Marginson v Bhana - [2016] NZHC 2835

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001693 [2016] NZHC 2835

IN THE MATTER OF
of an appeal against a decision of the

Family Court at Auckland

BETWEEN

KEVIN JOHN MARGINSON Appellant

AND

MADHU BHANA Respondent

Hearing: 22 November 2016

Appearances:

J G Donovan and M H Donovan for Appellant
P J Wright for Respondent

Judgment:

25 November 2016

JUDGMENT OF FOGARTY J

This judgment was delivered by Justice Fogarty
On 25 November 2016 at 4.00pm Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel:
J G Donovan, Auckland
Stainton Chellew, Auckland

MARGINSON v BHANA [2016] NZHC 2835 [25 November 2016]

[1] This is an appeal against a decision of the Family Court ordering interim maintenance to a de facto wife of $1,365.75 per week. The Judge was exercising the jurisdiction in s 82 of the Family Proceedings Act which 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.

(2) [Repealed] (3) [Repealed]
(4) No order made under this section shall continue in force for more than 6 months after the date on which it is made.

(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 a Family Court.

[2] Madhu Bhana was the de facto wife of Mr Marginson for around 20 years between 1994/1995 to October 2014. Before the relationship began, Ms Bhana was employed by her de facto husband. On 20 December 2001, they entered into a s 21 agreement, which Ms Bhana has now applied to set aside.

[3] While she was Mr Marginson’s de facto wife, Ms Bhana lived very well because of her de facto husband’s earning capacity. Now, after the breakdown of the relationship she alleges that she has no capital of any assets of any substance and is unable to meet her day to day living expenses. She earns about $500 per week. She sought an order for payment for $1,463.75 per week as interim maintenance.

[4] Submissions from both sides were filed in advance comprehensively and the hearing took place on 7 July, leading to a reserved judgment the next day on 8 July. At the hearing, the de facto husband accepted that the de facto wife’s declared income and expenditure is reasonable in the circumstances except in relation to a

gambling expenditure.1 After reducing the sum for entertainment/socialising from

$200 per week to $100 per week to reflect the gambling, the Court found that there was a shortfall in the order of $1,363.75 per…

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 Marginson v Bhana

Details

AGLC: Marginson v Bhana [2016] NZHC 2835
Case: [2016] NZHC 2835
Decision Date: 25 November 2016

CaseChat Overview and Summary

Marginson v Bhana is an appeal against a decision of the Family Court ordering interim maintenance to a de facto wife of $1,365.75 per week. The appeal was heard by Justice Fogarty on 22 November 2016, and judgment was delivered on 25 November 2016. The primary legal issue before the court was whether the Family Court judge erred in applying the wrong statutory section when considering the criteria for interim spousal maintenance. Specifically, the Family Court judge applied section 63 of the Family Proceedings Act, which guides final orders of maintenance arising out of a marriage or civil union, rather than section 64, which provides for the same kind of maintenance after a marriage or civil union has dissolved or a de facto relationship ends.

The court found that while the Family Court judge did indeed apply the wrong section, it was not a material error that warranted setting aside the interim maintenance order. The court reasoned that there was substantial commonality between the criteria in sections 63 and 64, and the interim order was intended to be a stopgap measure until the final determination of the proceedings. The court also noted that the Family Court judge had not relied on the criteria in section 63 when making the interim maintenance order, and that the order was likely at the outer limit of the appellant's obligation. The court further found that the appellant had not demonstrated that the error resulted in a materially different outcome.

The appeal was dismissed, and the interim maintenance order of the Family Court was upheld. The respondent was awarded costs to be calculated on a 2B basis. The court emphasised that further delay in paying the interim maintenance would thwart the purposes of the Family Proceedings Act 1980.

Orders