Jones v Thomas
[2023] NZHC 2024
•1 August 2023
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 payable), Ms Thomas would have to repay only $6,970 – the excess of interim maintenance she has received. Mr Telle is of the view that it is not worth “fighting” over that amount at this stage.
[9] However, I think Ms Wilson for Mr Jones must be right to say that interim maintenance is a different concept and (as here) is made under a quite separate statutory section.3 She wants a decision as to whether the interim maintenance order should be quashed – even partly, so that the Family Court can take that into account as part of the final maintenance and relationship property decisions.
[10]After discussion between the parties, it was agreed the appeal should proceed.
Summary of the result
[11] It may be helpful in this case to summarise the result of this appeal. By a very fine margin I uphold the Family Court decision that Mr Jones is liable to pay Ms Thomas interim maintenance. I conclude that decision is not plainly wrong. However, with great respect, the process used to establish the quantum of that maintenance was in error. I quash the amount of the interim order. Instead of remitting the matter back to the Family Court, I reduce the amount of the interim maintenance to $760 per week, or $19,760 in total.
Factual background
[12]Mr Jones and Ms Thomas are long-time Coromandel residents.
[13] Mr Jones is a farmer. His family have farmed in the Coromandel since the late 1880s. He has worked on farms since he was 17. He lives and works on a dry stock
3 Interim maintenance orders are made under s 82 of the Family Proceedings Act 1980. Substantive maintenance is made under ss 64 and following.
breeding farm owned by a family trust settled by his parents in which he is a beneficiary and, since July 2018, a trustee. Mr Jones farms the property in partnership with his brother and father for a company of which he is director and employee. Both brothers receive a modest salary for working on the farm. It is said that no significant income is generated.
[14] Ms Thomas has lived most of her life in Coromandel at the “Moehou community” in which she purchased a share. This provided her with a home to live in. She was working both voluntarily, and increasingly on a contractual basis, for the Department of Conservation (DoC) as a pest controller. At the time of meeting Mr Jones, she was in the process of obtaining her cyanide licence which would have led to a significantly increased income.
[15] It is agreed that Mr Jones, then aged 49, and Ms Thomas, then aged 43, first met at a party in the Coromandel on 24 October 2013.
[16] Ms Thomas had a son, then aged about nine, living with her. Mr Jones had a daughter, with special needs, then aged about six, living with him.
[17] It is agreed that they started a relationship sometime later, and that they separated on the 16 September 2019 when Mr Jones moved out of the trust-owned farmhouse. It is agreed that Ms Thomas lived in the home until formally evicted in December that year, then in other parts of the Coromandel, sometimes in a caravan, before moving to Auckland in August 2020. The next year Ms Thomas commenced retraining by undertaking a Bachelor’s Degree in Creative Enterprise.
[18] In April 2022 Ms Thomas commenced proceedings for the division of relationship property and what is described as “spousal maintenance” (although the two never married).
[19] Other than that, virtually all aspects of the relationship are in sharp dispute. In this judgment it is impossible and unnecessary to detail all the points of difference – but they are extensive and deep. Some of the relevant differences include the following.
[20] The start date of their de facto relationship is disputed. Ms Thomas says it was underway in November 2013 while Mr Jones says it did not start until July 2015.
[21] When, and why, Ms Thomas ended her DoC employment is disputed. She says it was to run the house and look after Mr Jones’s child and elderly parents, as well as her own child. She says she finished her employment because of the de facto relationship. Mr Thomas said her employment was already finished by that time. Their relative contributions to the relationship, the division of functions within the relationship and the nature of the relationship are profoundly disputed.
[22] There is dispute about the extent to which Ms Thomas engaged in outside paid work during the relationship (and its profitability) as a barista at a local café, running her own mobile coffee business as well as carrying out sewing repairs from their home and later becoming involved in a tourist venture.
[23] There seems to be dispute as to the standard of living they enjoyed during their relationship, but it is apparently accepted that “…their lifestyle was almost exclusively financially maintained by Mr Jones”.4 The parties lived in a four-bedroom house on the farm, which was renovated, had the use of two vehicles, enjoyed two overseas trips and a New Zealand holiday together and were able to access fertility services.5 There is also dispute as to the extent to which Ms Thomas experienced a much lower alleged standard of living after the relationship’s end (she says virtually subsistence) and why.
[24] There is significant dispute about how and why the relationship ended. Ms Thomas alleges that Mr Jones started spreading false rumours in 2019, during the relationship, that she was a drug addict and drug dealer, which she adamantly denies. She says these rumours later prevented her obtaining significant paid work, including resuming contractual work with DoC. Mr Jones says her drug-taking caused an irretrievable breakdown which counselling did not save and made her employment problematic. He acknowledges he began another relationship at this time, but that it was not a three-year relationship as alleged by Ms Thomas. But he accepts that her discovery of it prompted the end of the relationship.
4 Thomas v Jones, above n 1, at [13].
5 At [13].
[25] Ms Thomas was medically certified as unfit for work from December 2019 to February 2020 due to an acute stress disorder.6 She says that because of the false rumours and consequent unavailability of appropriate employment, she eventually had no choice but to leave Coromandel for Auckland in about August 2020. Mr Jones accepts no responsibility for her decision to do so, nor that from August 2020 to November 2022, Ms Thomas and her son apparently had to live in a small two bedroom, and allegedly substandard, flat in Auckland. In any case, he maintains that the lapse of time since the relationship ended means it is unreasonable for him to continue to maintain her.
[26] The need for her to undergo a tertiary degree is disputed and Mr Jones maintains there has been no mention that Ms Thomas, upon graduation, plans to go into graphic design. Also, he disputes her affidavit evidence that she could not earn a living as a barista (which she had engaged in while in Coromandel) nor resume work for DoC in the pest control field.
[27] All of this, and much more, is in complete dispute and cannot be resolved at an interim hearing. These are all matters that will require determination at the final substantive hearing.
