Cooper v Pinney
[2016] NZHC 1633
•19 July 2016
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 GREYMOUTH REGISTRY
CIV-2016-418-5 [2016] NZHC 1633
BETWEEN RAEWYN PHYLLIS COOPER
Appellant
AND
MARCUS ROBERT WILLIAM PINNEY Respondent
Hearing: 23 June 2016 Appearances:
S Zindel for Appellant
Appearance for Respondent excused
A Wilding as Amicus CuriaeJudgment:
19 July 2016
JUDGMENT OF MANDER J
[1] Ms Raewyn Cooper has appealed a decision of the Family Court declining to hear her further application for interim spousal maintenance under s 82 of the Family Proceedings Act 1980 (the Act). Judge Somerville concluded the Family Court did not have jurisdiction to make more than one award of interim spousal maintenance. Ms Cooper maintains the Family Court’s jurisdiction is not so confined and that it may in the exercise of its discretion make more than one award of interim maintenance.
Background
[2] Ms Cooper and the respondent, Mr Marcus Pinney, lived together in a nine and a half year de facto relationship. In September 2014, Ms Cooper issued
COOPER v PINNEY [2016] NZHC 1633 [19 July 2016]
proceedings seeking a division of relationship property and the payment of spousal maintenance. She also filed a separate application for interim maintenance. These applications were opposed.
[3] In December 2014, the parties agreed to the Family Court making an order for interim maintenance. Mr Pinney would pay Ms Cooper the sum of $25,000 to support her over the six months the order would have effect.
[4] In June 2015, Ms Cooper filed a second application for interim maintenance. It was this application which Judge Somerville declined to hear, and it is against that decision this appeal lies.
The appeal
[5] Prior to the hearing of the appeal, Mr Pinney advised he would abide the decision of the Court and did not wish to participate. His counsel was excused.1
Because the outcome of the appeal could affect a significant number of separated couples who do not resolve their proceedings within six months of obtaining an interim order, counsel to assist the Court was appointed. Mr Wilding has fulfilled that role, and I am grateful for the assistance he has provided.2
[6] The appeal turns on the statutory interpretation of s 82 of the Act, and as such gives rise to a quintessential question of law. The issue is the same as that considered by Judge Somerville. Namely, whether the Family Court has jurisdiction after the expiry of an interim order for interim maintenance to exercise its discretion to make a further order when the substantive proceeding has not been finalised.
[7] Before turning to Judge Somerville’s decision, it is convenient to set out s 82 of the Act which the Judge considered prevented the Family Court from making
more than one order for interim maintenance:
1 Cooper v Pinney HC Christchurch CIV-20146-418-5, 22 February 2016 [Minute of
Dunningham J].
2 Family Proceedings Act 1980, s 162A.
82 Interim maintenance
(1) Where an application for a maintenance order or for the variation, extension, suspension, or discharge of a maintenance order has been filed, any District Court Judge may make an order directing the respondent to pay such periodical sum as the District Court Judge thinks reasonable towards the future maintenance of the respondent’s spouse, civil union partner, or de facto partner until the final determination of the proceedings or until the order sooner ceases to be in force.
(2) [Repealed]
(3) [Repealed]
(4) No order made under this section shall continue in force for more than 6 months after the date on which it is made.
(5) An order made under this section may be varied, suspended, discharged, or enforced in the same manner as if it were a final order of a Family Court.
[8] In order for the Court to have jurisdiction to consider the issue of interim maintenance there must be a substantive application awaiting determination. A Judge is provided with a wide discretion to make an order for payment of future maintenance until the proceedings have been finally determined or the order ceases to be in force. No order can continue in force for more than six months.
The Family Court decision
[9] Judge Somerville’s interpretation of s 82 largely turned on an analysis of the legislative history of the provision. The Family Court observed the provision’s predecessor, s 77 of the Domestic Proceedings Act 1968, provided for the making of an order for interim maintenance until the final determination of the parties’ case, or for such shorter period as the Magistrate thought fit. Such an interim order could be “enforced, varied, extended, or discharged in the same manner as if it were a final
order of the Court”.3
[10] In 1977, s 77 was amended. The period of an interim order was limited to one of three months. The express power to extend the order was removed, although
the Court retained its power to vary, suspend or discharge the interim order. In 1978,
3 Domestic Proceedings Act 1968, s 77(4).
the maximum length for which an interim order could be made was extended to six months.
