Leota v Leota
[2019] NZHC 3335
•16 December 2019
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. FOR FURTHER INFORMATION, PLEASE SEE
https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2019-404-999
[2019] NZHC 3335
UNDER the Property Relationships Act 1976 s 39 and District Courts Act 2016 ss 124-130 IN THE MATTER
of a decision of Judge Goodwin in the District Court dated 30 April 2019
BETWEEN
DENISE ANNE LEOTA
Appellant
AND
MALOAUFA’ATASI AIVI LEOTA
also known as TALITAMA AIVI LEOTA Respondent
Hearing: 3 December 2019 Appearances:
D Hayes for the Appellant S Bailey for the Respondent
Judgment:
16 December 2019
JUDGMENT OF MUIR J
This judgment was delivered by me on Monday 16 December 2019 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date:…………………………
Solicitors:
Hunwick Law Limited, Hamilton
Counsel:
D Hayes, Barrister, Hamilton S Bailey, Barrister, Manukau
LEOTA v LEOTA [2019] NZHC 3335 [16 December 2019]
Introduction
[1] Mrs Leota appeals from a judgment of the Family Court relating to the classification and division of relationship property.1
[2] She was married to the respondent for almost 40 years before the parties separated on 17 January 2014.
[3] The bulk of the relationship property pool comprises two houses, one in Papakura and the other in Invercargill. The former was the family home and continued to be occupied by Mrs Leota after separation, although from time to time she stayed in Invercargill where she retained a room. Rental was periodically received from tenants and/or boarders in both houses.
[4] Attribution of this rental and assessment of holding costs in respect of the properties were among the issues in dispute before the Family Court. There were also other disputes in relation to Mr Leota’s Kiwi Saver proceeds, a motor car purchased by him and responsibility for various insurance premiums. In addition, Mrs Leota claimed there were extraordinary circumstances justifying an exception to the equal sharing regime provided for in the Property (Relationships) Act 1976 (the Act)2 and/or that Mr Leota had dissipated relationship property.
Basis on which appeal proceeds
[5] Rights of appeal to the High Court from the Family Court are governed by s 39 of the Act. It imports s 27 of the District Court Act 2016, which provides that appeals are to be by way of rehearing.
[6]In B v F Heath J discussed the implications as follows:3
[6] Relationship property appeals from the Family Court are governed by s 39 of the Act, which imports ss 74–78 of the District Courts Act 1947 as part of the procedures on appeal. The appeal is by way of rehearing (s 75) and falls within the scope of an appeal of the type to which the Chief Justice referred in Austin, Nichols, at para [17]. If the appeal were allowed, this Court may
1 Leota v Leota [2019] NZFC 1959.
2 Refer s 13 of the Act.
3 B v F [2010] NZFLR 67 (HC) at [6].
make any decision that it thinks should have been made or remit the proceeding to the Family Court for reconsideration on a basis to be articulated clearly in its decision: s 76(1).
[7] Application of the Austin, Nichols principles is not altogether easy, in the context of appeals from the Family Court. Many first instance decisions represent a mix of findings of fact (after seeing and hearing witnesses), the formation of an evaluative judgment and the exercise of statutory discretions. Sometimes it is difficult to characterise a particular decision as evaluative, factual or discretionary in nature.
[8]I approach this appeal on the following basis:
a) First, I must take account of the advantage that Judge Twaddle had of hearing and seeing the witnesses give evidence before him: see Austin Nichols at para [13].
b) Second, to the extent that the Judge exercised any discretion in reaching his decision, I must determine whether those discretionary decisions were or were not open to him, based on May v May (1982) 1 NZFLR 165 (CA) and Blackstone v Blackstone [2008] NZCA 312 at para [8].
c) Otherwise, I am free to reconsider the Family Court’s decision and to substitute my own view on questions of fact and evaluation, if I were convinced that the first instance decision was wrong.
In that regard, I align myself with Randerson J’s remarks in WPH v ITP
[Length of Relationship] [2009] NZFLR 745 (HC) at paras [15]-[17].