Legal basis for ordering interim maintenance
[28]Section 82 of the Family Proceedings Act 1980 (the Act) relevantly provides:
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.
…
(4)No order made under this section shall continue in force for more than 6 months after the date on which it is made.
6 See para [18] of the judgment.
(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 the Family Court.
[29] The leading authority is Ropiha v Ropiha.7 I adopt Collins J’s summary in Dalrymple v Dalrymple8of the key points emerging from Ropiha,9 which Ms Wilson helpfully reproduced in her submissions for Mr Jones:
(1)The provision exists “to protect the position of an applicant who may have inadequate means to meet current needs pending determination of the proceedings, if and so far, as it is reasonable in all the circumstances to do so”.
(2)The Court has “an unfettered discretion both as to whether an order should be made at all and as to the amount if an order is made”. The Court must “do what it thinks just”, which will “depend on all the circumstances of the particular case”.
(3)The Court “will necessarily pay particular regard to the reasonable needs of the applicant over the period for which an order will subsist and the means likely to be available to the applicant to meet those needs.”
(4)“In assessing those needs the Court will take into account the standard of living the parties had adopted for themselves.”
(5)The term “means” is used “in the broadest sense to encompass any sums which the applicant could reasonably be expected to earn from his or her own efforts during the term of any interim order together with any other funds available to the applicant during that period”. Any “moneys taken into account should be reasonably assured to the applicant”.
(6)Interim maintenance should not be ordered “unless proper weight has been given to the applicant's capacity from all sources to meet her needs over that period. In principle, it is immaterial in that regard whether the source of funds is employment reasonably available to the applicant, private income, resources of capital, or welfare benefits provided by the State or some other body.”
[30] Even though s 82 provides the Court with a broad or unfettered discretion. That discretion nonetheless must be exercised justly, and in a manner which is reasonable in all the circumstances of the case.
7 Ropiha v Ropiha [1979] 2 NZLR 245 (CA).
8 Dalrymple v Dalrymple [2019] NZHC 637 at [24].
9 Ropiha, above n 6, at 247.
[31] The “broad” and relatively “unfettered” discretion to award interim maintenance can be contrasted with the much more prescriptive principles for assessing substantive or final maintenance set out in ss 60 to 64A. Indeed, s 61 is specific that these principles do not apply to decisions about interim maintenance.10
[32]Given the appellant’s argument, it will be helpful to set out both ss 64 and 64A.
[33] Section 64 provides the authority to make final maintenance orders after (as here) a de facto relationship has ended, to meet the reasonable needs of one partner, when those needs cannot be met by that partner because one of the specified qualifying circumstances is a “real and substantial” cause of that partner’s inability to meet those needs:
64 Maintenance after marriage or civil union dissolved or de facto relationship ends
(1)Subject to section 64A, after the dissolution of a marriage or civil union or, in the case of a de facto relationship, after the de facto partners cease to live together, each spouse, civil union partner, or de facto partner is liable to maintain the other spouse, civil union partner, or de facto partner to the extent that such maintenance is necessary to meet the reasonable needs of the other spouse, civil union partner, or de facto partner, where the other spouse, civil union partner, or de facto partner cannot practicably meet the whole or any part of those needs because of any 1 or more of the circumstances specified in subsection (2).
(2)The circumstances referred to in subsection (1) are as follows:
(a)the ability of the spouses, civil union partners, or de facto partners to become self-supporting, having regard to—
(i)the effects of the division of functions within the marriage or civil union or de facto relationship while the spouses, civil union partners, or de facto partners lived together:
(ii)the likely earning capacity of each spouse, civil union partner, or de facto partner:
(iii)any other relevant circumstances:
(b)the responsibilities of each spouse, civil union partner, or de facto partner for the ongoing daily care of any minor or dependent children of the marriage or civil union or (as the case requires) any minor or dependent children of the de facto relationship after the dissolution of the marriage or civil
10 Section 61 provides that “In proceedings under this Part (other than proceedings under section 79 or section 82), the court shall apply the principles set out in sections 62 to 66, and any other rules of law that are not inconsistent with those principles” (emphasis added).
union or (as the case requires) the de facto partners ceased to live together:
(c)the standard of living of the spouses, civil union partners, or de facto partners while they lived together:
(d)the undertaking by a spouse, civil union partner, or de facto partner of a reasonable period of education or training designed to increase the earning capacity of that spouse, civil union partner, or de facto partner or to reduce or eliminate the need of that spouse, civil union partner, or de facto partner for maintenance from the other spouse, civil union partner, or de facto partner if it would be unfair, in all the circumstances, for the reasonable needs of the spouse, civil union partner, or de facto partner undertaking that education or training to be met immediately by that spouse, civil union partner, or de facto partner—
(i)because of the effects of any of the matters set out in paragraphs (a)(i) and (b) on the potential earning capacity of that spouse, civil union partner, or de facto partner; or
(ii)because that spouse, civil union partner, or de facto partner has previously maintained or contributed to the maintenance of the other spouse, civil union partner, or de facto partner during a period of education or training.
(3)For the purposes of subsection (2)(a)(i), if the marriage or civil union was immediately preceded by a de facto relationship between the spouses or civil union partners, the effects of the division of functions within the marriage or civil union include the effects of the division of functions within that de facto relationship.
(4)Except as provided in this section and section 64A,—
(a)neither party to a marriage or civil union is liable to maintain the other party after the dissolution of the marriage or civil union:
(b)neither party to a de facto relationship is liable to maintain the other de facto partner after the de facto partners cease to live together.
