Lawrence v Baker - [2013] NZHC 2378

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, 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 AUCKLAND REGISTRY

CIV 2012-404-007634 [2013] NZHC 2378

BETWEEN P LAWRENCE Appellant

ANDF BAKER Respondant

Hearing: 16 May 2013

Appearances: K A Muir for the Appellant
P J Stevenson for the Respondent

Judgment: 12 September 2013

JUDGMENT OF GILBERT J

This judgment was delivered by me on 12 September 2013 at 10.30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………….

P LAWRENCE v F BAKER [2013] NZHC 2378 [12 September 2013]

Introduction

[1] Mr Lawrence1 appeals against the following orders made by Judge D A Burns in the Family Court at Auckland on 5 December 2012:

(a) granting Mr Lawrence’s former wife, Ms Baker, the exclusive right to

occupy the family home until 1 December 2016;

(b) directing the immediate sale of an apartment in Australia; and

(c) requiring Mr Lawrence to pay spousal maintenance until

25 September 2013.

[2] Mr Lawrence also appeals against the Judge’s refusal to make any order to compensate him for the use of his capital and for various post separation payments he has made. He also claims that the Judge made a number of factual errors that need to be corrected.

[3] Ms Baker cross-appealed against the Judge’s refusal to make a lump sum award in her favour under s 15 of the Property (Relationships) Act 1976 to compensate her for economic disparity but this cross-appeal was abandoned at the hearing.

Approach on appeal

[4] To the extent that this appeal is against discretionary orders, Mr Lawrence must show that the Judge: made an error of law; took into account irrelevant considerations; failed to take account of relevant considerations; or was plainly wrong. The appeal must otherwise be determined in accordance with the approach
directed by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar:2

1 These are not the parties’ real names. Pseudonyms have been used for the Appellant and the Respondent throughout this judgment to comply with ss 11B to 11D of the Family Courts Act 1980 because the judgment refers to persons under the age of 18 years.
2 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141 at [16].

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate Court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate Court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ.

Occupation order

[5] Mr Lawrence and Ms Baker commenced living together in 1994 and married in 1995. They…

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 Lawrence v Baker

Details

AGLC: Lawrence v Baker [2013] NZHC 2378
Case: [2013] NZHC 2378
Decision Date: 12 September 2013

CaseChat Overview and Summary

In Lawrence v Baker, Mr Lawrence appeals against several orders made by the Family Court in relation to the distribution of property and spousal maintenance following his separation from Ms Baker. The appeal was heard by Gilbert J. The primary issue before the Court was whether the Family Court had correctly exercised its discretion in making the orders in question. The Court found that the Family Court had made several errors in exercising its discretion and varied the orders accordingly.

Firstly, the Court found that the Family Court had erred in granting Ms Baker the exclusive right to occupy the family home until 1 December 2016. The Court found that the Family Court had wrongly assumed that the children may not be able to continue their education at their current schools unless the occupation order was made, had overlooked the mortgage on the Australian property in concluding that Mr Lawrence would not be prejudiced by delaying the sale of the family home, and had mistakenly believed that the occupation order should continue until the daughter turned 16 in July 2016. The Court varied the order so that it will now expire on 1 March 2014 and ordered that the property is to be placed on the market for sale on or before that date.

Secondly, the Court found that the Family Court had erred in directing the immediate sale of the Australian property. The Court found that both parties would be disadvantaged if the property is sold because of the sale costs and set aside the order for sale of the Australian property. The property was to be vested in Mr Lawrence and he was to account to Ms Baker for her half share of the equity in this property when the family home is sold.

Finally, the Court found that the Family Court had erred in ordering Mr Lawrence to pay arrears of spousal maintenance in the sum of $9,850. The Court found that the correct approach is to take overpayments as well as underpayments into account in the period from separation to the date of the interim spousal maintenance order. The Court set aside the order requiring payment of arrears of $9,850 for this period.

In summary, the Court allowed the appeal in part, varied the orders made by the Family Court, and ordered that the property is to be placed on the market for sale on or before 1 March 2014. The Court also ordered that the Australian property is to be vested in Mr Lawrence and that he is to account to Ms Baker for her half share of the equity in this property when the family home is sold. The Court set aside the order for sale of the Australian property and the order requiring payment of arrears of spousal maintenance in the sum of $9,850. The Court also varied the order requiring Mr Lawrence to pay $1,527.48 in respect of the tax credit and corrected the slip in the Family Court judgment directing that Ms Baker is to be reimbursed for her half share of the costs paid in relation to the Australian property since separation.

Orders