Hopkins v Whitehead - [2018] NZHC 1996

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-311

[2018] NZHC 1996

UNDER the Property (Relationships) Act 1976

IN THE MATTER OF

an appeal

BETWEEN

HOPKINS

Appellant

AND

WHITEHEAD

Respondent

Hearing: 23 July 2018

Counsel:

J J Delany for appellant

J L Forrest for respondent

Judgment:

7 August 2018

RESERVED JUDGMENT OF DOBSON J

[1] This is an appeal from a Family Court decision striking out an application by the appellant (the husband) to vary the extent of his periodic maintenance obligations.1 The husband’s commitment to pay child support and spousal maintenance is recorded in an agreement completed in August 2016. The application for variation was made pursuant to s 32 of the Property (Relationships) Act 1976 (the PRA).

1 H v W [2018] NZFC 1944. These fictitious names are the same as those adopted in District Court proceedings between the parties: Hopkins v Whitehead [2017] NZDC 14706, [2017] NZFLR 546, described in [13] below.

HOPKINS v WHITEHEAD [2018] NZHC 1996 [7 August 2018]

[2] The narrow issue on the strike out application was whether the provisions in the agreement recording the husband’s maintenance obligations are severable from the terms settling entitlements to property that were also recorded in the agreement. The husband argues that the Family Court Judge was wrong in treating them as not severable.

Factual background

[3] The parties married in 2001 and by the time of their separation in August 2015 had four children then aged between four and ten years old. The husband is a partner in a large international accounting firm. The respondent (the wife) has been a full- time carer for the children. She was not in paid employment to a meaningful extent between the birth of the first child and the date of separation.

[4] In August 2016, the parties mediated outstanding differences and concluded a mediation agreement. Both of them were legally represented and the agreement was concluded as a matter of form, pursuant to s 21A of the PRA.

[5] The agreement recorded that the husband had been paying maintenance to the wife of not less than $20,000 per month since separation. The agreement committed the husband to pay $11,900 per month as maintenance for the wife and the children. The amount was to be adjusted on an annual basis to reflect any increase in the CPI up to three per cent, and was to reduce by 20 per cent on each child either reaching 18 years of age or becoming financially independent. Payments were to cease entirely on the youngest child turning 18. A further sub-paragraph on maintenance in the agreement provided:

This amount can be reviewed to take into account any significant change in the incomes of either party.

[6] The former family…

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.

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Details

Case: [2018] NZHC 1996
Decision Date: 7 August 2018

CaseChat Overview and Summary

Hopkins appeals a Family Court decision to strike out his application to vary the extent of his maintenance obligations. The Family Court Judge found that the provisions in the agreement recording the husband’s maintenance obligations were not severable from the terms settling entitlements to property. The husband argues that the Judge was wrong in treating them as not severable. The issue on the strike out application was whether the provisions in the agreement recording the husband’s maintenance obligations are severable from the terms settling entitlements to property that were also recorded in the agreement. The husband argues that the Family Court Judge was wrong in treating them as not severable. The Court found that the husband’s evidence of the sequence in which issues were agreed during the mediation was not admissible in determining whether the maintenance obligations in the mediated agreement are severable from the terms recording property settlements. The Court also found that there was no scope for other influences on the interpretation of the agreement. Accordingly, the Court agreed with the Family Court Judge that the application was advanced without tenable grounds and it is appropriately struck out. The appeal is dismissed.

Orders