C A M v J M P HC AK

• Jurisdiction: New Zealand
• Judge: Andrews J
• Judgment Date: 26 March 2013
• Neutral Citation: [2013] NZHC 592
• Docket Number: CIV-2012-404-006050
• Court: High Court
• Date: 26 March 2013

BETWEEN

UNDER Section 174 Family Proceedings Act 1980

C A M

Appellant

and

J M P

Respondent

[2013] NZHC 592

CIV-2012-404-006050

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

Appeal from a Family Court judgment where a final maintenance order in favour of the respondent was made, together with orders as to payment of past maintenance and for reimbursement of expenses — parties were in a relationship of short duration — two children aged 3 and 5 years — respondent studying towards degree — appellant ordered to pay appellant $2000 per week until the youngest child turned 5 — appellant submitted he had to use capital to meet the maintenance obligation — whether Family Court erred by failing to undertake the analysis of the reasonable needs of each of the appellant and the respondent required by s65 Family Proceedings Act 1980 (assessment of maintenance).

Counsel:

D Hollings Chambers QC for Appellant

JMP, Respondent, in person

RESERVED JUDMENT OF Andrews J

Table of Contents	Paragraph No.
Introduction	[1]
Relevant factual background	[3]
elevant statutory provisions as to maintenance orders	[10]
Approach on appeal	[16]
Appeal issues	[20]
Should the appellant's maintenance obligation have ceased when M turned 3?	[23]
Submissions	[23]
Discussion	[31]
Was the Judge wrong to hold that the appellant is liable to pay maintenance at $2,000 a week up to January 2013?	[39]
The Family Court judgment	[39]
Submissions	[42]
Discussion	[45]
A: The respondent's reasonable needs	[45]
(i) Introduction	[45]
(i) Reference to the respondent's budget	[46]
(iii) Reference to the assessment in the interim maintenance judgment	[47]
(iv) The respondent's evidence	[50]
B: The appellant's reasonable needs and ability to pay maintenance	[65]
Should the appellant have been ordered to pay the respondent $3,504 for reimbursement of expenses?	[73]
Introduction	[73]
Discussion	[76]
Result	[79]

Introduction

1 The appellant, CAM, has appealed against the judgment of Judge DA Burns given in the Family Court at Auckland on 19 September 2012, in which the Judge made a final maintenance order in favour of the respondent, JMP, his former partner, together with orders as to payment of past maintenance and for reimbursement of expenses (“the Family Court judgment”). 1

2 The appeal is on the grounds that the Judge failed to undertake the analysis of the reasonable needs of each of the appellant and the respondent, required by s 65 of the Family Proceedings Act 1980 (“the Act”). The respondent contends that there was no error in the Judge's assessment, and that the maintenance order should stand.

Relevant factual background

3 The appellant and the respondent were in a relationship as de facto partners between June 2007 and August 2009. Their relationship was, therefore, of two years two months, and was a relationship of short duration, as defined by s 2E(1)(b) of the Property (Relationships) Act 1976.

4 When the relationship began, the respondent had recently returned to New Zealand after having spent some ten years overseas. She had some savings, which were put towards the purchase of a residential section at a beach north of Auckland. While overseas she had worked as a contract accountant, but she has not worked in that area since her return to New Zealand. She had begun a course of study in Chinese medicine while in the UK, and continued to study towards a Degree of Bachelor of Health Science in Chinese Medicine on her return to New Zealand, completing the Bachelor's Degree in 2011 at the New Zealand College of Chinese Medicine. She began a two year course of study at AUT University towards a Master's Degree in 2012.

5 The parties' first child, H, was born in May 2008. When the appellant and the respondent separated in August 2009, the respondent was about four months pregnant with their second child, M. M was born in January 2010.

6 After the parties separated, the respondent moved into rented accommodation. The appellant has paid the rent (initially $850, now $950 a week) since separation. Up until March 2010 the appellant provided the respondent with a credit card, and met all expenses on the card. After 1 March 2010, the appellant paid the rent, plus $50,000 per annum (in total, approximately $1,810 a week) to the respondent to cover maintenance for herself and the children's costs. He also paid health insurance premiums, provided the respondent with a vehicle, met mortgage payments on the section, and met other expenses from time to time.

