Rennie v Baker
[2021] NZHC 3245
•30 November 2021
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
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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2021-419-25
[2021] NZHC 3245
IN THE MATTER of the Property (Relationships) Act 1976 BETWEEN
RENNIE
Appellant
AND
BAKER
Respondent
Hearing: 8 July 2021 Appearances:
S J Zindel for the Appellant M J Roots for the Respondent
Judgment:
30 November 2021
JUDGMENT OF GAULT J
This judgment was delivered by me on 30 November 2021 at 5:00 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Mr S J Zindel, Solicitor, Nelson Mr M J Roots, Solicitor, Hamilton
RENNIE v BAKER [2021] NZHC 3245 [30 November 2021]
[1] Ms Rennie appeals from the decision of Judge D A Blair in the Family Court at Hamilton dated 22 January 2021,1 in relationship property proceedings she brought against Mr Baker. Ms Rennie claimed that the parties had a qualifying de facto relationship between 2012 and 2016 and that there are relationship property assets to be divided. Mr Baker acknowledged a relationship but said it was not a qualifying de facto relationship.
Factual background
[2]The parties met on an online dating website between April and June 2012.
[3] At that time, Ms Rennie was aged 45, lived in Auckland and had weekend and other contact with her four school-aged children. She was in the process of resolving relationship property issues with her ex-partner. She was on a sickness benefit.
[4] Mr Baker was aged 50, lived in Raglan and worked for an engineering consultancy in Hamilton. He had a three year old daughter. She and her mother lived in the same home as Mr Baker in a house-sharing and co-parenting arrangement.
[5] The parties began spending time together, before Ms Rennie went on holiday to Vietnam in June 2012. They had contact while she was away, and saw a lot of each other following her return. They met when they could, including staying at hotels and a house-sitting property, and had a holiday together in Northland in August 2012. During this period, Mr Baker was already starting to talk of a future together.
[6] In September 2012 Ms Rennie rented a home in Hillsborough in Auckland, which she said was where they could live together with their children once Mr Baker sold his house in January 2013.
[7] They arranged for Ms Rennie’s children to meet Mr Baker on 23 September 2012 at Waingaro hot pools. Ms Rennie had an accident there. In that context, she said she disclosed to WINZ that she was in a relationship with Mr Baker and that they
1 Rennie v Baker [2021] NZFC 588. The citation of the Family Court judgment has been anonymised as has this version of my judgment for publication purposes.
planned to move in together after he sold his house in January 2013, and she was advised to inform WINZ immediately when Mr Baker moved in with her.
[8] The parties continued to see each other during the latter part of 2012, with Mr Baker sometimes staying at Ms Rennie’s house in Auckland. The extent is disputed, with Ms Rennie saying Mr Baker lived with her three to four nights a week and Mr Baker saying he had work in Auckland, his stays were less regular and he was not living there.
[9] During this period, the parties were saying they loved each other and there was talk of a future together. Mr Baker’s Gmail of 7 November 2012 referred to “a strong love bond will see us grow old together”. Ms Rennie said that after an argument in December 2012 Mr Baker reassured her that he would sell his house and move to Auckland. They were together over Christmas 2012 and New Year.
[10] From January 2013 Mr Baker spent eight weeks working in Christchurch. He asked if he could put Ms Rennie down as next of kin and emergency contact and put ‘partner’ in his relationship status. He subsequently claimed expenses for Ms Rennie to travel to Christchurch as his partner.
[11] In February 2013 Mr Baker put his Raglan house on the market. Again, during this period the extent of time Mr Baker spent staying with Ms Rennie in Auckland is disputed.
[12] In March 2013 Ms Rennie assumed primary care of her teenage daughter while her three younger children remained with their father. Ms Rennie’s benefit increased, and she said WINZ required her to advise immediately once Mr Baker sold his house in Raglan and moved in with her in Auckland.
[13] In April 2013 Mr Baker took a new job in Hamilton. Ms Rennie said they acknowledged his move to Auckland would be delayed. She had access to his company car given her designation as his partner.
[14]In April 2013 Mr Baker said in a message to Ms Rennie:
I will accept your children like my own, I will support and bring the best I can to compliment their growth, to offer my experiences to provide some guidance, advice and some measure of wisdom as an adult to their growth, the responsibility I do not take lightly…
[15] In May 2013 Mr Baker secured a contract to sell his Raglan house. He indicated that he was prepared to move to Auckland to make the relationship work. He told her of his wedding dreams.
[16] That month Mr Baker went to Wales to see his mother. Also, his daughter and her mother moved out of his Raglan house. His contact with his daughter became more structured, limited to every second weekend.
[17] In August 2013 Mr Baker settled the sale of his Raglan house and rented a dwelling on a friend’s property in Raglan.
[18] In September 2013 Mr Baker went on a dive trip to Fiji. Ms Rennie could not go because of her injury. Mr Baker corresponded with her saying there was something in his Will for her (which he accepted in evidence was not true).