[11] Having reviewed this legislative history, Judge Somerville concluded:4
[26] In my view this legislative history makes it clear that s 82 of the Family Proceedings Act 1980 was intended to assist a recently separated dependent partner with interim support until the Court was able to properly consider the merits at a defended hearing of a substantive application. Because that support was considered to be in the nature of a stop-gap measure at an early stage of the separation, no restrictions were placed on the exercise of the judicial discretion toward interim maintenance. Instead, Parliament limited the duration of the order. The applicant was expected to bring the substantive proceeding to a hearing within that time, and six months was thought to be sufficient for that purpose. However, if it was insufficient, the original order could not be extended. Instead, the Court was empowered, at the hearing of the substantive application, to award past maintenance.
[12] In support of his conclusion, Judge Somerville observed that should an applicant be permitted to make two or more applications for interim maintenance, successive orders could be made in situations where ultimately no jurisdiction was found to make final orders, and that successive hearings would cause unnecessary expense.
[13] The Family Court concluded had the legislature intended interim maintenance to extend beyond the initial six month period it would have left s 77 of the Domestic Proceedings Act in its original form with interim orders enduring until the final hearing of the substantive application. Alternatively, if it considered the parties’ circumstances may require periodic review, it could have retained the Court’s power to extend an interim order for a longer period. In Judge Somerville’s view, the 1976 amendments left no doubt this was not Parliament’s intention.
The statutory interpretation exercise
[14] The meaning of an enactment is to be ascertained from its text and in light of its purpose.5 In determining the meaning of the provision other indications may be
taken into account. These include context, explanatory materials and the
4 Cooper v Pinney [2015] NZFC 511 at [25].
5 Interpretation Act 1999, s 5(1).
organisation and format of the enactment itself.6 The orthodox approach to statutory interpretation was summarised by Tipping J in Commerce Commissioner v Fonterra Cooperative Group Ltd in the following terms:7
The meaning of an enactment must be ascertained from its text and in light of its purpose. Even if the meaning of the text may appear plain in isolation of purpose, that meaning should always be cross-checked against purpose in order to observe the dual requirements of s 5. In determining purpose the Court must obviously have regard to both the immediate and the general legislative context. Of relevance too may be the social, commercial or other objective of the enactment.
(citations omitted)
[15] The scheme and purpose of an Act have emerged over recent time as the principal indicators of meaning where the words of a provision on their own lack precision.8 In the present case, this is particularly acute because, notwithstanding the conclusion of the Family Court, s 82 does not expressly prohibit a further application for interim maintenance. It is therefore necessary to carefully read the Act as a whole to ensure that if there is any ambiguity or doubt as to meaning of the section that it is clarified.9
[16] The history of a provision is recognised as an orthodox tool of statutory interpretation, however, such analysis cannot displace the ordinary meaning of the current Act, and care is required when adopting such an approach. If there is a real and substantial difficulty or ambiguity and the purpose of the enactment is unclear, resort to the history of the provision may be useful. Ordinarily, where the meaning and purpose of the enactment appears tolerably discernible and will not result in unreasonable or unfair consequences, such an exercise is unnecessary and may be
misleading.10
6 Sections 5(2) and (3).
7 Commerce Commissioner v Fonterra Cooperative Group Ltd [2007] NZSC 36, [2007] NZLR
767 at [22].