[34] Section 64A provides that liability to maintain a partner under s 64 expires upon that partner having had a reasonable period of time within which to assume responsibility for meeting his or her own needs:
64A Spouses, civil union partners, or de facto partners must assume responsibility for own needs within reasonable time
(1)If a marriage or civil union is dissolved or, in the case of a de facto relationship, the de facto partners cease to live together,—
(a)each spouse, civil union partner, or de facto partner must assume responsibility, within a period of time that is reasonable in all the circumstances of the particular case, for meeting his or her own needs; and
(b)on the expiry of that period of time, neither spouse, civil union partner, or de facto partner is liable to maintain the other under section 64.
(2) Regardless of subsection (1), if a marriage or civil union is dissolved or, in the case of a de facto relationship, the de facto partners cease to live together, one spouse, civil union partner, or de facto partner (party A) is liable to maintain the other spouse, civil union partner, or de facto partner (party B) under section 64, to the extent that such maintenance is necessary to meet the reasonable needs of party B if, having regard to the matters referred to in subsection (3),—
(a)it is unreasonable to require party B to do without maintenance from party A; and
(b)it is reasonable to require party A to provide maintenance to party B.
(3)The matters referred to in subsection (2) are as follows:
(a)the ages of the spouses, civil union partners, or de facto partners:
(b)the duration of the marriage or civil union or de facto relationship:
(c)the ability of the spouses, civil union partners, or de facto partners to become self-supporting, having regard to—
(i)the effects of the division of functions within the marriage or civil union or de facto relationship while the spouses, civil union partners, or de facto partners were living together:
(ii)the likely earning capacity of each spouse, civil union partner, or de facto partner:
(iii)the responsibilities of each spouse, civil union partner, or de facto partner for the ongoing daily care of any minor or dependent children of the marriage or civil union or (as the case requires) any minor or dependent children of the de facto relationship after the dissolution of the marriage or civil union or (as the case requires) after the de facto partners ceased to live together:
(iv)any other relevant circumstances.
(4)If the marriage or civil union was immediately preceded by a de facto relationship between the spouses or partners,—
(a)for the purposes of subsection (3)(b), the de facto relationship must be treated as if it were part of the marriage or civil union; and
(b)for the purposes of subsection (3)(c)(i), the effects of the division of functions within the marriage or civil union include the effects of the division of functions within that de facto relationship.
[35] Whilst a Court may have regard to these sections in determining an interim award of maintenance, and they will often be helpful, it is worth emphasising, given counsels’ arguments, those are not mandatory considerations. Nor is the Court necessary limited to considering those principles. Rather, whether those principles are necessary and relevant considerations will turn on the particular facts and issues of the case.
The Family Court decision
[36] In the detailed oral judgement under appeal, Judge Otene first set out (correctly in my view) the legal principles, the key issues, the factual background and each party’s position.
[37]In then applying the law to the facts, her Honour noted:
[24]Whether a qualifying circumstance exists and whether there has been a lapse of time such that it is now reasonable that Ms Thomas assume responsibility for meeting her own needs are issues somewhat intertwined. I note first of all that Mr Jones has conceded a liability for maintenance albeit past maintenance. … The crux is whether that circumstance has passed.
[38] On that key issue, the Judge noted that Mr Jones said it was now reasonable for Ms Thomas to meet her own needs, and the reason she could not was her own decision to embark upon requalification rather than seek employment. On the other hand, the Judge noted Ms Thomas’ contention that her embarking on a course of tertiary study became necessary because Mr Jones made her continued residence in the Coromandel untenable.
[39] The Judge proceeded to observe that “[t]he factual matters that will inform findings as to the different narratives the parties offer … are highly contested.”11 Because the Judge could not substantially test the evidence at that hearing, she
11 Thomas v Jones, above n 1, at [26].
concluded she was therefore unable to make those findings and conclude which of the competing contentions were made out. She emphasised however that she was “…. not moved at this point … to dismiss the contentions.”12
[40]Nevertheless, the Judge made three key observations:
(a)First, Mr Jones’s position on Ms Thomas’ evidence about her pre- relationship career - that she didn’t have an established career and was not on the cusp of securing lucrative wo–k - would make it unlikely that Ms Thomas would be in a position to meet her reasonable needs even if she maintained her involvement in tourist work. Also, it would tend to support Ms Thomas’ case for her need to upskill.
(b)Secondly, his acceptance of liability for past maintenance outweighs Ms Thomas’ rent-free residence in the farm dwelling for that period. Further, the fact he had not yet paid any maintenance could explain why she had not been able to prioritise her legal affairs, hence the delay in the application.
(c)Thirdly, the Judge noted that Ms Thomas had not explained whether she had considered pursing the wider employment opportunities open to her in metropolitan Auckland. The Judge “paused” in respect of Ms Thomas' election to embark upon re-qualification rather than employment. Her Honour said at that interim stage she could not conclude that Ms Thomas should have assumed responsibility for her own needs via employment rather than embarking upon re- qualification.
[41] Highlighting the need for justice in the particular circumstances, Judge Otene concluded that the point had not yet been reached that it would be reasonable for Ms Thomas to meet her own needs. Her Honour accordingly granted the interim maintenance order sought, albeit with some alterations.
12 At [26].
[42] She noted that “[d]etermination of the parties’ respective needs and means is to a degree inhibited by the nature and quality of the evidence” and was necessarily “broad brush rather than fine grained”.13
[43] Ms Thomas claimed weekly expenses for her reasonable needs totalled $1,645. The Judge deducted $300 from that figure to account for her son’s contributions to board, groceries and the like. Further, the Judge was not prepared to allow university fees and course expenses. She explained that:14
I balance Ms Thomas’ claim for university fees of $135 per week and ancillary equipment $50 per week against the relatively short duration of the relationship in contrast with circumstances whereby a spouse is kept out of the workforce for many years by the way functions are divided with the relationship. Furthermore, Ms Thomas has not explained and hence put cogently reasons why she has embarked upon re-qualification rather than sought employment in a metropolitan workforce.
