Tamaka v Police HC Gisborne CRI 2010-082-527

[2010] NZHC 1994

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

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2010-419-902

BETWEEN  W R D Appellant

ANDJ H D Respondent

Hearing:         5 November 2010

Appearances: E J Hudson for Appellant

R H Jerram for Respondent

Judgment:      5 November 2010

JUDGMENT OF BREWER J

This judgment was delivered by me on 5 November 2010 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS

Paula Sullivan (Hamilton) for Appellant
McCaw Lewis Chapman (Hamilton) for Respondent

COUNSEL

EJ Hudson; RH Jerram

W R D V J H D HC HAM CIV-2010-419-902  5 November 2010

Introduction

[1]      In a reserved judgment delivered on 24 June 2010 Judge RH Riddell made an interim spousal maintenance order against the appellant and in favour of the respondent in the sum of $941 per week.  That order was to apply for a period of six months.

[2]      The  appellant  has  three  grounds  of  appeal.     These  can,  however,  be summarised as:

(1)      The Family Court Judge failed to take into account the fact that the respondent was in receipt of a sickness benefit; and

(2)The Family Court Judge failed to have proper regard to the appellant's financial situation.

The first ground of appeal

[3]      As to the first ground of appeal it is apparent that, although Judge Riddell was aware of the existence of the sickness benefit, she did not take it into account in calculating  the  quantum  of  the  interim  maintenance  order.    Mr Jerram  for  the respondent recognises this and, responsibly, concedes that the interim maintenance order must be reduced by the amount of the benefit.  The parties before me today agreed that the amount of the benefit is $274.21.  Accordingly, this would result in Judge Riddell's order being reduced to $667 per week before consideration is taken of the remaining ground of appeal.

The second ground of appeal

[4]      Mr Hudson submits, and the evidence shows, that the appellant's monthly income before tax of $13,333 is insufficient by $5,013.33 per month to meet the appellant's outgoings.  He borrows the shortfall against an expectation that business ventures will provide the means to repay the borrowings when they bear fruit.  The

relevant schedule of household expenditure is set out in exhibit "G" to the appellant's affidavit dated 26 February 2010.

[5]      Mr Jerram submits that Judge Riddell was entitled to take into account the seemingly extensive business and real assets which are the subject of separate litigation in the Family Court relating to the division of relationship property.   He submits that Judge Riddell took into account, and was entitled to take into account, the control which the appellant exercises over those assets.   Her Honour was also entitled to take into account, in Mr Jerram's submission, the fact that the appellant occupies the family home and that his income and lifestyle continues unabated while the respondent has been reduced to living on a State benefit in rental accommodation with a significant shortfall between her income and the cost of her reasonable needs.

The law

[6]      There  is  no  dispute  between  the  parties  on  the  law  that  applies  to  this situation.  It is quite straightforward.

[7]      The Court has a wide discretion under s 82 of the Family Proceedings Act

1980 ("the Act") to make an order for interim maintenance for up to six months if a circumstance or circumstances as set out in s 63(1) of the Act is present.  In this case, as Judge Riddell identified, the effects of the division of function within the marriage can  be  considered  together  with  the  likely  earning  capacity  of  each  party,  the standard of living of the parties while they lived together, and the inability of a party to obtain work.

Findings

[8]      I agree with Judge Riddell's findings that those aspects applying to this case entitled the Judge to make an order for interim maintenance.  I also accept that the calculation arriving at a weekly sum of $941 was appropriate.

[9]     I am satisfied that the appellant does have the financial means to pay maintenance to the respondent in the sum of $667 per week.   I come to this conclusion because I note that in the statement of household expenditure previously referred to,[1] the sum of $3,003 per month is shown as expenditure for private school fees  for  the  education  of  three  of  the  parties'  four  children.     Mr Hudson acknowledged  that  this  sum  was  being  expended  and  could  be  utilised  for

[1] Appellant's affidavit dated 26 February 2010, exhibit "G".

maintenance payments if the children were to attend State schools.  He submitted, however, that it is the strong wish of both of the parties that their children continue to receive private school education.

[10]    That is perfectly understandable.   However, while the parties were in a continuing marriage relationship they established a lifestyle for themselves and for their children which may not necessarily be able to continue providing all members of the family with the same lifestyle now that the marriage relationship has ceased. Something may have to give.

[11]     In  this  case,  when  looking  at  the  means  of  the  appellant  to  meet  the reasonable needs of the respondent for maintenance, this is an obvious area of discretionary spending that leads me to conclude that he can meet the maintenance order.

Decision

[12]     I allow the appeal to the extent that the order made by Judge Riddell that the appellant  pay  interim  maintenance  at  the  sum  of  $941  per  week  is  varied  by deducting therefrom the amount of $274 per week to allow for the sickness benefit which the respondent receives.

[13]     Therefore, I order that, pursuant to s 82 of the Act, the appellant pay to the respondent the sum of $667 per week for a period of six months to commence from the date of Judge Riddell's decision, being 24 June 2010.

[14]     Given the other proceedings before the Family Court, I reserve the question

of costs.

Brewer J