8 R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 (SC) at [250], per McGrath J.
9 Burrows and Carter, Statute Law in New Zealand, 5th ed, LexisNexis, p 250-261.
10 Farrell v Alexander [1977] AC 59 (HL) at 72-73 per Lord Wilberforce, at 82-84 per Lord Simon, at 94 per Lord Edmund-Davies; Rogers v Cullen [1982] 1 WLR 729 (HL); R v Cuthbertson
[1981] AC 470 (HL); Ross v Lord Advocate [1986] 1 WLR 1078 (HL); Associated Newspapers
Ltd v Wilson [1995] 2 AC 454 (HL), cited with approval in Rossiter v Commissioner of Inland Revenue [1977] 1 NZLR 195 (CA) at 207, per Cooke J; Fuller v MacLeod [1981] 1 NZLR 390 (CA) at 395, per Richardson J; R v Henderson [1990] 3 NZLR 174 (CA) at 178, per Somers J; Scottish Widows Plc v Revenue and Customs Commissioners [2012] 1 All ER 379 (SC) at [123], per Lord Newberger MR; Bridge Trustees Ltd v Houldsworth [2011] 1 WLR 1912 (SC) at [24]
The Family Proceedings Act 1980
[17] The purpose of the Act is set out in its long title. It reads, “an Act to revise the law relating to matrimonial and domestic proceedings”. The Act, which introduced a specialist Family Court system in 1981, should therefore be read as a revision of the law rather than as a simple consolidation of existing law.
[18] The focus of this appeal, s 82, is to be found in pt 6 of the Act which provides a code for the determination of issues relating to the payment of maintenance by spouses and civil union and de facto partners. It provides the Court with jurisdiction to award interim maintenance where an application for a maintenance order or for the variation, extension, suspension or discharge of maintenance order has been filed.
[19] The term maintenance order is defined by the Act as meaning an order or interim order under pt 6 for the payment of maintenance.11 While that label is used in s 82, it is apparent from the context in which the term is used that its meaning is limited to a substantive application concerning final maintenance.
[20] The discretion to award interim maintenance is to be exercised on the basis of what the Judge thinks is reasonable towards the future maintenance of a spouse, civil union partner, or de facto partner until the final determination of the proceeding or until the order ceases to be in force. The Court’s discretion is unfettered, both as to whether an order should be made and as to the amount, if an order is made. The making of the order depends on all the circumstances of the particular case, and the
Court must do what it considers just.12
[21] The wording of s 82 is replicated in s 145I of the Act, which provides the Court with the residual power to make an order for interim maintenance for the purpose of giving effect to New Zealand’s reciprocal rights and obligations in respect of maintenance orders made overseas for children living in New Zealand and vice
versa. The section provides:
and [82], per Lords Walker and Mance.
11 Section 2.
12 Ropiha v Ropiha [1979] 2 NZLR 245 at 247.
145I Interim maintenance
(1) Where an application for a maintenance order or for the variation, extension, suspension, or discharge of a maintenance order has been filed, any District Court Judge may make an order directing the respondent to pay such periodical sum as the District Court Judge thinks reasonable towards the future maintenance of any of the respondent’s children until the final determination of the proceedings or until the order sooner ceases to be in force.
(2) No order made under this section shall continue in force for more than 6 months after the date on which it is made.
(3) An order made under this section may be varied, suspended, discharged, or enforced in the same manner as if it were a final order of a Family Court.
[22] It follows that the interpretation of the power to make interim orders under s 82 in respect of the maintenance of a spouse, civil union partner, or de facto partner, will have application to the making of such orders for children where there is an overseas dimension to the case and the Family Court’s jurisdiction invoked under pt 8 of the Act.
[23] In relation to substantive applications for maintenance, s 61 requires the Court to apply certain principles. While these principles are not mandatory for the purpose of interim maintenance, this Court has remarked on their relevance to applications under s 82.13 Ellen France J, in T v H, after acknowledging that it was not necessary when considering an issue of interim maintenance to consider the principles in ss 62-66 of the Act, observed that in practice they are the type of factors that a Court may well consider when determining whether the s 82 test is met.14
These principles and obligations can be summarised as follows:
(a) Liability to maintain a person under the Act is not extinguished by the fact a person’s reasonable needs are being met by a domestic benefit;15
