S v A

[2014] NZHC 1962

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.

NOTE: PURSUANT TO S 124 OF THE CHILD SUPPORT ACT 1991, 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.

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 CHRISTCHURCH REGISTRY

CIV 2014-409-000320 [2014] NZHC 1962

BETWEEN

S

Appellant

AND

A Respondent

Hearing:	19 August 2014
Appearances:	Appellant in person S N van Bohemen for Respondent
Judgment:	19 August 2014

JUDGMENT OF WHATA J

S v A [2014] NZHC 1962 [19 August 2014]

[1]      S has appealed a decision of the Family Court requiring him to make a maintenance payment to the respondent.   He seeks a stay on the enforcement of aspects of the judgment on the basis that his appeal will otherwise be rendered nugatory, because among other reasons, the respondent, he says, has threatened to bankrupt him if he does not make the payments.  S has also made an application for leave to file further evidence.

[2]      As to the further evidence, it was agreed that it would be sensible to deal with this at hearing.  Mr van Bohemen has the evidence sought to be filed and if need be will have ample time to respond to it in kind.   It  is also preferable to set the application in the full context of the appeal.

[3]      I turn then to address the application for stay.

Background

[4]      S and A commenced a de facto relationship in 2006, and then were married on 1 February 2009 but separated on 12 May 2011.  They have one child, O.  Soon after the separation A left her job and took O to the United States where she has family support.

[5]      It appears that their financial position during and at the conclusion of their relationship was fraught, and the underlying tensions found their way into the Family Court.  S sought orders relating to the division of the property and A sought spousal maintenance and child support for O.

[6]      S submitted that A’s conduct in quitting her job and leaving New Zealand precipitated her inability to provide for O.   But Judge Walsh concluded that the effects of the Christchurch earthquakes form a large backdrop to the relationship breakdown and A’s decision to leave her job and to move to the United States.

[7]      Judge Walsh ultimately resolved that maintenance should be paid by S.  He found that:1

1      [Names withheld] [2014] NZFC 3458 at [76].

(a)       A’s financial needs were modest and reasonable;

(b)      A could not meet her own needs; and

(c)       A’s inability to meet her needs was reasonable in the circumstances.

[8]      The Judge made an award of spousal maintenance in the sum of $8,000.  He also resolved that S’s circumstances do not qualify as special for the purposes of departure from the child support formula.  He found that S’s financial position is not parlous when his new partner’s income is included.2    He did not consider that their relationship debt (ie a mortgage for a relatively recent purchase of land at Diamond Harbour) was a special circumstance.  The Judge also concluded that:3

S elected to  establish  a  capital  base for  himself and  his  new family in preference to his obligation under the CSA to maintain O.

[9]      The Judge also made a number of orders dealing with the division of property with the net result that S is now liable to pay A the sum of $1,227.  The Judge trusted that the parties will now adopt a commonsense and pragmatic resolution of matters. That was, to say the least, optimistic.

[10] S appeals on a number of grounds. In short he says the Judge was wrong about keys findings recorded above at [7].

Stay

[11]     The application for stay is made under r 20.10(2)(b).

[12]     As stated in McGechan on Procedure: a party is generally entitled to the fruits of their judgment;   the party seeking stay must persuade the Court that the appeal would be rendered nugatory if the stay was not granted; and  any discretion to stay a judgment  requires  a balancing  exercise,  weighing  up  the position  of the

parties.4

2 At [93].

3 At [99].

4      McGechan on Procedure (online looseleafe ed, Brookers) at [HR 20.10.01].

[13]     S submits that he is simply not in a position to pay maintenance or the award and that bankruptcy has been threatened if he does not pay.  S refers to Thompson v Thompson.5   In that case the Court granted interim relief from enforcement by way of a charging order.  A relevant consideration it appears in that case was that both parties were in a similar position.

[14]     Mr van Bohemen submits that the appeal will not be rendered nugatory.  He says if S pays the judgment debt and then wins the appeal, he will have a right to recover the sum paid. A also deposed that she is prepared not to take steps to enforce the judgment pending the appeal provided her position can be protected.

Assessment

[15]     Mr van Bohemen advised the Court that he has instructions that A will not seek to enforce the judgment pending the appeal.  Plainly then the appeal will not be rendered nugatory by dint of the fact that S will be bankrupted for non-payment of the debt pending the hearing of the appeal.

[16]     S however remains concerned that if he pays the $1,227 now he will not be able to recover that sum if he wins the appeal.  Mr van Bohemen responds that his client is happy for the money to be placed in a solicitor’s trust account pending the determination of the appeal.

[17]     In these circumstances I see no proper basis for granting a stay.  In short there is no risk that the appeal will be rendered nugatory.

[18]     For completeness, I have also examined whether more generally the interests of the parties justify a stay.

[19]     First I have reviewed the appeal grounds.  They raise matters of substance, going to the core threshold assessments made by the Judge and opportunity should

be afforded to ventilate them.

5      Thompson v Thompson [2013] NZHC 1946.

[20]     Second, I have also examined whether S is unable to pay the debt, given his financial  circumstances.    The  affidavit  evidence  before  me  was  not  clear,  so  I afforded S the opportunity to expand on his position “from the bar”.  He currently has an annual income in the range of $90-95,000.   He is the joint owner with his current partner of a house worth about $355,000, apparently about to be sold.  He has joint debts that exceed this value.  He says that his outgoings currently exceed his income.  He also says that he is about to migrate to Dunedin having transferred to another office and that his wife, who is due to give birth in late November, is no longer employed.  Therefore I think it is fair to say that S is in straightened financial circumstances.  Nevertheless, against all of this, the sum in dispute is small and quite why S cannot agree to pay a staged payment on an income of $90-95,000 is not clear to me.   I reiterate also the Judge’s finding that S appears to have prioritised his current commitments over his duties to his previous family.   Overall the evidence (including from the bar) falls short of demonstrating that S cannot meet a modest additional financial commitment.

[21]     Third, A is entitled to the fruits of her litigation, and it is apparent from the record below that she is also in financial need.

[22]     So,  approaching  the  issue  more  widely  than  usual,  I  would  have  been reluctant to grant a stay in any event.  Having said that I put weight on the fact that enforcement proceedings are now not a factor.   My position could be different if confronted with the prospect of immediate enforcement given S’s difficult financial circumstances.

[23]     Accordingly I do not make an order granting a stay.  I however reserve leave to S to come back to this Court in the event that enforcement proceedings are in fact initiated.

[24]     As to costs, Mr van Bohemen sought costs, signalling that legal aid may be sought.   I have resolved to reserve costs pending the final resolution of the proceedings.  While bankruptcy was not threatened, the possibility of enforcement was mentioned and this understandably triggered the current application.   In those circumstances costs are better considered in the round.

Solicitors:

Legal Options, Christchurch