7 In July 2010, the respondent applied for interim, past, and final maintenance orders. An interim maintenance order was made by Judge Druce on 14 April 2011 (“the interim maintenance order”). The appellant was ordered to pay $2,000 a week for maintenance, inclusive of rent. That order took effect from the date of hearing, 24 February 2011. Although the interim order expired after six months, the appellant continued to pay maintenance at that rate. The appellant has also been making child support payments of $500 a week, calculated pursuant to the formula assessment under the Child Support Act 1991.

8 In the Family Court judgment on the respondent's application for a final maintenance order, the appellant was ordered to pay $2,000 a week (inclusive of rent), to be reduced commensurate with any reduction in the current rent, until 1 February 2015. This is when the younger child, M, will start school. The appellant was also ordered to pay past maintenance for arrears and deductions of $5,647 and $3,504 for reimbursement of certain expenses paid by the respondent in February 2010.

9 In addition to their dispute as to maintenance, the parties have been in dispute as to the care of H and M. In a judgment given by Judge de Jong on 9 July 2012, interim parenting orders were made in respect of the children, under the Care of Children Act 2004 (“the Care of Children Act judgment”). The effect of these orders is that H is in the appellant's care for three weekends out of four, for holidays four times a year, and for alternate Christmases. H attends kindergarten for five half-days a week. The interim parenting order in respect of M provides for her to be in the appellant's care for increasing periods of time, and for her to attend day care for three days a week once she turned three. The costs of H's kindergarten and M's day care have been met by the appellant.

Relevant statutory provisions as to maintenance orders

10 Section 64 of the Act provides that after a marriage or civil union is dissolved, or a defacto relationship ends, each spouse or partner is liable to the other to the extent necessary to meet the other's reasonable needs, where the other party cannot practicably meet the whole or any part of those needs.

11 Section 70 provides the power to make a maintenance order after a de facto relationship (or marriage or civil union) ends. It provides that a Family Court may order “either party … to pay to the other party for such term as the Court thinks fit … such periodical sum towards the maintenance of the other party as the Court thinks fit.” However, s 70B of the Act limits the power to make maintenance orders in respect of de facto relationships of short duration. It provides that in such cases the Court cannot make a maintenance order under s 70 unless the Court is satisfied that there is a child of the relationship, or the partner seeking the order has made a substantial contribution to the relationship, and (in either case) the Court is satisfied that failure to make the order would result in serious injustice to the partner seeking the order.

12 Section 64A sets out the statutory framework for maintenance orders. Subsection (1) sets out the principle that parties to marriages, civil unions, or de facto relationships must “within a period of time that is reasonable in all the circumstances of the particular case” assume responsibility for meeting their own needs. Subsection (2) then provides that one partner (A) is liable to maintain the other (B) if it is unreasonable for B to do without maintenance from A, and reasonable to require A to provide maintenance to B.

13 Section 64A(3) sets out the matters to which the Court must have regard when considering whether to order that maintenance be paid. These may be summarised as being:

• (a) the ages of the partners,

• (b) the duration of the partnership, and

• (c) the ability of the partners to become self-supporting, having regard to:

  • (i) the effects of the division of functions during the relationship;

  • (ii) the likely earning capacity of each partner;

  • (iii) the responsibilities of each partner for the ongoing care of minor children; and

  • (iv) any other relevant circumstances.

14 Section 65 of the Act then sets out the matters to which the Court must have regard, in determining the amount of maintenance payable. Section 65(2) requires the Court to have regard to (in summary):

• (a) the means of each partner, including each partner's potential earning capacity, and means derived from the division of relationship property;

• (b) the reasonable needs of each partner;

• (c) the fact that the partner by whom maintenance is payable is supporting another person;

• (d) the financial and other responsibilities of each partner; and

• (e) any other circumstances that make one partner liable to maintain the other.

15 The legislative intent of the sections referred to above is clearly that after a de facto...