Douglas v Douglas - [2013] NZHC 3022

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2013-463-118 [2013] NZHC 3022

BETWEEN JOHN DOUGLAS Appellant
ANDSARAH DOUGLAS Respondent

Hearing: 29 July 2013

Counsel: D Williamson for Appellant
RO Gowing for Respondent

Judgment: 14 November 2013

JUDGMENT OF KATZ J

This judgment was delivered by me on 14 November 2013 at 4:30 pm
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Wadham Goodman, Palmerston North
Gowing & Co. Ltd, Whakatane

DOUGLAS v DOUGLAS [2013] NZHC 3022 [14 November 2013]

Introduction

[1] John and Sarah Douglas1 began a relationship in 1990 and moved in together in 1992. At that time Mr Douglas was 19 and Mrs Douglas 37.2 Mr Douglas had no children. Mrs Douglas, on the other hand, had five children from a previous relationship. Four of those children were dependent on her at the commencement of
the relationship, although for most of the relationship only two children lived with or were dependent on Mr and Mrs Douglas.

[2] Although Mr and Mrs Douglas had no biological children, towards the end of their relationship they fostered a child, Simon. In early 2005 they cared for him, as a newborn, for approximately 5 weeks. Approximately 5 months later, he was returned to their care for a further 14 months, following which he was returned to his birth parents. In August 2007, when Simon was 2½ years’ old, he was returned to Mr and Mrs Douglas’s care and remained there until the date of separation, two years later. Since then Simon has been in the fulltime care of Mrs Douglas.

[3] Mr Douglas worked full time throughout the relationship, rising to the position of general manager of a company owned by his father. His salary was
$70,200 as at the date of separation. Mrs Douglas also had a largely unbroken work history during the relationship, although her work was often part-time, to accommodate her parenting responsibilities.

[4] Mr and Mrs Douglas separated on 21 August 2009. Relationship property proceedings ensued, culminating in a judgment of Judge A C Wills in the Family Court at Whakatane (“Judgment”).3 Mr Douglas appeals to this Court in respect of two aspects of that Judgment. This gives rise to the following issues:

(a) Did the Judge err in making an economic disparity award in favour of

Mrs Douglas in the sum of $63,000? In particular, is the difference in

Mr and Mrs Douglas’s income and living standards post separation

1 Pseudonyms have been used throughout this judgment in place of the names of the parties and their foster child, to protect their identity.
2 There are some inconsistencies in the evidence as to the parties relative ages at the commencement of their relationship and precisely when they began living together. I have adopted the factual findings of the Judge…

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 Douglas v Douglas

Details

AGLC: Douglas v Douglas [2013] NZHC 3022
Case: [2013] NZHC 3022
Decision Date: 14 November 2013

CaseChat Overview and Summary

John Douglas appeals against two aspects of a decision of the Family Court in respect of the division of relationship property. The first issue is whether the Judge was correct to make an economic disparity award in favour of Sarah Douglas in the sum of $63,000. The second is whether the Judge erred in ordering Mr Douglas to pay Mrs Douglas spousal maintenance in the sum of $38,775. The court must first consider whether the Judge was correct to find that there was a causal link between the division of functions within the marriage and the economic disparity between Mr and Mrs Douglas post separation. The court concluded that there was no such causal link. Mrs Douglas’s role within the marriage had not materially adversely impacted on her income earning potential. Nor had it materially enhanced Mr Douglas’s income earning potential. Accordingly, the court held that the Judge was incorrect to make an economic disparity award. As to the spousal maintenance award, the court found that jurisdiction to make such an award existed because at least two qualifying circumstances in s 63(2) of the Family Proceedings Act 1980 applied. The court held that it was open to the Judge to find that it was not reasonable to expect Mrs Douglas to return to work full time between the separation date and the hearing date in the Family Court. The amount and duration of the award was within the discretion of the Judge and was within the range properly available to her. Accordingly, the appeal in respect of the spousal maintenance award failed. The appeal is allowed in respect of the economic disparity award. That award is quashed. The appeal in respect of the spousal maintenance award is dismissed. Costs are to lie where they fall.

Orders