[7] So, if the appeal is against the exercise of a discretion, the principles of May v May apply.4 That is, the Court must not interfere unless the Judge had acted on a wrong principle, failed to take into account some relevant matter, or had taken account of some irrelevant matter, or was otherwise plainly wrong.5 Otherwise it is a general appeal governed by Austin, Nichols & Co Inc v Stichting Lodestar.6
The issues before me
[8] Mrs Leota’s notice of appeal alleges error on the part of the Family Court in five respects.
4 May v May (1982) 1 NZFLR 165 (CA); Blackstone v Blackstone [2008] NZCA 312, (2008) 19 PRNZ 40; and Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
5 At 170.
6 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
1.It failed to make an adjustment in Mrs Leota’s favour in respect of Mr Leota’s Kiwi Saver account.
2.It failed to adjust for the costs incurred in obtaining rental and board payments in respect of the Papakura property.
3.It failed to adjust for the amount Mrs Leota had paid in interest on the mortgage over the Papakura home (having earlier found her liable to pay an occupation rent to Mr Leota for the period since separation).
4.It failed to adjust for premium payments made by Mrs Leota post- separation in respect of the OnePath life insurance policy insuring both her and Mr Leota’s lives.
5.It failed to take into account that Mrs Leota was a victim of domestic violence in its consideration of ss 13 and 18A of the Act.
[9] Mrs Leota also advanced a preliminary jurisdictional point relating to Mr Leota’s identity. The point was not raised in the notice of appeal.
[10]I will deal with each of these points in turn.
The jurisdictional point
[11] Mr Hayes says the respondent is not who he says he is and that he appears to be an “identity fraudster”. He says that Mr Leota’s real name is Talitama Aivi Leota, and not Maloaufa’atasi Aivi Leota.
[12] This issue was raised at the commencement of Mr Hayes’ cross-examination of Mr Leota in the Family Court. He asked Mr Leota whether he was born Maloaufa’atasi Aivi Leota (or Malo for short) to which Mr Leota answered in the affirmative. He suggested there was a burial certificate in Samoa identifying “Malo” as in fact being his younger brother who had died when he was one year old. Mr Leota denied this. He repeated the denial when reminded of his oath and he was then asked, “And so your evidence is you are not Tilatama (sic) Aivi Leota?”, to which Mr Leota
responded that Tilitama (sic) was his other name – “a calling name” – but that his birth certificate said he was “Malo”. Cross-examination on the issue was not pursued beyond that point.
[13] However, subsequent to delivery of the Family Court’s decision Mrs Leota made an application to either recall or set aside the judgment, or rehear the proceeding, in each case based on the premise that the identity of Mr Leota belonged to a dead person and the Court had been denied the opportunity to consider the effect of “identity fraud” on the proceedings. A supporting affidavit annexed a death certificate identifying the deceased as “Maloaufaatasi Aivi”, born 30 December 1948.
[14] In a detailed reserved decision dated 2 October 2019 the Family Court Judge dismissed the applications noting that:7
In effect what Mrs Leota has presented is that Mr Leota may have two names. That is something he accepted when cross-examined about his name.
[15] The Judge further observed that the case was not one where Mrs Leota was arguing her husband had concealed assets under an alternative name and accordingly it did not involve any material change to the facts on which the judgment had proceeded. He also noted that, based on the cross-examination at the trial, counsel was obviously alert to the issue at that point (the inference being that the subsequently obtained death certificate could have been produced at the trial with reasonable diligence).
[16] He was not therefore satisfied that the alleged false identity was “material to the judgment or how it would affect its outcome.8 So he declined the applications, suggesting that if Mrs Leota was dissatisfied with his original decision her correct response was to appeal.
[17] No appeal has been filed from the recall decision. Nor was any application made to adduce further evidence in relation to the substantive appeal. The death certificate is therefore not technically before me on the appeal. Had such an
7 Leota v Leota [2019] NZFC 8135 at [6].
8 At [17](c).
application been made it would have likely been declined on the basis that the evidence could reasonably have been discovered at an earlier stage.