(b) During a marriage or civil union each party is liable to maintain the
other to the extent necessary to meet the other party’s reasonable
13 T v H [Spousal maintenance] [2006] NZFLR 560 (HC) at [19].
14 See also Ropiha v Ropiha, above n 12; B v B [2008] NZFLR 789 (HC).
15 Family Proceedings Act 1980, s 62.
needs where that party cannot practicably do so, because of certain specified circumstances;16
(c) After a marriage or civil union dissolves or a de facto relationship ends each party is liable to maintain the other to the extent necessary to meet the other party’s reasonable needs where that party cannot practicably do so, because of certain specified circumstances. However, within a reasonable time after dissolution or the de facto
relationship coming to an end, a party must maintain his or herself;17
(d)When assessing quantum regard must be had to a range of factors including:18
(i) the means of each party;
(ii) the reasonable needs of each party;
(iii) the fact that a liable spouse is supporting another person; (iv) the financial and other responsibilities of each party;
(v)any other circumstances that make one party liable to maintain the other;
[24] When assessing liability to pay maintenance and its quantum the parties’ conduct may be relevant, including conduct which amounts to a device to prolong a party’s inability to meet his or her reasonable needs.19
[25] Under s 70 of the Act a Family Court is empowered to order maintenance in various forms, including at any time after a de facto relationship ends. This may include an order for payment of periodical sums towards the maintenance of a
former de facto partner for such period as the Court thinks fit, the payment of a lump
16 Section 63.
17 Section 64 and 64A.
18 Section 65.
19 Section 66.
sum towards future maintenance, and similarly the payment of a lump sum towards the past maintenance of the applicant.20
[26] Sections 79 and 81 provide for maintenance orders to be made in respect of natural parents who have day-to-day care of a child against the other natural parent where there is no marriage or civil union. Such orders may take the form of payments for current care or reimbursement for past care.
[27] Under s 91, in any proceeding relating to maintenance the Court may request the department responsible for the administration of the Social Security Act 1964 to provide a report in writing on the means, earning capacity, and economic circumstances of a party to the proceedings and on any matter relevant thereto.
[28] Illustrative of the flexibility accorded to the Court by Parliament to meet the needs of the case before it is s 92 of the Act. It provides where an application is made to a Court for an order for maintenance under pt 6, the Court may make any other order under that part of the Act that it could have made if such an application had been made at the time when the first-mentioned application was made.
[29] Under s 99, a Court may, after having regard to the principles of maintenance previously summarised at [23] discharge, vary or suspend a maintenance order. Additionally, it may temporarily suspend the maintenance order as to the whole or any part of the money ordered to be paid, and if discharging a maintenance order substitute in its place a new maintenance order, whether of the same kind or not. The Court may also extend the term for which the maintenance order was made.
The purpose of the enactment
[30] The purpose of making provision for maintenance after a marriage or civil union has dissolved, or a de facto relationship ends, is readily discernible from ss 64 and 64A of the Act. The obligation to pay maintenance arises from the inability of one partner to meet their reasonable needs, where he or she is unable to do so
because of certain circumstances.
20 Sections 69 and 70.
[31] These circumstances include the ability of the spouse, civil union or de facto partner to become self-supporting because of the effects of the division of functions within the relationship while they lived together, the likely earning capacity of each party, and any other relevant circumstances. The responsibilities of a partner for the ongoing daily care of any minor or dependant children is an explicit circumstance provided for in s 64(1)(b).
[32] The obligation of a partner to maintain the other after the end of the relationship will not usually be enduring.21 A person is expected to assume responsibility for meeting their own needs within a period which is considered reasonable in the circumstances following dissolution of a marriage or civil union, or the ending of a de facto relationship. However, where, as a result of the end of a relationship, the resulting circumstances render one party financially vulnerable in terms of being able to meet their reasonable needs, the Act provides a comprehensive
statutory scheme for maintenance. Its broad purpose is to assist in meeting the reasonable needs of a party who cannot practicably provide for those needs in a way that is just to both parties. The previous review of pt 6 affirms this purpose, against which the meaning of s 82 must be ascertained.
[33] There is no explicit statutory restriction on the number of times the Court may exercise its discretion to make an interim order. In the absence of such an express restriction to imply such a limitation into s 82 to limit the Court’s discretion would, in my view, run counter to the purpose of the enactment and the wider scheme of the Act.
