Beach-Ward v Ward
[2023] NZHC 1958
•26 July 2023
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CIV-2022-443-003
[2023] NZHC 1958
UNDER the Property (Relationships) Act 1976 AND
IN THE MATTER
of an Application for Leave to Appeal to the Court of Appeal against the decision of the High Court at New Plymouth
BETWEEN
CHERIE ANNE BEACH-WARD
Applicant
AND
MICHAEL PAUL WARD
Respondent
On the Papers
1958(submissions received 27 March 2023 and 28 April 2023)
Counsel:
A Fisher KC and V A Crawshaw KC for Applicant S Jefferson KC and C A Gelston for Respondent
Judgment:
26 July 2023
JUDGMENT OF ELLIS J
[1] Mrs Beach-Ward seeks special leave to appeal my October 2022 decision in Beach Ward v Ward.1 In that decision, I had dismissed her appeal from a decision in the Family Court, where Judge L Harrison had ordered a relationship property division (adjusted for economic disparity) of approximately 52:48 in Ms Beach-Ward’s favour.2
1 Beach-Ward v Ward [2022] NZHC 2693, [2022] NZFLR 522.
2 Ward v Beach-Ward [2021] NZFC 8512. Ms Beach-Ward had sought a 60:40 split.
BEACH-WARD v WARD [2023] NZHC 1958 [26 July 2023]
[2] Leave to bring a second appeal against Judge Harrison’s decision is required, and on 7 February 2023 I granted Ms Beach-Ward leave to apply for that leave out of time. On 24 February 2023 I directed that the application for leave be determined on the papers. Submissions were subsequently filed but unfortunately were not forwarded to me until last month.
Relevant background
[3] Although there were a number of points raised by Ms Beach-Ward in her appeal before me, as will shortly become clear, her application for leave is focused squarely on economic disparity in terms of s 15 of the Property (Relationships) Act 1976 (the PRA) and, in particular, the application of the Supreme Court’s decision in Scott v Williams.3
[4] The majority in Scott confirmed the existence of a “working assumption” that a division of functions within the relationship along traditional lines was to the benefit of both parties and restricted the non-career partner’s income earning ability and enhanced the career partner’s earning ability.4 In other words, the assumption is that a traditional division of functions within the relationship is assumed to be the cause of any disparity. The majority observed that while this working assumption can be displaced on the facts, only strong evidence of some other causative factor which is clearly independent of the division of functions will be sufficient to negative or limit it. In that regard Arnold J said:5
… I accept that it will be legitimate to point to personal characteristics as a complete or partial explanation of post-separation disparity in some situations, as where, for example, a career partner enters a relationship as a well-established and successful business or professional person. In that type of case, it may be that only part of the disparity can fairly be said to result from the division of responsibilities in the relationship. In relationships of relatively short duration, this may be a complete explanation for post-separation disparity. Again, however, care must be taken in these situations not to undermine the equality of contribution principle that underpins the PRA.
3 Scott v Williams [2017] NZSC 185, [2018] 1 NZLR 507.
4 At [293].
5 At [325].
[5] This passage from Scott has subsequently been applied in a number of cases, including by this Court on appeal in Gosbee v Gosbee and Little v Little.6 In those cases, the Court was prepared to find that the assumption could “partly” be rebutted on the basis that while there was economic disparity, the division of functions in the relationship was neither its sole nor most influential cause.7 In Little (as here) the economic disparity was assessed at 20 per cent.8
The proposed appeal
[6]Ms Beach-Ward’s leave application states:9
1.The specific grounds of appeal are:
(a)The appeal raises an important question of law, namely the correct application of the “working assumption” test endorsed by the majority in the Supreme Court in Scott v Williams when determining the quantum of compensation payable under section 15 of the Property (Relationships) Act 1976. In particular:
(i)the High Court erred in finding that the working assumption was partially displaced in this case;
(ii)in reaching the conclusion that the working assumption was partially displaced, the High Court relied on factors that did not meet the test enunciated by the Supreme Court namely that the working assumption should only be displaced in circumstances where there is strong evidence of some other causative factor which “would be sufficient to negative or limit this working assumption”.