[44] In the end, the Judge granted interim maintenance to Ms Thomas in the sum of $1,345 per week for the six-month period beginning 17 October 2022. Her Honour was also evidently suspicious as to whether the Court had a full picture of Mr Jones’s income and expenditure. She specifically noted that Mr Jones apparently “…incurs no legal expenses so presumably his litigation costs are funded by other means available to him.”15 On a preliminary view, the Judge noted that costs should follow the event.
Legal approach on appeal
[45] The approach to be taken on this appeal is well set out by Gault J in Able v Able:16
[8]There is no real dispute about this Court’s approach on appeal. Orders for interim maintenance under s 82 of the Family Proceedings Act 1980 involve the exercise of discretion. Accordingly, on appeal the approach taken in May v May applies. As the Supreme Court said in Kacem v Bashir, in this kind of case the criteria for a successful appeal are: (1) error of law or principle; (2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong. The appellant seeking to appeal against the exercise of a discretion, particularly an unfettered discretion, has a difficult task.
13 At [32].
14 At [35(c)].
15 At [39].
16 Able v Able [2020] NZHC 177, [2020] NZFLR 8 (footnotes omitted).
[9]In the interim maintenance context, the discretion is unfettered in the sense that there are no mandatory considerations such as those that apply to final spousal maintenance orders. Thus, the real question in relation to each of the two orders in issue is whether the Judge was plainly wrong.
[46] Both parties accepted that this more stringent approach applies to this appeal – rather than the wider evaluative approach, typical in a right of general appeal, where the merits of the case must be considered afresh.17
The competing contentions
[47] For Mr Jones, Ms Wilson contends these are highly unusual circumstances. Over three years elapsed before Ms Thomas was awarded interim maintenance. It is said the parties’ relationship was short. There were no children of the relationship. And the parties were both in their forties. There is no evidence that Ms Thomas’ alleged inability to assume responsibility for her own reasonable needs following separation was in any way caused by the division of functions within the relationship. Rather, any ongoing inability is the result of her decision to embark on tertiary study instead of seeking employment in the fields in which she was already skilled and experienced.
[48] This was a case where, having taken into account all relevant circumstances, the appellant says the Family Court needed to stand back and consider whether it was just and reasonable to order interim maintenance. In Ms Wilson’s submission, plainly it was not. She contends the Judge erred in her assessment as to both liability and quantum.
[49] Ms Wilson’s argument was a wholesale attack on the order for which she maintained that there was no basis in fact or law. She advanced two appeal grounds challenging Mr Jones’s liability for maintenance and three as to quantum:
Liability
(i)First, the Judge failed to properly consider the absence of any causal link between Ms Thomas’ alleged inability to meet her
17 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31] and [32].
reasonable needs, and the effects of the alleged division of functions in this short relationship. The Judge further erred in failing to have regard to the lack of evidence as to Ms Thomas’ earning prospects following completion of the graphics degree.
(ii)Second, the Judge incorrectly focused on the grounds that may have existed for maintenance immediately following separation in September 2019. In doing so, the Judge failed to properly consider the effect of the lengthy delay (two-and-a-half years at least) between separation and seeking maintenance.
Quantum
(iii)Third, the Judge erred in identifying Ms Thomas’ reasonable needs by allowing the acquisition of capital items, including a motor vehicle, to be included in her budget.
(iv)Fourth, in determining Ms Thomas’ means, the Judge failed to consider, and allow for, income she could reasonably be expected to earn.
(v)Finally, the Judge erred in assessing Mr Jones’s ability to pay the amount of interim maintenance ordered.
[50] Ms Thomas’ position is clear and simple. On her behalf, Mr Telle supports the decision of the Family Court as being correct and not “plainly wrong”. He says in particular that Ms Thomas, having necessarily embarked a year earlier on tertiary training, should be provided with support to continue.
First appeal ground: failure to take into account two relevant considerations in making the order
First relevant consideration
[51] The starting point for this ground of appeal is the Judge’s conclusion that she was not prepared to dismiss Ms Thomas’ contentions that she had reasonably embarked upon re-qualification. Further, that the Judge did not conclude that the point
had been reached at which the respondent could reasonably be expected to meet her own needs. In arriving at these conclusions Ms Wilson submitted, and I agree, that the Judge plainly had regard to ss 64(2)(d) and 64A of the Act.
[52] Mr Jones’s essential argument is that, although the Judge was not required to have regard to the qualifying circumstances in ss 64 and 64A, having clearly elected to do so, it was an error of principle not to consider the other necessary elements of s 64(2)(d). Ms Wilson strongly submitted that the Judge should have analysed whether the requisite causal link between Ms Thomas’ current inability to be self-supporting, and the division of functions within the relationship while the parties lived together, was established. Ms Wilson’s submission was that they were plainly relevant considerations.
[53] Ms Wilson argued that, had the Judge considered these requirements, it would have been apparent that none of the reasons given by Ms Thomas for needing to re- train (rather than to seek employment) arose from the effects of the division of functions during the relationship. In Ms Wilson’s view, these reasons (Mr Jones’s alleged rumourmongering about Ms Thomas’ drug taking and Mr Jones making her employment with DoC untenable) arose after the relationship had ended, not during it. She argued these matters were therefore irrelevant under s 64 in considering whether Ms Thomas’ election to enrol in tertiary studies provided any basis for Mr Jones’s ongoing liability for maintenance.
[54] In support of this point, Ms Wilson made detailed submissions as to the inadequacies of Ms Thomas’ own affidavit evidence. Despite Ms Thomas’ claim that she gave up her DoC employment to embark on the de facto relationship, all the DoC contractual documentation annexed to her affidavit shows that her last DoC work was before the date that even Ms Thomas said the de facto relationship had begun. In other words, Ms Thomas’ own evidence proves that commencing a relationship with Mr Jones and assuming domestic responsibilities could not have had, and did not have, any effect on the continuation of her DoC work as it had already finished.