[18] More fundamentally, however, I also agree with Ms Bailey and with the Family Court Judge that it is difficult to see how the acknowledged fact that Mr Leota goes by two names in any way impacts on the proper division of relationship property. Mrs Leota does not claim, nor could she, that Mr Leota is not the person she was married to for 39 years nor deny that he was the person with whom she had four children, with whom she acquired relationship property and who ultimately sought to dissolve their marriage – an application which she defended. In her own affidavit, dated 19 May 2019, she stated her husband was commonly known by the name of Talitama Aivi in his local Samoan Village. Nor does she identify any loss said to flow from his alleged dual identities.
[19] I intend, therefore, simply to acknowledge that the respondent identified in the proceedings as Maloaufa’Atasi Aivi Leota is also known as Talitama Aivi Leota.
[20] The jurisdictional challenge is dismissed both on the procedural ground that it was not identified in the points on appeal and on the substantive grounds referred to above.
Kiwi Saver account
[21] The judgment records the parties as having agreed that Mr Leota had, as at the date of separation, two BNZ accounts identified by the suffixes 30 (with a balance of
$4,105.87) and 31 (with a balance of $26,544.20). It further records the parties’ agreement that both balances comprised relationship property and that a 50 per cent adjustment in Mrs Leota’s favour was therefore required.9 If these accounts included the proceeds of Mr Leota’s Kiwi Saver account (itself acknowledged as relationship property) then no further issue arises.
[22] Mr Hayes relies, however, on what he says is evidence from Mr Leota that his Kiwi Saver account was paid out after the date of separation. He refers to Mr Leota’s
9 Leota v Leota [2019] NZFC 1959 at [5].
evidence that the sum in issue was in the order of $30,000. He submits that Mrs Leota should be entitled to half.
[23]In his affidavit of 27 July 2019 Mr Leota said:
I did have a Kiwi Saver. I cashed this in prior to Denise and I separating.
[24]However, in cross-examination the following exchange occurred:
q. Now you said during your evidence that you had cashed in your Kiwi Saver policy prior to yourself and Denise separating and if I can refer you to paragraph (m)? And is that paragraph (m) correct? That is your affidavit?
a. We were, I cash in the Kiwi Saver while, after we separated.
q. Okay so here you say you cashed it in before you and Denise separated?
a. Ah, this is wrong.
q. That is wrong? Okay, do you recall how long after the two of you separated you cashed that in?
a.All I can remember was that it was straight after I finish from my work.
q. Okay?
a. That I cashed it in and that was long before, after we separated.
[25] Significantly, Mr Leota was not further cross-examined on the issue. It was not put to him, for example, that the BNZ account referred to in his affidavit of assets and liabilities as having been established after separation, and which at the date of the affidavit contained the sum of $20,000, was the account into which the Kiwi Saver proceeds were paid.
[26] The District Court Judge acknowledged that the evidence was “somewhat confused” and that the oral evidence was “to some extent contradictory to the affidavit evidence.10 He concluded that:
The BNZ 031 account is the Kiwi Saver money. There is no evidence that the Kiwi Saver money was placed into any other account.
10 Leota v Leota [2019] NZFC 1959 at [24].
[27] Although I am free to reconsider the Family Court’s decision and to substitute my own view on questions of fact and evaluation, I must first be satisfied that the decision under appeal is wrong. On the state of the evidence I cannot be so satisfied. There is no basis for concluding that Mr Leota held any other accounts (or assets potentially acquired with Kiwi Saver proceeds) at the time of separation apart from those identified in his affidavit, and the absence of cross-examination on the source of the moneys in the account established post-separation precludes a finding that this was the repository of the Kiwi Saver proceeds.
[28]I therefore dismiss this ground of appeal.
Costs incurred in receipt of rental/board and issues arising as a result
[29] At [60](a), (b) and (c) of its judgment the Family Court identified $11,465.00 of income as having been generated by tenants of the Papakura property and $7,860 by tenants of the Invercargill property (total $19,325). The Court directed that Mrs Leota make an adjustment in Mr Leota’s favour in the sum of $9,662.50, being 50 per cent of the combined sums.
[30] Mr Hayes now says that a deduction should have been made from the gross Papakura receipts to reflect the fact that full board and lodging was being offered to some of those resident there. He invites me to make a robust assessment of likely food, electricity and water costs.
