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Little v Little

Little v Little

Case [2022] NZHC 601 29 March 2022

Compensatory Damages

Equitable Distribution

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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. FOR FURTHER INFORMATION, PLEASE SEE

https://

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1639

[2022] NZHC 601

UNDER the Property Relationships Act 1976

IN THE MATTER

of an appeal under ss 39 and 53 of the Property Relationships Act 1976 of specified issues of determination of 4 December 2020

BETWEEN

JANET LITTLE

Appellant

AND

COLIN LITTLE

Respondent

Hearing: 4 November 2021

Appearances:

The Appellant in person

EG Snedden for the Respondent

Judgment:

29 March 2022

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 29 March 2022 at 4.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date………………………

Solicitors: Simpson Western, Auckland To: The Appellant

LITTLE v LITTLE [2022] NZHC 601 [29 March 2022]

Introduction

[1] The appellant appeals from a decision of Judge R von Keisenberg in the Family Court determining a dispute between the appellant and her former husband, the respondent, about the division of their relationship property.1

[2] Both parties were self-represented in the Family Court proceedings. At the conclusion of a three day hearing before the Judge, there was a large degree of agreement on the relationship property pool and its division. The remaining matters in issue comprised:

(a)a claim by the appellant for compensation under s 18B of the Property (Relationships) Act 1976 (the Act) for contributions made by her to the relationship following separation;

(b)a claim by the appellant for an adjustment under s 18C of the Act for diminution in value of the family home since separation;

(c)a claim by the appellant for compensation under s 15 of the Act for economic disparity at separation; and

(d)other more minor disputed matters, such as the status of the appellant’s credit card debt at separation.

[3] At the outset of her judgment, the Judge noted that the appellant had said in her opening submissions that she was also seeking an award of spousal maintenance, though no application for spousal maintenance under the Family Proceedings Act 1980 or a declaration of financial means had been filed. Accordingly, that matter did not form part of the judgment appealed from.

1 Little v Little [2020] NZFC 6638. The parties’ names have been anonymised in the published form of the Family Court judgment, and the same anonymised names have been adopted in this judgment.

[4] The Judge made awards in favour of the appellant under ss 15, 18B and 18C of the Act. The appellant is dissatisfied with aspects of the Judge’s decision. She appeals against the Judge’s decision on the following grounds:

(a)The appellant says the award of compensation for economic disparity pursuant to s 15 of the Act should have been higher, because:

(i)the Judge was wrong in her calculation of the disparity (including the salary levels adopted), wrong 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 Little v Little

Details

AGLC: Little v Little [2022] NZHC 601
Case: [2022] NZHC 601
Decision Date: 29 March 2022

CaseChat Overview and Summary

Janet Little appealed against a decision of Judge von Keisenberg of the Family Court, which determined a dispute between her and her former husband, Colin Little, about the division of their relationship property. The Family Court had found there was a significant disparity in income and living standards between the parties at separation. The Judge accordingly made awards in favour of the appellant under ss 15, 18B and 18C of the Property (Relationships) Act 1976. The appellant was dissatisfied with aspects of the Judge’s decision, and she appealed against the Judge’s decision on the following grounds: (a)The appellant says the award of compensation for economic disparity pursuant to s 15 of the Act should have been higher, because:(i)the Judge was wrong in her calculation of the disparity (including the salary levels adopted), wrong to halve the disparity, and wrong to apply a percentage approach to reflect that the disparity only partly resulted from the division of functions within the marriage;(ii)the Judge’s approach did not take into account the appellant’s contribution to the respondent’s work during the marriage, by assisting him to prepare written reports; and(iii)the Judge’s approach did not reflect ongoing benefits to the respondent from work and superannuation schemes.(b)The appellant says that the Judge’s decision on the s 18B award was in error because it:(i)did not sufficiently take into account disadvantages to the appellant post-separation;(ii)granted interest to the respondent in connection with an interim distribution made to the appellant, while not granting interest to the appellant on the remainder of her share of property held undivided by the respondent;(iii)did not reflect the four-month gap from the hearing to the date of the Judge’s decision; and(iv)did not reflect that the respondent retained the post-separation earnings of a Mercer Kiwisaver scheme and two Flexipol retirement schemes for which disclosure was declined.(c)The appellant also says that the Judge failed to make orders requiring the respondent to provide verified documents evidencing all his income and assets. The appellant sought the following relief on appeal:(a)additional s 15 compensation;(b)additional s 18B compensation;(c)orders for disclosure by the respondent of verified records of certain bank accounts and AMP products, and that he provide a list of “all income from investments, including any undisclosed superannuated gains and the particulars thereof”; and(d)orders to “maintain and rectify privacy in regards to sensitive suggestions noted in [the judgment appealed from]”. I did not propose to consider further, or to make, orders of the nature sought at (d) above. I did not know whether the appellant had taken the step of raising her concerns that there was sensitive private information contained in the Family Court judgment with the Judge in the Family Court, but observed that the version of the judgment available on legal databases had anonymised the parties’ names and contained extensive redactions in any event. I had no information on whether the judgment was forwarded to the IRD, and again, that was not a matter appropriately dealt with on appeal. I did not know whether the appellant had taken the step of raising her concerns that there was sensitive private information contained in the Family Court judgment with the Judge in the Family Court, but observed that the version of the judgment available on legal databases had anonymised the parties’ names and contained extensive redactions in any event. I had no information on whether the judgment was forwarded to the IRD, and again, that was not a matter appropriately dealt with on appeal. I did not know whether the appellant had taken the step of raising her concerns that there was sensitive private information contained in the Family Court judgment with the Judge in the Family Court, but observed that the version of the judgment available on legal databases had anonymised the parties’ names and contained extensive redactions in any event. I had no information on whether the judgment was forwarded to the IRD, and again, that was not a matter appropriately dealt with on appeal. I declined to make what were effectively broad-ranging discovery orders on an appeal. This would be wholly inappropriate in a matter of this kind, given it would essentially “wind the clock back” to a very significant degree, and fundamentally undermine the clean break policy. The appeal against the s 18B award was dismissed. The appeal against the s 15 award was allowed. The respondent is to pay the appellant an additional $12,000 by way of compensation pursuant to s 15. The appeal was otherwise dismissed.

Orders