[55] Ms Wilson also argued that the more time that elapses after a de facto relationship ends, especially a short-term relationship like this one, the more the Court should consider the ss 64 and 64A factors. The more so where the interim maintenance application is not made in the immediate aftermath of the relationship ending.
[56] Ms Wilson’s is a clever and nuanced argument. However, several things can be said about it.
[57] First, I am not sure it is right to say that the factors the Judge relied upon as reasons for Ms Thomas needing to re-train all post-dated the end of the relationship. For instance, as I understand Ms Thomas’ affidavit evidence, she maintains Mr Jones started spreading the rumours about her drug-taking and drug-dealing prior to the relationship ending.18 It was those rumours that Ms Thomas says significantly torpedoed any ability to obtain work in Coromandel. I think Ms Wilson is correct, however, that Ms Thomas’ allegations that Mr Jones spoke to DoC expressing his opposition to Ms Thomas’ proposed resumption of employment with DoC occurred after the relationship ended. Ms Wilson’s criticism is therefore only partially correct
[58] Similarly, I accept that all the documented evidence annexed to Ms Thomas’ affidavit only relates to periods of DoC contracts before November 2013. This is the earliest time that Ms Thomas said the de facto relationship began. That said, in the absence of cross-examination the Judge is entitled to proceed on the clear assertions in Ms Thomas’ affidavit that she gave up that work in order to commence the relationship and support Mr Jones and his family.19
[59] As I observed during Ms Wilson’s submissions, her arguments will certainly be fertile ground for cross-examination at the substantive maintenance hearing. At that time, no doubt the specific issue as to when Ms Thomas ended her employment will become clear. In that way, the question of any causal nexus between Ms Thomas foreclosing on her employment prospects and her upskilling (by obtaining her cyanide licence for more remunerative work with DoC), in order to enter into her relationship with Mr Jones and undertake supportive domestic and family duties, will be resolved.
18 See Ms Thomas' affidavit dated 28 June 2022 at [28] and [29].
19 See Ms Thomas’ affidavit dated11 April 2022 at [38] and [64] – [67].
But at the interim stage, with none of the evidence tested, Judge Otene was surely correct to say that she was “not moved … to dismiss the contentions”20 – by inference including the contention about the causal nexus.
[60] The thrust of Judge Otene’s decision is that, in the general sense, she has considered what she believed to be relevant (but not mandatory) s 64 factors; and that in the context of the affidavit evidence, most of which could not be resolved, there was enough to suggest that these factors (including a causal nexus consideration) were generally satisfied.
[61] Frankly, I do not see how it is possible for a Judge at the interim stage to do more than that, especially when the evidence is so profoundly contested. With respect to Ms Wilson’s argument, it is neither appropriate nor possible to pick the evidence apart at this stage to the extent she proposes.
[62] That is probably sufficient to dispense with Ms Wilson’s argument on that point. But it is worth saying a little more.
[63] There is a subtle danger in Ms Wilson’s approach. Too easily it can turn an interim decision into a “dress rehearsal” for the forthcoming substantive hearing or, even worse, a “mini s 64 hearing”. That is not the purpose of an interim order, which is simply to do what is just and reasonable in all the circumstances. And the circumstances here include the reality of hotly contested evidence.
[64] Also, such an approach can all too easily turn into a narrow analysis of whether the ss 64 and 64A tests are satisfied, so that those tests, in practice, became mandatory. Of course, there will be many times when those tests are relevant, and Ms Wilson pointed to cases where interim maintenance orders have been refused after those principles were applied. But it must be remembered that the interim maintenance decision under s 82 is not constrained by any mandatory statutory considerations. As Duffy J observed in Owen v Thomas:21
20 Thomas v Jones, above n 1, at [26].
21 Owen v Thomas [2014] NZHC 2200 at [44].
As no relevant considerations are stipulated, there are no mandatory considerations for a Judge to take into account. Whilst Judge Riddell said she would take the s 64 considerations into account, this is not enough to elevate those considerations to the status of mandatory relevant considerations, which is what they are when it comes to making a decision under s 64. In the context of making a decision under s 82, Judge Riddell was free to take the s 64 considerations into account or, having done so, then to change her mind and put them to the side.
[65] Mr Telle must be right when he says that in the end, the Judge is free to take into account some, all, or none of the s 64 considerations; and that the Judge is free to use part of these considerations as the Judge thinks appropriate (so long, I would add, as the decision is just and reasonable and not so wholly inconsistent with those considerations as to be without any rational basis).
[66] In Mr Telle’s view, the Judge considered what she believed relevant and necessary. Her conclusion is plainly supportable. In terms of the appeal criteria articulated in Able,22 the decision is not “plainly wrong”. I agree.
Second relevant consideration
[67] The second “relevant consideration” that the Judge failed to take into account is that Ms Thomas provided no evidence to suggest that the Bachelor of Creative Enterprise she was undertaking would increase her earning capacity or eliminate her need for maintenance, as required by s 64(2)(d). Ms Wilson was clear that while Ms Thomas hoped it would lead to gainful employment, no explanation was given for her apparent change in career direction. Nor did she explain why she could not obtain satisfactory employment in Auckland or what the expected levels of remuneration might be following completion of her studies.
[68] Ms Wilson noted that Ms Thomas’ decision to study was made over a year after the parties separated. She did not apply for maintenance until well into the second year of study. Her further study cannot be said to be reasonable or necessary. This is especially so given the lack of evidence that Ms Thomas had made any attempt since separation to work in any of the areas in which it seems she was most skilled (pest control), or the areas she worked in during and after the relationship (hospitality).
22 See para [45] of this judgment.
[69] Ms Wilson is on stronger ground in this part of her argument. Consistent with my previous observations, it would be wrong to elevate these matters into mandatory considerations at the interim maintenance stage. Nevertheless, as is clear from the Judge’s reasoning, they are plainly relevant issues in this case.
