Richardson v Richardson [2011] NZCA 652; [2012] 1 NZLR 796; [2012] NZFLR 181 (16 December 2011)

Last Updated: 26 January 2018

For a Court ready (fee required) version please follow this link

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 COURT OF APPEAL OF NEW ZEALAND

CA212/2011 [2011] NZCA 652

BETWEEN R Appellant

AND R Respondent

Hearing: 20 October 2011

Court: Chambers, Randerson and Stevens JJ Counsel: J F Naish-Wallis for Appellant

M K Headifen for Respondent

Judgment: 16 December 2011 at 3.00 pm

_{JUDGMENT OF THE COURT}

A The appeal is allowed.

B This case may be cited as Richardson v Richardson.

100. The question for which leave to appeal was granted is answered as follows:

Judge Adams was right not to take into account the receipt by the wife of a domestic purposes benefit and Working for Families tax credits when assessing her entitlement to spousal maintenance.

D The orders made by Judge Adams in the Family Court on 23 November

2009 (as varied by this Court) are reinstated, namely:

(a) there is a past maintenance order for spousal maintenance in the sum of $37,000; and

R V R COA CA212/2011 [16 December 2011]

(b) there is a spousal maintenance order in the sum of $160 per week from 23 November 2009 to 20 May 2010.

E The judgment of Harrison J in the High Court is set aside.

F The case is remitted to the Family Court for assessment of spousal maintenance from 20 May 2010.

G If the parties cannot agree on the amount of interest (if any) payable by the husband to the wife, this matter is also to be determined by the Family Court.

H The decision of Judge Adams dated 30 July 2011 is set aside.

I The costs order made in the High Court is also set aside. The wife is entitled to costs and disbursements with respect to the High Court appeal heard by Harrison J. If the parties cannot agree, such costs and disbursements are to be fixed in the High Court by any High Court Judge.

J The respondent must pay the appellant costs for a standard appeal on a band A basis plus usual disbursements.

REASONS OF THE COURT

_{(Given by Stevens J)}

Introduction

[1] Mrs R, who we shall refer to throughout this judgment as the wife, has obtained the leave of this Court¹ to argue a question of law arising from an application by her for spousal maintenance under s 63 of the Family Proceedings Act

_1980.² _{The question is whether the receipt by the wife of a domestic purposes}

¹ _{Pursuant to s 174(5) of the Family Proceedings Act 1980.}

² Leave to appeal was granted in the High Court: see R v R [Spousal maintenance] (No 2) [2011] NZFLR 545 (HC). But as the High Court lacked jurisdiction to grant leave, the appellant applied to this Court for leave (together with an application to extend time to do so). The respondent consented to both applications.

benefit (DPB) or Working for Families tax credits (WfFTC) should be taken into account when assessing her entitlement to spousal maintenance.

[2] That question of law comes before this Court in the following way. In his decision in the Family Court, Judge Adams held that benefits from the state were irrelevant for the purposes of spousal maintenance.³ On appeal to the High Court, Harrison J allowed the appeal and held that Judge Adams erred in disregarding the receipt by the wife of state benefits.⁴ Harrison J remitted the proceeding back to the Family Court for determination.⁵ When the case came back before Judge Adams he held that in the decision of Harrison J “the whole issue of spousal maintenance (including past maintenance) was utterly disposed of”.⁶ The wife filed an appeal to the High Court against that second decision. That appeal has been adjourned pending the outcome of this appeal.

[3] At the hearing before us, counsel for the parties and the Court recognised that it would be desirable to receive further information from the Ministry of Social Development (MSD) and the Inland Revenue Department (Inland Revenue) about features of the applicable DPB and the WfFTC regimes. For this purpose the parties consented to the Court inviting the Crown Law Office to provide submissions on several questions designed to provide the information required. We have received a helpful memorandum from Crown Law (the Crown memorandum) dealing with the material requested. Counsel for the parties have subsequently provided further written submissions responding to the issues discussed. We are grateful to Crown Law and counsel for this further assistance.

[4] In order to protect the privacy of the parties we have referred to them in this judgment as R and R and husband and wife. In White v Northumberland, this Court noted the difficulty faced by lawyers in coping with case names which are frequently

_{a jumble of initials.}⁷ _{For ease of later citation we give leave for this case to be}

³ _{R v R FC Manukau FAM-2005-092-2616, 23 November 2009 at [47].}

⁴ _{R v R [Spousal maintenance] [2011] NZFLR 523 (HC) [High Court appeal].}

⁵ _{At [26].}

⁶ _{R v R FC Waitakere FAM-2005-092-2616, 30 July 2011 at [7].}

⁷ White v Northumberland [2006] NZCA 446; [2006] NZFLR 1105 at [63]–[64].

reported and cited as Richardson v Richardson (which are not, of course, the real names of the parties).

