MR JONES AND MS WHITE
[2024] NZHC 3410
•15 November 2024
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.
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2023-485-000114
[2024] NZHC 3410
UNDER The Property (Relationships) Act 1976 BETWEEN
MR JONES
Appellant
AND
MS WHITE
Respondent
Hearing: 14 October 2024 Counsel:
D D Vincent as Litigation Guardian for Appellant V A Nathan and J M Greally for Respondent
Judgment:
15 November 2024
JUDGMENT OF LA HOOD J
[1] Mr Jones appeals a decision of the Family Court finding that the parties were in a qualifying relationship under the Property (Relationships) Act 1976 and making orders for division of their relationship property and the sale of the family home.1
The relationship
[2] In the 1980s the parties were in a relationship. They had a daughter together shortly before separating in 1989. Mr Jones entered into a new relationship, and had a son with his new partner in December 1989.
1 Fictitious names have been used in this judgment to describe the appellant and the respondents;
[White] v [Jones] [2023] NZFC 1100 [Decision under appeal].
JONES v WHITE [2024] NZHC 3410 [15 November 2024]
[3] In 1995 Mr Jones purchased a property in Lower Hutt (the property). In the late 1990s Mr Jones and Ms White resumed their relationship. In 2000, Ms White and their daughter moved into the property. From 2002 onwards, Mr Jones’s son also moved into the property.
[4] The relationship involved several brief periods of separation whereby Ms White would leave the family home for periods no longer than three to four weeks. The relationship finally ended on 6 April 2018, when Ms White moved out of the family property.
Family Court proceedings
[5] Ms White sought orders for the division of their property in the Family Court. The hearing was set down for two days commencing 2 February 2023.
Ms Annette Gray acted as Mr Jones’s litigation guardian.2
[6] On 3 February 2023, Judge Montague gave the decision under appeal.3 The Judge ruled on three issues:
[8] Issue 1: Were the parties in a qualifying de facto relationship pursuant to s 2D of the Property (Relationships) Act 1976?
[9] Issue 2: If so, was it a relationship of long duration and equal sharing of relationship property applies pursuant to s 11 of the Act or one of three years or less and therefore one of short duration pursuant to s 14A of the Act, or alternatively, should it be treated as one of short duration pursuant to s 2E(1)(b)(ii) of the Act?
[10] Issue 3: If one of long duration were there extraordinary circumstances that make equal sharing repugnant to justice?
[7] Ms White argued that the parties were in a qualifying de facto relationship for the duration of their 18-year relationship.4 She sought 50 per cent of the relationship property including the property and compensation for the time Mr Jones remained in the property between separation and the hearing.5 Mr Jones disputed that the parties
2 Family Court Rules 2002, rr 8 and 90F. On 9 July 2020, Judge Black ruled that Mr Jones was incapacitated and appointed Annette Gray as his litigation guardian. Mr Jones later unsuccessfully challenged her appointment.
3 Decision under appeal, above n 1.
4 At [11].
5 At [12].
were living together as a couple. He said the relationship was one of short duration and he allowed Ms White to live in the property out of the goodness of his heart. He accepted that she was entitled to some of the property (unspecified quantum) but not 50 per cent.6
[8] The parties disputed whether the following property comprised relationship property:7
(a)The property.
(b)KiwiSaver balances. Ms White’s account had a value of $5,514.78 and Mr Jones’s account had $46,262.21.
(c)Vehicles. Ms White’s vehicle was valued at $5,000 and Mr Jones’s had an unknown value.
(d)Bank accounts. Ms White had $259 in an account to her name.
(e)Bonus bonds. Ms White had $420 of this property to her name.
[9]There were also liabilities at separation comprising:8
(a)A mortgage from ANZ bank of approximately $14,000 but this was discharged on 8 July 2021.
(b)An overdraft from ANZ of $4.99.
(c)Credit card debts of $3,000 in Ms White’s name and $13,952.71 in Mr Jones’s name.