[31] The problem with this submission is that it was only in respect of three short term students (those from Rosehill College) that Mrs Leota provided full board and lodging and the total receipts were not in fact included in the Judge’s summary of income ex the Papakura property. The deductions which Mrs Leota claims are not therefore necessary to ensure division on a principled basis.
[32] However, as Ms Bailey submits this exposes a larger potential problem with the judgment because there were in fact a number of income receipts which the Court did not take into account, being:
(1)In respect of Papakura:
· $1,480 from A J Pilkington
· $ 870.00 from Desiree Lane
· $2,154.70 from the Rosehill College students.
Total $4,504.70
(2)In respect of the Invercargill property:
· $18,720 from Averil Matthews.
[33] She says that although Mr Leota did not file a cross-appeal in this respect, nevertheless under r 20.11(4)(a) of the High Court Rules 2016 I can permit him to contend that the decision appealed against should be varied to take account of these omissions. In reality she raises the matter defensively because in one other respect (which I will come to shortly) she concedes that Mrs Leota’s appeal has merit, requiring an adjustment in her favour of $10,610. But she says this sum would be substantially or completely offset if Mrs Leota’s total rental receipts were brought to account.
[34] Mr Hayes concedes that these additional payments were received. They appear simply to have been an omission from the list of receipts identified in the judgment – something readily explicable by the voluminous and often confused nature of the evidence. At least in respect of the rental received from Averil Matthews, the logic of Ms Bailey’s position cannot be gainsaid. The only issue is whether I should exercise my discretion under r 20.11(4). I consider it appropriate to do so. The issue was appropriately telegraphed in Ms Bailey’s written submissions and Mr Hayes does not claim any specific prejudice. This results in a credit in Mr Leota’s favour of $9,360.
[35] However, I decline to give the same credit in respect of the $4,504.70 of unaccounted for rental receipts from the Papakura property. The Family Court judgment provides for an occupation rental credit in favour of Mr Leota in the sum of
$64,200 calculated by reference to Mrs Leota’s 214 week occupation and a market
rental of $600 per week (or $300 for Mr Leota’s half share). As I will discuss later in this judgment, awards of occupation rent have, as their jurisprudential basis, compensation for use by the occupier of the dispossessed party’s capital.11 Where occupation rent is payable then in my view a subletting by the occupier should be to the occupier’s credit alone as the interest of the dispossessed party has otherwise been recognised.
[36]This then creates an anomaly in that $5,753.50 of the total allowance of
$19,325 made in Mr Leota’s favour by the Family Court was in respect of rental received from Mrs Leota’s tenants at the Papakura property. Nor was there any specific challenge to this award in the Notice of Appeal. However, having allowed Mr Leota’s informal cross-appeal it would be wrong to hold Mrs Leota strictly to her pleading in respect to an issue which effectively emerges from the cross-appeal. I intend therefore to deduct from the $9,360 specified in paragraph [34] the sum of
$5,753.50 – a net adjustment in Mr Leota’s favour of $3,606.50.
Failure to adjust for mortgage interest on Papakura property.
[37] Under s 18B of the Act, the Judge credited Mrs Leota with 50 per cent of her post separation payments of rates ($9,513.58) and insurances ($4,248.13) on the Papakura property. By agreement he also allowed for her reductions of principal in respect of mortgages secured over both properties. He did not, however, allow for mortgage interest costs in respect to the Papakura property. He said that such interest was “effectively the respondent’s ‘rental’ costs in respect of her living at the family home”.12
[38]The parties agree that Mr Leota’s share of interest in respect of the property is
$10,610.
[39] Because awards under s 18B are in the discretion of the Court, the principles in May v May apply in respect of this aspect of the appeal.13 Accordingly, this Court should not interfere unless the Family Court has acted on a wrong principle, has failed
11 E v G HC Wellington CIV-2005-485-1895, 18 May 2006.
12 At [56].
13 Simon v Wright [2014] NZHC 333 [14]; and May v May (1982) 1 NZFLR 165 (CA).
to take into account some relevant matter, has taken into account some irrelevant matter or was otherwise plainly wrong.
