Hohaia v Caldwell - [2019] NZHC 102

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2018-463-000072

[2019] NZHC 102

BETWEEN
KAREN MICHELLE HOHAIA

Appellant

AND

JASON PETER CALDWELL

Respondent

Hearing: 6 December 2018

Counsel:

T Mounsey for appellant J Daniels for respondent

Judgment:

7 February 2019

JUDGMENT OF KATZ J

This judgment was delivered by me on 7 February 2019 at 2.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Malcolm Mounsey Clarke, Taupō
Daniell Associates, Taupō

HOHAIA v CALDWELL [2019] NZHC 102 [7 February 2019]

Introduction

[1] Karen Hohaia and Jason Caldwell were in a de facto relationship for nearly 15 years, before separating in September 2009. They subsequently resumed their relationship for a further three years or so,1 before finally separating in November 2014. They have one child together, who is aged 21.

[2] During the period prior to and during the first separation, Ms Hohaia was employed in an administrative role at Tūrangi Glass and Glazing (2004) Ltd (“Glass Ltd”), a company that Mr Caldwell is a shareholder and director of. Ms Hohaia remained employed by Glass Ltd following the parties’ second (formal) separation in November 2014. In November 2015, however, she resigned to take up employment with another company in Tūrangi. She later resigned from that position to work at a café.

[3] In November 2016, Ms Hohaia returned to work for Glass Ltd, four days a week. She resigned from that position on 3 October 2017. The circumstances surrounding her resignation are disputed, but were resolved through employment dispute resolution procedures. Whatever the precise reasons, it is clear the employment relationship between Ms Hohaia and Mr Caldwell had completely broken down by early October 2017. Their formerly amicable relationship had become bitter and acrimonious.

[4] Three weeks after Ms Hohaia left her job at Glass Ltd (and almost three years after the parties’ final separation) she filed an application for a maintenance order under the Family Proceedings Act 1980 (“the Act”). She also sought an interim maintenance order.2

[5] Judge J F Munro dismissed Ms Hohaia’s application for interim maintenance.3 Ms Hohaia now appeals that decision.

1      There is a dispute about precisely when the relationship resumed.
2      Family Proceedings Act 1980, s 82.
3      Hohaia v Caldwell [2018] NZFC 2749.

Approach on appeal

[6] Determination of an interim maintenance application under s 82 of the Act involves the exercise of an unfettered discretion, as the Act does not specify any particular criteria against which such applications are to be assessed.4 However, even an unfettered discretion may still be subject to review on appeal.5 To succeed on appeal, Ms Hohaia, must show that the Judge acted on a wrong principle, failed to take into account a relevant matter or took into account an irrelevant matter, or was plainly wrong.6

Interim maintenance orders

[7] An interim maintenance order is a short-term order (no more than six months)7 aimed at meeting the reasonable needs of an applicant who may otherwise have…

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 Hohaia v Caldwell

Details

AGLC: Hohaia v Caldwell [2019] NZHC 102
Case: [2019] NZHC 102
Decision Date: 7 February 2019

CaseChat Overview and Summary

Karen Hohaia appeals against the dismissal of her application for interim maintenance under the Family Proceedings Act 1980, following her separation from Jason Caldwell. The central issue before the Court is whether the Family Court Judge was plainly wrong in her assessment of Ms Hohaia’s ability to meet her own reasonable needs, and thus her capacity to require interim maintenance from Mr Caldwell. The Court found that the Judge was not plainly wrong in her assessment and dismissed the appeal. The appeal has been categorised as Category 2 for costs purposes, and the respondent is entitled to an award of costs on a 2B scale basis, with leave reserved to file memoranda if agreement cannot be reached between counsel.

In assessing Ms Hohaia’s ability to meet her own reasonable needs, the Family Court Judge considered that Ms Hohaia had the ability and resources to generate sufficient income to meet her reasonable needs. The Court found that the Judge was not plainly wrong in her assessment of Ms Hohaia’s ability to meet her own reasonable needs, and thus her capacity to require interim maintenance from Mr Caldwell. The Court held that the Judge was entitled to take account of the fact that limited information had been provided, and Ms Hohaia has previously supported herself over a period of many years (including during extended periods of marital separation). Her employment history is not limited to Glass Ltd. It is therefore clear that Ms Hohaia has marketable job skills. Ultimately, it was open to the Judge, on the fairly limited evidence before her, to decline to accept that Ms Hohaia had made reasonable efforts to find work. The Court also found that the Judge was not plainly wrong in her assessment of when the period of maintenance would begin, and that it was not necessary to consider Mr Caldwell’s ability to pay maintenance, in light of the findings made. The appeal is dismissed.

Orders