Jacobson v Jacobson - [2012] NZHC 2292

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-2012-404-1877 [2012] NZHC 2292

BETWEEN SALLY HELEN JACOBSON Appellant

ANDPETER BRUCE JACOBSON Respondent

Hearing: 7 August 2012

Counsel: J McCartney SC for Appellant
JH Hunter for Respondent

Judgment: 6 September 2012

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 6 September 2012 at
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:
G Skeates, Graeme Skeates Law, Auckland
J Hunter, Hunter Law, Auckland: jane@hunterlaw.co.nz
Copy:
J McCartney SC, Barrister, Auckland: jan.mccartney@gmail.com

JACOBSON V JACOBSON HC AK CIV-2012-404-1877 [6 September 2012]

Introduction and result

[1] This appeal is about whether Judge Burns erred in the Family Court at Auckland by refusing to order under s 22(3) of the Property (Relationships) Act 1976 (“the PRA” or “the Act”) that proceedings between the parties which were before him should be transferred to this Court for determination.

[2] The Judge considered that the only ground on which proceedings could be transferred was their complexity and that there will be only a limited number of cases which are sufficiently complex to justify a transfer.

[3] The appellant submitted that the Judge misdirected himself by adopting a test which was too narrow. It was said that the Judge’s views were not informed by the more recent judgment of this Court in H v H,1 in which Fogarty J held that the statutory test was not merely one of complexity but one which “requires a characterisation and evaluation of the complexity against consideration of whether or not the High Court is the more appropriate venue.”2

Result

[4] For the reasons which follow, I am satisfied that, although Judge Burns did not express the test in the terms articulated by Fogarty J, he did not approach the issue on an incorrect basis. I dismiss the appeal.

The relevant statutory provision – s 22, Property (Relationships) Act 1976

[5] Section 22 of the PRA, so far as is relevant, reads:

22 Jurisdiction

(1) Every application under this Act must be heard and determined in a
Family Court.

1 H v H [2012] NZHC 537.
2 At [29].

(2) This section is subject to any other provision of this Act that confers jurisdiction on any other court.

(3) Regardless of subsections (1) and (2), a Family Court Judge may order that proceedings be transferred to the High Court if the Judge is satisfied that the High Court is the more appropriate venue for dealing with the proceedings, because of their complexity or the complexity of a question in issue in them.

(4) The Family Court Judge may transfer proceedings on the application of a party to the proceedings or on his or her own initiative.

(5) Proceedings transferred to the High Court continue in that Court as if they had been…

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.

Keep reading for free

Create a free CaseChat account to read Jacobson v Jacobson and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NZHC 2292
Decision Date: 6 September 2012

CaseChat Overview and Summary

The case of Jacobson v Jacobson involved an appeal by Sally Helen Jacobson against a decision of the Family Court in Auckland, presided over by Judge Burns, to refuse her application for the transfer of proceedings to the High Court. The appeal was dismissed by Toogood J. The central issue was whether Judge Burns erred in refusing to transfer the proceedings on the basis that they were complex and required the High Court's jurisdiction. Sally Jacobson argued that the Family Court Judge had misdirected himself by considering only complexity as a ground for transfer, without evaluating whether the High Court was the more appropriate venue.

Toogood J found that although the Family Court Judge did not articulate the test in the exact terms used by Fogarty J in H v H, he did not misapply the statutory test under s 22(3) of the Property (Relationships) Act 1976. The Court held that the test does require consideration of the relative appropriateness of the Family Court and the High Court, but Judge Burns was not incorrect in his assessment that the proceedings were not sufficiently complex to warrant a transfer. The Court found that the valuation issues, the novelty of the questions, and the value of the property in dispute did not meet the threshold of complexity required for transfer under the Act. The decision to transfer proceedings rests on whether the High Court is more appropriate, not merely whether it is appropriate. Toogood J concluded that the Family Court was capable of dealing with the matters in issue. The appeal was dismissed, and costs were reserved.

Orders