R v R HC AK
| Jurisdiction | New Zealand |
| Judge | Rodney Hansen J |
| Judgment Date | 26 November 2010 |
| Court | High Court |
| Docket Number | CIV-2010-404-005682 |
| Date | 26 November 2010 |
Rodney Hansen J
CIV-2010-404-005682
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
Appeal against a High Court decision which remitted the matter back to the Family Court and alternative application for special leave to appeal to the Court of Appeal against the High Court decision. High Court ruled that the Family Court erred in determining the amount of spousal maintenance payable without taking into account a domestic purposes benefit received by appellant. When the matter was remitted back to the Family Court, it was determined that there was no lawful scope for the Family Court to make a maintenance order — whether it was appropriate to grant special leave out of time to appeal to the Court of Appeal.
J Naish-Wallis for Appellant MK Headifen for Respondent
ORAL JUDGMENT OF Rodney Hansen J
In a judgment given on 20 May 2010, Harrison J allowed an appeal against an order requiring the respondent (Mr R) to pay the appellant (Mrs R) spousal maintenance and remitted the issue to the Family Court for determination in the light of his judgment. Mrs R appeals against the consequential judgment of Judge Adams in the Family Court on the broad ground that he failed to give effect to the appellate ruling. Alternatively, she applies for special leave to appeal to the Court of Appeal against the decision of Harrison J.
I have come to the view that the appropriate course is to grant special leave to appeal and to adjourn the final disposition of this appeal pending the Court of Appeal's determination.
The critical issue determined by Harrison J was that Judge Adams erred in determining the spousal maintenance payable by Mr R in failing to take account of a domestic purposes benefit received by Mrs R. At the time of the original Family Court hearing, she was receiving a domestic purposes benefit top-up of $166, as well as a Working for Families income tax credit of $140. Harrison J accepted a submission that her reasonable weekly needs were being met by a combination of her earnings and the benefit. He held that, in disregarding the benefit, Judge Adams had ordered Mr R to pay spousal maintenance which exceeded her reasonable needs. He quashed orders for past spousal maintenance in the sum of $37,000 and future spousal maintenance in the sum of $160 per week and remitted the proceeding back to the Family Court for determination if the parties were unable to agree.
When the matter was reconsidered by Judge Adams, he determined that there was no lawful scope for the Family Court to now make a maintenance order. He quoted at [2] the following passage from the judgment of Harrison J:
Accordingly, I am satisfied that Judge Adams erred in disregarding Mrs R' receipt of state benefits when assessing her means; if they had beentaken into proper account there would have been no material shortfall in satisfying her reasonable weekly needs. [Emphasis added]
Judge Adams went on to say:
My reading of the decision of Harrison J accords with that advanced in his written submissions by Mr Headifen, namely that the whole issue of spousal maintenance (including past maintenance) was utterly disposed of. The words that I have italicised from paragraph [25] of the High Court decision make it clear to me that there is no room within which I can assess maintenance for Mrs R in this matter.
At the time the order was made, the marriage had not been dissolved. Mrs R' application fell to be determined under s 63 of the Family Proceedings Act 1980 which relevantly provides:
Maintenance during marriage or civil union
(1) During a marriage or civil union, each party is liable to maintain the other party to the extent that such maintenance is necessary to meet the reasonable needs of the other party, where the other party cannot practicably meet the whole or any part of those needs because of any 1 or more of the circumstances specified in subsection (2).
The circumstances set out in subsection (2) do not need to be considered in detail. They relevantly include the ability of the parties to be or to become self-supporting (paragraph (a)) and the responsibilities of each party for the ongoing daily care of any minor or dependent children (paragraph (b)).
Judge Adams had found that Mrs R' reasonable needs in terms of s 63(1) were $413 per week. She earned on average $252 per week as a teacher aid. Judge Adams found this was the maximum she could reasonably be expected to earn, having regard to a serious medical condition from which she suffered and her day to day care of the two children of the marriage who he described as “at demanding ages”. He held that the benefits she received were irrelevant for the purpose of spousal maintenance. In the result, he found that maintenance of $160 was necessary to meet her reasonable needs. He made an order for maintenance in that sum and for past maintenance in the sum of $37,000.
