if a further application was filed proposed to extend the existing interim spousal maintenance order for a further six months to give the parties the opportunity to file proceedings under the Act. Unfortunately, neither party had sought such an outcome. Apart from the issue of past and future maintenance, the parties are currently confident that other property orders from the Family Court will not be necessary, noting that they have been working through a number of issues arising out of a s 21 agreement dealing with the fact that the family home is owned by Mrs Cleaver personally, and issues relating to Mr Cleaver’s family trust, with none of those issues requiring the assistance of the Family Court. They are therefore in the

1      Cleaver v Cleaver [2019] NZFC 3101.

2 At [29].

3 At [30].

position that the applications for past and future maintenance have not been dealt with and can only, on the face of the judgment, be dealt with if an application is filed under the Act, a course of action that was never intended by either party.

[5]                 The present hearing was originally intended to deal with a limited jurisdictional issue that had arisen in respect of the appeal but prior to the hearing proceeding counsel conferred as to whether a more holistic solution was available, whereby the substantive proceeding could proceed. Discussing the appeal with counsel, it is clear that what both parties seek is for Judge Burns to determine the applications that are, in effect, currently adjourned. To this end, Ms Blackford confirmed that Mrs Cleaver would consent to the appeal being allowed on the basis that the applications “are remitted back to the Family Court with a direction that His Honour Judge Burns determine those applications without requiring either party to commence relationship property proceedings and requiring him to determine the applications on the basis of the material before him (affidavits, notes of evidence and submissions)”.

Discussion

[6]                 Having discussed the matter with counsel, I am satisfied that such an order should be made. The parties are otherwise stuck in a difficult procedural situation when the outcome they both seek is simply for the applications to be determined. As Judge Burns noted in his judgment,4 with reference to Priestley J in FH v LH.5

… issues of spousal maintenance, maintenance of arrears, and economic disparity … [are] inextricably linked. However, the Acts are designed to remedy different circumstances and must be considered separately.

[7]                 At the very least, in cases like this where the parties are represented by counsel and do not wish to make an application under the Act, they are entitled to expect that maintenance applications will be determined without the Court first imposing a precondition of the commencement of proceedings under the Act.

[8]                 Making the orders sought is otherwise sensible because it obviates the need for further hearings in the High Court, does not require any further hearing time in the

4 At [23].

5      See FH v LH [2013] NZHC 1044 at [48].

Family Court, and it preserves the parties’ rights of appeal on the substantive decisions with regard to past and future maintenance.

Decision

[9]The appeal is allowed by consent.

[10]             The proceedings are remitted back to the Family Court with a direction under r 20.19(1)(b)(ii) of the High Court Rules 2016 that His Honour Judge Burns determine the applications for past and future maintenance without requiring either party to commence relationship property proceedings, on the basis of the material already presented in the hearing before him (affidavits, notes of evidence and submissions).

[11]By consent costs are to lie where they fall.

Powell J