[40] In my view the Family Court’s approach was wrong in principle. Ms Bailey does not seriously contend otherwise. If an occupation rent is regarded as compensation for the use of the dispossessed partner’s capital, allowance must be made for situations where such partner’s relationship property interest is part funded by borrowed money. Otherwise over-compensation will result.
[41] The decision of Ronald Young J in E v VG is instructive.14 In that case the Family Court considered that the wife in occupation of the family home should pay the rates and insurance given she had sole occupancy. Ronald Young J held this was incorrect and that these costs were “overheads” in running the household and had to be paid equally by both parties because the compensation for the use of the capital was the occupation rent.15
[42] In my view the same principle applies in respect of interest costs on a mortgage. They are part of the price paid for preservation of the capital on which compensation is otherwise payable.
Failure to adjust for OnePath insurance premiums
[43] Mrs Leota submits that the Family Court was in error by not allowing a credit in her favour for half of the costs of sustaining, post-separation, a OnePath life policy over the lives of herself and her former husband. The premiums paid varied between
$826.28 per month, at separation, and $1,371.32 per month as at the date of hearing. There was no surrender value at the date of separation.
[44] The Judge held that Mr Leota was never consulted over continuation of the policy and never agreed to its maintenance. He said:
[21] I make a finding of no requirement for adjustment. Continuation of the policy was not sought nor confirmed by the applicant. The respondent has made a unilateral decision to maintain the policy and make payments. I
14 E v G HC Wellington CIV-2005-485-1895, 18 May 2006. See further Heath J’s decision in
Butcher v Haack [2012] NZHC 2991 at [12]–[25].
15 E v G at [26].
assume that the applicant has no objection to a transfer of the policy to the respondent’s sole name if desired but other than that transfer there is no further adjustment for the policy.
[45] Because any such allowance would have been under s 18B of the Act, Mrs Leota must therefore again satisfy me that one or more of the grounds in May v May are made out.16 She fails to do so.
[46] Ms Leota’s first reference to the OnePath policy is in paragraph 13(b) of her affidavit dated 19 May 2017. She describes it as a “joint” policy, the premiums on which (together with other costs of running the household) had required her to take out a loan.
[47] On 6 September 2017 the proceedings came before Judge Southwick QC for directions. Her Honour granted leave to Mrs Leota to file a further affidavit noting that certain details “require further explanation”. In particular she noted that:
… there is a life insurance policy which is questioned and the premiums for which Mrs Leota has been paying. The nature of this policy needs to be clarified.
[48] The matter reverted to Her Honour for a further conference on 11 December 2017. By that time Mrs Leota had filed a “very voluminous” affidavit but which her Honour identified as non-compliant in multiple respects. She directed that the affidavit be removed from the file and that Mrs Leota file a fresh affidavit which:
… is to include the following additional material … (f) paragraph 4(o) – a copy of the ANZ OnePath policy is to be provided.
The new affidavit was to be filed by 5 February 2018.
[49] Mrs Leota did not comply with her Honour’s timetable direction. She did belatedly file a further affidavit on 11 June 2018. This annexed over 900 pages of documents, including a number in respect of the life policy. Several letters (addressed to Mrs Leota alone) identified it as “your life insurance policy” and identified the lives insured as both Mr and Mrs Leota (each for a total amount of $252,800). A further document identified the policy owner as ANZ Bank New Zealand Limited suggesting
16 May v May (1982) 1 NZFLR 165 (CA).
it may have been taken out at the time one or more mortgage advances were made. Importantly, however, the policy itself was never disclosed as directed by Judge Southwick.
[50] Ms Bailey acknowledges that the policy was a relationship asset. She says, however, that Mr Leota cannot be held responsible for ongoing premium payments in circumstances where he never consented to the same, and where it appears Mrs Leota would herself have benefitted from Mr Leota’s death and thus had her own interest in maintaining the policy.
[51] I am unpersuaded that the District Court Judge’s exercise of his discretion was plainly wrong, or otherwise appealable on May v May principles. There was no evidence of Mr Leota consenting to maintenance of the policy. Nor without production of the policy and an ability to review its terms could he be said to have acquiesced in its maintenance.
