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Farrimond v Farrimond

Farrimond v Farrimond

Case [2017] NZHC 1450 28 June 2017

Family Home

Classification of Property

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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-FAMILY-COURT/LEGISLATION/RESTRICTION-ON-PUBLISHING- JUDGMENTS.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-3133 [2017] NZHC 1450

UNDER The Property (Relationships) Act 1976

BETWEEN

ERICA STEPHANIE FARRIMOND Appellant

AND

JASON EDWARD FARRIMOND Respondent

Hearing: 23 May 2017

Counsel:

AJH Witten-Hannah for appellant
WW Galvin for respondent

Judgment:

28 June 2017

JUDGMENT OF FITZGERALD J [Appeal against Family Court decision]

This judgment was delivered by me on 28 June 2017 at 11:30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Farrimond v Farrimond [2017] NZHC 1450 [28 June 2017]

Solicitors: Witten-Hannah Howard, Auckland
The Law Lounge, Auckland

[1] This appeal addresses a short but important point as to the classification of a family home under the Property (Relationships) Act 1976 (“Act”). In what circumstances can a house in which a family was not living at the time of separation nevertheless be classified as a “family home” for the purposes of relationship property division?

General factual background

[2] The factual background to this case can be set out briefly.

[3] In 2002, Mr Farrimond bought a house in Glenfield, Auckland. About two years later, Mrs Farrimond moved in with him. They married in 2005 and lived together at the Glenfield property until early 2013. During their time at the property, the parties’ three children were born. A bereavement in the immediate family in September 2008 undoubtedly caused considerable grief and dislocation in their relationship. Nevertheless, the parties remained together for a significant period of time after these events.

[4] In February or March 2013, the parties decided to move into rented accommodation in Manly, Whangaparaoa. Mrs Farrimond described the move as a temporary “time-out”, and a way to “get us back some zest of life”, as both parties liked water sports and being by the beach. They first rented the property for a three- month probation period due to the landlord’s initial unease about having pets at the house. But the probation period was successful and the parties later signed a 12-month lease of the property. As detailed below, however, the parties now disagree as to the intended degree of permanency behind this move.

[5] In the meantime, the Glenfield property was rented out and the proceeds used to fund the rental payments of the Manly house. I was informed at the hearing that the Glenfield property was rented on the basis of a periodic (monthly) tenancy.

[6] The parties separated soon after taking up the Manly rental, in November 2013. They now disagree about their respective entitlements to the Glenfield property. If it

can be classified as a “family home” under the Act, Mrs Farrimond will be entitled to a half share of it.

The parties’ evidence in some further detail

[7] Mrs Farrimond gave evidence in the Family Court that the move to…

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 Farrimond v Farrimond

Details

AGLC: Farrimond v Farrimond [2017] NZHC 1450
Case: [2017] NZHC 1450
Decision Date: 28 June 2017

CaseChat Overview and Summary

The case of Farrimond v Farrimond [2017] NZHC 1450 concerns an appeal against a Family Court decision regarding the classification of a family home under the Property (Relationships) Act 1976. The main issue before the court was whether the Glenfield property, which the parties had not been living in at the time of separation, could still be classified as a "family home" for the purposes of dividing relationship property. The appeal was heard on 23 May 2017, and judgment was delivered on 28 June 2017.

The court considered the relevant statutory background and principles of the Act, particularly the definition of "family home" and the importance of determining the use to which property was being put before the relationship ended. The court held that the Family Court judge had erred in focusing on the use of the properties around the time of separation, instead of surveying the pattern of use of the properties over a significant period of time. The court found that the Glenfield property had not lost its status as the family home before the time of separation, as the parties had not decisively parted ways with the property and had intended to return to it once the Manly lease expired.

As a result of this finding, the court held that the Manly property could not properly be classified as the family home under the Act. The appeal was allowed, and the Glenfield home was categorised as the "family home" in terms of s 8(1)(a) of the Act. The matter was remitted to the Family Court for further orders as to the division of property. The appellant was also awarded costs on the appeal.

Orders