Miller v Carey
[2015] NZHC 887
•30 April 2015
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 COURT/LEGISLATION/RESTRICTIONS-ON-PUBLICATIONS
THE PUBLIC VERSION OF THIS JUDGMENT CONTAINS REDACTIONS OF SENSITIVE PERSONAL INFORMATION.
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2014-409-000319 [2015] NZHC 887
IN THE MATTER OF THE PROPERTY (RELATIONSHIPS) ACT 1976 BETWEEN
JONATHAN JAMES RONALD MILLER Appellant
AND
SUZANNE LESLEY CAREY Respondent
CIV-2014-409-000591 IN THE MATTER OF
THE PROPERTY (RELATIONSHIPS) ACT 1976
BETWEEN
JONATHAN JAMES RONALD MILLER Appellant
AND
SUZANNE LESLEY CAREY Respondent
Hearing: 4 February 2015 Appearances:
S van Bohemen for Appellant
P Cowey for RespondentJudgment:
30 April 2015
JUDGMENT OF GENDALL J
MILLER v CAREY [2015] NZHC 887 [30 April 2015]
Introduction
[1] The appellant (Mr Miller) appeals against a decision of Judge N A Walsh in the District Court at Christchurch, first, making certain findings effectively against him in relation to relationship property,1 and, secondly, awarding costs on a 2B basis in the respondent’s (Ms Carey’s) favour.2 In particular, Mr Miller seeks to challenge the following aspects of the decision:
(a) the finding that the de facto relationship between Mr Miller and
Ms Carey commenced in August 2007;3
(b)the order that the net sale proceeds of the former family home be divided equally amongst Mr Miller and Ms Carey;4
(c) the finding that the de facto relationship was not one of short duration;5
(d) the decision to treat the increase in value of Mr Miller’s shares in
North Canterbury Rutbusters Ltd as relationship property;6
(e) the decision to not make any award to Mr Miller for his post- separation contributions, by way of reduction of mortgage debt, of
$30,785.7
[2] Mr Miller now seeks to reverse those findings. In particular, he seeks:
(a) an order pursuant to s 2E of the Property (Relationships) Act 1976
(the Act) that the parties’ relationship was one of short duration;
1 SLC v JJRM [2014] NZFC 3087 [Substantive Decision].
2 Carey v Miller [2014] NZFC 6320 [Costs Decision].
3 Substantive Decision, above n 1, at [151] and [205].
4 At [205](2).
5 At [162].
6 At [194]–[196].
7 At [205].
(b)an order pursuant to s 14A of the Act that no order for division of relationship property be made under the Act;
(c) in the alternative, if the Court determines to make orders for division under the Act:
(i)an order pursuant to s 14A(3) that the parties’ relationship property be divided 70/30 in favour of Mr Miller in accordance with their respective contributions to the de facto relationship;
(ii)an order pursuant to s 9A(2) that none of the increase in value of Mr Miller’s shares in North Canterbury Rutbusters Ltd is attributable to the actions of Ms Carey;
(iii)an order pursuant to s 18C that Ms Carey compensate Mr Miller for his post separation contributions to the relationship by way of mortgage principal reduction; and
(d) costs.
[3] The appeal is advanced essentially on the basis that Judge Walsh fell into errors of fact and law in his judgment.
Jurisdiction to determine this appeal
[4] Litigants in the Family Court, in proceedings concerning the Act, have a right to appeal to this Court by virtue of s 39. There must be a qualifying outcome in the Family Court in terms of subs (1). Where there is, as is the case here, the right to appeal is conferred by subs (2). The appeal is to proceed as if it were an appeal under s 72 of the District Courts Act 1947, with the High Court Rules and ss 74–78 of the District Courts Act having application with all necessary changes.
[5] The result of the importation of ss 74–78 is that the appeal proceeds by way of rehearing. The principles applicable to a rehearing were outlined by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar, where Elias CJ said:8
[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court's opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. The High Court Judge was obliged to reconsider the issue. He was entitled to use the reasons of the Assistant Commissioner to assist him in reaching his own conclusion, but the weight he placed on them was a matter for him.
[6] Though this Court has the power to receive further evidence on appeal, leave to do so requires special reasons under r 20.16 of the High Court Rules. In the absence of special reasons, like the situation in Austin, Nichols, it is envisaged that “there will be a rehearing on the record”.9 In B v F, Heath J referred to Austin, Nichols and set out several principles of utility in disposing of appeals against decisions of the Family Court under the Act:10
(a) Application of the general appeal principles set out in Austin, Nichols is not altogether easy in the Family Law context, where first instance judges are required to reach conclusions on mixed issues of law and fact, entailing value judgments and the exercise of discretion. This can make categorisation difficult.
(b)An appellate Judge is required to take account of the advantages a trial Judge has in seeing and hearing witnesses give evidence before them.11
(c) To the extent that the judgment involved the exercise of discretion, the principles applicable to appeals against the exercise of discretions
apply.12
8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
9 At [13].
10 B v F [2010] NZFLR 67 (HC) at [7]–[8].
11 While a trial judge does have particular advantages in assessing credibility and reliability, I note the concerns recently raised regarding assessment of demeanour: Robert Fisher QC “The Demeanour Fallacy” [2014] New Zealand Law Review 575.
(d)Other than the caveats referred to at (b) and (c) above, an appellate Court is free to reconsider the decision of the Family Court on the record and to reach, and substitute, its own view on questions of fact and evaluation.
When did the de facto relationship begin?
