Malina v Hensley [2020] NZFC 4249

Published 08 December 2020

Application for maintenance — interim spousal maintenance — reasonable needs — standard of living — legal fees — ability to pay — access to justice — impact of COVID-19 — Family Proceedings Act 1980, ss 64, 82 & 182 — Property (Relationships) Act 1976, ss 21 & 21L — Evidence Act 2006, s 98 — L v R FC Auckland FAM-2007-004-1465, 30 September 2008 — Tsoi v Hua [2006] NZFLR 560 (HC) — M v M FC North Shore FAM-2006-044-2830, 20 March 2008 — Z v Z (2) [1997] 2 NZLR 258 (CA) — M v B [economic disparity] [2006] 3 NZLR 660 (CA) — RK v DK [2011] NZFLR 468 (HC) — B v B [2008] NZFLR 789 (HC) — A v A (Maintenance Pending Suit: Provision For Legal Fees) [2001] 1 FLR 377 — C v G [2010] NZCA 128 — Able v Able [2020] NZHC 177 — Biggs v Biggs [2020] NZCA 231. This was an application for interim spousal maintenance. The parties had been in a de facto relationship for some 19 years and had one child together. At the start of the relationship the applicant had been in paid employment, but had subsequently given up that job to work for the respondent's fishing business. She sought interim maintenance for her cost of living as well as for legal fees to help pay for the parties' various court proceedings, including final spousal maintenance and relationship property. Section 64 of the Family Proceedings Act is the relevant section for determining final spousal maintenance after dissolution and may be used to assist with making a determination as to interim maintenance. Each party is liable to maintain the other party's reasonable needs where that party cannot practicably meet the whole or any part of those needs because of one or more of the circumstances specified in s 64(2). The Judge adopted the approach taken in M v M: what the applicant's needs and means are; the respondent's ability to meet those needs; whether capital assets can be taken into account; and whether the court should exercise discretion to make an interim order. The standard of living to be assessed is when the parties were living together. The applicant sought interim monthly maintenance in the amount of $15,000, along with $8980.57 per month for legal and accounting fees. Both parties acknowledged that they had maintained a high standard of living while living together; however, this had been financed in large part by the respondent overdrawing from his business. The Judge did not consider the amount applied for was reasonable in the parties' circumstances, and fixed the amount at $11,466 per month for the 6 months. The next step was to determine the respondent's ability to pay. The respondent's fishing business had been significantly impacted by COVID-19, and he was having to work for a friend's fishing business to get by. The Judge noted that the amount fixed as the applicant's reasonable needs would likely require the respondent to go into debt; this could be accounted for later by writing it off as the respondent's relationship property contribution, but this was on the assumption that the applicant would be successful in overturning the parties' contracting out agreement and that the respondent's company would have value. The Judge was prepared to exercise discretion to make an interim maintenance order, but fixed the amount at $4000 per month. The Judge also made directions that the parties file further evidence—on the applicant's reasonable needs and the impact of COVID-19 on the respondent's business—in anticipation of the final spousal maintenance application. Judgment Date: 3 July 2020. * * * Note: names have been changed to comply with legal requirements. * * *

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