(d)Debt to Work and Income New Zealand $1,925.48 in Ms White’s name.
6 At [13]–[15].
7 At [18].
8 At [19].
[10] In terms of issue one, the Judge concluded that the parties were in a qualifying de facto relationship.9 The evidence established that they shared the property as a common residence and lived there as a couple; there was a sexual relationship between the parties; the parties financially supported each other; neither party purchased or acquired property of particular value; the parties were mutually committed to a shared life and had planned to marry; both parties cared for the children; the reputation and public aspects of the relationship confirmed the relationship was in the nature of marriage.
[11] Regarding issue two, the Judge concluded that the parties were in a qualifying de facto relationship for 18 years. That relationship started in 2000 when Ms White moved into the property and ended when she moved out on 6 April 2018.10 The Judge considered there was no basis to treat the relationship as one of short duration.11
[12] On issue three, the Judge concluded that Mr Jones had not proved the existence of extraordinary circumstances that would make equal sharing repugnant to justice.12 Pursuant to s 11, the Judge found that Ms White is entitled to an equal share of the property, chattels, and other relationship property.13
The appeal
[13] On 8 March 2023 Mr Jones filed a notice of appeal. Counsel to assist the Court was appointed on the direction of McQueen J.14 Mr Vincent was appointed as litigation guardian for Mr Jones.15 The appeal was heard on 14 October 2024. Mr Jones did not appear, however. I proceeded with the hearing and reserved my decision. Following the hearing Mr Jones filed memoranda dated 15 October 2024
9 At [59].
10 At [60] and [61].
11 At [62]–[64].
12 At [67].
13 At [68(e)].
14 High Court Rules 2016, r 10.22; [Jones] v [White] CIV-2023-485-114, 23 May 2023 (Minute of McQueen J).
15 High Court Rules, r 4.29. [Jones] v [White] CIV-2023-485-114, 28 May 2024 (Minute of Robinson J). Robinson J was satisfied that Mr Jones was an incapacitated person who would be unable to give sufficient instruction to pursue or compromise proceedings.
and 11 November 2024 appearing to further challenge Mr Vincent’s appointment as a litigation guardian, but this is not a matter I am able to revisit.16
The grounds of appeal
[14] Mr Vincent, as litigation guardian for the appellant, submits the main issues on appeal are the findings that the parties were in a qualifying relationship and procedural concerns about the manner in which the Family Court proceedings were conducted.
[15] The appellant’s position is that the parties should keep the assets they retained following separation because either they were not in a qualifying relationship, or extraordinary circumstances justify a non-equal division, or they contracted out of the Property (Relationships) Act.
[16] The appellant says there was an agreement that the respondent could reside at the property and in return she would not make a claim against the property. This raises whether there was an oral contracting out agreement to which the Court ought to give effect.17
Qualifying relationship
[17] It is contended that three factors indicate that the relationship was not qualifying:
(a)First, the nature and extent of the common residence in light of the alleged oral agreement between the parties. The appellant says the respondent was living at the property as a boarder or flatmate. The maintenance of separate finances and the property remaining in the appellant’s name show the contracting out agreement was given effect to. The courts have upheld oral contracting out agreements when there has been some part performance of such an agreement and that agreement has sufficient certainty.18
16 [Jones] v [White] CIV-2023-485-114, 18 October 2024 (Minute of Boldt J).
17 Property (Relationships) Act 1976, s 21H.
18 McGill v Crozier (2001) 21 FLRNZ 157 (FC); and Norris v Bush [2013] NZFC 5750.
(b)Second, the significant financial separation between the parties and their financial independence. The appellant submits that this factor also demonstrates a lack of commitment to sharing a life together and a lack of maintaining a common residence when the appellant paid all the outgoings for the property.
(c)Third, whether there is enough evidence to demonstrate a mutual commitment to a shared life given the dysfunction in their relationship (Mr Jones became too unwell to work from 2013 following a mental breakdown and Ms White is alleged to have abused alcohol).
