Herman v Matta  NZFC 11486
Published 11 June 2021
Application for recovery of maintenance — overseas maintenance order — past and future maintenance — Convention contracting country — Family Proceedings Act 1980, ss 64, 64A, 65, 101, 145, 145C, 145E & 145G — Limitation Action 2010, ss 6, 11, 12, 14 & 47 — Child Support Act 1991 — Reciprocal Enforcement of Judgments Act 1934 — Limitation Act 1950, s 4 (repealed) — United Nations Convention on the Recovery Abroad of Maintenance — Eilenberg v Gutierrez  NZCA 270,  31 FRNZ 408 — Emajor v Emajor  NZHC 2022 — Holley v Andrew  3 NZLR 151 (CA) — MVDMS v FJS FC Tauranga FAM-2009-070-000578 12 April 2010 — Bloedorn v Bloedorn  NZFC 7097 — Grada v Piek  NZFC 10238 — Maintenance Officer v Sheriff (1987) 3 FRNZ 648 — Taylor v Taylor (1991) 7 FRNZ 695 — Andrew v Holley (1991) 8 FRNZ 361 (FC) — Guzman v Estate of Osborne  NZFC 1983,  NZFLR 142.
The applicant mother sought recovery of maintenance from the respondent father in respect of the parties' four children under s 145 of the Family Proceedings Act ("FPA"). The parties were married and had all of their children in the Netherlands. They moved and lived together with the children in New Zealand for a time before the mother returned to the Netherlands with the children. The father remained living in New Zealand. On application to a court in the Netherlands a divorce had been granted along with orders for €400 per child per month in child maintenance and €1500 per month in spousal maintenance. The father paid some child support (under the Child Support Act) in New Zealand for a period of around 2 years but never complied with the Dutch court order. The mother sought arrears of maintenance payments of €208,899.58.
The issues for determination were whether the New Zealand Family Court had jurisdiction to make a child maintenance order in respect of the eldest child (20 at the time of application); whether the Limitation Act prevented the applicant from recovering a portion of the child maintenance arrears in respect of the other three children; the means, capacity, and reasonable needs of each parent; whether the respondent should continue to be liable for spousal maintenance, and if so, the length and quantum; and the length and quantum of each child's maintenance.
On the first issue, the Judge considered that the Court was bound by Court of Appeal authority which held that s 145E only allows applications in respect of a minor child, and therefore the Court had no jurisdiction in respect of the eldest child who was over 20 years old at the time the application was filed. In respect of the second issue, the Judge concluded that the application was for past and future maintenance under the FPA rather than for an enforcement of an overseas maintenance order, and it therefore fell within the definition of a money claim under s 12 of the Limitation Act. The father was liable for child maintenance from the time he stopped paying child support under the Child Support Act. On the third issue, having considered the means, capacity, and reasonable needs of both parties, the Judge determined that the respondent would be able to meet his maintenance liabilities and ought to provide for the three younger children's maintenance immediately. The quantum was assessed at €250 per month per child from the period when the father stopped paying child support until the second eldest child turned 20, and the youngest two children turned 19.
On the issue of spousal maintenance, the Judge considered the factors in ss 64-65 of the FPA: the fact that the applicant had been the caregiver for the children while the parties were together; that she suffered from a chronic condition and had not worked in paid employment for many years; and the impact of COVID-19 on the Dutch economy. The Judge determined it was appropriate for the respondent to pay past spousal maintenance for a period of five years. The quantum of €1500 per month sought was reduced to €500 per month, to be paid in a lump sum.
Judgment Date: 23 December 2020.
* * * Note: names have been changed to comply with legal requirements. * * *