Legal Research
Cases
Bowden v Bowden

Bowden v Bowden

Case [2016] NZHC 1201 7 June 2016

De Facto Relationships

Extraordinary Circumstances

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-702 [2016] NZHC 1201

BETWEEN
JUDITH ANNE BOWDEN

Appellant

AND

PAUL GORDON BOWDEN Respondent

Hearing: 4 May 2016

Appearances:

A S Greig for Appellant
A D Marsh for Respondent

Judgment:

7 June 2016

JUDGMENT OF MANDER J

[1] This is an appeal from a finding by the Family Court that there were extraordinary circumstances that made equal sharing of relationship property repugnant to justice.1 The appellant, Judith Bowden (JB), contends the Family Court erred in finding the statutory test for the exception to equal sharing established. Other grounds of appeal relate to the Court’s determination that the $100,727.17 balance of a Westpac account derived from an accident compensation payment was
separate property, and orders for the payment of an occupation rental and for rates and insurance.

Background

[2] Gordon Bowden (GB) came to New Zealand from Great Britain with his wife. He separated from his wife and she returned to England with their son, the respondent, Paul Bowden (PB) in 1998. GB remained in New Zealand, however, he
maintained contact with his family in Britain.

1 Bowden v Bowden [2015] NZFC 8921; Property (Relationships) Act 1976, s 13.

BOWDEN v BOWDEN [2016] NZHC 1201 [7 June 2016]

[3] JB and GB met in early March 2008. They commenced a de facto relationship on 27 February 2009. At that time JB relinquished the tenancy on a Housing Corporation house. They commenced living together as de facto partners in GB’s home at 17A Thistledown Place (Thistledown Place). GB and JB remained in that de facto relationship for three years and two days, until GB’s death on 1 March
2012. The day before he died GB made a will leaving his estate to PB.

[4] The relationship property was found by the Family Court to consist of:

· The home at Thistledown Place.

· A Westpac bank account in the name of GB which, as at 1 March 2012, had funds of $31,655.79.

[5] There was also a Westpac saver account in the name of GB and PB. This account held the balance of an accident compensation payment GB received prior to his death. JB claimed the funds in this account were relationship property. The Family Court Judge disagreed.

[6] Shortly prior to his death, GB had made it known that he wanted JB to be able to live at Thistledown Place for 12 months after he died. After GB’s death, PB prepared a residential tenancy agreement which provided that as from 2 March 2012
JB could continue to live rent-free in the Thistledown Place property for a period of

12 months, subject to her paying rates and insurance.

Family Court decision

[7] Having determined that GB and JB were in a de facto relationship, the Family Court Judge was required to consider whether there were extraordinary circumstances making equal sharing of the relationship property repugnant to justice under s 13 of the Property (Relationships) Act 1976 (the Act).

[8] The Family Court found…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bowden v Bowden

Details

AGLC: Bowden v Bowden [2016] NZHC 1201
Case: [2016] NZHC 1201
Decision Date: 7 June 2016

CaseChat Overview and Summary

In this case, the High Court of New Zealand considered an appeal from the Family Court's decision regarding the division of relationship property between Judith Anne Bowden and Paul Gordon Bowden. The Family Court had found extraordinary circumstances which made equal sharing of the relationship property repugnant to justice, and awarded 80% of the relationship property to Paul and 20% to Judith. Judith appealed the decision on several grounds, including the Family Court's assessment of extraordinary circumstances and the division of property.

The High Court found that the Family Court had correctly applied the statutory test for determining extraordinary circumstances and that the circumstances of the case were indeed extraordinary. The Court also found that the Family Court had correctly assessed the relative contributions of the parties to the relationship, and that the division of property was appropriate. However, the Court did find that the $100,727.17 compensation payment was relationship property and should be divided accordingly, with Judith entitled to a 20% share. The Court further found that there was sufficient evidence to support the Family Court's determination of an appropriate rental of $300 per week, and that it did not err in requiring Judith to pay rates and insurance for the first year after Paul's death.

In conclusion, the appeal was dismissed, except for the finding that the $100,727.17 compensation payment was relationship property. Judith was awarded a 20% share of that sum, and an adjustment was made to the division of relationship property accordingly.

Orders