Holroyd v Holroyd - [2020] NZHC 1210

NOTE: UNDER 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.

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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2019-488-88

[2020] NZHC 1210

UNDER the Property (Relationships) Act 1976

IN THE MATTER

of Family Court judgment dated 12 September 2019

BETWEEN

AARON MICHAEL HOLROYD

Appellant

AND

PHYLLIS MARGARET HOLROYD

Respondent

Hearing: 3 June 2020

Appearances:

Appellant in person

M H Miles for the respondent

Judgment:

4 June 2020

JUDGMENT OF PALMER J

This judgment was delivered by me on Thursday 4 June 2020 at 11.00 am.
Pursuant to Rule 11.5 of the High Court Rules

………………………… Registrar/Deputy Registrar

Solicitors/Party:
M H Miles, Whangarei Appellant in person

HOLROYD v HOLROYD [2020] NZHC 1210 [4 June 2020]

What happened?

[1] Mr Aaron Holroyd and Mrs Phyllis Holroyd met in April 1996, married in March 1999, had two children and separated on 7 July 2016.1 On 8 October 2016, Mrs Holroyd vacated the family home and Mr Holroyd remained there.

[2] In the course of entering an interim relationship property agreement, Mrs Holroyd’s lawyers identified some $640,000 in an Australian share portfolio and an Australian bank account, operated by Mr Holroyd, that had not been disclosed to her.2 Mrs Holroyd applied for orders under s 23 of the Property (Relationships) Act 1976 (the Act) determining the nature and extent of the parties’ relationship property, their respective shares in their relationship property and the division of their relationship property.

[3] During the Family Court hearing, the parties reached broad agreement on a number of aspects of their relationship property.3 That left three issues to be determined by the Court, in relation to: a marina berth held by Mr Holroyd before the parties’ relationship; Mrs Holroyd’s claim for compensation for economic disparity; and Mrs Holroyd’s claim for compensation for legal fees as a result of the non- disclosure of the shares and other funds. On 12 September 2019, Judge L King issued judgment in the Family Court in Whangārei.4 Mr Holroyd now appeals.

Section 15 of the Property (Relationships) Act 1976

[4] In general terms in relation to marriage, under s 1M, the purposes of the Act are to recognise the contribution of both spouses and provide for the just division of relationship property between them when their relationship ends. Under s 11, each spouse is entitled to share equally in the family home, family chattels and any other relationship property. Section 15 provides for a court to order that one party compensate the other because their income and living standards are likely to be significantly higher due to the effects of the division of functions within the marriage:

1 Holroyd v Holroyd [2019] NZFC 7268 at [2]–[3].
2 At [4].
3 At [8].
4 Holroyd v Holroyd, above n 1.

(1)This section applies if, on the…

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 Holroyd v Holroyd

Details

AGLC: Holroyd v Holroyd [2020] NZHC 1210
Case: [2020] NZHC 1210
Decision Date: 4 June 2020

CaseChat Overview and Summary

Aaron Holroyd appeals against a Family Court order that he pay Phyllis Margaret Holroyd $100,000 under s 15 of the Property (Relationships) Act 1976 (the Act). The appeal is dismissed. Phyllis and Aaron met in 1996, married in 1999, had two children and separated in 2016. Phyllis vacated the family home and Aaron remained there. Phyllis’ lawyers identified that Aaron had undisclosed assets, which led her to apply for orders determining the nature and extent of the parties’ relationship property, their respective shares in their relationship property and the division of their relationship property. The parties reached agreement on most issues, leaving three to be decided by the Family Court. On 12 September 2019, Judge L King issued judgment in the Family Court in Whangārei. Aaron now appeals. The legal issues are whether the division of functions within the relationship justified the award of $100,000 under s 15 of the Act, and whether the amount was just. The court found that the division of roles in the family was for Phyllis to stay at home, attend to the children’s needs and smooth running of the family home while Aaron worked as a shift worker and assumed responsibility for all financial matters. The income and living standards of Aaron were significantly higher than Phyllis because of the effects of the division of functions within their marriage. Phyllis’ future living standard was likely to be much less than Aaron’s, as a result of her significantly lower income earning ability. Phyllis would likely have continued with further study but for the division of functions within their marriage. Aaron accepted a payment for economic disparity ought to be made to Phyllis but considered it should be at the level his expert assessed as appropriate, $54,000, which was half of the estimated economic disparity of $108,000. The case of X v X still applies to determining the methodology where the advantaged party under s 15 suffers an economic shortfall. The overriding consideration, according to the Supreme Court in Scott v Williams, is that the award must be just. Neither judgment considered it necessary for the final award to be halved in every case. The court calculated the quantum at $100,000 taking into account: the parties agree that a payment on the basis that Phyllis’ career as an enrolled nurse is appropriate; the compensation as an enrolled nurse was assessed by Aaron’s experts at $108,000, half of which is $54,000; having found that the applicant would have gone on to undertake further study to become a trained occupational therapist, recognition of the same is appropriate; Aaron’s earning ability as a share trader over the period of time the parties were together and moving forward; that a payment under s 15 is a compensatory award to a party who is disadvantaged at the end of the relationship; there is nothing in the wording of s 15 that requires a payment to be halved; and the total value of Aaron’s share of the relationship property from which compensation will be paid is around $250,000. This payment represents around 40% of the respondent’s share of the pool of relationship property available for distribution. Aaron’s submission that he was an investor and not a share trader does not affect the result of this case. The value of the shares invested is relevant. And his ability to make investments is relevant. Both of these factors were taken into account by the Judge. The distinction Aaron draws between being an investor and a share trader does not justify a successful appeal of her decision. Aaron’s submission that the division of functions within the relationship was limited is more relevant. His evidence was that “as a Shift worker I have always had a great deal of time off during the week, and helped out at all times with the daily care of our Two Sons.” He said his shifts were on an eight-day rotation over a seven day week and he had 39 days leave a year. He says this could have released Phyllis from child care and enabled her to work or train. But the evidence is clear that Phyllis was the primary caregiver and homemaker and Aaron undertook shift work. That was found by the Judge, there is evidence to support it and it is even implicit in Aaron’s acceptance that there should be an order under s 15. It is a clear division of function of the sort envisaged by s 15. As the Supreme Court stated, it would not be easy to rebut the assumption that any disparity at the end of the relationship is equally attributable to both partners, in the case of a long-term relationship. It was not rebutted here. As the Judge found, and Aaron accepted, the disparity justifies an order under s 15. I do not consider there is any good reason to reduce the amount of $100,000 awarded in the circumstances of this case. It is only 10 per cent of the relationship property Aaron received. It seems unlikely to make up for the significant disparity in likely earning capacities between them. I consider the Judge’s award was just. It does not create an injustice for Aaron. Interest should be paid. The appeal is dismissed. Interest must be paid on the $100,000 awarded by the Family Court from the date of the Family Court judgment until the date of payment at the rate specified under s 87 of the Judicature Act 1908.

Orders