[34] Such an approach would also appear inconsistent with the Court of Appeal’s understanding of the purpose of interim maintenance. In Ropiha v Ropiha, Richardson J, in reference to s 77 of the Domestic Proceedings Act, described the purpose of the provision in the following way:22
The purpose of the provision is obvious enough. It is to protect the position of an applicant who may have inadequate means to meet current needs
21 There is, however, no maximum period for an award of substantive maintenance, see Z v Z (No 2) [1997] NZLR 258,294.
22 Ropiha v Ropiha, above n 11, per Richardson J.
pending determination of the proceedings, if and so far as it is reasonable in all the circumstances to do so.
In describing the purpose of s 82 in those terms, Richardson J observed that the making of an order for interim maintenance required the Court to do what it thinks just in the circumstances of the particular case. By the time Ropiha was decided the duration of an interim order had already been limited to one of six months. As with the current s 82, there was a power to vary, suspend or discharge such an order but the Court could no longer extend the interim order beyond the maximum period.
[35] The Court of Appeal’s statement of the provision’s purpose has recently been applied and reiterated by this Court. In Hodson v Hodson, Kos J described s 82 in the same terms as that used by Richardson J in reference to the section’s predecessor.23 It is to protect the position of an applicant who may have inadequate means to meet current needs pending determination of the substantive family proceedings.
[36] From both the immediate and general legislative context I am unable to discern a parliamentary intention to deny the Court the flexibility to meet the wide range of circumstances with which it may be presented to achieve the Act’s purpose. This may include the need to consider exercising its discretion on a second application for interim maintenance.
Further interpretative guides
[37] There are two further considerations relevant to the interpretation of s 82. The first is the guidance provided by the Interpretation Act 1999 in respect of provisions that confer powers or impose duties. Section 16 of that Act provides:
16 Exercise of powers and duties more than once
(1) A power conferred by an enactment may be exercised from time to time.
(2) A duty or function imposed by an enactment may be performed from time to time.
23 Hodson v Hodson [2012] NZFLR 252 at [24].
[38] In the absence of the enactment providing otherwise or the context of the enactment requiring a different interpretation, a statutory power, duty or function may be exercised or performed more than once.24 Section 82 vests a decision making power in the Court. Apart from the requirement of an extant substantive proceeding, there is no express limitation on when the power can be exercised, nor the frequency of its use.
[39] An important distinction needs to be drawn when applying s 16 to discriminate between powers of a continuing character and powers which, once exercised, irrevocably determine legal rights which cannot be recalled or revisited. In the context of decisions made by a Court, the requirement of finality will very often be an overriding and determinative consideration. However, the present issue does not give rise to that concern. Once made an order for interim maintenance can
be varied, suspended, or discharged before its expiration.25 The interim order itself
cannot be extended beyond six months but the issue of interpretation before me is whether s 82 precludes the Court from again exercising its discretion to make a further separate interim order after the first has expired.
[40] In R v McKay, the Court of Appeal observed that while the Criminal Procedure (Mentally Impaired Persons) Act 2003 did not expressly contemplate a Court reappraising a person’s fitness to stand trial, s 16 of the Interpretation Act provided that the powers conferred by enactments, and duties and functions imposed by enactments may be exercised or performed more than once.26 The need for a Court to have sufficient flexibility to revisit a defendant’s fitness for trial is readily appreciable despite such a decision determining substantive rights; circumstances may change during the course of the proceeding.
[41] Similarly, over the period prior to the final determination of a substantive proceeding before the Family Court, the merits of an award of interim maintenance, or the basis on which it was initially made, may change. No question arises as to the ability of the Court to revisit its order under subs (4). Equally, justification for
interim maintenance may endure beyond the expiration of the order, or new reasons
24 Interpretation Act 1999, s 4(1).
25 Family Proceedings Act, s 82(5).
26 R v McKay [2009] NZCA 378, [2010] 1 NZLR 441 at [66].
may emerge. In the absence of any express statutory prohibition, it is difficult to discern any legislative intention to restrict the Court’s jurisdiction.