The Family Court decision

[5] The husband and the wife lived together for about 18 months before commencing a marriage of 10 years duration. They separated in 2004, the marriage being dissolved in November 2009. The couple have two children, born in 1995 and

1999. The wife assumed primary caregiving responsibility for the children and they have remained with her in the matrimonial home.

[6] At the time of the first Family Court hearing the wife was receiving a DPB top-up of $166 per week, as well as a tax credit under the WfFTC regime of $140. The wife filed an application in the Family Court seeking a range of orders including spousal maintenance under s 63 of the Family Proceedings Act. Dealing with spousal maintenance Judge Adams made the following orders:⁸

I make a past maintenance order for spousal maintenance in the sum of

$37,000. I make a spousal maintenance order in the sum of $160 per week with the first payment due on 27 November 2009. I deliberately fix no

termination date because a change in the status of the marriage would have an

effect upon it. I think it is just to leave it in the hands of the husband to bring the matter back to Court at a time when he regards the situation may produce a

change.

[7] In reaching these conclusions on spousal maintenance, Judge Adams assessed the wife’s income over a 52 week period. He then stated that the wife “derives benefits from WINZ but these are irrelevant for spousal maintenance”.⁹ The correctness of this conclusion is the key point in issue in this appeal.

The High Court decision

[8] The critical issue on appeal in the High Court was whether Judge Adams was correct to disregard the state benefits received by the wife when assessing her

_{husband’s liability to pay spousal maintenance. Harrison J referred to the statutory}

⁸ R v R FC Manukau FAM-2005-092-2616, 23 November 2009 at [63].

touchstone of “reasonable needs” under s 63 of the Family Proceedings Act and considered that the maintenance order in the Family Court led to a distortion such that the wife was receiving a double recovery of her benefit payment.¹⁰ The Judge also noted that s 62 of the Family Proceedings Act, while enabling the recipient of a beneficiary to receive spousal maintenance, did not exclude the receipt of a benefit from the means assessment.¹¹

[9] Harrison J referred to two authorities, one from the Family Court, B v K,¹² and the other from the High Court, C v H,¹³ which supported the proposition that state benefits received by a spouse were relevant in assessing his or her means. Following these decisions, Harrison J held that Judge Adams erred in disregarding

the wife’s receipt of the state benefit. If it had been properly taken into account then there would have been no material shortfall in satisfying her reasonable needs.¹⁴ The appeal was allowed, and the orders made by Judge Adams for future and past spousal maintenance quashed. The Judge remitted “the proceeding back to the Family Court for determination if the parties are unable to agree”.¹⁵

Submissions

For the appellant

[10] Ms Naish-Wallis for the wife explained that the husband had been erratic in paying child support to meet the needs of the two children. This had forced the wife into a position where she had no option but to apply for a partial DPB. She submitted that had child support been paid, this would not have been considered to be part of her personal income. Ms Naish-Wallis contended that as a result of the High Court decision the wife was being further penalised by the fact that the DPB paid to her as a sole parent was treated as part of her means in the maintenance

_assessment.

¹⁰ _{High Court appeal at [17].}

¹¹ _{At [21].}

¹² _{B v K (2006) 26 FRNZ 1 (FC).}

¹³ _{NGC v HAH [Maintenance] [2010] NZHC 142; [2010] NZFLR 677 (HC).}

¹⁴ At [25].

[11] In submitting that the High Court Judge had erred, counsel’s principal submission was that the decision of this Court in Ropiha v Ropiha¹⁶ should have been applied. This was on the basis that both the amounts paid under DPB and tax credits under the WfFTC regime were discretionary payments and ought not to have been taken into account as part of the wife’s continuing income.

[12] Counsel also relied on s 84A(a) of the Social Security Act 1964 as supporting the principal submission, given that it provided that the payment of a benefit should not operate to take away or restrict the liability imposed by the Family Proceedings Act or any other Act for maintenance. Accordingly the appeal should be allowed and the orders made by Judge Adams in the Family Court should be reinstated.