Judge Walsh’s findings
[7] After traversing the law relating to issues over determining when a relationship of this type began,13 Judge Walsh summarised Ms Carey’s evidence as follows:
(1) Mr Miller and Ms Carey had mixed in the same social group for some time. However, their first date occurred at a rugby game between the Crusaders and Hurricanes in May 2006.14
(2) Ms Carey gave evidence that in the early stages of their relationship, she would stay at Mr Miller’s residence each weekend after finishing work, until 7.00 am on Monday when she would commute to her primary job.15
(3) [Redacted]16 [Redacted]17 [Redacted].18
(4) Ms Carey stated that by late 2006 or the beginning of 2007, the relationship had progressed to a stage where she was buying and paying for their groceries, which continued until they bought a property in 2009.19
(5) Between September 2007 and December 2008, Ms Carey flatted with the manger of her secondary employment at a property in Cheviot.20 However, though all of Ms Carey’s work clothes and some furniture and appliances were at this property, many of her clothes remained with Mr Miller, at his house.21
(a) The manager of Ms Carey’s secondary employment supported Ms Carey’s version of events that she had given up her secondary employment by the end of 2008, because
12 See for example May v May (1982) 1 NZFLR 165 (CA); Blackstone v Blackstone [2008] NZCA
312, (2008) 19 PRNZ 40; Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1.
13 Substantive Decision, above n 1, at [9]–[18].
14 At [21].
15 At [26].
16 At […].
17 At […].
18 At […].
19 At [32].
20 At [33].
21 At [34].
she did not have enough personal time to be with
Mr Miller.22
(b) The manager also said that Ms Carey bought very little in the way of groceries to her house, other than breakfast.23
The manager further stated that when she went to Mr Miller’s house to visit Ms Carey, she saw that Ms Carey kept multiple items at Mr Miller’s house including her horses, her horse float, her computer, and toiletries.24
(6) Suzanne therefore maintains that the de facto relationship commenced in August 2007 when she moved from the manager’s house to Mr Miller’s house in Waikuku.25 Ms Carey also originally asserted that this was the same date that Mr Miller leased a Toyota motor vehicle for his business, North Canterbury Rutbusters Ltd, though it was revealed under cross-examination that the lease was revealed as being in January 2008.26
(7) Ms Carey states that Mr Miller incorporated his company on 20 June
2007 and by December 2008 he had stopped working as a farm manager to concentrate on developing his business.27 Ms Carey further states that she initially supported Mr Miller financially, though he did receive some holiday pay in December 2008.28
(8) Ms Carey states that in December 2008 she moved from her manager’s property in with Mr Miller, though she left some furniture at her property as her and Mr Miller were in the process of acquiring new furniture.29
[8] Judge Walsh then moved on to consider activities related to Mr Miller’s business. It was observed, in sum, that Ms Carey assisted with the business operations by picking up and dropping off workers, delivering fuel, dropping off items (i.e. tyres and food), cooking for friends of Mr Miller, buying stationery and helping Mr Miller with the tax returns for the business.30
[9] In May 2009, Ms Carey and Mr Miller purchased a house together, at which time Ms Carey states that there were no discussions about entering into a property
sharing agreement.31 Ms Carey says that she used a CRT Co-operative card to
22 At [35].
23 At [37].
24 At [37].
25 At [39].
26 At [39].
27 At [41].
28 At [42].
29 At [43].
30 At [44]–[45].
31 At [48].
purchase a table, linen and towels, kitchenware and work clothes and work footwear, along with clothing for Mr Miller.32
[10] After Judge Walsh described several minor milestones in their relationship,33 he noted Ms Carey’s comment that by December 2011 she sensed that the relationship between her and Mr Miller was deteriorating. [Redacted]34
[11] Judge Walsh then considered evidence given by a male flatmate of Mr Miller. He noted that by the start of 2007, Ms Carey had started spending time around the house.35 He commented that Ms Carey was at the house most weekends, and that he recalled seeing Ms Carey’s clothes being around the house. Along with the fact that first, Mr Miller and Ms Carey bought a couch together, secondly, Ms Carey’s dogs were staying at the property, thirdly, there was some of their “stuff in the kitchen”, the flatmate confirmed that Ms Carey would cook Mr Miller dinner.36 Under cross- examination, the flatmate conceded that he was not there every weekend, but he said he knew Ms Carey was there because he would see her clothes on the washing line,
and they would sometimes remain for several days.37
w
32 At [48]–[49].
[12]
follo
Jud
ing p
(a)
ge Walsh then came to address Mr Miller’s position, from which the
oints emerged:
Mr Miller states that he and Ms Carey had sexual intercourse
following the rugby game referred to above, which he states marked the beginning of what Mr Miller considered to be a casual boyfriend/girlfriend relationship.38 (b)
Though Mr Miller did not accept that Ms Carey spent the weekends
living at his house between May 2006 and the end of 2006, he did concede that she would often stay Friday nights and would occasionally spend more than one night at his house, but that “there 33 At [50]–[56].
34 At […].
35 At [58].
36 At [59].
37 At [60].
38 At [62].
was no sense that we were living together but rather she stayed over as my girlfriend”.39
(c) Mr Miller contended that both of their weekends were busy with work and sport and that, as a result, they had very little time for each other resulting in the relationship remaining casual.40 [Redacted]41 He also commented that he had only stayed with Ms Carey once while she was living with her manager.42
(d)Mr Miller acknowledged that Ms Carey’s parents stayed at his house for a few days in February 2008. However, he states that this is because there was insufficient room where Ms Carey was staying with her manager. He further denies that both he and Ms Carey moved out of a farming property in July 2008 as only he was living there so it was him that had to move out, not both.43
(e) Mr Miller further denies that both he and Ms Carey set up the rutbuster company in 2007. He states that he had been operating the company since the purchase of the first machine on 4 May 2005, and says further that he had started receiving income from it as long ago
as August 2005.44 He did, however, concede that Ms Carey had
helped him out by “picking up a driver or taking fuel to a silage harvester”, but that this was not a regular occurrence.45
(f) In terms of another business, “Mark Early Ag & Silage Ltd”, Mr Miller denied that Ms Carey had anything to do with the enterprise. He said that the original owner of that business approached him in