[7] The application also says that the proposed appeal raises an issue of public importance:
… in that the approach taken by the High Court represents an erosion of the broad-brush approach taken to the issue of economic disparity and compensation adopted by the Supreme Court.
6 Gosbee v Gosbee [2020] NZHC 1001; Little v Little [2022] NZHC 601, [2022] NZFLR 316.
7 Gosbee v Gosbee, above n 6, at [43]; Little v Little, above n 6, at [78].
8 At [105].
9 Citations omitted, emphasis in original.
[8] In the submissions filed in support of leave, the grounds are further elaborated, as follows:10
5.The working assumption should not be readily displaced. The facts of the case under appeal do not reach the requisite threshold enunciated by the Supreme Court to justify departure from the working assumption let alone by 80%. The Family Court found that the portion of the disparity attributable to the division of functions in the marriage was 20%, thereby reducing the overall economic disparity figure of
$368,355 to $73,670. This sum was then halved to $36,835.20.
6.The appellant argues that the decision of the High Court to rely on the Family Court finding in this regard was wrong in the following respects:
(a)It was incorrect to place weight on the fact that the parties’ relationship commenced when the parties were aged 28 and 32 to find that it was not a relationship entered into ‘early in adult life’ (paragraph [91]).
(b)It was incorrect to place weight on the qualification and skillset of the proposed respondent at the beginning of the relationship and the fact that he had an “established career” at commencement (see paragraph [85]).
(c)Given the facts of this case, it was incorrect to place significant weight on the disparity in the parties’ earnings at the commencement of the relationship particularly in light of the proposed appellant’s significantly greater financial contribution at commencement (including the provision of a home).
(d)The following unchallenged evidence was not accorded sufficient weight by the High Court:
i.The parties operated their marriage along traditional lines.
ii.The appellant was the marriage partner whose central priorities and focus were the parties’ three children.
iii.The appellant prioritised family demands over employment outside of the home.
iv.The respondent’s living standards were significantly higher than the appellant’s at separation, due in part to the division of functions of the marriage.
v.At separation, there remained a disparity of income between the parties, the respondent earning approximately three times more than the appellant.
10 Citations omitted, emphasis in original.
vi.There was an element of enhancement of the respondent’s career due to his continuity of employment in his chosen field because the appellant accepted the role as the stay-at-home parent. The value of the respondent’s 18-year period of employment, during the relationship, cannot be overlooked as contributing to his ability to maintain his status and reputation in the IT Industry.
vii.This would not have been possible had the proposed appellant not been home-based and looking after the children during working hours.
7.Against the backdrop of this accepted evidence, the conclusion of the High Court that the division of functions in the relationship did not appear to have been a major contributor to the post separation disparity (paragraph [93]) is difficult to reconcile.
8.The High Court’s reliance on the judgments in Little v Little and Gosbee v Gosbee was misplaced in the present case. The facts of those cases differed markedly from the facts in the present case. The reliance on these decisions is more broadly problematic as it represents an erosion of the broad-brush approach formulated in Scott v Williams to the determination of the question whether compensation should be paid for economic disparity under s15.
9.It is in the interests of justice to ensure that the test which the appellant says was stated by the majority of the Supreme Court regarding the application of this provision is clear and should not be undermined by the Family Court. We ask that the Court of Appeal provide the necessary guidance to ensure that the Supreme Court’s test is properly applied. This will more readily promote resolution of s15 claims which are otherwise negated by ongoing uncertainty, minimal awards and a lack of economic viability.
Applications for leave to bring a second appeal: relevant principles
[9] The decision in Waller v Hider was concerned with leave to appeal a decision under the Matrimonial Property Act 1976 (the predecessor to the PRA).11 There, the Court of Appeal stated that for leave to be granted:12
The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal: Rutherford v Waite …; Cuff v Broadlands Finance Limited. In the latter case the Court also remarked that in the end the guiding principle must be the requirement of justice.