[70] In my view, the Judge proceeded on the assumption that Ms Thomas’ successful completion of her tertiary study would increase her earning power. Relative to her previous jobs and her parlous financial position, this was not an unreasonable assumption to make. But it should have been articulated by the Judge. And relevant evidence should have been provided.
[71] Mr Telle candidly conceded that this was his first ever application for interim maintenance. With the benefit of hindsight, he would have and should have provided all this information. At the hearing, he did provide much more detailed documentary information as to the likely earning power of someone who had completed a Bachelor of Creative Enterprises at UNITEC. It showed that graphic designers usually earn between $54,000 to $100,000 per year, as opposed to the salary of a barista in New Zealand that was in the vicinity of $21 an hour. He made the point that this was not specialist knowledge. It was readily and publicly available on the internet and through UNITEC, and he had not anticipated any need to include it in the affidavit evidence.
[72] Unsurprisingly, Ms Wilson objected to this additional “late” evidence. I observe that this evidence completely supports what I have called the Judge’s “reasonable assumption”.
[73] At this stage, it would be artificial for me not to consider it. The alternative would be to quash the interim maintenance order and remit it back to the Judge for consideration of the very same material. A significant increase in Ms Thomas’ earning power would be the inevitable conclusion. In the circumstances, Ms Wilson maintained her objection, but not so strongly.
[74] I am more concerned by the lack of any evidence as to why Ms Thomas could not obtain any employment in central Auckland, particularly with DoC in the field of pest control or in a hospitality role as a barista.
[75] Mr Telle explained from the Bar that Ms Thomas’ arrival in Auckland in August 2020 was soon after the first Covid-19 lockdown. As the appellant’s chronology records, there were further lockdowns the next year in February and March, and then a significant Auckland lockdown from August to December 2021. Mr Telle’s point was that, as a result, it is well known that the hospitality industry consequently collapsed. This is so well known, he maintained, that evidence is not required to confirm how difficult it became to find employment. Equally, DoC employment would have been very difficult. But, in any case, DoC rural pest control employment is understandably impossible to undertake from urban central Auckland.
[76] In my view, evidence should have been provided on this point – at least evidence as to Ms Thomas’ attempts to seek employment and why she turned to further tertiary study instead.
[77] That said, Judge Otene was clearly alive to this issue. At para [30] of her decision she said:
[30] Finally, I pause in respect of Ms Thomas’ election to embark upon re- qualification rather than engaging in employment. She is now in a metropolitan centre presumably with more varied employment opportunity. She has not explained whether she has considered and pursued those opportunities. I do not within the context of ordering matters for only an interim period conclude that because of this [absence of explanation] Ms Thomas should have assumed responsibility for her own needs via employment. It may, however, be a factor that weighs more heavily and soon in the decision about final maintenance.
[78] I, too, pause at this point to reflect on whether the Judge’s conclusion is warranted.23 Given this lack of any evidence, it must be said that Judge Otene certainly made a very favourable finding for Ms Thomas. By a very fine margin, I cannot say it is plainly wrong. It is a legitimate exercise of judicial discretion about which reasonable judges might reasonably differ. And there is something in Mr Telle’s submissions that the documented and extensive Covid-19 lockdowns in Auckland are a matter of public record and can be assumed as having made employment much more
23 I note that there are decisions in the Family Court, referred to me by Ms Wilson, where Judges have refused interim maintenance orders where there was no satisfactory or adequate explanation as to why the applicant has not endeavoured to obtain any employment or support herself. See, for instance, Cannon v Cox [2020] NZFC 5114 at [27].
difficult, in the same way as the relatively low levels of remuneration for baristas can be assumed.
[79] Mr Telle referred me to the High Court decision of A(T)A v RKZ where Fogarty J emphasised that:24
[6] To my mind, there is an obvious reason why the discretion in s 82(1) is drawn so simply rather than the detailed criteria in ss 64 and 64A. Section 82(1) reflects the exigency of an interim order. It lasts only six months. It is obviously intended to be a judgment made in a relatively summary fashion by a Family Court Judge.
[80] Fogarty J went on to observe that in the context of the other provisions of the Act, which would be well known to a Judge, the interim maintenance procedure provided for “… also respects that the Family Court Judge has to make a swift decision as to interim maintenance without the benefit of a full trial.”25 Accordingly, Fogarty J concluded that “… an appeal against a judgment applying s 82 is inherently difficult to maintain successfully.”26
[81]These principles similarly influence me in not quashing this order.
[82] I also observe that had I quashed the decision on this basis, I would have remitted it to the Family Court for further consideration of the very evidence that Mr Telle says would be easily provided. This would also probably resolve this point in Ms Thomas’ favour.
Second appeal ground: error in relying on circumstances at time of separation to assess ongoing liability for interim maintenance
[83]Ms Wilson attacks the Judge’s finding at para [31] of her decision:
[31] Bearing in mind the need to do justice in the particular circumstances of the case I do not conclude that the point has yet been reached that it is reasonable for Ms Thomas to meet her own needs.
24 A(T)A v RKZ [2015] NZHC 859.
25 At [7].
26 At [7].
[84] She argues that the Judge improperly focussed on the grounds that may have existed for maintenance immediately following separation in 2019. Ms Wilson submits the Judge failed to consider whether the parties’ standard of living could continue “to justify an order for ongoing interim maintenance nearly three years after separation”. In Ms Wilson’s view, “with the passage of time, the standard of living during the relationship assumes less significance”.
[85] I accept that the passage of time since the relationship ended is relevant in these circumstances. And again, I accept that the Judge’s conclusion is very favourable to Ms Thomas. I would have thought that the delay before Ms Thomas sought interim maintenance is at the outside end of what would be reasonable. Some Family Court judges may have considered two-and-a-half years as being simply too long.27 But other judges, as did Judge Otene, may conclude in the circumstances of this case, at the interim stage, that it was not yet reasonable for Ms Thomas to meet her own needs. This is a matter of legitimate judicial discretion. That other Judges may have reached a different conclusion does not make this decision plainly wrong.
