RMA v JB - [2013] NZHC 2984

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, 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-2013-404-003972 [2013] NZHC 2984

IN THE MATTER of the Family Proceedings Act 1989

BETWEEN RMA Appellant

ANDJB Respondent

Hearing: 10 October 2013

Counsel: JH Hunter for Appellant
VA Crawshaw for Respondent

Judgment: 12 November 2013

JUDGMENT OF BREWER J

This judgment was delivered by me on 12 November 2013 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Norris Ward McKinnon (Hamilton) for Appellant
Claudia Elliott (Auckland) for Respondent

RMA v JB [2013] NZHC 2984 [12 November 2013]

Introduction

[1] On 26 July 2013, Judge JH Walker ordered the appellant to pay the respondent interim maintenance in the sum of $6,000 per month.1 The first payment was to be made within seven days. The appellant has not made any payments. On
23 August 2013, he appealed the decision.

The Family Court decision

[2] The Family Court Judge was faced with a difficult situation. The parties had been living together in a house owned by a Trust controlled by the appellant. They had two children together, a girl born 21 May 2010 and a boy born 21 November
2012. When the parties separated, their relationship had endured between two years

10 months (the appellant’s contention) and three years plus some months (the respondent’s contention). The application for interim maintenance was brought by the respondent pursuant to ss 64, 65, 69 and 82 of the Family Proceedings Act 1980 (the Act).

[3] There were procedural complications arising from the fact that neither of the parties knew very much about the other’s financial situation. Both came to their relationship with assets protected by Trusts and with their Trusts controlling limited liability companies. In each case the companies owned rental properties. I understand the evidence to be that the appellant’s company owned six rental properties and the respondent’s company owned five rental properties. A sixth rental property was purchased by the respondent’s company during the course of the relationship.

[4] The appellant sought discovery of the respondent’s overall financial position. He had not obtained all the material he wanted at the time the application came before the Family Court Judge on 27 June 2013. A day or so before the hearing, the respondent filed some accounts. At the hearing, the Family Court Judge allowed the respondent to give evidence for the very limited purpose of producing a letter from her accountant commenting on her financial affairs. The appellant filed a

rudimentary statement of his financial position and an affidavit which explained his current financial state.

[5] Accordingly, at the commencement of the hearing, the Family Court Judge had the following difficulties:

(a) A factual dispute over whether the relationship between the parties was technically of short duration;

(b)A legal dispute as to whether, as a result,…

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 RMA v JB

Details

AGLC: RMA v JB [2013] NZHC 2984
Case: [2013] NZHC 2984
Decision Date: 12 November 2013

CaseChat Overview and Summary

In RMA v JB, the High Court of New Zealand, Auckland Registry, considered an appeal by RMA against a Family Court decision ordering him to pay interim maintenance to JB. The appellant contended that the Family Court Judge erred in her consideration of sections 70B and 82 of the Family Proceedings Act 1980, in her assessment of the parties' means, and in the procedural fairness of the hearing. The court found that the Family Court Judge was correct in exercising her discretion under section 82 to make an interim maintenance order. The court held that the jurisdiction afforded by section 82 is separate from the jurisdiction afforded by section 70, and that whether or not a de facto relationship was of short duration is a factor that can be considered by a Judge exercising the section 82 jurisdiction; but it does not have to be determined as a prerequisite for its exercise. The court found that the Family Court Judge's assessment of the parties' means was based on the evidence before her and was not plainly wrong. The court also found that the procedure followed was not only unexceptional but gave the appellant ample time to prepare, and that full disclosure is not a prerequisite for a hearing for an interim order. The appeal was dismissed, and the respondent was entitled to costs.

Orders