early 2010 about buying into the business, which resulted in the
39 At [63].
40 At [65].
41 At […].
42 At [67].
43 At [68]–[69].
44 At [70]–[71].
45 At [73].
formation of a new company. However, Mr Miller stressed that at no point was Ms Carey consulted or involved.46
(g)Finally, Mr Miller denies that he and Ms Carey spent every weekend together since May 2006, repeating that they both lived busy separate lives.47
[13] Judge Walsh then set out his role in making credibility and reliability findings, referring to internal and external consistency, and citing Rae v International Insurance Brokers.48 He then turned to consider, in light of the facts recounted above, whether a de facto relationship did exist here. He dealt with this under several heads, which I now summarise:
(a) The duration of the relationship: ultimately Judge Walsh preferred the evidence of Ms Carey that the de facto relationship commenced in August 2007.49 Judge Walsh began by noting that this finding, in large part, stemmed from credibility findings, and the self-serving and inconsistent nature of Mr Miller’s evidence.50 In addition, Judge Walsh accepted the evidence of Mr Andrew McKenzie (the flatmate) and considered Ms Carey to be an impressive witness.51 Judge Walsh therefore concluded that the parties commenced seeing each other in May 2006, with the de facto relationship commencing in or about August 2007.52
(b)The nature and extent of the common residence: Judge Walsh first set out the respective position of the parties,53 then addressed the
evidence of two witnesses who knew Mr Miller and Ms Carey,54
46 At [79].
47 At [80].
48 At [81]–[84], citing Rae v International Insurance Brokers [1998] 3 NZLR 190 (CA) at 199
49 At [86].
50 At [87]–[90], [93]–[101].
51 At [91]–[92].
52 At [102].
53 At [103]–[104].
54 At [105]–[108].
before reaching a view that he preferred Ms Carey’s evidence that she
and Mr Miller shared a common residence from August 2007.55
(c) Whether or not a sexual relationship exists: Judge Walsh found that the couple had a sexual relationship from the time their relationship commenced in May 2006.56
(d)The degree of financial interdependence: Up until August 2007, Judge Walsh found that Mr Miller and Ms Carey had separate bank accounts. From May 2009 they operated joint accounts as a result of the property purchase. Between the two dates there was mixed dependence and interdependence. For example, Mr Miller withdrew
$6,890 from Ms Carey’s account on 4 December 2007.57 From the
date the house was purchased there was substantial financial interdependence.58
(e) The ownership, use and acquisition of property: The vehicle leased by Mr Miller’s company was used almost exclusively by Ms Carey from January 2008, until two months after they separated on 9
January 2011.59 In addition, they bought a table and chairs together,
and Ms Carey bought two couches and a queen bed which were used by them jointly.60 They also bought their house together in May
2009.61
(f) The degree of mutual commitment to a shared life: Judge Walsh summarised the position succinctly by stating “I find, on the evidence that [Ms Carey] was hoping for a permanent commitment from [Mr
Miller] but [Mr Miller] was somewhat ambivalent.”62 However, by
55 At [109]–[115].
56 At [116].
57 At [117]–[118].
58 At [119]–[121].
59 At [129]–[131].
60 At [132].
61 At [133].
62 At [134].
reference to 11 indicia, Judge Walsh found that there was a mutual commitment to a shared life.63 (g)
The care and support of children: the couple had no children so this was an irrelevant consideration.64
(h)
The performance of household duties: Judge Walsh noted that from
2007 Ms Carey purchased the groceries, did Mr Miller’s washing occasionally and cooked meals for he and his friends. She also did cleaning.65 (i)
The reputation and public aspects of the relationship: Judge Walsh
found that Mr Miller and Ms Carey “obviously had friends who
perceived them as a couple”.66 Further, he noted that Mr Miller did
not dispute that Ms Carey attended family functions on Christmas
Day at the residence of members of his family.67 It was also observed
that they went to sporting matches together, that they went on camping holidays together, and that Mr Miller accompanied Ms Carey to a job interview, along with other sundry reputational evidence.68 [14]
In r
eaching his conclusion, Judge Walsh reminded himself that the individual
factors referred to above were not determinative in themselves.69 However, after referring to Jonah v White, Judge Walsh, as a matter of cumulative evaluation, reached a conclusion that the parties were in a de facto relationship which lasted for
three years, four months commencing from August 2007.70
63 At [135](a)–(k).
64 At [136].
65 At [137]–[138].
66 At [139].
67 At [140].
68 At [141]–[148].
69 At [149].
70 At [150]–[151], citing Jonah v White [2011] 258 FLR 236, [2011] FamCA 221
Submissions
[15] In essence, the competing positions here are that Mr Miller considers that August 2007 is not the correct starting date for their de facto relationship. Ms Carey states that it is.
The legal position
[16] In terms of the Act, the meaning of “de facto relationship” is defined in s 2D.
This provides:
2D Meaning of de facto relationship
(1) For the purposes of this Act, a de facto relationship is a relationship between 2 persons (whether a man and a woman, or a man and a man, or a woman and a woman)—
(a) who are both aged 18 years or older; and
(b) who live together as a couple; and
(c) who are not married to , or in a civil union with, one another. (2) In determining whether 2 persons live together as a couple, all the
circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:
(a) the duration of the relationship:
(b) the nature and extent of common residence: (c) whether or not a sexual relationship exists:
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties:
(e) the ownership, use, and acquisition of property:
(f) the degree of mutual commitment to a shared life: (g) the care and support of children:
(h) the performance of household duties:
(i) the reputation and public aspects of the relationship. (3) In determining whether 2 persons live together as a couple,—
(a) no finding in respect of any of the matters stated in subsection (2), or in respect of any combination of them, is to be regarded as necessary; and
(b) a Court is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the Court in the circumstances of the case.