For the respondent

[13] In contrast Mr Headifen, counsel for the husband, submitted that the decision and reasoning of this Court in Ropiha should be distinguished. The observations of this Court should apply only in the context of applications for interim maintenance orders and should have no broader application to orders for spousal maintenance generally. In any event, the DPB payments at issue here were more akin to payments of national superannuation, which were properly taken into account.

[14] Similarly, with respect to the WfFTC benefits, these are not discretionary but are a right to a credit payable weekly, dependent only on the extent of the beneficiary’s income. While the WfFTC is means-tested, the mere fact that it is means-tested does not determine whether it is precluded from being brought into account in assessing the means of an applicant for maintenance.

[15] Counsel submitted that the power of the chief executive under s 81 of the Social Security Act to review a benefit from time to time in order to ascertain whether a beneficiary remains entitled to receive it did not mean that the discretion would in fact be exercised upon the making of orders for spousal maintenance. He therefore supported the High Court decision on the basis that not to do so meant

_{there was the real prospect of “double-dipping”.}

¹⁶ Ropiha v Ropiha [1979] 2 NZLR 245 (CA).

Discussion

[16] The decision of this Court in Ropiha is of central importance to the appeal. Unfortunately, that decision appears not to have been referred to Harrison J in the High Court: it is not mentioned in his judgment. Neither was it referred to in the judgment of Winkelmann J in C v H,¹⁷ which was followed by Harrison J. We propose to discuss it before examining the features of both the DPB and WfFTC regime.¹⁸ The Ropiha case involved an application for interim maintenance under the Domestic Proceedings Act 1968 and the impact on such application of an unemployment benefit paid to the applicant spouse. This Court held that, except where the defendant to an application for an interim maintenance order cannot, because of his or her circumstances, sensibly be expected to bear the full burden of the maintenance needs of the applicant, the Court will generally take no account of the receipt by the applicant of a discretionary means-tested and regularly adjusted benefit.¹⁹

[17] This Court next considered the approach taken to the recognition of social welfare benefits in maintenance cases generally, noting for example that in cases involving an application for permanent maintenance²⁰ the Courts had held that a former husband should not be relieved of the obligation to pay maintenance (where his means were sufficient) at the expense of the social security fund. So too in U v W,²¹ this Court observed that as a matter of policy and in the public interest the social security fund ought not to be burdened by claims for assistance that ought properly to be supported and discharged by those with a direct and personal responsibility.

[18] Section 84A of the Social Security Act expressed the same public policy:

that the ability to pay maintenance should not be shifted from those able to pay on to the social security fund. The Court in Ropiha stated:²²

¹⁷ _{NGC v HAH [Maintenance] [2010] NZHC 142; [2010] NZFLR 677 (HC).}

¹⁸ _{The WfFTC scheme is set out in Part M of the Income Tax Act 2007.}

¹⁹ _{Ropiha v Ropiha [1979] 2 NZLR 245 at 250.}

²⁰ _{Such as McGill v McGill [1958] NZLR 145 (SC) and Gaspar v Gaspar [1972] NZLR 174 (SC).}

²¹ _{U v W [1978] 1 NZLR 90 (CA) at 92.}

²² At 250.

The first limb [of s 84A] provides that any statutory liability for maintenance shall not be affected by the payment of any benefit. The second limb provides that the power of the Court to make an order shall likewise remain unfettered by the payment of any benefit. Not surprisingly s 84A does not seek to interfere with the broad discretion of the Courts under the various provisions granting jurisdiction to make maintenance orders. The legislature has left it to the Courts to weigh all the relevant policy considerations relative to the receipt of the particular welfare benefit in the particular circumstances.

(Emphasis added.)

[19] This Court emphasised that there are practical as well as policy reasons for adopting the approach described where the defendant’s means are “sufficient to provide for the applicant’s needs without resort to any discretionary benefit payable to the applicant”.²³ It is necessary to consider the particular benefits concerned in order to determine the statutory purposes for which they are paid. We therefore examine the benefits involved here to determine whether their essential features and statutory characteristics are such that they should be taken into account when assessing an applicant’s means where spousal maintenance is claimed.