Extraordinary circumstances making equal sharing repugnant to justice
[18] The appellant submits that there are extraordinary circumstances that would make equal sharing repugnant to justice comprising:
(a)The gross disparity of financial contributions during the relationship:19 Ms White’s net capital is around $10,000 whereas Mr Jones’s capital contribution was the property (valued in 2019 as between $648,000 and
$761,000) and KiwiSaver of $46,262.21. Mr Jones further says he used
$40,000 from his KiwiSaver and a further $60,000 to contribute to the relationship.
(b)The dysfunctional nature of the relationship. When coupled with a gross disparity of financial contributions, dysfunction and alcoholism within a relationship can comprise extraordinary circumstances.20
(c)The agreement to keep finances separate and for the respondent not to claim against the property.
19 Martin v Martin [1979] 1 NZLR 97 (CA) at [112].
20 Holland v Dollard [2020] NZFC 2051.
Procedural issues
[19]In terms of procedural issues, the appellant complains that:
(a)He was not able to act for himself because the Court declined his application to dismiss Ms Gray as his litigation guardian. Mr Vincent notes that this objection cannot be taken much further because this Court has also appointed a litigation guardian for Mr Jones.
(b)The witnesses directed to give oral evidence in the hearing provided hearsay evidence. However, Mr Vincent accepts this was cured by those witnesses giving evidence and being cross-examined.
(c)Unsworn affidavits were provided to the Court, although Mr Vincent concedes that the Court was entitled to receive such evidence.21
(d)Mr Jones’s children did not give evidence. However, Mr Vincent observes that Mr Jones was given the opportunity to obtain statements from the children for this appeal, but he did not take the opportunity.
(e)The Court continuing in his absence. As Mr Vincent notes, the Court adjourned to allow Ms Gray to speak to the appellant, but he chose not to return to the courtroom. The Court took his evidence into account, with appropriate weight given the lack of cross-examination, and a litigation guardian represented his interests at all times.
[20] Mr Vincent submits that if the Court concludes the grounds of appeal other than procedural irregularities are made out, then division of property should be directed so that each party retains the property in their possession. If the Court considers there are procedural irregularities that impacted Mr Jones’s rights, Mr Vincent submits the matter should be referred back to the Family Court for rehearing.
21 Family Court Act 1980, s 12A.
Approach on appeal
[21] The appeal is governed by the approach articulated by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.22 The appellate court must be persuaded that the decision under appeal is wrong,23 but must make its own assessment on the merits of the appeal.24 It is a matter for the appellate court to decide how much weight it places on the first instance decision,25 including whether deference is required due to any advantages the decision-maker had, such as hearing oral evidence,26 or subject matter expertise.27
[22]I note the following comment of Mander J in Bowden v Bowden:28
[20] In Venter v Trenberth, Woolford J observed that a Family Court Judge is well placed to consider the factual question of whether extraordinary circumstances exist and to make the value judgment of whether extraordinary circumstances render equal sharing repugnant to justice. I agree this is the “bread and butter” of the Family Court’s task in this type of case, and it having heard from a number of witnesses before determining both the financial and non-financial contributions made by the parties to a relationship, it is unlikely the appeal Court will be better placed to make such findings of fact.
[23] In this case the Family Court Judge had the advantage of hearing oral evidence in the form of cross-examination of the respondent and her witnesses. This gave the Judge the benefit of seeing the oral evidence progressively unfold before her in the context of the hearing as a whole,29 and to observe the nuances in the witness’s evidence. The impression a Judge is able to gain from hearing and seeing the oral evidence is not necessarily or usually apparent from the “cold typeface” of the record.30 An appellate court merely has the transcript, being “the dead body of the evidence, without its spirit; which is supplied, when given open and orally, by the ear
22 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 [Austin, Nichols].
23 At [5] and [13].
24 At [3] and [5].
25 At [3] and [5].
26 At [5] and [13].
27 At [5].
28 Bowden v Bowden [2016] NZHC 1201, [2017] NZFLR 56 at [20] citing Venter v Trenberth [2015] NZHC 545, [2015] NZFLR 571.
