Stephens v Johnson - [2021] NZHC 423

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. THIS IS AN ANONYMISED VERSION OF THE JUDGMENT. FOR FURTHER INFORMATION, PLEASE SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-001670

[2021] NZHC 423

IN THE MATTER OF An appeal against a decision of Her Honour Judge Manuel dated 19 August 2020 in the Auckland Family Court in FAM 2020-004- 164

BETWEEN

STEPHENS

Appellant

AND

JOHNSON

Respondent

Hearing: 2 December 2020

Appearances:

N S Tabb for the Appellant

S T Bennett for the Respondent

Judgment:

8 March 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 8 March 2021 at 3:30 pm Pursuant to Rule 11.5 of the High Court Rules

…………………………
Registrar/Deputy Registrar

Solicitors/Counsel: Natalie Tabb, Auckland
Waitakere Chambers, Waitakere Presland & Co, Auckland

STEPHENS v JOHNSON [2021] NZHC 423 [8 March 2021]

Introduction

[1] On 19 August 2020, in the Family Court at Auckland, Judge Manuel made an interim spousal maintenance order under s 82 of the Family Proceedings Act 1982.1 The order required Mr Stephens to pay his former wife, Ms Johnson, $692 per week for 26 weeks.2 Mr Stephens appeals Judge Manuel’s decision.

Background

[2] After a period living together, Mr Stephens and Ms Johnson married in April 2009. They separated in September 2014. Their marriage was dissolved in December 2019.

[3] Mr Stephens and Ms Johnson have two school-aged daughters. After separation Ms Johnson and the daughters remained living in the former family home in Avondale. Mr Stephens remained closely involved in the care of the daughters. In August 2019, a final parenting order was made, under which the daughters are in Ms Johnson’s care slightly more than in Mr Stephens’s.

[4] The parties did not take any formal steps to resolve their relationship property issues for many years after their separation. The main assets at issue are the Avondale home (worth about $1 million to $1.1 million) and a rental property consisting of two units (together worth about $950,000 to $1 million). Mr Stephens claims that the rental property is his separate property. Ms Johnson says it is relationship property.

[5] There are debts owing to the ANZ Bank of about $250,000 on the Avondale home and about $600,000 on the rental property. The debts are secured by mortgages over both properties.

[6] Mr Stephens did not pay child support to Ms Johnson, but for many years continued to service the debt on both properties. He collected the rent paid on the rental property and used this to help pay the debt. With the debts paid in this way, Ms Johnson was able to make ends meet.

1 [Johnson] v [Stephens] [2020] NZFC 7048.
2 With the parties’ consent, fictitious names have been used in this judgment.

[7] For about two months from about June 2019, Mr Stephens was…

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 Stephens v Johnson

Details

AGLC: Stephens v Johnson [2021] NZHC 423
Case: [2021] NZHC 423
Decision Date: 8 March 2021

CaseChat Overview and Summary

Stephens v Johnson is an appeal by Mr Stephens against an interim spousal maintenance order made by Judge Manuel in the Auckland Family Court. The order required Mr Stephens to pay his former wife, Ms Johnson, $692 per week for 26 weeks. Mr Stephens contends that the order was erroneous in several respects, including that the Judge failed to correctly apply Lobb v Ryan, decided that Ms Johnson had established a qualifying circumstance in terms of s 64, and assessed that Mr Stephens had sufficient means to contribute towards Ms Johnson’s reasonable needs. The court found that the appeal was limited, governed by the principles in May v May, and that the Judge did not act on a wrong principle, fail to take into account a relevant matter or take into account an irrelevant matter, nor was plainly wrong. The court rejected the submission that the mortgage payments should not have been included within Ms Johnson’s reasonable expenses, and found that the Judge’s conclusion that Ms Johnson may well have established a qualifying circumstance was principled. The court found that the Judge had overstated Ms Johnson’s weekly expenses and therefore her weekly shortfall, by about $80. The court suggested that the interim order should have been made conditional on Mr Stephens not making the mortgage payments, as the basis for an interim order would fall away if he made the mortgage payments. The appeal was allowed, and the interim spousal maintenance order was set aside and substituted with an order that Mr Stephens is to pay Ms Johnson weekly spousal maintenance of $612, but only if (or to the extent that) he does not make the payments due to the ANZ Bank over that same period in respect of the mortgage over the Avondale home and the rental property. No order as to costs was made.

Orders