[42] The predecessor to s 16 was s 25(g) of the Acts Interpretation Act 1924. While differently worded, it was to the same effect. It provided:
(g) Power given to do any act or thing, or submit to any matter or thing, or to make any appointment, is capable of being exercised from time to time, as occasion may require, unless the nature of the words used or the thing itself indicates a contrary intention.
The various versions of s 77 of the Domestic Proceedings Act and subsequently s 82 of the Family Proceedings Act, were enacted by Parliament in the presumed knowledge they would be interpreted consistently with the rules or guidance provided by the Acts Interpretation Act. In particular, that unless the context required otherwise a power provided in a statute to a decision-maker could be exercised more than once.
[43] A second relevant consideration when determining the meaning of a statute are traditional common law tenets or principles, which can confidently be assumed Parliament would not derogate from other than in the clearest terms.27 These presumptions, often reflected in international instruments and domestically in the New Zealand Bill of Rights Act 1990, cannot defeat the apparent purpose of an Act, nor be used to rewrite the statute book, however, they have an influential place as indicators of intended statutory meaning.28
[44] The Family and District Courts are courts of limited jurisdiction set by statute. However, their jurisdiction ought not be unnecessarily confined by construing a statute in a particular way when an equally valid alternative meaning is available consistent with the preservation of an individual’s access to the courts to
have rights, obligations or interests protected or recognised by the law.29
27 R v Hansen, above n 8, at [250].
28 New Zealand Bill of Rights 1990, S 27(1).
29 Family Proceedings Act 1980, pt 6.
Previous Cases
[45] Interpreting s 82 as permitting the Court to consider further applications for interim maintenance is consistent with the approach that has been taken to s 82 to date. The Courts have proceeded on the assumption there is jurisdiction to make a further order for interim maintenance. However, apart from one earlier decision of the Family Court, the issue has not been directly addressed.
[46] For over 35 years the Courts appear to have acted on the basis there is jurisdiction to make a further order for interim maintenance. In cases where issues concerning s 82 have been directly raised no concern has been expressed. This at least indicates that no practical difficulty appears to have arisen from that presumed power. Given the wide jurisdiction available to the Family Court under s 82 that is perhaps unsurprising.
[47] In T v H, Ellen France J, when commenting on the possibility of interim orders being enforced for longer periods than six months, observed that a person could reapply for a further interim order on the expiration of the six month period. There could be no automatic rollover of an interim order, however, if matters arose affecting the balance of interests between the parties they could be addressed in the context of a further application.30
[48] In CBJ v JEB, Judge Walker, after referring to Ellen France J’s earlier observations, concluded there was clear provision for multiple orders to be made. It was noted there was no provision in the legislation that there be only one order or application. Judge Walker considered that if Parliament had intended to prevent the
making of multiple applications it would have explicitly done so.31
[49] A number of other cases were cited to me as examples of where Courts have dealt with applications for second interim maintenance orders, either at first instance or on appeal. Despite full argument as to the merits of the further application no
concerns were raised regarding jurisdiction to entertain a second application.32
30 T v H [Spousal maintenance], above n 13, at [22].
31 CBJ v JEB FC North Shore FAM-2005-044-001901, 15 July 2008.
32 MAH v DJP HC Wellington CIV-2009-485-2358, 25 May 2010; H v P [2010] NZCA 584; Chea
[50] The one case where the issue has squarely been addressed is an earlier decision of the Family Court, Zola v Abel.33 Judge De Jong concluded the absence of the Court’s ability to extend an interim spousal maintenance order beyond a period of six months was not intended or designed to preclude a second or subsequent application for interim maintenance. The Family Court Judge considered the objective of requiring a fresh application was to avoid extensions of interim
spousal maintenance orders without the benefit of a fresh application and up to date evidence of the parties’ circumstances, including the reasonable needs of the applicant and the ability of a respondent to meet the applicant’s reasonable needs. As Judge De Jong observed, there may be a variety of reasons why a final spousal maintenance hearing date is delayed.
