Collins v Collins - [2014] NZHC 2121

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000876 [2014] NZHC 2121

BETWEEN
G COLLINS

Appellant

AND

J COLLINS Respondent

Hearing: 29 July 2014

Appearances:

Kate Davenport QC for the Appellant
Kevin Muir for the Respondent

Judgment:

4 September 2014

RESERVED JUDGMENT OF MOORE J

This judgment was delivered by on 4 September 2014 at 4:00pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar
Date:

COLLINS v COLLINS [2014] NZHC 2121 [4 September 2014]

[1] Mr and Ms Collins1 commenced a relationship in 2000 and were married in

2003. They separated on 21 November 2010 and their marriage was formally dissolved on 17 June 2013.

[2] They have two young children aged 6 and 4. As part of a shared care arrangement Ms Collins has the primary care with Mr Collins caring for the children five nights per fortnight.

[3] Mr Collins is employed as an aircraft engineer. He also manages rental properties. He resides at an address which is a property owned by a company of which he has control. Ms Collins and the children live in the former family home which is jointly owned in partnership by her trust, the Haven Trust and Mr Collins’ trust, the OPM (Oscar Papa Mike) Trust.

[4] From separation until March 2013 Mr Collins provided Ms Collins with financial support. He made voluntary fortnightly spousal maintenance payments of
$1,100 and additional payments for day care. Naturally, he incurred expenses when the children were in his care. He ceased making the payments apparently for two reasons:

(a) first, he considered his obligations to Ms Collins had been fulfilled given the two and a half years which have elapsed since they separated;

(b) secondly, Ms Collins had recommenced employment.

[5] Ms Collins subsequently gave up work. She continues to live in the former matrimonial home with the children. Mr Collins continued to pay child support at the rate of $1,685 per month.

[6] The partnership between the two trusts also owned a holiday property in
Northland. Since the hearing in the Family Court in March 2014, that property has been sold and the parties have each received a capital payment of $88,000.

1 These are fictitious names to protect the identity of the parties.

[7] Ms Collins made an application for interim spousal maintenance orders in June 2013. An order for interim spousal maintenance was made by the Family Court on 26 March 2014. The Family Court ordered Mr Collins to pay interim spousal maintenance at the rate of $1,600 per month for six months as well as costs in the sum of $3,500.

[8] Mr Collins now appeals on the following grounds:

(a) the capital payment made to the parties following the sale of the holiday property more than meets any shortfall in…

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 Collins v Collins

Details

AGLC: Collins v Collins [2014] NZHC 2121
Case: [2014] NZHC 2121
Decision Date: 4 September 2014

CaseChat Overview and Summary

Collins v Collins was an appeal from an interim spousal maintenance order made by the Family Court. The parties had separated in 2010 and their marriage was formally dissolved in 2013. They have two young children. Following separation, Mr Collins made voluntary spousal maintenance payments to Ms Collins, but ceased to do so in March 2013. Ms Collins applied for interim spousal maintenance in June 2013 and a maintenance order was made in March 2014. Mr Collins appeals on the grounds that the capital payment made to the parties following the sale of the holiday property more than met any shortfall in Ms Collins’ budgeted expenses for the six-month period of the interim maintenance order; the Judge made material errors in the exercise of the discretion to award interim maintenance; and the Judge awarded costs without hearing from either party. The appeal was allowed on the basis of new evidence. The order awarding interim spousal maintenance to Ms Collins was quashed.

Orders