Henry v Henry - [2024] NZHC 1841

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. SEE

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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,

11C AND 11D OF THE FAMILY COURT ACT 1980. SEE

https://

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-000015

[2024] NZHC 1841

BETWEEN
COLIN SAMUEL HENRY

Appellant

AND

LORRAINE ALTHEA HENRY aka LORRAINE ALTHEA MORGAN

Respondent

cont’d ….

Hearing:
23 May 2024

Further submissions: 9 June 2024

Appearances:

C Henry in Person

J Macdonald for Respondent (CIV-15) and Second Respondent (CIV-3123)

Judgment:

9 July 2024

JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew on 9 July 2024 at 3.00 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date …………………………..

HENRY v HENRY [2024] NZHC 1841 [9 July 2024]

CIV-2023-404-003123

BETWEEN

COLIN SAMUEL HENRY
Applicant

AND

THE FAMILY COURT AT AUCKLAND

First Respondent

LORRAINE ALTHEA HENRY

Second Respondent

Introduction

[1] This is an appeal against a decision of the Family Court in relationship property proceedings.1 There is also a parallel judicial review proceeding arising from the same Family Court judgment.

[2] At issue is the jurisdiction of the Family Court to make orders in respect of a nuptial trust under s 182(1) of the Family Proceedings Act 1980 (FPA).

[3] Under s 182 of the FPA, the Family Court has the power to vary the terms of a nuptial settlement where the parties’ marriage or civil union comes to an end. The purpose of s 182 is to enable the courts to remedy the consequences of the failure of the premise on which the nuptial settlement was made, that is, a continuing marriage.2 The Family Court has the power to prevent one party from benefiting unfairly from the settlement at the expense of the other in the changed circumstances.3

[4] The parties, formerly husband and wife, are the settlors of the Boucanier Trust, which previously owned their family home. It is a nuptial trust and hence a post-nuptial family settlement for the purposes of s 182(1) of the FPA. The parties disagree about how the proceeds of the sale of the home should be divided between them.

[5] Mr Henry says that the Family Court had no jurisdiction under s 182 because Mrs Henry’s application was made before the order for dissolution was made. He also challenges the decision of the Family Court Judge to award an equal share of the proceeds of the sale of the family home.

Factual background

[6] The parties were married for 16 years. They met in 1986, married in July 2001, and separated in 2017. In 2002, they had the only child of the marriage, a son, Jannick Henry.

1 Morgan (Henry) v Henry [2023] NZFC 11590.
2 Preston…

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 Henry v Henry

Details

AGLC: Henry v Henry [2024] NZHC 1841
Case: [2024] NZHC 1841
Decision Date: 9 July 2024

CaseChat Overview and Summary

The appeal in Henry v Henry concerned a decision of the Family Court regarding the division of proceeds from the sale of a family home held in a nuptial trust. Colin Samuel Henry appealed against the Family Court's decision to grant his ex-wife, Lorraine Althea Henry, an equal share of the proceeds from the sale of their former family home. The central legal issues were whether the Family Court had jurisdiction to make orders under s 182 of the Family Proceedings Act 1980 before the marriage was formally dissolved and whether the Family Court Judge correctly exercised his discretion in ordering an equal division of the proceeds.

Colin argued that the Family Court lacked jurisdiction because the application under s 182 was made before the dissolution order. He contended that the application was a nullity and that the Family Court's decision was therefore invalid. The Court, however, found that the language of s 182 did not preclude the filing of an application before the marriage was dissolved, as long as the inquiry and any orders were made after the dissolution. The Court noted that the timing of the exercise of jurisdiction depended on when the dissolution order was made, not when the application was filed. The Court further held that the Family Court Judge did have jurisdiction, as the inquiry and orders were made within a reasonable time after the dissolution.

Regarding the exercise of discretion, Colin challenged the decision to divide the proceeds equally, arguing that the Judge presumed a 50/50 split. The Court found no error in the Judge's decision to order equal sharing, as the Judge had carefully considered the relevant criteria, including the length of the marriage and the contributions of both parties. The Court upheld the Judge's conclusion that there was no compelling reason to depart from an equal division given the long duration of the marriage and the relatively modest amount of money at issue.

The appeal and the related judicial review proceedings were dismissed. The Court held that the Family Court Judge had jurisdiction to make the order and that there was no basis for disturbing the equal sharing decision. Mrs Henry was awarded costs on a 2B basis, plus disbursements, for both the appeal and the judicial review.

Orders