Jones v Thomas - [2023] NZHC 2024

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-2302

[2023] NZHC 2024

IN THE MATTER AND

IN THE MATTER

of the Family Proceedings Act 1980

of an appeal from a decision of the Family Court at Auckland

BETWEEN

MR JONES

Appellant

AND

MS THOMAS

Respondent

Hearing: 11 May 2023

Appearances:

SM Wilson for the Appellant E Telle for the Respondent

Judgment:

1 August 2023

Reissued:

10 November 2023

JUDGMENT OF BECROFT J

This judgment was delivered by me on 1 August 2023 at 4pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

JONES v THOMAS [2023] NZHC 2024 [1 August 2023]

Appeal

[1] On 11 October 2022, Judge Otene at the Family Court at Auckland ordered Mr Jones to pay Ms Thomas1 interim maintenance of $1,345 per week for a period of six months.2

[2] Mr Jones appealed that decision. He also applied for a stay of execution of the decision.

[3] A date has not been set for the Family Court hearing of Ms Thomas’ substantive maintenance and relationship property claims. In my view, such a hearing should now be urgently prioritised.

Should this appeal proceed?

[4] This Court has not yet been able to hear the stay application although it was originally sought in November last year.

[5] In the meantime, all the weekly interim maintenance has been paid by the appellant in full, totalling $34,970. The interim order has now expired. So, the order cannot be stayed. The stay application is abandoned.

[6] In one sense, the horse has already bolted in respect of this appeal. The interim maintenance, already paid in full, cannot easily be refunded by Ms Thomas. I am told she has committed it all to her tertiary study. Mr Telle (for Ms Thomas) says that if this appeal were successful, she would immediately apply for a stay of my decision pending the full hearing. Mr Telle suggests that given Ms Thomas’ parlous financial state, in all likelihood the stay would be viewed very favourably by the Court.

[7] Also, Mr Jones has already conceded in the Family Court that he is liable for past “spousal” maintenance, for a year, amounting to $28,000. Mr Telle suggests it can fairly be predicted that at the substantive hearing, which will involve issues of final

1 These names have been anonymised.
2 Thomas v Jones [2022] NZFC 10437.

maintenance and relationship property, Mr Jones will be ordered to pay at least that
$28,000 as past maintenance.

[8] On a pragmatic basis, Mr Telle submits this appeal is a pointless exercise. At worst for Ms Thomas if this appeal succeeded, and if her substantive application were to fail (save for the $28,000 already conceded by Mr Jones as…

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 Jones v Thomas

Details

AGLC: Jones v Thomas [2023] NZHC 2024
Case: [2023] NZHC 2024
Decision Date: 1 August 2023

CaseChat Overview and Summary

In the High Court of New Zealand Auckland Registry, Becroft J considered an appeal against a decision of the Family Court at Auckland regarding an interim maintenance order. The appellant, Mr Jones, challenged the decision of Judge Otene to order him to pay interim maintenance of $1,345 per week for six months to the respondent, Ms Thomas. Mr Jones argued the Family Court had erred in ordering interim maintenance and, if not, that the quantum of the maintenance was excessive. Ms Thomas defended the Family Court's decision.

The court held that while the Family Court decision regarding Mr Jones' liability for interim maintenance was not plainly wrong, the quantum of the maintenance ordered was excessive. The court found that the Family Court had failed to consider relevant factors, such as Ms Thomas' potential income from part-time work and the inclusion of finance payments for capital items in the maintenance calculation. The court reduced the weekly maintenance to $760, resulting in a total maintenance amount of $19,760 over six months, which was a reduction of $15,210 from the original order. The court also urged the Family Court to urgently schedule the substantive hearing to resolve the remaining maintenance and relationship property issues.

Orders