BThe appellant is to pay the respondent for her costs in this Court the sum of $15,000 plus disbursements, to be fixed if necessary by the Registrar. The Court of Appeal’s costs order stands. Costs in the High Court and the Family Court are to be fixed in those Courts in the light of the determination of this Court, unless the parties can agree or unless that has already occurred.

REASONS
(Given by Tipping J)
Introduction
[1]       This appeal involves the interpretation and application of s 182 of the Family Proceedings Act 1980. That section empowers the Court, subject to the constraints of subs (6), to vary the terms of ante and post-nuptial settlements when the marriage or civil union of the parties comes to an end. The parties in the present case, Mr and Mrs Ward, were married on 17 August 1991. They entered into a post-nuptial settlement on 29 June 2000. It took the form of a trust, primarily for the benefit of themselves and their two children, a daughter born on 23 February 1994 and a son born on 8 December 1995. The parties separated on 1 March 2003 and their marriage was dissolved on 26 September 2005. On the dissolution Mrs Ward applied for an order under s 182.
[2]       The Family Court[1] made an order in her favour dividing the trust into independent halves, one for the benefit of Mrs Ward and the children, and the other for the benefit of Mr Ward and the children. That order was set aside by Heath J in the High Court on Mr Ward’s appeal.[2] The Judge considered that the order made by the Family Court was precluded by subs (6) of s 182. The Family Court order was reinstated by the Court of Appeal on Mrs Ward’s successful appeal to that Court.[3]
[1]      Ward v Ward (Family Court, Hastings, FAM-2004-020-116, 20 April 2007, Judge Robinson).
[2]      W v W [2008] 3 NZLR 383.
[3]      W v W [2009] 3 NZLR 336.
[3]       Mr Ward now appeals to this Court. He contends, first, that Heath J was right in his conclusion that s 182(6) precluded the making of the order. He contends, alternatively, that if there was jurisdiction to make an order, no order should have been made, or the order made should be varied because it went too far in Mrs Ward’s favour. Our conclusion is that the Family Court did have jurisdiction to make the order; its making was not precluded by s 182(6). Furthermore, the order made by the Family Court was properly made, its terms being within…

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 Ward v Ward

Details

AGLC: Ward v Ward [2009] NZSC 125
Case: [2009] NZSC 125
Decision Date: 8 December 2009

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an appeal by Christopher Bede Ward against a Family Court order that varied a post-nuptial settlement made between him and his wife Diane Mary Ward. The parties had entered into a post-nuptial settlement that established a trust primarily for the benefit of themselves and their two children. The parties separated on 1 March 2003 and their marriage was dissolved on 26 September 2005. On the dissolution, Mrs Ward applied for an order under s 182 of the Family Proceedings Act 1980. The Family Court made an order in her favour dividing the trust into independent halves, one for the benefit of Mrs Ward and the children, and the other for the benefit of Mr Ward and the children. That order was set aside by Heath J in the High Court on Mr Ward’s appeal. The Judge considered that the order made by the Family Court was precluded by s 182(6) of the Act. The Family Court order was reinstated by the Court of Appeal on Mrs Ward’s successful appeal to that Court. The central issue before the Supreme Court was whether the Family Court had jurisdiction to make the order and, if it did, whether the order made was properly made within the compass of s 182 of the Act. The Court concluded that the Family Court did have jurisdiction to make the order; its making was not precluded by s 182(6). Furthermore, the order made by the Family Court was properly made, its terms being within a proper exercise of the discretionary power vested in the Family Court by s 182. Mr Ward’s appeal should therefore be dismissed. The Court ordered that the appeal be dismissed and that Mr Ward pay Mrs Ward for her costs in this Court the sum of $15,000 plus disbursements, to be fixed if necessary by the Registrar. The order made by the Court of Appeal where Mrs Ward was successful should stand. Costs in the High Court and Family Court should be fixed in those Courts in the light of the ultimate outcome of the case, unless agreement can be reached, or unless that has already been done.

Orders