Dunsford v Shanly - [2012] NZHC 257

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-5053 [2012] NZHC 257

IN THE MATTER OF the Property (Relationships) Act 1976 and the District Courts Act 1947

BETWEEN GAYLENE DUNSFORD Appellant

ANDEDWARD JOHN SHANLY First Respondent

ANDSTEPHEN THOMAS WOODFIELD Second Respondent

Hearing: 21 February 2012

Counsel: K G Davenport for Appellant
B V McLean for First Respondent

Judgment: 23 February 2012

I direct the Registrar to endorse this judgment with a delivery time of 2pm on the
23rd day of February 2012.

RESERVED JUDGMENT OF MACKENZIE J

DUNSFORD V SHANLY HC AK CIV-2011-404-5053 [23 February 2012]

Background

[1] This is an appeal against directions given by Judge Adams in the Family Court at Waitakere on 20 July 2011 in a relationship property proceeding between the appellant (the wife) and the first respondent (the husband) in that Court. The second respondent, the trustee of the family trust to which I later refer, abides the decision of the Court.

[2] The wife and the husband were married in 1983. They first separated in December 2004 when the husband left the matrimonial home. He moved back into the matrimonial home for a period from September 2006 until February 2007 when the parties separated for the second and final time. The Family Court proceedings were commenced in 2007 to determine relationship property issues. In August 2008, there was a mediation which led to a mediated agreement under s 21A of the Property (Relationship) Act 1976 (the Act) dated 26 August 2008.

[3] In August 2009, the husband filed an application in the Family Court seeking orders setting aside that agreement, and orders determining the respective shares of the parties in the relationship property and related orders. The wife gave notice of her intention to defend that application. Following a judicial conference on
5 April 2011, the husband filed an amended application. The relief sought included orders in relation to property held in a family trust. The wife then filed a notice of protest to jurisdiction, in relation to the property held in the family trust.

[4] At a further judicial conference held on 20 July 2011, the Judge dealt with an issue relating to a valuer’s inspection of the property (about which no issue arises on this appeal), and with the procedure to be followed in dealing with the applications. The Judge described the relevant issue in these terms:1

To determine the manner in which these proceedings will be managed. The essential issue is whether the protest to jurisdiction should be dealt with as an initial separate step or whether the whole lot should be rolled together and the jurisdictional issues teased out as part of the overall hearing.

[5] The Judge noted that counsel for the wife urged that the protest to jurisdiction be dealt with as a separate…

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 Dunsford v Shanly

Details

AGLC: Dunsford v Shanly [2012] NZHC 257
Case: [2012] NZHC 257
Decision Date: 23 February 2012

CaseChat Overview and Summary

The case of Dunsford v Shanly involves an appeal by the wife, Gaylene Dunsford, against the directions given by Judge Adams in the Family Court regarding a relationship property proceeding between the wife and the husband, Edward John Shanly. The second respondent, Stephen Thomas Woodfield, the trustee of a family trust, will abide by the court's decision. The primary dispute concerns the appropriate procedure to be followed in dealing with the application to set aside a mediated agreement under section 21A of the Property (Relationships) Act 1976, and the substantive application for orders as to the relationship property. The court was required to decide whether the application to set aside the agreement should be heard first, as a separate and discrete issue, or if the application to set aside should be heard together with the substantive relationship property application. The court held that the decision to direct that the issues be heard together was wrong in principle, as the relationship property claim cannot be properly before the court unless and until the agreement is set aside. The court emphasised the importance of giving effect to settlement or contracting-out agreements in respect of relationship property, and that the setting aside of the agreement can properly be dealt with as a preliminary question by the Family Court. The appeal was allowed, and the case was remitted to the Family Court for the hearing of the application to set aside the s 21A agreement. Any further consideration of the relationship property application, or the protest to jurisdiction, must necessarily await the outcome of the application to set aside.

Final orders: The appeal is allowed. The case is remitted to the Family Court for the hearing of the application to set aside the s 21A agreement. Any further consideration of the relationship property application, or the protest to jurisdiction, must necessarily await the outcome of the application to set aside.

Orders