C v G

• Jurisdiction: New Zealand
• Judge: Randerson J,And
• Judgment Date: 15 April 2010
• Neutral Citation: [2010] NZCA 128
• Docket Number: CA692/2009
• Court: Court of Appeal
• Date: 15 April 2010

BETWEEN

C

Appellant

and

G

Respondent

[2010] NZCA 128

Court:

Glazebrook, Ellen France and Randerson JJ

CA692/2009

IN THE COURT OF APPEAL OF NEW ZEALAND

Counsel:

D A T Hollings QC for Appellant

G Bogiatto and C E A Townsend for Respondent

JUDGMENT OF THE COURT

• A The appeal is allowed.

• B The decision in the High Court (HC Auckland CIV-2008-404-007309) is quashed and the decision in the Family Court dated 8 October 2008 (FAM-2007-004-2155-2156) is restored in the sum of $990 per week payable until 21 June 2009.

• C The respondent must repay to the appellant all maintenance paid to her from and after the date of expiry of the maintenance order made in the Family Court on such terms as the Family Court deems proper. The matter is remitted to the Family Court for that purpose.

• D The issue of costs in the High Court is remitted to that Court for determination.

• E The respondent must pay the appellant costs in this Court for a standard appeal on a band A basis and usual disbursements.

• F Order suppressing the names and identifying particulars of the parties and their child until further order.

• G Counsel are to file memoranda in relation to the interim suppression order as directed in [61] of this judgment.

REASONS OF THE COURT

(Given by Randerson J)

Introduction

1 This appeal is concerned with the duration of the appellant's liability to maintain the respondent after the termination of their de facto relationship. The parties lived together in Sydney, Australia, for a period of three to four years before they parted in the latter half of 2004. During the relationship neither depended on the other for financial support. There was one child of the relationship, a daughter born on 21 June 2004.

2 When the parties separated, they entered into comprehensive arrangements relating to property, parenting and maintenance. In terms of a document described as a Termination Agreement, they agreed that the appellant, Mr C, would pay maintenance for their daughter. No issue arises in that respect. They also agreed that Mr C would pay maintenance for the respondent, Ms G, until their daughter was three years of age in June 2007. It is not in dispute that the parties contemplated that Ms G would be self-supporting at the expiry of the three-year period. Ms G had held high-paying positions in the human resources field.

3 However, after Ms G and her daughter returned to New Zealand to live in a substantial home provided by Mr C, Ms G encountered unexpected difficulties in obtaining suitable part-time work in her chosen field and did not consider it appropriate to work full-time having regard to her responsibilities for the child.

4 Mr C's maintenance obligation under the Termination Agreement was to end in 2007. During that year, Ms G decided to retrain as a lawyer and commenced studies at law school. She has continued to study law since that time and will complete her qualifications next year. Around the same time as she decided to commence her legal studies, Ms G applied for a maintenance order in the Family Court. An interim order in the sum of $990 per week was made in her favour by Judge Fleming on 14 December 2007. 1 A final order was later made by Judge McHardy 2 in the same amount to cover the period from 27 June 2007 (when Mr C's maintenance obligation expired) until 27 June 2009 (when the child would reach the age of five). On appeal to the High Court, Courtney J increased the order to $1,100 per week and extended the term of the order until the child's seventh birthday on 27 June 2011. 3

5 On 23 October 2009, this Court 4 granted Mr C leave under s 174(5) of the Family Proceedings Act 1980 (the Act) to appeal against the decision in the High Court.

6 A number of grounds of appeal have been raised but they narrow down to two essential issues:

• (a) was the High Court Judge correct to find that the maintenance order should be extended to the child's seventh birthday in June 2011?

• (b) was the High Court Judge correct to increase the maintenance order from $990 per week to $1,100 per week, backdated to 27 June 2007.

7 In relation to the first issue, Mr C submits that:

• (a) the Judge erred in failing to give proper weight to the terms of the Termination Agreement and the clean break principle in s 64A of the Act; and

• (b) the Judge did not, on the facts of the case, have jurisdiction to make an order under s 64(2)(d) of the Family Proceedings Act (which allows for maintenance in certain circumstances for the purpose of education or training).

