DM v MP - [2012] NZHC 503

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1421 [2012] NZHC 503

BETWEEN DM Appellant

ANDMP Respondent

Hearing: 2 February 2012

Counsel: R Laurenson for Appellant
R Faiga for Respondent

Judgment: 22 March 2012

JUDGMENT OF MILLER J

[1] The Family Court held that DM and MP lived together in a de facto relationship, for purposes of the Property (Relationships) Act 1976, at a time when DM maintains that he was living with another partner, Ms X.1 From that judgment he brings this appeal.

The narrative

[2] The parties began dating in 1999. In 2000 MP and her then six-year old son moved into DM’s home. She took paid employment in his business, working from his office at the home. They became engaged. They set up a joint account. Into it were paid their wages, and from it were paid rates, insurance, a mortgage and household living expenses. DM also supported MP’s son, to whom he formed a
fatherly attachment which appears to have continued throughout.

1 I adopt the parties’ nomenclature.

DM V MP HC WN CIV-2011-485-1421 [22 March 2012]

[3] In June 2003 DM left the home and moved in with Ms X, with whom he had commenced an affair the previous year. He left after MP discovered the relationship and issued an ultimatum. At first he told MP that he was going to live with his mother.

[4] MP and her son continued to live in the house, which they shared for some time with her sister. MP paid no rent, but her sister did. The parties remained on good terms. DM still came to the home for work, and they continued a regular sexual relationship. Their financial arrangements did not change, and they did not pursue a proposal to settle their financial affairs. MP and Ms X knew something of one another’s relationship with DM, and he went to social engagements with them separately. He continued his relationship with MP after learning that she had had an affair with another man in 2006, but he resented that relationship and his intervention brought it to an end.

[5] Although DM cohabited with Ms X, he did not set up a joint bank account with her or otherwise integrate their financial affairs. It seems she was financially independent.

[6] In February 2007 DM moved back into the home with MP. By that time he had transferred ownership of the property to a family trust, without MP’s knowledge. He claimed that he left Ms X’s home only because of conflict with her daughter and was merely boarding with MP. He continued his relationship with Ms X.

[7] In June 2008 MP left the home while DM was travelling in the United States. Their relationship had become strained and DM had been looking for another house to live in. The realisation that DM and Ms X spent the last night before his trip together was the final straw for MP. However, she was persuaded to join him overseas for…

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 DM v MP

Details

AGLC: DM v MP [2012] NZHC 503
Case: [2012] NZHC 503
Decision Date: 22 March 2012

CaseChat Overview and Summary

DM appeals against a Family Court finding that he and MP were in a de facto relationship until March 2010. He claims that he was in a committed relationship with Ms X from June 2003. The appeal turns on whether the Family Court applied the right test in determining whether the parties lived together as a couple. The High Court held that the Family Court applied the correct test, and dismissed the appeal. The Family Court found that the parties were in a de facto relationship until June 2003 but the relationship ended for a brief period when DM moved in with Ms X. It resumed in August 2003, ending finally in March 2010. The appeal concerns the finding that the parties resumed their relationship. The Family Court held that the parties lived in a de facto relationship until June 2003 but the relationship ended for a brief period when DM moved in with Ms X. It resumed in August 2003, ending finally in March 2010. The appeal concerns the finding that the parties resumed their relationship. The Family Court found that DM and MP lived in a de facto relationship from the beginning of 2002 until June 2003 but the relationship ended for a brief period when DM moved in with Ms X. It resumed in August 2003, ending finally in March 2010. The appeal concerns the finding that the parties resumed their relationship. The Family Court was asked to determine whether a de facto relationship existed, and if so when. The Family Court found that a de facto relationship existed until June 2003. The question was whether the relationship had the hallmarks of marriage. The Family Court concluded that the relationship had resumed in August 2003. The High Court held that the Family Court applied the correct test, and dismissed the appeal. The Family Court found that the parties were in a de facto relationship between August 2003 and March 2010. The relationship retained throughout important indicia of a de facto relationship, notwithstanding DM’s contemporaneous relationship with Ms X. The parties cohabited for a substantial period, and MP lived in his house rent-free at other times. Their financial affairs were substantially merged, they conducted themselves as a couple in public, they supported her son, and they maintained a sexual relationship. In all of these ways they evidenced a substantial commitment to one another. The appeal is dismissed. MP is entitled to costs on a 2B basis.

Orders