The DPB

[20] The relevant DPB is the benefit for solo parents.²⁴ Section 27B of the Social Security Act establishes the basic conditions of eligibility. An applicant includes a woman who is the mother of one or more dependent children and is living apart from, and has lost the support of or is being inadequately maintained by, her spouse or partner.²⁵ Subsection (2) provides that an applicant is entitled to receive a DPB if the chief cxecutive is satisfied that the applicant meets the residential requirements in s 74AA; and is (or has been) either legally married or in a civil union, or has attained the age of 18 years. The chief executive must also be satisfied that the applicant is caring for a dependent child or children, and is not living together with

_{his or her spouse or partner or with the other parent of the child.}²⁶

²³ _{At 250, citing Slater v Slater [1960] 3 All ER 217 (CA) at 219.}

²⁴ _{Provided for by s 27B of the Social Security Act 1964.}

²⁵ _{Section 27B(1)(a).}

²⁶ Under s 61 of the Social Security Act the chief executive may, in the chief executive’s discretion, grant an emergency benefit instead of a domestic purposes benefit if certain statutory requirements are met.

[21] Section 27B(2A) sets out further obligations for a person who receives a benefit for solo parents. It requires that such person must comply with a requirement under s 60Q dealing with personal development and employment plans and any other obligation arising under any of ss 60Q to 60S.²⁷ Section 60Q(1) provides that the chief executive may, from time to time, require a person²⁸ to do a number of things, including: attending and participating in an interview to identify any practical

assistance the person requires to enable the person to support himself or herself through employment; undertaking planning for employment; developing an employment plan; or undertaking any activity or rehabilitation the chief executive considers suitable to improve the beneficiary’s work-readiness or prospects for employment. Sections 60R and 60S deal with developing and reviewing employment plans and demonstrating a commitment to an employment plan.

[22] There are also other features of rates of solo benefits²⁹ that provide for rates to be subject to reduction, depending on the level of income earned.³⁰ According to the Crown memorandum, spousal support paid would be treated as income and the benefit of the rate would be reduced accordingly. Furthermore, if a person had (for

example) part time work as well as spousal support, the combination of the two could result in loss of benefit entitlement if her total income was above the gross income cut out point of $555.00 weekly.³¹

[23] Other relevant provisions of the Social Security Act illustrating the discretionary nature of the DPB include s 74(1)(e), which allows the chief executive to refuse to grant, or reduce, or even terminate a benefit where the applicant has failed to take reasonable steps to obtain any maintenance to which she may be entitled in respect of herself under the Family Proceedings Act or any other Act. We have already noted the power of the chief executive in s 81 of the Social Security Act to review from time to time any benefit in order to ascertain whether the

_{beneficiary remains entitled to receive it or whether the beneficiary may not be, or}

²⁷ _{Section 27B(2A)(a).}

28. Section 60Q applies to any person who receives a DBP for solo parents under s 27B if the recipient has a dependent child under the age of 6 years: s 60Q(6)(a)(ii).

²⁹ _{Set out in s 27H and sch 16.}

³⁰ _{For example Income Test 1 referred to in sch 16 and defined in s 3.}

31. Crown memorandum, 21 November 2011. Counsel for the parties did not dispute the statements in the Crown memorandum.

may not have been, entitled to receive that benefit or the rate of that benefit payable to the beneficiary. Section 84A(a) provides that the payment of a benefit under the Social Security Act shall not operate to take away or restrict any liability imposed by the Family Proceedings Act on any person for the maintenance or support of any other person.³²

Analysis relating to DPB

[24] The above references show that the DPB regime is complex in its administration. It would be most impractical for Courts to try to take such benefits into account when fixing spousal maintenance. We are satisfied that Parliament can never have intended that.

[25] Moreover, the features of the DPB just described establish that it is a discretionary, means-tested benefit to which the principles described by this Court in Ropiha v Ropiha should apply. We do not accept the respondent’s submission that the observations of Richardson J for the Court in Ropiha should be confined only to unemployment benefits. The policy and practical considerations mentioned apply equally to the sole parent DPB. Moreover the language used, for example in the italicised emphasis in the passage quoted at [18] above, is apt to apply more broadly than the respondent contends.

[26] We are satisfied that this analysis of the DPB is not altered by the fact that, where that benefit is payable to a sole parent, the rate is higher than the DPB for women alone.³³ Such difference in the rate of the DPB means that a sole parent can have his or her family circumstances recognised through any of the main benefits, thus acknowledging that the living and other costs of a sole parent will inevitably be greater than those of, say, a woman alone. But any question of child support payable

by a parent in respect of the children will be assessed and provided for under the

_{provisions of the Child Support Act 1991.}

³² _{The current s 84A is in similar terms to the predecessor section considered in Ropiha v Ropiha.}

³³ The DBP for women alone is set out in s 27C of the Social Security Act.

