PB v BJB - [2017] NZHC 715

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
THE-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-1892 [2017] NZHC 715

UNDER the Property (Relationships) Act 1976

BETWEEN

P B Appellant

AND

B J B
First Respondent

A B and S B

Second Respondents

Hearing:
28 February 2017

(Further submissions filed by First Respondent on 16 March
2017 and by Appellant on 20 March 2017)

Counsel:

Appellant in person
D Chambers QC for First Respondent

Judgment:

12 April 2017

JUDGMENT OF BREWER J

This judgment was delivered by me on 12 April 2017 at 10:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Peter McCutcheon (Auckland) for First Respondent
Counsel: Lady Deborah Chambers QC (Copy to Appellant in person)

P B v B J B [2017] NZHC 715 [12 April 2017]

Introduction

[1] Mr B and Mrs B separated in 2011 after 20 years of marriage. After six years of interlocutory skirmishing, the substantive hearing to determine the parties’ relationship property entitlements was heard in the Family Court on 7 February
2017. The Court’s decision was reserved and I am advised that it was delivered on

15 March 2017.1

[2] Notwithstanding this, Mr B wishes to pursue his appeals against three rulings of Judge IA McHardy, set out in the Judge’s Minute of 4 August 2016.2

[3] In that Minute, Judge McHardy:

(a) Extended a maintenance order in favour of Mrs B until delivery of the

Family Court’s decision in the substantive proceedings;

(b)Authorised an interim distribution to Mrs B of $109,412.68 (to pay outstanding legal fees);

(c) Ordered that the parties’ daughters be joined as parties to the

substantive proceedings.

[4] The essence of Mr B’s appeal is that he was denied his right to be heard on these matters. In Mr B’s submission, regardless of the merits, the denial of this right mandates the overturning of Judge McHardy’s rulings.

[5] Mr B submits also that the rulings were wrong. [6] Mr B represents himself.
Jurisdiction

[7] An appeal from a decision of the Family Court to this Court proceeds by way of rehearing.3 That means that I must make my own evaluation of the matters that

1      BJB v PB [2017] NZFC 1817.
2      BJB v PB FC Auckland FAM-2011-004-002022, 4 August 2016 (minute).
3      K v B [2010] NZSC 112, [2011] 2 NZLR 1 at [31].

led Judge McHardy to make his rulings. If I conclude that Judge McHardy was wrong in any of his rulings, I can substitute that decision with the decision that I decide should have been made. I would quash a ruling and direct that the Judge reconsider it only if I had insufficient material before me to make my own decision.

Background

[8] On 23 May 2014 the Family Court made a final maintenance order in favour of Mrs B.4…

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 PB v BJB

Details

AGLC: PB v BJB [2017] NZHC 715
Case: [2017] NZHC 715
Decision Date: 12 April 2017

CaseChat Overview and Summary

The case of PB v BJB concerns an appeal against three rulings made by Judge McHardy in the Family Court of New Zealand. Mr B, the appellant, argued that he was denied his right to be heard on the matters of extending a maintenance order in favour of Mrs B, authorising an interim distribution to Mrs B, and joining their daughters as parties to the substantive proceedings. The appeal was heard by Brewer J at the Auckland Registry of the High Court of New Zealand. The legal issues the court was required to decide were whether the Judge should have adjourned the telephone conference that dealt with the matters upon which the rulings are now appealed and whether the rulings were correct in law.

Brewer J determined that the Judge should not have adjourned the telephone conference as Mr B's incapacity did not prevent him from participating in a telephone conversation. The Judge's omissions in the Minute regarding Mr B's applications for adjournment would only cause the appeal to be allowed if injustice resulted. The court found that Mr B's right to be heard was not infringed, as he was aware of the hearing, had been given notice, and had all the relevant information. Additionally, the adjournment applications were discussed during the telephone conference, and his response was considered. The court concluded that Mr B's participation in the conference would not have affected the Judge's decisions.

In terms of the rulings, the court found that the extension of the final maintenance order was correct, as there were no significant changes in the spousal maintenance situation which should change its quantum. The interim distribution was also deemed correct, as there was no credible argument as to why Mrs B should not receive the distribution to pay outstanding legal fees. Finally, the decision to join the daughters as parties was justified to give them the right to come to the court to put their position forward if they wished. The court concluded that the appeal was dismissed and Mr B must pay costs on a 2B basis.

Orders