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 HAMILTON REGISTRY

CIV-2015-419-61 [2016] NZHC 699

UNDER the Family Proceedings Act 1980

IN THE MATTER

of an appeal under s 174(1AA)(a) Family
Proceedings Act 1980

BETWEEN

ELIJAH MCQUEEN Appellant

AND

CHERYL PENN Respondent

Hearing: 28 July and 26 August 2015

Appearances:

S Jefferson QC and J Hawker for the Appellant
V Crawshaw and L Reed for the Respondent

Judgment:

15 April 2016

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 15 April 2016 at 3:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar
……………………………………

Solicitors/Counsel:
Mr S Jefferson QC, Barrister, Auckland
Ms J Hawker (appellant’s instructing solicitor), Wynyard Wood, Solicitors, Auckland
Ms V A Crawshaw, Barrister, Auckland
Mr R Gubb (respondent’s instructing solicitor), Beattie Rickman Legal, Solicitors, Hamilton

MCQUEEN v PENN [2016] NZHC 699 [15 April 2016]

TABLE OF CONTENTS

Para No.

Introduction  [1] Factual background  [4] The law
Approach to appeal  [9]
Statutory provisions: ss 62-65 of the Family Proceedings Act 1980      [12] Sections 63 and 64: is there an onus on the applicant?                  [20] Section 64A: submissions on applicable principles  [27]

The Family Court decision
Procedural history and nature of the evidence  [31]
The Family Court judgment: pre-dissolution maintenance                   [33] Division of functions  [34] The wife’s likely earning capacity, ongoing responsibilities
for the children, and inability to obtain work  [35] Standard of living in the marriage  [39] Other relevant circumstances  [42] The wife’s reasonable needs  [43] The husband’s means: s 65  [47]
The Family Court judgment: post-dissolution maintenance                  [48] The Judge’s credibility and related findings  [51] The orders made  [54]

Submissions on appeal  [58]
Evaluation of the appeal  [61]
The Judge’s assessment of the husband’s credibility and related
findings: matters of discretion  [63]
The essential issues and conclusions in summary  [70] Standard of living during the relationship  [80] Actual needs or reasonable needs?  [84] Did the wife provide adequate evidence of her reasonable needs
through to the date of hearing? Did they in any event diminish
over time?  [90]
Could the wife meet her reasonable needs?  [93]
Was the wife unable practicably to meet the whole or part of her reasonable needs because of one or more of the qualifying
circumstances?  [97]
(1) Division of functions in the marriage  [98] (2) The wife’s likely earning capacity  [103] (3) A limited relationship property pool  [105] (4) Responsibilities for care of the children  [107] (5) The standard of living during the marriage  [112] (6) Inability to obtain work  [113]
Effect of delay  [117] The husband’s means  [123] Evaluation of the husband’s means  [127] Overall assessment of quantum and terms of payment  [139]

Cross-appeal: maintenance to meet legal costs [146] Cross-appeal: Family Court costs [153] Costs on this appeal [158] Result [159]

Introduction

[1] The appellant and respondent were formerly married.…

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 McQueen v Penn

Details

AGLC: McQueen v Penn [2016] NZHC 699
Case: [2016] NZHC 699
Decision Date: 15 April 2016

CaseChat Overview and Summary

The appeal was brought by the husband against maintenance orders made by the Family Court. The wife brought a cross-appeal against the Family Court order on costs and an award of indemnity costs. The husband contended that the Family Court was wrong to find that the wife had discharged the onus of proof both as to her need for spousal maintenance and the amount sought. He further argued that the Family Court misapplied the law and facts in relation to the parties' standard of living during the relationship both as a ground for maintenance and as to quantum. The wife sought indemnity costs on the basis of a Calderbank offer. The husband appealed against all orders against him. The wife cross-appealed against the Family Court order on costs and sought indemnity costs. The court found that there was no onus on the wife in the Family Court. The evidence she put before the Court, and elicited in cross-examination, directed to the relevant matters specified in sections 63-64A, was to be assessed by the Judge in the manner noted by the United Kingdom Supreme Court in Prest v Petrodel Resources Ltd. There was no onus on the wife under section 65 to establish on the balance of probabilities that the husband had the means to meet her reasonable needs. The Family Court orders under sections 69 and 70 of the Family Proceedings Act 1980 were set aside as to quantum only. In substitution for the Family Court orders, in respect of quantum, there is an order that the husband pay the wife a sum of $382,959 no later than 4:00 pm on 24 June 2016, subject to the following: (a) That sum is to be reduced by the sum of all payments made by the husband to the wife as maintenance payments, whether interim maintenance or final maintenance. The parties are to endeavour to agree on the amount. If agreement cannot be reached the issue is to be referred back to this Court for determination. (b) If payment of the adjusted sum is not made by 4:00 pm on 24 June 2016 interest is to be paid at a rate of 4% per annum from 25 June 2016, save that leave is reserved to apply for further directions if any material issue arises in respect of the payment date because of difficulties in determining the net sum to be paid. The cross-appeals of the wife are dismissed.

Orders