[27] It follows that the eligibility of the wife to receive such a benefit and its payment to her during some or all of the period covered by her application for spousal maintenance should not be taken into account when assessing her means to meet her reasonable needs. We conclude that Harrison J fell into error when reaching the opposite conclusion and quashing the orders of Judge Adams. The approach of Judge Adams in the Family Court was correct.

WfFTC benefits

[28] In the Crown memorandum filed on behalf of the MSD and Inland Revenue we were told that tax credits under WfFTC are a complex arrangement which make up one part of a wider Working for Families package of assistance mainly administered by MSD. The key objectives of the package are to make work pay:

(a) By ensuring that people are better off by being in work and are rewarded for their work effort.

(b) Ensuring income adequacy, with a focus on low and middle-income families with dependent children to address issues of poverty, especially child poverty.

(c) Supporting people into work by ensuring they get the assistance to support them into and remain in work. One of the factors that influences the amount a family will receive is the number of children under 18 years in the household. The tax credits are meant to go towards meeting all household expenses and it is not possible to say what portion of any WfFTC is for the beneficiary and what portion is for the children.

[29] We do not need to describe in detail the means by which tax credits under WfFTC are delivered to those who qualify for support. The statutory provisions governing the WfFTC are contained within subparts MA to MF and MZ of the Income Tax Act 2007. To qualify for an entitlement under the family scheme, a person must be 16 years or older; must be the principal caregiver for one or more

dependent children; and must meet certain residence requirements.³⁴ There are also continuing requirements, such as that a person does not start or stop being the principal caregiver of a dependent child during the entitlement period.³⁵ The WfFTC scheme provides for at least four types of tax credits: the family tax credit, the in- work tax credit, the minimum family tax credit and the parental tax credit, some of which require further conditions to be met.³⁶ Those entitled who are in work have the benefit of a higher tax credit.

[30] The types of payment a person receives under the WfFTC scheme therefore depends on various factors, including total family income and where family income comes from.³⁷ The credits involved are subject to different calculation methods in

order to determine entitlement.³⁸ The Income Tax Act also provides for the

calculation of family scheme income, an amount calculated under subpart MB on which an entitlement and a tax credit under the family scheme is based. Maintenance payments are included in the calculation of family scheme income for WfFTC.³⁹

[31] We consider that a key feature of the WfFTC scheme is the provision to those in need of support of a range of financial benefits (via the tax credits) on a means- tested basis. As with various benefits under the Social Security Act, the scheme incorporates incentives to attract people into, and to remain in, work. But whether, and to what extent, the WfFTC scheme is to be equated with the benefits described earlier in this judgment matters not. We consider that many of the policy and practical factors described by this Court in Ropiha apply with equal force to tax credits under WfFTC. Accordingly we are satisfied that the potential of an applicant for spousal maintenance to claim tax credits under the WfFTC scheme ought not to

_{be taken into account by the Court when determining maintenance applications.}

³⁴ _{Sections MC 2–5.}

³⁵ _{Section MC 8(1)(c).}

³⁶ _{See, for example, in relation to the in-work tax credit, ss MD 4–9.}

³⁷ See Inland Revenue Department “What are Working for Families Tax Credits?”

<www.ird.govt.nz_>.

38. The formulas for the family tax credit, the in-work tax credit and the parental tax credit are set out in ss MD 3, 10 and 12 respectively.

³⁹ Section MB 1(2)(a).

[32] The Crown memorandum noted that the payment of a lump sum amount of spousal maintenance could have a significant impact on the WfFTC for the tax year in which the amount is received.⁴⁰ This is understandable; but we see it as a statutory feature of the WfFTC scheme. We do not consider that such aspect detracts from the policy and practical drivers that inform our decision. Rather, it is an incident of how the support for those in need is delivered and that is a matter between the taxpayer and the Commissioner of Inland Revenue.

[33] There is another reason which supports our conclusion. Given the undoubted complexities in the WfFTC scheme, we consider it would be a very difficult, if not impossible, task to impose on the Courts dealing with maintenance applications a requirement to address the intricacies of determination and calculation of tax credits. As with other incidents of tax, the obtaining of tax credits may be affected by a variety of external factors and considerations personal to the taxpayer which are difficult or impossible for the Court to determine. Judges in the Family Court in particular ought not be drawn into speculating on such aspects. Also related to this point is the fact that it would be most unsatisfactory for difficult tax questions to be dealt with as between the parties to maintenance applications in the absence of the Commissioner. It would be impracticable to require the Commissioner to become involved in maintenance applications for the purposes of assisting the Court in the determination of available tax credits in particular cases.

