Owen v Thomas - [2014] NZHC 2200

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDINGS 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-2014-419-000267 [2014] NZHC 2200

UNDER
the Family Proceedings Act 1980 and the

Property (Relationships) Act 1976

IN THE MATTER OF

an appeal under s 174 (1AA)(a)

Family Proceedings Act 1980 and s 19, Property Relationships Act 1976

BETWEEN

OWEN Applicant

AND

THOMAS Respondent

Hearing: 3 September 2014

Counsel:

S R Jefferson QC and J I Hawker for the Applicant
V A Crawshaw for the Respondent

Judgment:

11 September 2014

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 11 September 2014 at 4.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

OWEN v THOMAS [2014] NZHC 2200 [11 September 2014]

[1] This is an appeal against orders made by Judge Riddell in the Family Court for: (a) an interim distribution of relationship property; and (b) the appellant to pay the respondent interim maintenance. The appellant has also applied for a stay of execution of the Family Court’s orders. The appeal and the application for a stay of the execution of the orders are opposed.

[2] The order for interim maintenance was for a period of six months at

$8,509.22 per month. Since the order was made, the appellant has made the monthly payments. The parties advised me that they believed the next maintenance payment is due at the earliest on 13 September 2014 and at the latest by 30 September 2014. They were not certain about when during the course of a particular month the obligation to pay maintenance took effect. That they should be unclear as to when a Court order requires payment to be made is not satisfactory. The order should have expressly stipulated the date in each month that payment is due.

[3] As I propose to deal with the appeal now, there is no need to consider the application for a stay of execution of the orders.

Background

[4] The parties were in a domestic relationship for 11 years from August 2000 until 25 May 2011. During the course of the relationship, they married on
9 December 2006. Their marriage is now dissolved. There are two children of the marriage; the parties share the care of the children on a 2:2 and 3:2 basis, which changes in each week. The appellant is a surgeon. Before the marriage, the respondent worked as a trained nurse; she ceased full-time work during the course of the marriage. While the parties were married, the respondent was primarily responsible for the children’s care.

[5] The respondent contends that her care of the children during the…

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 Owen v Thomas

Details

AGLC: Owen v Thomas [2014] NZHC 2200
Case: [2014] NZHC 2200
Decision Date: 11 September 2014

CaseChat Overview and Summary

This case involves an appeal by Owen against orders made by Judge Riddell in the Family Court for an interim distribution of relationship property and the appellant to pay interim maintenance to the respondent. The appeal and the application for a stay of execution of the orders are opposed. The court was required to decide whether the interim distribution order was lawful and if the interim maintenance order was properly made. The court found that the interim distribution order was ultra vires and set it aside. The court also found that the interim maintenance order was flawed because the judge did not consider whether the respondent's reasonable needs had changed since the parties separated. The interim maintenance order was set aside, and the parties were given leave to file memoranda on the next steps to be taken.

The appeal against the interim distribution order made under s 25(3) of the Property (Relationships) Act is allowed. The order is set aside. The appeal against the interim maintenance order made under s 82 of the Family Proceedings Act is allowed. The interim maintenance order is set aside. The parties have leave to file memoranda in accordance with the above timetable directions. Leave is reserved to the parties to file memoranda as to costs.

Orders