8 In relation to the second issue, Mr C submits that the High Court Judge was wrong to increase the maintenance by including Ms G's legal costs.

9 We record that there has never been any issue about Mr C's ability to pay proper maintenance. The real issue is the length of time for which any maintenance obligation on his part should extend. Although it was submitted in this Court on Mr C's behalf that his maintenance obligation should not extend beyond June 2007 (when the daughter turned three), there was no cross-appeal in the High Court by Mr C from the Family Court's finding that the maintenance obligation should extend until the child was five years. In these circumstances, we do not consider it is open for Mr C now to submit that the obligation should not extend beyond the child's third birthday. In effect, he has accepted the finding in the Family Court and he is bound by that concession. In any event, we have concluded that the decision of the Family Court was correct.

The Termination Agreement

10 On 12 September 2005 Mr C and Ms G entered into the Termination Agreement, an expression used under the New South Wales Property (Relationships) Act 1984. They each had independent legal advice. The Agreement was expressed as operating “… in substitution for all rights of either party to claim maintenance and/or adjusted property orders under Part III of the Property (Relationships) Act 1984 (NSW).” The key terms of the Termination Agreement for present purposes are:

• (a) Mr C agreed to pay Ms G NZ$1,180 per week between 12 September 2005 and 21 June 2007;

• (b) Ms G received by way of property settlement A$300,000 and was forgiven an additional debt of A$70,000;

• (c) Ms G received a life interest in a property purchased by Mr C in Auckland for $1.9 million. Upon the termination of the life interest, the property is to be transferred to their daughter. Ms G is responsible for the payment of rates and insurance on the property. She is also responsible for repairs and maintenance up to $10,000. Any costs of repairs and maintenance which exceed $10,000 are to be shared equally between the parties.

Child support agreement

11 On the same date as the Termination Agreement, the parties signed a separate agreement providing for the financial support of their daughter. Mr C agreed to pay maintenance for her at the rate of A$370 per week until the child's fifth birthday when the agreed amount was to increase. He is currently paying NZ$500 per week in respect of the daughter's support (a sum which we understand to be substantially in excess of the amount payable under the Child Support Act 1991). Mr C also agreed to pay half of the costs relating to their daughter's education, health and welfare. Clause 3.5 of this agreement provides:

Until [the daughter] commences kindergarten, [Mr C] shall pay or cause to be paid 50% of all reasonable child care costs incurred by [Ms G] up to a maximum of four days each week.

Parenting arrangements

12 Parenting arrangements were also agreed upon and were the subject of consent orders made by the Family Court in Australia on the same date as the termination and child support agreements. It was agreed that the daughter would live in New Zealand with Ms G who would have sole responsibility for her day-to-day care, welfare and development. Contact arrangements were agreed and were to be effective until the daughter turned eight. This period was nominated because eight was the earliest age under international aviation rules that a child could travel unaccompanied.

13 Mr C was to have contact visits with their daughter every third weekend from 6pm on a Friday evening until 4pm Sunday evening. These visits were to alternate between New Zealand and Australia. On the weekends when contact was to occur in Australia, Ms G was required to travel to Australia with her. Once their daughter turned five, she was to spend each alternate school holiday with her father, the order envisaging that Ms G would sometimes travel with the daughter to deliver her for that purpose.

14 There were difficulties over the contact arrangements, the causes for which it is unnecessary for us to explore. It seems that Mr C has seen his daughter only on an infrequent basis.

The findings in the Family Court

15 Judge McHardy noted that the applicant was, at that stage, seeking $10,667 per month, adjusted annually for the cost of living, and continuing until 2020, by which time Ms G expected she would be self-supporting. The daughter would then be 16 years of age.

16 The Judge accepted that suitable work was not available to Ms G in the human resources sector at the time of the Family Court hearing. That finding was not challenged in the High Court. Evidence was produced that part-time work was difficult to obtain in that field and that full-time work would likely involve substantial travel which would be inconsistent with Ms G's obligations to their daughter. In that respect, the Judge...