[34] In any event, we consider that the circumstances of an applicant (and dependent children) that might be relevant to taxation and the availability of tax credits are not the direct concern of a defendant in maintenance proceedings. These are really issues between the applicant and the Commissioner to be determined by the application of the relevant legislation.

[35] Factors similar to these were canvassed by this Court when determining whether taxation should be taken into account in the assessment of damages for

_{compensation for loss of office.}⁴¹ _{By majority, the Court held that taxation should}

⁴⁰ Because the amount of maintenance received would be included in the family scheme in the year in which it is derived (namely, when the Court order is made) the whole of the lump sum is included in one tax year, even if it relates to a period of time spanning several years.

⁴¹ See North Island Wholesale Groceries Ltd v Hewin [1982] NZCA 87; [1982] 2 NZLR 176 (CA).

not be taken into account in such circumstances. Compensation should be determined on the basis of the gross earnings that the employee would have received. More recently, this Court in Gilbert v Attorney-General⁴² has applied the principle and the reasoning adopted by the majority in Hewin and has chosen not to reconsider the approach in that case.⁴³

[36] It follows from the above that any benefits associated with the WfFTC scheme that might accrue to the appellant by way of tax credits ought not to have been taken into account in determining the wife’s entitlement to payments of spousal maintenance.

Result

[37] The appeal is allowed. The question for which leave to appeal was granted is answered as follows:

Judge Adams was right not to take into account the receipt by the wife of a domestic purposes benefit or Working for Families tax credits when assessing her entitlement to spousal maintenance.

[38] The orders made by Judge Adams in the Family Court on 23 November 2009 (as varied by this Court) are reinstated, namely:

(a) there is a past maintenance order for spousal maintenance in the sum of $37,000; and

(b) there is a spousal maintenance order in the sum of $160 per week from 23 November 2009 to 20 May 2010.

[39] The reason we have reinstated the weekly spousal maintenance order only until 20 May 2010 is that Judge Adams always envisaged that the husband might

_{apply for a variation of the maintenance order once the marriage was dissolved, as}

⁴² _{Gilbert v Attorney-General [2010] NZCA 421; (2010) 8 NZELR 72.}

⁴³ At [82]–[91].

different criteria apply following dissolution.⁴⁴ Had Harrison J not quashed Judge Adams’s maintenance order, we expect that the husband would have applied for a variation. He did not apply no doubt because he got a judgment in his favour, effectively cancelling the need for him to pay any maintenance at all. What maintenance he should justly have to pay after 20 May 2010 is a matter for consideration in the Family Court.

[40] It follows that the decision of Harrison J in the High Court must be set aside. The case is remitted to the Family Court for assessment of spousal maintenance from

20 May 2010.

[41] We briefly mention the question of interest in respect of these amounts of spousal maintenance. The parties did not address submissions to us on this question. It is therefore inappropriate that we deal with it in this judgment. As we understand the position, pending the appeal to the High Court the orders of Judge Adams were not complied with and neither the lump sum maintenance nor the weekly maintenance has been paid by the husband. If that is so, the question of interest payable would arise. If the parties cannot agree on the amount of interest (if any) payable by the husband to the wife in respect of such spousal maintenance, this matter is also to be determined by the Family Court.

[42] We have referred earlier (at [2]) to the fact that this proceeding came before Judge Adams on a second occasion. The Judge refused to deal with the question of spousal maintenance because the whole question had been disposed of in the judgment of Harrison J. The appeal against Judge Adams’ second decision is adjourned in the High Court pending the outcome of this appeal. Obviously in light of this judgment the second decision of Judge Adams cannot stand. We therefore set aside this second decision of Judge Adams. It will accordingly be unnecessary for the parties to go back to the High Court, except in the unlikely event that costs (if

_{any) of the adjourned appeal cannot be agreed.}

⁴⁴ As noted in the passage quoted at [6] above.

Costs

[43] We set aside the costs order made in the High Court. The wife is entitled to costs and disbursements with respect to the High Court appeal. If the parties cannot agree, such costs and disbursements are to be fixed in the High Court by any High Court Judge, given that Harrison J now sits in this Court.

[44] As to costs in this Court, the respondent must pay to the appellant costs for a standard appeal on a band A basis and usual disbursements.

Solicitors:

Lavanya Dunraj, Auckland for Appellant

Craig Griffin & Lord, Auckland for Respondent