(4) For the purposes of this Act, a de facto relationship ends if—
(a) the de facto partners cease to live together as a couple; or
(b) 1 of the de facto partners dies
[17] As s 2D itself makes apparent, the paramount requirement is that the parties “live together as a couple”. All the other factors and indicia outlined in s 2D(2) are merely indicative of whether this overarching requirement has been met. This assessment can be a peculiarly difficult judicial task.71 This was observed in Scragg v Scott:72
The complexity and diversity of human nature and behaviour is such that many types of associations may properly fall into the category of a de facto relationship as envisaged by Parliament. For there to be a relationship there must be an emotional association between two persons.
[18] Similarly, in B v F, Heath J commented:73
It is important to ensure that property consequences do not flow from relationships formed between two people that are not necessarily indicative of an intent to share property. For that reason some rigour is required in analysing whether a de facto relationship exists.
[19] Determining the point at which it can be said that the parties are living together as a couple requires the Court to make a holistic assessment of the relationship and a determination as to whether that relationship can properly be described as a “de facto” one. When undertaking this task, Courts must examine all facets of the relationship, including those set out in s 2D(2). However, a mechanical or arithmetical assessment of those non-exhaustive factors will not suffice. There is always a need to stand back and assess the relationship as a whole – a qualitative rather than quantitative determination is called for.
[20] In most cases where the parties dispute the existence of (or the date of commencement or determination of) a de facto relationship, the Court will be called upon to discern, and adjudicate upon, disparate strands of evidence drawn upon by
each party. It is the assessment of the cumulative weight of that evidence which will
71 See for example DM v MP [2012] NZHC 503, [2012] NZFLR 385 at [23]; L v P [Division of
Property] [2008] NZFLR 401 (HC) at [44]; Benseman v Ball [2007] NZFLR 127 (HC) at [20].
72 Scragg v Scott [2006] NZFLR 1076 (HC) at [31].
73 B v F [2010] NZFLR 67 (HC) at [48].
be determinative.74 The New South Wales Law Reform Commission made the point thus:75
17.10 The application of the basic definition to the myriad facets of private personal relationships between men and women will inevitably be a matter of degree and proportion. The attributes and circumstances of such relations hips differ greatly, ranging from what is little more than a casual liaison to a continuing affectionate companionship, to a long-term merging of lives and resources. Moreover, the nature and quality of a particular relationship may change and develop over time, making it sometimes very difficult to pinpoint a time when the relationship should assume a new legal significance. While criteria such as those outlined in the previous paragraph will be useful as a guide in assessing the nature of a relationship, decisions in borderline cases will necessarily require a close and detailed examination of all aspects of the parties’ domestic arrangements.
[21] In the present case the parties are in agreement that there was a point in time in which their relationship mutated into a de facto relationship in terms of the Act when it was previously something less than this. Thus, an issue of timing clearly arises. Timing comes to the fore as a critical factor in de facto relationships as, unlike a marriage, there is no formal opt-in to such a relationship, and therefore no
bright line unequivocally dividing the relationship status in every case.76
Resolution
[22] It is useful here to consider certain waypoints in the relationship between Mr Miller and Ms Carey upon which the parties agree. Their relationship (in the broadest sense) commenced in May 2006, which is also the first time that they had sexual intercourse.77 It is not questioned that their relationship terminated on 9
January 2011, when Ms Carey moved out of the property she and Mr Miller had purchased together. The parties also both agree that they were in a de facto relationship from at least May 2009, when they purchased the house together.
[23] The question thus falling for determination is whether that de facto relationship commenced only in May 2009 (as contended for by Mr Miller) or on some earlier date (after May 2006, but before May 2009, such as August 2007 as
contended for by Ms Carey, and held by Judge Walsh). In terms of property
74 Scragg v Scott [2006] NZFLR 1076 (HC) at [64].
75 New South Wales Law Reform Commission De Facto Relationships (NSWLRC R36, 1983).
76 See B v F [2010] NZFLR 67 (HC) at [45]; Benseman v Ball [2007] NZFLR 127 (HC) at [33].
77 Both parties accept that they had a sexual relationship from this point forward.
consequences, an important and determinative date here is 9 January 2008. If I find that Ms Carey and Mr Miller were living together as a couple before that date, there will be a qualifying de facto relationship of not less than three years in terms of the Act. If I find that they were not living together as a couple until after that date, then although there will be a de facto relationship, it will be one of short duration in terms of the Act.
[24] On these aspects, I need to say at this point that I am satisfied Judge Walsh fell into error in categorising the start date of the de facto relationship between Ms Carey and Mr Miller as being August 2007. In this respect, it seems that Judge Walsh at least in part relied upon evidence from events occurring after August
2007 to support his finding. Plainly it is not open to rely on events occurring post- commencement as a basis for fixing the commencement date of a de facto relationship. This commencement date is a watershed ex post facto moment imposed by the Court when it considers that the sum of component factors points clearly to the existence of a de facto relationship from that time. The focus must therefore narrow here to ascertain the date on which Ms Carey and Mr Miller began to live together as a couple and which the competing arguments here say occurred some point between (and inclusive of) the dates August 2007 and May 2009.