29 See Green v Green [2015] NZCA 486 at [31].
30 Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 199, followed in Austin Nichols, above n 22, at [13] and recently restated in Green v Green, above n 29, at [31].
and eye of those who receive it”.31 In the case of oral judgments such as this, imperfection of expression is practically unavoidable.32 For all of these reasons, I must exercise caution before departing from the factual findings of the Family Court.
Relevant law
[24] To determine whether two persons live together as a de facto couple, s 2D(2) of the Property (Relationships) Act requires the Court to consider all the circumstances of the relationship, including (but not limited to) any of the following that matters are relevant:
(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.
[25] The weight to be given to any of those factors individually or in combination is at the Court’s discretion applying a commonsense objective judgement to the particular case.33 The assessment is qualitative, not quantitative.34
[26] Relationships of short duration (less than three years) are provided for under s 2E(1) of the Act. The Court can treat relationships of longer than three years as one of “short duration” if it is just to do so under s 2E(1)(a)(ii).
31 R v Bertrand (1867) LR 1 PC 520 at 535 cited in R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [73].
32 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]–[32].
33 Scragg v Scott [2006] NZFLR 1076, (2006) 25 FRNZ 942 (HC) at [37].
34 Miller v Carey [2015] NZHC 887, (2015) 30 FRNZ 675.
[27] An agreement contracting out of the Act is void unless it complies with the requirements of s 21F, which includes that it must be in writing and witnessed by a lawyer who certifies that they have explained the effect and implications of the agreement. However, pursuant to s 21H, the Court may give effect to an agreement that does not comply with s 21F if it is “satisfied that the non-compliance has not materially prejudiced the interests of any party to the agreement”.
[28] Section 11 provides that division of relationship property is presumed to be on the basis of equal sharing when a relationship ends. However, s 13 provides an exception to that presumption if the Court considers that there are extraordinary circumstances that would make equal sharing repugnant to justice. The threshold for establishing that exception is high.35
Assessment of arguments and decision
Qualifying relationship
[29] In determining whether a de facto relationship exists “the test must inevitably be evaluative, with the Judge having to weigh up as best he or she can all of the factors
– not only those contained in s 2D but also any others there may be – and applying a commonsense objective judgement to the particular case.”36
[30] After hearing oral evidence from Ms White, two of her sisters, a friend and a previous employer, Judge Montague found “the evidence clearly establishes a de facto relationship existed between the parties”,37 for the reasons set out at [10] above, namely there was a sexual relationship; the parties financially supported each other; neither party purchased or acquired property of particular value; the parties were mutually committed to a shared life and had planned to marry; both parties cared for the children; the reputation and public aspects of the relationship confirmed the relationship was in the nature of marriage.
35 Martin v Martin [1979] 1 NZLR 97 (CA).
36 Scragg v Scott, above n 33, at [37].
37 Decision under appeal, above n 1, at [59].
[31] Judge Montague rejected the contention that Ms White was an alcoholic and did not effectively perform household duties.38
[32] Given these factual findings, made with the benefit of oral evidence from Ms White and family and friends who had witnessed the relationship, I accept the respondent’s submission that this was not a finely balanced case. I consider Judge Montague was clearly correct to find that a qualifying de facto relationship existed.
Oral contracting out agreement
[33] The appellant bears the onus of proving the existence of an oral contracting out agreement. Given the absence of any written record, there must be proof of the existence of an oral agreement and sufficient certainty about what was actually agreed.39
[34] The appellant relies on “part performance” through omissions such as omitting to add the respondent’s name to the title of the property, and the parties omitting to combine their finances (they had separate bank accounts and credit cards), as well as the appellant paying the outgoings on the property. I accept the respondent’s submission that this evidence is an insufficient basis to hold that Judge Montague’s decision was wrong. A couple failing to update their house title or combine their finances cannot of itself prove the existence of an oral contracting out agreement. The Judge had the benefit of hearing Ms White’s oral evidence and rejected the contention that Ms White was only living in the property as a boarder and only because she has “promised not to make a claim against the home”.40 The Judge found that “the evidence did not establish that Ms White’s behaviour or conduct indicated, at any point in the relationship, that she considered the property to be Mr Jones’s separate property.”41 I consider there was no error in this conclusion.