[86] I also observe that the appellant overstates the matter by suggesting that the Judge’s observation that the “detrimental change in the respondent’s circumstances has been significant” was not supported by the evidence; and that she focussed on Ms Thomas’ circumstances at the time of separation rather than at the date of the hearing. Judge Otene clearly considered the relatively comfortable lifestyle that Ms Thomas enjoyed during the relationship which included overseas holidays, alterations to the four-bedroom farmhouse in which they lived and access to fertility treatment. By contrast, her ongoing living standards after the relationship seemed, on the untested evidence, very low; and continued in Auckland with what, on one analysis, was virtually subsistence living.
27 Such a case, relied on by the appellant, appears to be Hogan v Hogan [2020] NZFC 6084, [2021] NZFLR 764. There, at para [33](a) the nearly three-year gap since separation was a factor that weighed against interim maintenance being granted.
[87] I can well understand Mr Jones’s frustration at the relatively late application and the imposition on him of interim maintenance orders. All that said, I cannot conclude that the Judge’s decision was “plainly wrong” or failed to take into account a relevant consideration.
[88] I also note the Judge’s observation that “[t]he absence of adequate maintenance through the period to now and Ms Thomas’ rather basic lifestyle unlikely leant to her prioritising organisation of her legal affairs and provides some context in the delay in this application.”28 Contrary to Ms Wilson’s view, I cannot say that conclusion was unsound, at least at the interim stage. It reflects the Court’s duty to do justice in all the circumstances.
[89] On that basis, and by a very fine margin, I hold that the Judge’s decision as to Mr Jones’s liability to pay interim maintenance was not plainly wrong. I now turn to matters of quantum.
Third ground of appeal: error of law in identifying Ms Thomas’ reasonable needs
[90] Ms Wilson argues that the interim maintenance of $1,345 per week, over a period of six months, is “high by any standard” and “was plainly excessive and unjustified in the circumstances of this case”. It is accepted by Ms Wilson that the Judge significantly pared back certain expenses identified in the respondent’s budget. But Ms Wilson argues the Judge failed to properly scrutinise other amounts sought in the budget.
[91] Under this heading, Ms Wilson says that the Judge allowed for finance payments to acquire capital items including a fridge, washing machine and dryer, despite allowing $750 per week for rent which would ordinarily include these items. Further, the Judge allowed the inclusion of weekly finance payments to acquire a vehicle despite uncontested evidence that Ms Thomas was provided with a warranted and registered 2001 Toyota Hilux at the time of separation. Ms Wilson was firm that the purpose of maintenance is not to allow for acquisition of capital items. In principle
28 Thomas v Jones, above n 1, at [29].
that must be right but there is no “bright-line” between the two concepts. Much will depend on the circumstances.
[92] In relation to the whiteware, Mr Telle referred to the observations of Hammond J in M v B – later relied on by Kós J in Hodson v Hodson,29 who Judge Otene cited early in her decision –30 that “a Court should not be niggardly in its approach to the problems faced by a wife (or husband).”31 In Mr Telle’s view, disallowing payments for whiteware would have been unfair and niggardly. I agree. It is well known that not every landlord provides all these utilities. However, Mr Telle concedes that the Hilux vehicle was transferred to Ms Thomas although there is a dispute, which can only be resolved at the final hearing, as to the current roadworthiness of the vehicle. Apparently it is not now used by Ms Thomas. I am unsure as to why, having had use of this vehicle for at least some months, she cannot do so now.
[93] In my view, at least the $185 payments allowed for Ms Thomas to acquire a vehicle, were unjustified and should not have been allowed. They should be deducted from the weekly maintenance.
Fourth ground of appeal: failure to take into account income Ms Thomas could be expected to earn from her own efforts in determining her available means
[94] Ms Wilson’s straightforward argument under this head is that the Judge should have considered Ms Thomas’ opportunities for work, even part-time work, in considering her means during the period of interim maintenance order.
[95] In Ms Wilson’s view, the Judge correctly identified Ms Thomas’ total failure to explain why she had not sought any employment, in any form, since the beginning of 2020; and in particular, why she had not considered and pursued the more varied employment opportunities that would be available to her in metropolitan Auckland.
29 Hodson v Hodson [Maintenance] [2012] NZFLR 252 (HC) at [27].
30 Thomas v Jones, above n 1, at [5].
31 M v B [2006] 3 NZLR 660 (CA) at [256].
[96] Notwithstanding this failure, the Judge felt she could not conclude within the context of an interim maintenance order application that Ms Thomas should have assumed responsibility for her own needs via employment. The Judge added that it might be a factor that weighs more heavily in the final maintenance decision.
[97] Ms Wilson’s point was that the Judge erred in restricting this consideration to the question of whether there was liability for maintenance. Ms Wilson strongly submitted it was also relevant to quantum.
[98] I accept the Court of Appeal’s observation in Ropiha v Rophia that the judge will pay particular regard to the means likely to be available to the applicant to meet their reasonable needs over the period for which the order will subsist.32 The Court noted that the term “means” is used:33
… in the broadest sense to encompass any sums which the applicant could reasonably be expected to earn from his or her own efforts during the term of any interim order …
[99]Critically, the Court noted that interim maintenance should not be ordered:34
… unless proper weight has been given to the applicant’s capacity from all sources to meet her needs over that period.
[100] I agree with Ms Wilson that this is a matter the Judge should also have weighed when assessing quantum. It appears that the Judge gave no consideration to it. Mr Telle responsibly agreed.
[101] For example, the academic year usually ends by early November and does not commence again until late February or early March. As the period for interim maintenance was from early October 2021 to early April 2022, for much of that time Ms Thomas could have been working full time. As is well known, many tertiary students must do the same nowadays, and many have to work part-time during their studies. Ms Thomas could have been reasonably expected to earn money herself during the time of the order.