In holding that Judge Adams was wrong not to have regard to the benefit received by Mrs R, Harrison J relied on a decision of the Family Court in B v K 1 and of this Court in C v H 2 which considered the implications of s 62 of the Family Proceedings Act. Section 62 provides as follows:
Domestic benefit irrelevant
Without limiting or affecting the law relating to any other benefit, the liability to maintain any person under this Act is not extinguished by reason of the fact that the person's reasonable needs are being met by a domestic benefit.
In B v K, Judge Riddell held that s 62: 3
… does not mean that the DPB must be ignored, or is relevant to a calculation of “reasonable needs”. Rather, it indicates that being in receipt of the DPB is irrelevant in relation to the liability of the other earning spouse, and that the Court's discretion in awarding spousal maintenance is not to be fettered simply because an applicant is in receipt of the DPB.
She went on to undertake what Harrison J described as a careful and, in his view, correct, analysis of the relevant statutory provisions and their genesis. He quoted the following passages from her judgment: 4
[23] Additionally, s 65(2)(a) of the Family Proceedings Act also provides that the Court must have regard to the “means” of each spouse when assessing any maintenance that is payable, if the respondent is found to be liable.
[24] The term “means” is not defined in the Act. The two matters listed in the section are not inclusive of all the matters that the Court can take into account. This indicates that income derived from the DPB could be considered by the Court in assessing the “means” of each spouse.
…
[38] However, s 27J was repealed in 1992. There is no longer any statutory barrier to receiving spousal maintenance while also being in receipt of the DPB. Instead, spousal maintenance would presumably be classed as income relevant to determining the rate at which the Benefit is paid under s 27H(2) Social Security Act.
[39] In summary, the judicial discretion to take the Domestic Purposes Benefit income into account, is supported by s 64A(3)(c)(iv) Family
Proceedings Act, being a consideration of any other relevant circumstances and s 65(2)(a) Family Proceedings Act, which requires the Court to have regard to the means of each spouse. I consider the applicant's DPB income ought not to be ignored and will be relevant in ascertaining her “reasonable needs”.
Harrison J then quoted the following passage from the judgment of Winkelmann J in C v H as expressly approving B v K: 5
Section 62 does not require that the receipt of a benefit be disregarded in the exercise of the discretion under ss 63 or 64. It simply makes clear that the payment of a benefit to the applicant does not relieve the Judge of the obligation to assess the reasonable needs of the applicant over and above that benefit in terms of the statutory framework provided by ss 63, 64 64A and 65. ( B v K (2006) 26 FRNZ 1 (FAMC)).
On the basis of these authorities, Harrison J said that Judge Adams had erred in disregarding Mrs R' receipt of State benefits when assessing her means. 6 He went on to say: 7
As a result, Judge Adams ordered Mr R to pay an amount of spousal maintenance which exceeded Mrs R' reasonable needs.
Ms Naish-Wallis identified the grounds of appeal as follows:
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a) The learned Judge erred in failing to reconsider the matter of spousal maintenance by taking into account the full “household expenditure” given that the High Court had found that the full “household income” needed to be considered;
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b) The Family Court Judge failed to take into account the children's reasonable needs and did not reconsider whether the total household income was partially used for the children's needs; and
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c) In failing to consider that in the case of C v H the matter was remitted back to the Family Court to undertake the analysis again.
The short point that arises is whether, in order to give effect to Harrison J's judgment, Judge Adams should have undertaken the analysis required by s 63 afresh or whether he was right to conclude that the terms of the judgment on appeal had effectively determined the matter.
Mr Headifen submits that the decision of Harrison J was conclusive insofar as it concerned the maintenance orders. He maintains that the purpose of remitting the proceeding back to the Family Court was to enable outstanding ancillary matters which had not been finalised to be determined.
On my reading of his judgment, Harrison J did not intend to foreclose a reassessment of spousal maintenance in the Family Court. It seems to me that he would not have remitted the matter back if there were...
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