38 At [57].
39 McGill v Crozier, above n 18.
40 Decision under appeal, above n 1, at [50].
41 At [66(g)].
Extraordinary circumstances making equal sharing repugnant to justice
[35] I accept the respondent’s submission that the Judge correctly found the parties mutually supported each other financially and through non-monetary contributions.42 Ms White paid for groceries and household items, arranged meals, performed household chores, and was the primary carer for the children. It is a principle of the Act that all forms of contribution to the relationship are treated as equal.43 There is nothing extraordinary about bringing a family home into a relationship and that in itself cannot meet the extraordinary circumstances test.44
[36] I consider there was no error in the Judge’s conclusion that the “evidence did not establish that Ms White is an alcoholic”.45 The Judge had the benefit of assessing the oral evidence of Ms White and her witnesses about her drinking habits and contributions to the relationship. Moreover, as the Judge noted, Mr Jones’s position is contradicted by a medical report provided by Mr Jones in 2014 that “refers to Mr Jones reporting a good and supportive relationship with his wife Ms White, who was described as very positive and reminding him to think positively. He was also reported to be very close to her.”46
[37] I therefore find no error in the Judge’s conclusion that there are no extraordinary circumstances making equal sharing repugnant to justice.
Procedural issues
[38] Mr Jones’s procedural complaints are unsustainable. The essence of his complaints relate to the appointment of a litigation guardian. Given Robinson J’s decision to appoint a litigation guardian in this Court,47 I consider there is no basis for me to allow the appeal on this ground.
42 At [52] and [66(a)].
43 Section 1N(b).
44 De Malmanche v De Malmanche [2002] 2 NZLR 838, [2002] NZFLR 579 (HC) at [133].
45 At [57(b)(i)]. My upholding of the Judge’s finding that the relationship was not dysfunctional due to Ms White’s alcoholism disposes of Mr Vincent’s point that even a relationship of 18 years’ duration could be held to be of “short duration” pursuant to s 2E(1)(a)(ii) if the dysfunction was so extreme that it would be just to do so (citing Martin v Martin, above n 39, at 105). However, Mr Vincent advised that he had been unable to locate a case where a relationship had been held to be of short duration that had lasted beyond a period of about four and a half years.
46 At [54(b)(viii)].
47 Minute of Robinson J, above n 15.
[39] Mr Jones’s complaint about the receipt of hearsay evidence misunderstands the law. Once the witnesses were called to give evidence, their statements were not hearsay.48 The Court’s receipt of Mr Jones’s unsworn statements was permissible,49 the material was relevant and was received in this form due to Mr Jones’s lack of engagement with the case. Mr Jones has declined to take up the opportunity to obtain evidence from his children on appeal. And the Judge took all reasonable steps to ensure the process was fair to Mr Jones despite his decision to leave the Family Court hearing.
Conclusion
[40] Judge Montague undertook a careful analysis of all relevant matters in reaching her conclusions. For the reasons set out above, Mr Jones has failed to persuade me that the Judge made any errors of fact or law, or that there was any procedural impropriety. I therefore dismiss the appeal.
Costs
[41] If costs cannot be agreed, the parties should file memoranda (limited to five pages) within 10 working days of receipt of this judgment, and reply memoranda (limited to two pages) five working days thereafter. Costs will be determined on the papers.
La Hood J
Solicitors:
Cullinane Steele Limited, Levin for Appellant Nathan Family Law, Lower Hutt for Respondent
48 Evidence Act 2006, s 4 definition of “hearsay statement”.
49 Family Court Act 1980, s 12A.
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