[25] At this point, it is appropriate to take a moment to comment upon the evidence adduced in this case. Having read the entirety of Ms Carey’s and Mr Miller’s affidavit evidence, along with all other supporting affidavits and the transcript of the District Court hearing, it seems clear to me that to an extent both parties here have attempted to cast a version of events most favourable to them. Many times, as I see it, this has resulted in a series of capitulations in reply, watering down of the initial positions to a far more diluted version of the reality each party initially asserted. This must cast a degree of doubt on the credibility of both parties and make the task before me more difficult.
[26] In addition, in my view, despite what seems to be Judge Walsh’s approach here, it is fair to say that certain credibility and reliability issues also arise with Ms Carey’s witnesses, Mr Dougal Hurst and Mr Andrew McKenzie. Mr Miller in his evidence deposes that Mr Dougal was upset at him after Mr Miller threatened to
tell the husband of Mr Dougal’s sexual partner that she was having an affair. Similarly, Mr Miller states that he and Mr McKenzie (his former flatmate) fell out when Mr Miller learned that Mr McKenzie was attempting to take clients from him and, in Mr Miller’s opinion, when Mr McKenzie attempted to invoice him for a machine that he said one of Mr McKenzie’s workers broke.
[27] The issues with these two witnesses it seems culminated on 27 March 2011 when Mr Hurst and Mr McKenzie broke into Mr Miller’s house at night and assaulted him. As a result of this incident, Mr Miller deposes that Mr Hurst was charged with burglary, assault with intent to injure and threatening to kill. He says that Mr Hurst pleaded guilty to the latter two charges. Further it seems that Mr McKenzie was charged with the same three offences and pleaded guilty to the threatening to kill charge. Mr Miller notes that both Mr Hurst and Mr McKenzie were awaiting sentence on these charges.
[28] Although these matters are not in any sense determinative here, in this light it must be said that the weight, reliability and credibility of the evidence is potentially diminished. Very plainly there was bad blood between Mr Miller and the two witnesses. I need to take this aspect into account, but I do so here only as one of the appropriate matters to consider in making my assessment. And I remind myself again that Judge Walsh did have the advantage of seeing and hearing all the witnesses which I do not, and he clearly preferred the evidence of Ms Carey to that of Mr Miller and found her to be a more reliable witness.
[29] But, viewing the entirety of the relationship between the parties in the round, I have formed the view that their relationship which was initially a casual liaison, and then became a boyfriend-girlfriend relationship, transmogrified into a de facto relationship sometime between mid-2008 to late-2008 (I fix it with no greater specificity as the exact date during this period is irrelevant to this proceeding). It was around this time, but not before, that I think it could reasonably be said that Ms Carey and Mr Miller were living together “as a couple” as the Act requires. This finding, differs from that made by Judge Walsh and I find that his conclusion on this aspect was wrong. My finding has ultimately resulted from a holistic assessment of
the entirety of the parties’ relationship, but it is supported by the circumstances of the
relationship, including the s 2D factors. I address these below.
[30] Duration of the relationship.78 I afford this factor some but not a great degree of weight. It is common ground that the relationship of some sort commenced in May 2006. It is accepted that their final relationship ended in January 2011. The entire duration is slightly less than five years.
[31] Nature and extent of common residence.79 Ms Carey relies on her relinquishing of her tenancy in Cheviot, in August 2007, as the commencement date of what she says is her de facto relationship with Mr Miller. Curiously, however, she did not in fact at that time move from that property into Mr Miller’s house. She moved from the tenanted property to another in Cheviot (where she boarded), but nonetheless continued to spend several nights per week with Mr Miller. While it is trite that “the absence of sharing a common residence is not determinative”, it is relevant that Ms Carey retained what might be seen as the ‘safety net’ of a second residence.80
[32] I also find it relevant that Ms Carey only moved out of her tenancy in Cheviot it appears because the owners had asked her to do so – there was no independent decision to move in with Mr Miller. Further, her evidence about moving furniture and personal items to Mr Miller’s house in my view is both confusing and equivocal. Suffice to say, however, that in August 2007 it seems Ms Carey moved all of her furniture to the new address in Cheviot where she was boarding, and that half of her clothes were at the new Cheviot address, and half were at Mr Miller’s house. However, I do need to note that there is also some suggestion that Ms Carey had a “fair amount” of clothes at Mr Miller’s house before she made the move from the old Cheviot address to the new one.
[33] Whether or not a sexual relationship exists.81 It is common ground that a sexual relationship existed and continued from May 2006.
78 Property (Relationships) Act 1976, s 2D(2)(a).
79 Section 2D(b).
80 Scragg v Scott [2006] NZFLR 1076 (HC) at [40].
81 Property (Relationships) Act 1976, s 2D(2)(c).
[34] Degree of financial dependence or interdependence/arrangements for financial support between the parties.82 This issue was one of the more contested points between the parties. In this respect I observe:
(a) Mr Miller withdrew $6,890 from Ms Carey’s bank account on
4 December 2007. It would appear however that this was a conduit for Mr Miller’s business, rather than Ms Carey providing this sum for Mr Miller.
(b)The Toyota Prado was leased (not purchased as contended for by Ms Carey) in January 2008. However, it is clear this vehicle was substantially used by Ms Carey.
(c) Ms Carey used her money to purchase groceries between October
2007 and February 2009. On appeal, Mr Miller analysed the bank statements provided by Ms Carey. Between the period 1 October
2007 and 23 February 2009, Ms Carey spent a total of $2,408.70 at the supermarket. If this amount is averaged across the entire period, it is said this shows that Ms Carey spent approximately $70 per fortnight, rather than the $300 as found by Judge Walsh.
(d)There was significant dispute over the purchase of various items of furniture. I make several observations:
(i)Ms Carey purchased a computer in March 2008, which mainly stayed at Mr Miller’s house.