11 Waller v Hider [1998] 1 NZLR 412 (CA).
12 At 413 (citations omitted).
[10] The Court observed:13
… this Court is not engaged in the general correction of error. Its primary function is then to clarify the law and to determine whether it has been properly construed and applied by the Court below.
[11] And where the proposed appeal was concerned with a question of fact, the Court said:14
When the disputed matter is entirely or largely a question of fact the task of the applicant … is harder. An issue of fact in a matter falling within the jurisdiction of an inferior Court will seldom be of public importance. It is better that we make no attempt to define the circumstances in which a factual contest can be taken to have private importance but obviously it may do so if the amount at stake is very substantial or the decision reflects seriously on the character or conduct of the would-be appellant or, as in Cuff, the judgment below has special consequences (for example bankruptcy) for the losing party. Even then, however, leave cannot be anticipated if the applicant is seeking to disturb concurrent findings of fact in the lower Courts.
[12] As well, the cost and delay caused by a further appeal is as important a factor as any other when applying these principles. Mr Jefferson KC submitted that this is of particular significance here considering the relatively modest sum in issue in this matter.15
Should leave be granted?
[13] As I recorded in my judgment, Ms Beach-Ward’s principal s 15 submission before me was that—when assessing her income at the beginning of the relationship— the Family Court had erred by not taking into account the $45,000 per annum she was receiving from ACC for the four years following her first husband’s death in an accident.16 I agreed with the Family Court that those sums could not properly be seen as relevant income at that time because they said nothing about her income earning capacity in future. She does not now seek to pursue that argument.
13 At 413.
14 At 214.
15 The total relationship property pool is a little under $2 million. The difference between the economic disparity amount claimed by Ms Beach-Ward and that awarded by the Family Court is just under $150,000.
16 Above n 1, at [87].
[14] As I also recorded, Ms Beach-Ward submitted that the Family Court had over analogised with the decision in Gosbee (the Little decision had not been delivered at the time of the first instance hearing).17 She did not seek to argue that those decisions were wrong. At [94] of my decision I observed that I did not find comparisons with other cases particularly helpful.18
[15] The difficulty faced by Ms Beach-Ward here is that all the matters listed at para 6 of her submissions (set out above) are factual matters, all of which are concerned with matters of weight. They simply do not raise the kind of questions— either individually or collectively—that might warrant a grant of leave.
[16] The only remaining question raised by the proposed appeal is whether the Courts are wrongly applying the decision in Scott, and too readily finding that the presumption is (partially) displaced. That is what I take Ms Beach-Ward to mean by the second half of para 8 and all of para 9.19 It was not an argument that was advanced before me at the hearing.
[17] It is not, however, my understanding that Ms Beach-Ward seeks to contend that partial displacement of the presumption is not possible. That question was carefully considered by both High Court judges in Little and Gosbee and (in my respectful view) seems clearly contemplated in the passage from Scott set out earlier. And once that point is reached, whether displacement is established, and the extent of any displacement, is a question of fact, as it was here. As I tried to make plain in my judgment, although the relationship between the parties was quite longstanding, it could not be said to have commence particularly “early” in their adult lives. Ms Beach-Ward was 32, and already a widow. And the differences in their qualifications and income at the outset of the relationship were stark. Again, these are simply matters of fact, peculiar to this case.
17 Above n 1, at [87].
18 Above n 1.
19 The first half of para 8 is difficult to understand, given I expressly recorded that I did not find comparisons with other cases helpful.
[18] I am therefore unable to accept that there are questions here that are capable of serious argument involving either a public or private interest of sufficient importance to outweigh the cost and delay of the further appeal. The application for leave to appeal is declined, accordingly.
Rebecca Ellis J
Solicitors:
Legal Solutions, New Plymouth for Applicant Shaun Gifford, New Plymouth for Respondent
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