[52] The Judge’s exercise of his discretion to decline compensation under s 18B was one clearly available to him. I reject this ground of appeal.
[53] I note, however that the judgment records receipt by Mrs Leota of a $12,240.78 refund on account of incorrect premium charges. It records her acceptance that this was relationship property and therefore directs an adjustment in Mr Leota’s favour of
$6,120.39. But consistent with the Court’s refusal to allow for the claim under s 18B that can only be so if the premiums in respect of which the refund was allowed were those paid prior to separation. Otherwise Mr Leota receives a 50 per cent credit against a cost never incurred by him. Neither the judgment nor counsel’s submissions address the period to which the refund relates. I have set out, however, the relevant principles by which division should ultimately occur. In the event any further order or direction is required on the specific point I reserve leave to apply.
Failure to identify domestic violence as basis for unequal sharing
[54] This ground of appeal falls to be considered in the context of ss 13(1) and 18A of the Act, which provide:
13 Exception to equal sharing
(1) If the court considers that there are extraordinary circumstances that make equal sharing of property or money under section 11 or section 11A or section 11B or section 12 repugnant to justice, the share of each spouse or partner in that property or money is to be determined in accordance with the contribution of each spouse to the marriage or of each civil union partner to the civil union or of each de facto partner to the de facto relationship.
18A Effect of misconduct of spouses or partners
(1) Except as permitted by subsections (2) and (3), a court may not take any misconduct of a spouse or partner into account in proceedings under this Act, whether to diminish or detract from the positive contribution of that spouse or partner or otherwise.
(2) Subject to subsection (3), the court may take into account any misconduct of a spouse or partner—
(a) in determining the contribution of a spouse to the marriage, or of a civil union partner to the civil union, or of a de facto partner to the de facto relationship; or
(b) in determining what order it should make under any of sections 26, 26A, 27, 28, 28B, 28C, and 33.
(3) For conduct to be taken into account under subsection (2), the conduct must have been gross and palpable and must have significantly affected the extent or value of the relationship property.
[55] Mrs Leota says she has been a long-term victim of domestic violence at the hands of Mr Leota. She submits this means there are extraordinary circumstances rendering equal sharing of the relationship property repugnant to justice.
[56] The Judge acknowledged that this was one of the factors on which Mrs Leota relied in seeking unequal sharing but did not discuss it in detail because of his conclusion that:17
The current law is that conduct is not a basis for a finding of extraordinary circumstances rendering equal sharing repugnant. It is only relevant to the weighting of contribution once the jurisdiction is made out.
17 Leota v Leota [2019] NZFC 1959 at [37].
[57] He relied in that respect on the decision of the Court of Appeal in J v J.18 That was a case involving a 33 year marriage. For a little over half of that time the husband had lived in Hong Kong supporting his wife and children’s life in New Zealand, but also carrying on a parallel relationship. The Court of Appeal observed that the husband was able to live “a luxurious life in Hong Kong, free from the major problems associated with the care of the children”, while his wife faced the inevitable challenges of raising the children alone (two of whom had significant health difficulties).19
[58] Against this background the Family Court held that there were extraordinary circumstances which made the equal sharing of the relationship property repugnant to justice. However, in the High Court Venning J held that s 18A of the Act precluded the Court from considering misconduct of one of the parties, except to the extent permitted by ss 18A(2) and (3).20 The Court of Appeal upheld that conclusion,21 and likewise in its recent decision in Scott v Williams the Supreme Court has affirmed “the fundamental point” that conduct cannot be used to affect one party’s share of relationship property unless the conditions in ss 18A are met.22
[59] The origins of s 18A lie in the report of the Justice and Electoral Committee on the Matrimonial Property Amendment Bill (2000). The Committee considered whether family violence should be a ground for uneven property division and concluded that it should not be.23
We consider it undesirable to introduce fault or misconduct as a basis for property division. It would represent a significant departure from the current scheme. Further, if certain kinds of conduct were to become a ground for unequal division of property there would be pressure for other fault based conduct to be taken into account. We consider that issues concerning the impact of family violence are more appropriately addressed in the context of the Domestic Violence Act 1995 and the general criminal law.