Other considerations
[51] As already noted, s 82(1) confers a broad discretion on a Judge to make an interim order he or she thinks reasonable towards future maintenance. The absence of mandatory considerations to which the Court must have regard when considering whether to exercise its discretion is in contrast to the detailed criteria required to be applied when determining final maintenance. The absence of such criteria no doubt reflects the practical situation in which a Court is likely to be making an interim order at an early stage in a maintenance proceeding with little, if any, evidence.
[52] Judge Somerville drew on various policy considerations which he considered supported the inference he took from the legislative history of the provision. The Judge considered that Parliament was concerned to ensure the relevant principles and specified circumstances required to be satisfied to award maintenance were not avoided by successive awards of interim maintenance. The Family Court contrasted the wide discretion available to the Court under s 82 with the structured approach required to be taken by the Court to substantive applications.
[53] Judge Somerville discerned a need to focus on those principles and specified circumstances as quickly as possible to ensure the efficient and speedy final
v Chan HC Auckland CIV-2008-404-2469, 3 April 2009; SM v FJM FC Porirua FAM-2007-091-
000851, 20 January 2010; SG v AMG [2012] NZHC 2043.
33 Zola v Abel [2015] NZFC 9058.
resolution of the issues between the parties. In the Judge’s view, the imposition of a six month limit on the duration of an interim order and the removal of the Court’s power to extend the term of that order represented a deliberate step by the legislature to ensure those objectives were not frustrated.
[54] It is apparent that Judge Somerville saw the present case as an example where insufficient progress had been made by the parties towards resolution of the substantive proceeding. Opportunities had been provided to make a substantive final determination about maintenance but these had not been taken up. In the Judge’s view, the legislature considered that in the ordinary course a six month order for interim maintenance ought to be sufficient to provide adequate relief to an applicant pending a final decision. In the absence of the proceeding being finally determined, any shortfall in an applicant’s entitlement could be covered by an award for past maintenance.
[55] Limiting an interim order to six months and ensuring the interim order is not simply “rolled” over by allowing an existing order to be extended were steps likely taken to ensure that interim orders did not become de facto substantive orders. The mandatory principles to be applied to substantive applications should not be allowed to be avoided in that way. However, such concerns are not sufficient to limit the Court’s jurisdiction from hearing a further application. More so in the absence of any express prohibition in the legislation limiting the Court’s jurisdiction. It does not follow from the imposition of a finite term that Parliament intended to prevent the Court from considering whether, in the exercise of its discretion, it would be reasonable in the circumstances of the individual case to consider making a further interim order.
[56] It may be a fair inference that Parliament considered it important that such orders not be allowed by default to become enduring substantive orders, but neither the specific terms of s 82 nor the wider scheme of the Act preclude the Court from exercising its discretion should a further application be made. Such application would be required to be examined afresh and on its merits. That may include a re- examination of the relevant circumstances of the parties and the reasons why another application is necessary, including the status of the substantive proceeding. It would
likely include the procedural history of the matter and the parties’ respective
responsibilities for any delay.
[57] Six months may have been thought an adequate period in the normal case to finalise the substantive proceeding, however, while not invariably the case, frequently final maintenance applications will be heard together with relationship property disputes. In some circumstances this is considered the preferable course.34
There is the clear potential for proceedings to legitimately continue well beyond a six month period. As Mr Wilding observed in his submissions, the Court can request written reports regarding the financial circumstances of a party which has the potential to cause complexity and delay.35
[58] Allowing a party to bring a further application for interim maintenance may risk complication and cost, but such considerations pale in comparison to the principle of access to the Court. There will be situations where because of the particular circumstances or nature of the case, or for reasons beyond the control of the applicant, the proceeding has not been finalised. The reference in s 82 to the future maintenance of the respondent’s spouse, civil union partner, or de facto partner indicates that when considering an interim order the focus must be on the present reasonable needs of the applicant which require to be addressed.
[59] It is difficult to reconcile that requirement under s 82 to provide for future maintenance with the view that an award of past maintenance at a substantive hearing will be a sufficient remedy or provide adequate redress. An award of past maintenance cannot meet the issue of how a person is to adequately manage in the intervening period between the expiry of the interim order and the making of a final decision on the substantive proceedings.