(ii)Mr Miller adduced evidence to support the proposition that the couches, sea chest, coffee table, dining table and computer
table were purchased on TradeMe around July 2008.
82 Section 2D(2)(d).
(iii)In evidence, Ms Carey seemed to resile from her initial position that she had bought a printer for Mr Miller’s business
and admitted that she had purchased it for Mr Miller as a gift.
n
under the immediately preceding heading. For clarity, I find that there was not any substantial ownership, use and acquisition of property (with the primary exception of the Toyota Prado lease in January 2008) until Mid or Late 2008, and culminating in their joint house purchase in May 2009.
(e) Even if Ms Carey supported Mr Miller once he resigned from his
previous position to start his business, North Canterbury Rutbusters
Ltd (and I make no finding in this respect), this would have been in late 2008, and is consistent with the position I have reached on this appeal. (f)
Prior to December 2008, Ms Carey’s evidence is that she had spent a
total of $72.98 on stationery for Mr Miller’s business. This consisted
of a purchase totalling $32.99 on 10 August 2007 and a purchase of
$39.99 on 4 December 2007. From December 2008, Ms Carey spent
a further $144.81. These must be considered simply as minor issues in the overall scheme of things here. (g)
The parties’ joint house property at Sefton was not purchased as their
home until May 2009.
[35]
Ow
ership, use and acquisition of property.83 The issue is largely dealt with
[36] Degree of mutual commitment to a shared life.84 Within this concept (as, indeed, within a relationship generally), mutuality is particularly important. One person wholly dedicated to a joint life with another person is unable to bind the latter to an undesired relationship. In addition, as the factor itself discloses, this factor is not binary in operation – there is a sliding scale. At one end of the scale there might
be persons who are no more than acquaintances or in a casual liaison, while at the
83 Section 2D(2)(e).
84 Section 2D(2)(f).
other a long and happy marriage or committed relationship. It is a wholly evaluative issue having regard to all strands of evidence. What follows is not an exhaustive dissertation on all relevant excerpts of evidence germane to this issue but, rather, some of the factors which support the conclusion I have reached:
(a) Judge Walsh himself stated that “… on the evidence … [Ms Carey] was hoping for a permanent commitment from … [Mr Miller but Mr Miller] was somewhat ambivalent”.
(b)Ms Carey and Mr Miller enjoyed quite separate aspects of their life up until May 2009 when they purchased the house together. As I have said, Ms Carey on her evidence stayed at another property (albeit in part at least for pragmatic reasons) for almost half the week. Substantial property was kept at that house. In addition, Mr Miller was very much focused on the growth of his business.
(c) Both parties would play their own sports matches during weekends.
However, I acknowledge that there were occasions when Ms Carey
would attend Mr Miller’s games.
[37] For the avoidance of doubt, I have no doubt that at some point in the parties’ association here, there was a degree of commitment to a joint life. However, until mid to late 2008 I do not regard it as substantial. And certainly not sufficiently substantial to surmount the conclusion I have reached.
[38] Care and support of children.85 This is not a factor in this proceeding.
[39] Performance of household duties.86 The reality is that the split living arrangements were such that Ms Carey and Mr Miller would have to perform some of their own household duties. I do readily acknowledge, however, that Ms Carey would perform some household duties at Mr Miller’s house. However, it seems that Mr Miller retained external cleaning assistance until shortly before the house he was
living in was demolished in mid-2008.
85 Section 2D(2)(g).
86 Section 2D(2)(h).
[40] Reputation and public aspects of the relationship.87 I have little doubt that Ms Carey and Mr Miller would have presented as being in some form of a relationship from shortly after their first sexual interlude in May 2006. However, for a substantial period as evidence before the Family Court suggests, this would have been a casual relationship, before progressing to an affectionate
‘boyfriend/girlfriend’ relationship and then on to a full de facto relationship. By my reckoning, it was not until mid to late 2008 that the reputational and public components of the relationship were such that they would have presented as “living together as a couple”.
Result
[41] By way of summary, my overall assessment of the evidence has led me to a point where I do not think that by August 2007 there was the requisite emotional connection, or intertwining of lives, such that I can be satisfied that the parties were living together as a couple. Rather, I have found that the parties were not living together as a couple until sometime between mid to late 2008. The result of this, applying an appropriately rigorous test to the questions at issue, I find that the parties were in a de facto relationship but one of short duration, (being less than three years) as defined by s 2E of the Act, until their separation in early 2011.
If the relationship lasted more than three years, should it nonetheless be treated as one of short duration?
[42] Because of the conclusion I have reached on the above obviously I need not discuss this issue.
If the relationship is one of short duration, is there a basis for the Court to make any orders under the Act pursuant to s 14A?
[43] Section 14A of the Act vests in the Court jurisdiction to fix shares in accordance with the parties’ respective contributions to the relationship. Once it has been found that there is a relationship of short duration, there is a two stage test to
determine whether s 14A has application:
87 Section 2D(2)(i).
(a) First, it must be shown that Ms Carey made a substantial contribution to the de facto relationship;88 and (b)
Second, it must be shown that a failure to make an order would result in serious injustice.89
[44]
The
notion of a “substantial contribution” is not defined by the Act.90 I am
satisfied however, that Ms Carey did make substantial contributions to the relationship. Some of those contributions include:
(a) Purchasing at least some of the joint groceries;
(b) Paying the entirety of the mortgage on their joint property from May
2009 until separation in January 2011;
(c) Contributing $17,000 to the purchase price of the house property the parties purchased together and approximately $8,000 to their joint account;
(d) Purchasing some furniture;
(e) Enabling Mr Miller to develop and grow his business by providing both financial and non-financial support;
(f) Assisting, at the very least sporadically, in the running of Mr Miller’s business by helping with administrative tasks as well as general errands.