[60] Nevertheless, as Venning J observed in J v J, because gross disparity of contributions is a ground for the finding of exceptional circumstances under s 13, if a
18 J v J [2005] 25 FRNZ 1 (CA).
19 At [5].
20 J v J HC Auckland CIV-2004-404-5565, 28 June 2005 at [45].
21 J v J [2005] 25 FRNZ 1 (CA) at [10]–[12].
22 Scott v Williams [2017] NZSC 185, [2018] 1 NZLR 507 at [61].
23 However, that Matrimonial Property Amendment Supplementary Order Paper No. 25 2000(109/3) at [14]–[15].
party’s misconduct caused the innocent party to make significantly greater contributions to the marriage then it may be a relevant consideration, albeit that the test in s 13 would still need to be satisfied and extraordinary circumstances repugnant to justice therefore identified. 24
[61] In this case Mr Hayes could not point me to anything in the evidence which would justify this conclusion. Mrs Leota’s evidence was limited to generalised allegations of threats and of physical and psychological abuse over the course of the marriage. There was also a specific allegation of threatened assault with a hammer at the point of separation, for which Mr Leota was prosecuted but acquitted. In his affidavit in response, he denied physical abuse and no such allegations were put to him in cross-examination, contrary to s 92(1) of the Evidence Act 2006.
[62] Significantly also, s 18A(3) requires any misconduct to be not only “gross and palpable” but to have “significantly affected the extent or value of the relationship property”. There was no evidence as to the latter. Indeed it would be an unusual case where violence had this affect. The position can be contrasted, for example, with gambling at the “gross and palpable” level.25
[63] Accordingly, no proper evidential basis was established for an exception to the equal sharing regime. This point on appeal therefore fails.
Result
[64]I summarise my decision on the appeal as follows:
Ground 1 – Kiwi Saver account.
[65]I dismiss this ground of appeal
Ground 2 – Failure to adjust for costs of rental and board payments
[66]I dismiss this ground of appeal.
24 J v J HC Auckland CIV-2004-404-5565, 28 June 2005 at [50]–[52].
25 See, for example, Beven v Beven (1977) 1 MPC 23 (SC).
Ground 3 – Failure to adjust for interest payments on mortgage
[67] I allow this ground of appeal and specify Mr Leota’s contribution to such payments as $10,610.00. However, from that sum I deduct $3,606.50 being his share of rental receipts on the Invercargill property not accounted for in the Family Court’s judgment less the required adjustment in respect of the Papakura property (refer [35] –
[36] above). The net adjustment is therefore $7,003.50.
Ground 4 – OnePath life insurance premium payments
[68] I dismiss this ground of appeal. I do so, however, subject to the comments and reservation of leave in [53] above, relating to the premium refund.
Ground 5 – Failure to take into account domestic violence under s 13 of the Act.
[69]I dismiss this ground of appeal.
[70] I also dismiss the challenge to jurisdiction advanced in Mrs Leota’s submission but not identified in her Notice of Appeal.
Supplementary orders
[71] Rule 20.19(1)(c) of the High Court Rules empowers the High Court on appeal to make any order the Court thinks just, including as to costs. The Family Court’s judgment required Mrs Leota to advise within 21 days of the decision’s publication whether she wished to retain ownership of either the Papakura or Invercargill properties and for certain supplementary steps. As a result of the appeal that period has now expired and requires to be enlarged if Mrs Leota’s rights are to be preserved.
[72] I substitute for the expression “within 21 days of the release of this decision” in paragraphs [74] and [76] of the Family Court’s judgment the phrase, “by 15 January 2020”.
[73] I substitute for the expression “21 days after release of this decision” in paragraph [75] of the Family Court’s judgment the phrase, “on 16 January 2020”.
[74] I note that given the period of time which has elapsed since the Family Court’s judgment, further adjustments may be necessary in respect of occupation rent, interest, etcetera. My expectation is that these can be settled between counsel but I reserve the right to apply for any supplementary orders necessary.
Costs
[75] By agreement these lie where they fall. I note that Mr Leota is legally aided in respect of the proceedings.
Muir J
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