[60] The counter argument is that the recipient of interim maintenance may receive payments which upon closer examination at the hearing of the substantive
application will reveal they were not entitled. A further order for interim
34 In M v B [2006] 3 NZLR 660 the Court of Appeal considered that a final maintenance order application should ideally be heard at or following the resolution of relationship property issues where there is an issue relating to economic disparity.
35 Family Proceedings Act 1988, s 91.
maintenance may aggravate that possible outcome, particularly when regard is had to the absence of criteria and the reduced opportunity to scrutinise an award of maintenance on an interim basis. A Court will need to be cognisant of such concerns when assessing whether to exercise its discretion to make a further interim award. However, it does not provide a reason to deny the Court jurisdiction to examine the issue.
[61] While a more limited approach to the Court’s jurisdiction under s 82 may have some practical appeal when considering interim maintenance in favour of an adult, it is difficult to reconcile with the Court’s responsibility when it comes to the maintenance of children. As already noted, s 145I provides interim maintenance for a respondent’s children pending the outcome of an inter-jurisdictional proceeding. The Court’s responsibility to hear applications for the interim maintenance of children pending final determination of such a proceeding to meet their present reasonable needs gives greater focus to avoid limiting the Court’s jurisdiction when the injunction contended for is other than explicit.
[62] Had Parliament intended to limit the Court’s jurisdiction it would have imposed such a restriction in express and unambiguous terms. An example in the family law context illustrates the point. Section 14 of the Protection of Personal and Property Rights Act 1988 provides:
14 Interim orders
(1) On an application to a court for the exercise of its jurisdiction under this Part, the court may, either on the motion of the applicant or of its own motion, make an interim order under section 10 or section 11 or section 12, pending the final determination of the application.
(2) Every party to the application, and the person in respect of whom the application is made, shall be given notice of any interim order made pursuant to this section, and shall be entitled to be heard on it.
(3) No interim order made pursuant to this section shall continue in force for more than 6 months after the date on which it is made.
(4) An interim order made pursuant to this section may be varied, discharged, or enforced in the same manner as if it were a final order of a Family Court.
(5) After hearing the parties, and the person in respect of whom the application is made, on any interim order made pursuant to this section, or such of them as wish to be heard, the court may—
(a) make 1 but only 1 further interim order; or
(b) make a final order; or
(c) dismiss the application. (emphasis added)
[63] A further example of a different kind is to be found in s 139 of the Care of Children Act 2004. It provides that a proceeding that is substantially similar to a previous proceeding commenced within two years after the final decision may not be commenced without the leave of the Court. A material change in circumstance is required. The lack of any similar type of express limitation on the Court’s jurisdiction under s 82 to consider more than one application is a further indication that Parliament did not intend to restrict the Court’s jurisdiction.
Conclusion
[64] Applying ordinary principles of statutory interpretation to the words of s 82, I have concluded the provision does not restrict the Family Court to a single exercise of its discretion to order interim maintenance. In the absence of any express prohibition on the number of times the Court may exercise its power under the section there appears little ambiguity or doubt that its jurisdiction is not confined to the making of a single order. When assessed against the purpose of the enactment and the objective of pt 6 of the Act, it is not apparent any different meaning was intended to be ascribed to the provision. To the contrary, it supports such a jurisdiction.
[65] In the absence of clear and express language, a Court should be cautious before interpreting a provision as restricting its discretionary jurisdiction. The inferences to be drawn from the legislative history of the provision may reflect a concern that interim orders not be allowed to circumvent the statutory requirements for an award of maintenance and become substantive orders by default. However, such considerations can be taken into account in the exercise of the Court’s
discretion when assessing a further discrete application. Such concerns are insufficient to exclude the Court’s jurisdiction.
Result
[66] The appeal is allowed and the matter remitted back to the Family Court for the hearing of Ms Cooper’s further application for interim maintenance.
Solicitors: Zindels, Nelson
Anthony Wilding Barrister, Christchurch
Copy to: Mr Pinney
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