[45] On a purely financial analysis, Ms Carey contends that Mr Miller contributed
75 per cent of the financial value of the relationship, while she contributed 25 per cent. However, Ms Carey caveats this issue by observing quite properly that
quantum fails to account for non-financial contributions. And, on this, Mr Miller
88 Section 14A(2)(a)(ii).
89 Section 14A(2)(b).
90 See Lawson v Perkins [2008] NZFLR 401 (HC) at [70]; Lynskey v Donovan HC Blenheim CIV-
2006-406-293, 2 November 2010.
says that, if an order is to be made, the appropriate division would be 30 per cent in favour of Ms Carey and 70 per cent in favour of him.
[46] Before getting to the issue of quantum, it is necessary to consider whether serious injustice would be occasioned should I decline to make an order. As with “substantial contribution”, the idea of a “serious injustice” is not defined in the Act. It has, however, received judicial consideration.91 I am prepared to proceed on the basis that in the absence of the overlay of the Act, ordinary common law and equitable principles would result in serious injustice to Ms Carey if no order was
made in her favour here. There can be little doubt that she has contributed significantly to the relationship in many ways, both financially and otherwise.
[47] Bearing in mind that the purely financial contribution of Ms Carey on her analysis was 25 per cent, and the position of both parties that a 70/30 split in favour of Mr Miller would be “appropriate” here, as Judge Walsh noted, I find that a division on this 70/30 basis should be ordered in this case.
Increase in value of Mr Miller’s shares pursuant to s 9A(2) of the Act?
[48] Both parties accept that Mr Miller’s shares in North Canterbury Rutbusters
Ltd were separate property. Nor is it disputed that those shares increased in value by
$115,113 in the relevant period. On appeal, Mr Miller challenges Judge Walsh’s finding that 30 per cent of the increase in value of those shares should be attributed to Ms Carey.92
[49] Mr Miller however has in reality provided nothing of any substance in support of his contention that Judge Walsh erred in the division. He purports to rely on the fact that Ms Carey received use of the Toyota Prado as ‘compensation’ as some form of impediment to such a claim. The reality as I perceive the situation is that Ms Carey’s actions (financial support, doing un-remunerated errands for the business, performing household duties etc) undoubtedly contributed to the increase
in value of the shares.
91 See Lawson v Perkins [2008] NZFLR 401 (HC) at [72]–[79]; Gibbons v Vowles (2003) 22 FRNZ
946 (FC) at [13].
92 The leading case referred to by the parties is Rose v Rose [2009] NZSC 46, [2009] 3 NZLR 1.
[50] But for the fact that I have reached a different conclusion than Judge Walsh as to the starting point of the de facto relationship, I would have considered his decision under this head unimpeachable. However, given the Judge’s finding rested substantially on “the actual length of the parties’ de facto relationship”, I consider it appropriate to make a small adjustment.
[51] In all the circumstances I consider the appropriate revision to be a 75/25 split in favour of Mr Miller.
Post-separation contributions
[52] On appeal Mr Miller seeks to challenge Judge Walsh’s ‘findings under s 18B in respect of Mr Miller’s post-separation contributions for the period March 2011– July 2012. In particular, Mr Miller seeks contributions in respect of mortgage principal, mortgage interest, rates and insurance premiums. However, at the time Mr Miller also had exclusive possession of the property he and Ms Carey purchased together and was not paying any occupation rent for Ms Carey’s benefit.
[53] I parenthesise the assertion of ‘findings’ by Judge Walsh as he in fact made no findings on the point because Mr Miller it seems did not pursue it in argument before the Family Court. That was his election and I presently do not have the benefit of Judge Walsh’s reasoning on point. In this light, in my view it was well within Judge Walsh’s discretion to decline to make an award. I would also at least question (but not decide) whether that issue is truly within the scope of this appeal given what appears to be a total failure to submit on it at first instance.
[54] In these circumstances, and in light of the matters noted at [52] above and of the other conclusions I have reached here, I am not minded to re-visit an issue in which Mr Miller expressed little interest at first instance. Mr Miller’s appeal on this aspect is dismissed.
Costs
[55] In light of the findings I have made here, I am not inclined, despite
Mr Miller’s appeal against the Family Court costs decision, to interfere with the
costs order made there. Indeed, on both parties’ submissions (in relation to various
Calderbank offers) there is no basis to interfere with Judge Walsh’s costs decision.
[56] Mr Miller has been partly successful and partly unsuccessful on this substantive appeal and the costs appeal. In my view costs on these appeals should simply lie where they fall. There will be no costs order on these appeals.
Suppression
[57] By virtue of s 35A of the Act, any report of this proceeding must comply with ss 11B–11D of the Family Courts Act 1980. In essence, those sections prohibit publication of “a report of proceedings in a Family Court that includes identifying information where” the proceeding tangentially concerns a person under the age of
18 years or a vulnerable person as defined in s 11D. Identifying particulars are defined by s 11C to mean “any name or particulars likely to lead to the identification” of persons who are party to proceedings, an applicant in proceedings, a person who is the subject to a proceeding, or any person related, or associated with, one of the categories aforementioned.
[58] In my view, there seems to have developed a practice in the Family Court of erring on the side of caution and anonymising judgments where arguably there is no cause to do so. In the present case for example, there is no intimation that there is any basis for the operation of s 11B(3) as this proceeding does not involve any person under the age of 18 years, or a vulnerable person as defined by s 11D. It is arguable therefore that there was no need to publish the judgment anonymised with initials instead of names, as has occurred in this case.