32 Ropiha v Ropiha, above n 6 at 247.
33 At 247.
34 At 247.
[102] In my view, the Judge also failed to make the necessary and careful differentiation between periods during which Ms Thomas was able to work fulltime and those in which she was not – as envisaged, for instance, in the decision of Eggers v Eggers.35 Nor was there any consideration of Ms Thomas working part-time while studying.
[103] In my view, it is unarguable that the learned Judge should have considered Ms Thomas’ opportunity for earning income during the order. Not to do so is a failure to consider a relevant consideration. Respectfully, it is an error and therefore renders the decision as to quantum plainly wrong. In the Judge’s defence I observe this was a detailed but oral decision no doubt made in the context of a very busy list in one of the busiest Court’s in the country. That role comes with considerable time pressures. Also, as the Judge did not address the issue in her judgement, it may be that it was never raised with her.
[104] Despite the error, there is no need to remit the matter back to the Family Court to reconsideration this matter. Sufficient information was provided on appeal for this Court to resolve it.
[105] In Ms Wilson’s view, earnings of $400 – $500 per week would not be unreasonable for a student working part-time in hospitality (given Ms Thomas’ training as a barista), including increased hours in semester holidays. It was accepted that the net minimum wage as at 1 April 2022 was $715 after tax per week. I consider an allowance of $400, at a minimum, for anticipated weekly income during the period of the order should have been made.
Fifth appeal ground: errors in assessing Mr Jones’s ability to meet the respondent’s reasonable needs
[106] With respect to this argument, it is now akin to lobbing shells into empty trenches. Matters have moved on. Mr Jones has paid the entire amount of maintenance ordered. It was, of course, his legal obligation to do so but nevertheless
35 Eggers v Eggers HC New Plymouth CIV-2008-443-8, 10 April 2008 at [52]–[53].
it reflects well on him. From a pragmatic view, it does tend to show he had the means to pay maintenance despite his argument in the Family Court to the contrary.
[107] I accept Ms Wilson’s general submission that just as the Judge made generous findings in favour of Ms Thomas, it seems her Honour was sceptical about whether Mr Jones had been transparent as to his available financial means. For instance, the Judge noted that in Mr Jones’s affidavit of financial means, he did not identify the payment of any legal fees. This was not a matter, according to Ms Wilson, that the Judge raised at the hearing. Ms Wilson maintains there was no sound basis for the Judge to make this assumption. Mr Jones’s affidavit of financial means and their sources records expenses for the 52 weeks to 25 May 2022. Given that he was only served with Ms Thomas’ application for interim maintenance on 13 May 2022, Ms Wilson explains that Mr Jones had not even incurred legal costs at the time the affidavit was prepared.
[108] If indeed the Judge did incorrectly assume Mr Jones had more funds available, that may well have caused the Judge to fail to properly evaluate Mr Jones’s position.
[109] Standing back, Ms Wilson argues that the amount ordered, which was well in excess of both Mr Jones’s own expenditure and his own annual income, was plainly excessive and unreasonable in the circumstances.
[110] I need make no finding on that submission, contested by Mr Telle. Given that I have significantly reduced the quantum of the interim maintenance order, I do not think it can any longer be regarded as plainly excessive.
Conclusion
[111] Section 174(1B) of the Family Proceedings Act 1980 imports, amongst other things, s 128(1) of the District Courts Act 2016 into this appeal. Under the latter provision I have the power on appeal to make any decision I think the Family Court should have been made. I also have the power to direct the Family Court to determine any matter (here as to quantum) a second time in a way that is consistent with this judgment.
[112] In this case, as I have observed, I have enough information to make a decision about quantum without remitting it back to the Family Court for reconsideration. Also, the parties need finality as to the correctness of the interim order so it can be taken into account at the substantive maintenance hearing.
[113]I conclude:
(a)The weekly hire purchase payments of $185 that the Court allowed to Ms Thomas to purchase a car should not be included in the calculation of weekly maintenance.
(b)It would have been reasonable to expect Ms Thomas to earn income of
$400 per week (as a minimum) from employment, as discussed at para [105]. Accordingly, the weekly amount of maintenance should be reduced by that amount.
(c)The weekly amount of interim maintenance should therefore be reduced by a total of $585. The weekly sum should have been $760.
(d)Over a six-month (26-week) period, total maintenance should have been $19,760. Interim maintenance has been overpaid in the sum of
$15,210.
Result
[114]The appeal is partially successful.
[115] I uphold the Family Court decision as to Mr Jones’s liability for interim maintenance.
[116]However, I find there has been an overpayment in the sum of $15,210.
[117] On that basis, I order that the total amount of interim maintenance as determined by the Family Court ($34,970) be reduced to $19,760.
[118] Given that the substantive maintenance and property relationship hearing looms, enforcement could in my view be postponed and the overpayment factored into the substantive decision. There was brief discussion about this at the start of this appeal (see paras [6] to [10] of this judgment).
[119] As to costs, I note that each side has been partially successful. I am inclined to the view that costs should lie where they fall. If counsel cannot reach agreement on this issue, brief (no more than 3 pages) memoranda should be filed within 14 days of receiving this judgment.
[120] I end with a final plea. The substantive matters between these parties now call for urgent resolution. I earlier observed (at para [5] of this judgment) that Mr Jones’s application for a stay of the interim maintenance order languished, and the order expired before the application could be dealt with. To the extent it is appropriate for me to do so, I urge the Family Court scheduling officer to have the substantive matters set down as soon as is reasonably practicable.
Becroft J
Solicitors/Counsel:
Miller Poulgrain Solicitors, Thames Koo Telle Lawyers, Auckland
VA Crawhaw KC and SM Wilson, Auckland