GCH v SMH - [2014] NZHC 211

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 CHRISTCHURCH REGISTRY

CIV2013-409-001542 [2014] NZHC 211

BETWEEN GCH Appellant

ANDSMH Respondent

Hearing: 4 February 2014

Counsel: A M Watkins for Appellant
A Corry for Respondent

Judgment: 20 February 2014

JUDGMENT OF WHATA J

[1] GCH appeals against the decision of Judge C P Somerville to include $1,500 per week for legal fees when making an award for interim spousal maintenance under s 82 of the Family Proceedings Act 1980. Section 82 states:

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.

...

GCH v SMH [2014] NZHC 211 [20 February 2014]

(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.

[2] With the benefit of argument, the key issues before me are whether the Judge:

(a) Was wrong in law to allow for legal fees in making an award of interim spousal maintenance in light of the Court of Appeal judgment in C v G where the Court stated that awards of costs are not to be included in periodical maintenance awards;1 and/or

(b) Erroneously assumed that s 18(b) of the Property (Relationships) Act

19762 (PRA) could be used to subsequently adjust the division of relationship property to take into account the payment of legal fees by the appellant.

Background

[3] The parties have separated. They have six children, all of whom are living with the appellant in the family home. The youngest child is still at school. The appellant claims there is no relationship property. By contrast the respondent says there is substantial relationship property3 including land assets currently held in various trusts controlled by the appellant. The appellant, however, says that there are significant debts attached to the relevant land assets and that he has no income. Nevertheless, it is not disputed that the appellant is a trustee of key landholding trusts collectively worth (at least)4 $40 million (the Trusts), and that both parties are discretionary beneficiaries. Further, indicative of the family’s lifestyle, immediately prior to the separation the parties had planned a family trip overseas for one month at a cost of approximately $112,000. They also previously enjoyed…

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 GCH v SMH

Details

AGLC: GCH v SMH [2014] NZHC 211
Case: [2014] NZHC 211
Decision Date: 20 February 2014

CaseChat Overview and Summary

GCH appeals a decision of the Family Court to include $1,500 per week for legal fees in making an award of interim spousal maintenance under s 82 of the Family Proceedings Act 1980. The key issues before the court were whether the Family Court was wrong in law to allow for legal fees in making an award of interim spousal maintenance in light of the Court of Appeal judgment in C v G, and whether the Family Court erroneously assumed that s 18(b) of the Property (Relationships) Act 1976 could be used to subsequently adjust the division of relationship property to take into account the payment of legal fees by the appellant. The court found that while the Family Court was correct in principle, namely that interim maintenance may include provision for legal expenses where those expenses are ongoing and does not pre-empt an award of costs, the Family Court erred in assuming that s 18(b) of the Property (Relationships) Act 1976 could be used to subsequently adjust the division of relationship property to take into account the payment of legal fees by the appellant. The appeal was therefore allowed to the extent that the interim order must be modified in terms of [44] above insofar as concerns legal fees. The parties were granted leave to file submissions on the precise wording of the order for interim maintenance within five working days. The court was not minded to grant costs in this appeal, but submissions may nevertheless be filed in ten working days, with a further five working days for replies.

Orders