[59] This practice (and confusion which arises from repeatedly using initials for anonymisation) as I understand it has caused real issues with the reporting and citing of judgments. It has the potential to create difficulties for students, practitioners of the law, and the wider community. The very issue was referred to by Priestley J in
Brown v Argyll, where he observed:93
93 Brown v Argyll (2006) 25 FRNZ 383 (HC).
[3] Reporting of cases which provide guidance or are precedents to inform the legal profession and courts is a vital part of an efficient and comprehensive legal system. Family Law is no exception to this requirement. Indeed, the last 25 years has seen an explosion in the jurisdiction of the Family Court and an increase in the reach of Family Law on the lives of all New Zealanders. Significant cases need to be reported. Their names need to be memorable. There is absolutely nothing memorable about clusters of initials. Indeed reporting or searching on-line for cases with identical or similar initials which exemplify totally different aspects of the law leads only to confusion.
[60] That case involved children, which therefore invokes the statutory suppression afforded by s 11B Family Courts Act 1980. However, even in that case, where anonymisation was essential, Priestley J suggested:
[9] So far as publication of this judgment itself is concerned, it is likely to be useful and provide some guidance, first in the area of relocation of children, and secondly in the area of the interplay of various sections of the Act. There is absolutely no likelihood of the case being reported other than in law reports. To comply with the relevant legislation, but to ensure that the case is not reported under yet another set of meaningless initials I shall, in the publication copy of this judgment, and appropriately in its body, refer to the appellant mother as “Brown”, to the respondent father as “Argyll”, to their daughter, now aged seven as “Mary” and the small Bay of Plenty town where Ms Brown and Mr Argyll live as “Lavaton”.
[10] By this device my judgment can then be recorded as Brown v Argyll without any need for amendment to the body of the judgment or initialisation…
[61] This practice was approved by the Court of Appeal in White v Northumberland.94 The practice has, unfortunately, not become widespread amongst the Family Court, though it has found favour among higher courts.95 However, even more fundamentally, Courts should be careful to anonymise where this is required but, equally, they should also be careful to avoid unnecessary anonymisation in appropriate cases and all the difficulties that brings. Where anonymisation is
essential, in my view, it is also preferable if the approach in Brown v Argyll is
followed.
94 White v Northumberland (2006) 26 FRNZ 189 (CA) at [63]–[64].
95 See for example Brown v Waitemata District Health Board [2014] NZCA 588 at [14]; Shaw v Brown [2014] NZHC 2843 at [73]; Jay v Jay [2014] NZCA 445 at [127]; Smith v Brown [2014] NZCA 226 at Order E; Porter v Chief Executive, Ministry of Social Development [2014] NZCA
157 at [18]; Cumberland v Accident Compensation Corporation [2013] NZCA 590, [2014] 2
NZLR 373 at [71]; North v North [2013] NZHC 2074 at [29]; Anderson v Anderson [2013] NZHC 1767 at [97].
[62] In essence that approach still permits the intituling and body of the judgment to be anonymised by replacing actual names. However, the Court could perhaps include a paragraph at the end of the judgment stating, something to the effect that “this judgment may be cited as Party A v Party B”. I note that it may also be helpful to include a banner at the top of a judgment, or in a set of orders before the first paragraph, recording the permissible citation so as to ensure it is easily seen by librarians, students, lawyers and judges.
Outcome
[63] For all the reasons I have outlined above, I allow the appeal. I make the following findings:
(a) The relationship between Mr Miller and Ms Carey is a de facto relationship of short duration pursuant to s 2E of the Property (Relationships) Act 1976.
(b)Pursuant to s 14A of the Property (Relationships) Act 1976, I order that Ms Carey is to receive 30 per cent, and Mr Miller is to receive 70 per cent, of the ‘base’ relationship property valued at $462,611.33 (consisting of the proceeds of sale of the family home, Mr Miller’s current account with North Canterbury Rutbusters Ltd, Mr Miller’s bank account at separation, and Ms Carey’s bank account at separation). The shares are accordingly:
(i) Ms Carey is to receive $138,783.40 of this property. (ii) Mr Miller is to receive $323,827.93 of this property.
(c) Pursuant to s 9A of the Property (Relationships) Act 1976, I find that Ms Carey contributed to the increase in value of Mr Miller’s shares in North Canterbury Rutbusters Ltd. I order that Ms Carey is to receive
25 per cent, and Mr Miller is to receive 75 per cent, of the value of the increase, which is $115,113. The amounts in question are accordingly:
(i) Ms Carey is to receive $28,778.25 of the increase in value. (ii) Mr Miller is to receive $86,334.75 of the increase in value.
(d)I dismiss the appeal against Judge Walsh’s costs order in the substantive proceeding (CIV-2014-409-591). As Judge Walsh ordered, Mr Miller is to pay to Ms Carey the costs of that matter on a
2B basis, to be fixed by the Registrar.
(e) There is no order made as to costs on this appeal. Costs on the appeal before me are to lie where they fall.
[64] To the extent that this appeal has not affected the decision of the Family Court, that decision stands. Should the parties need clarification or assistance in implementing this judgment, they may seek the court’s assistance.
...................................................
Gendall J
Solicitors:
Corcoran French, Kaiapoi
Parry Field, Christchurch
ADDENDUM – 6 MAY 2015
[65] On 30 April 2015 I released this judgment to the parties only, inviting comment on the issue of suppression, which I have discussed above at [57] – [62]. Mr Miller responded that he had no objection to publication with no anonymisation. On the other hand, Ms Carey did object due to the judgment containing some sensitive information.
[66] In the circumstances, I am not satisfied that Ms Carey is a vulnerable person in terms of s 11D(i). However, the personal matters raised are discrete and there is little public interest or need for that information to be in the public domain. In the
circumstances, I consider the most appropriate course is for that information to simply be redacted, and I so order.
...................................................
Gendall J
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