[19] The parties had problems in November/December 2013. But on 1 December 2013 Mr Baker wrote:
… if we were to have a house, it would be a fully shared house and a house for us all [you] me and our children, when we die we can pass this on to our children your’s and mine…
[20] They spent Christmas 2013 together. Ms Rennie referred to their gifts of pounamu, indicating commitment to each other. Mr Baker described the pounamu ring he bought her as a costume ring. At the new year Prana festival, Ms Rennie said Mr Baker proposed and she accepted. Mr Baker said there was no proposal. Ms Rennie said in January 2014 Mr Baker wanted to buy her an engagement ring, but the pounamu ring was sufficient.
[21] In late January 2014 Ms Rennie signed a tenancy application to move to Epsom. She named Mr Baker as her partner although he did not sign. She says he was also a tenant and the place was near his Auckland office. He says she was moving for school zoning and he was merely her referee. Ms Rennie says she explained to
WINZ that Mr Baker was awaiting a transfer to Auckland and was told to inform WINZ once he moved in permanently.
[22] During this period also, Ms Rennie says Mr Baker stayed at least three to four nights a week. He disputes that although one text message on 6 March 2014 describes him as having done so and having made every effort to be with her as often as he could given the distance.
[23] In April 2014 Mr Baker suggested to Ms Rennie he may be able to move to Auckland for work. But that same month he also signed a new tenancy in Raglan. He moved in there in May 2014. Ms Rennie said the agent was told about the intention for Ms Rennie and her daughter to move to Raglan in December 2014.
[24] In June 2014 Mr Baker went to Wales with his daughter to see his mother. Ms Rennie had access to his company car and petrol card.
[25] In September 2014 Ms Rennie arranged for her daughter to be accepted into boarding school. The funding form referred to Ms Rennie moving to Raglan but without reference to Mr Baker. Mr Baker subsequently paid the deposit.
[26] In October 2014 Mr Baker agreed to purchase a property (0.92 hectares of bare land) at [withheld] (near Raglan). The sale and purchase agreement was dated 3 October 2014 and the agreement was unconditional by 8 October 2014. Settlement occurred on 21 October 2014. Mr Baker said the decision to purchase was entirely his whereas Ms Rennie referred to the prospect of land being purchased in Raglan for the parties. She said she had refused to have her name on the title until she could contribute some money towards the purchase (from money her brother owed her). Mr Baker sent Ms Rennie house plans. The parties also disagree about the extent of Ms Rennie’s work clearing the overgrown property.
[27] Also in October 2014 Ms Rennie applied for a position in Auckland as an events coordinator.
[28] By November 2014 Mr Baker’s personal mobile number had been joined to Ms Rennie’s plan.
[29] In December 2014 Ms Rennie moved to Raglan to live at Mr Baker’s place (with her daughter when not at boarding school). Ms Rennie said she informed WINZ. Her benefit was reduced. The parties argued soon after, following which Mr Baker reiterated his commitment to the relationship.
[30] In February 2015 a tender invitation was prepared, in the names of both parties, to build a house at [withheld]. Mr Baker also signed an agreement to hire a trumpet for one of Ms Rennie’s sons, and paid the fee. Ms Rennie said Mr Baker also gave her an EFTPOS card linked to his account.
[31] That month Mr Baker’s mother died in Wales, and the parties travelled there together to attend the funeral. Soon after returning to New Zealand and the house in Raglan, the parties had a significant argument. Eventually, Ms Rennie left. Mr Baker required the keys to the house. On 10 March 2015, Ms Rennie rented a property in the Kaipara Harbour region. Ms Rennie says she advised WINZ. A text from Mr Baker on 14 March 2015 said the relationship was over. He advised the locks had been changed.
[32] In early April 2015 Mr Baker apologised to Ms Rennie in a message, told her he was sorry to the children too and that he loved them like his own. Around the same time, Mr Baker called his insurer to authorise his partner Ms Rennie to act on an insurance claim. A few days later Mr Baker said in a message to Ms Rennie that he would “keep a candle light” for her and loved her. He referred to a picture on his Facebook page with her in his arms.
[33] The parties separately attended a Prana festival in April 2015 and a witness suggested Mr Baker was stalking Ms Rennie. Subsequently, he found her Kaipara address and turned up uninvited. He indicated in correspondence around this time that he hoped to reconcile. An email (referring to [withheld]) said “hopefully it will be our home”. He also said:
I will ensure your security is provided by putting you on the deeds as equal, never again will you ever feel like you will be told to leave. I am ashamed of myself [withheld] for doing that.
[34] A May 2015 pre-building agreement was in his name alone, but a June 2015 kitchen plan included both names and Ms Rennie was involved in a meeting. Over that winter, she went to Raglan at weekends and assisted with some clearing work at the property.
[35] On 30 June 2015 Ms Rennie received the money her brother owed her. She said there was discussion about using it to reduce the mortgage but Mr Baker suggested she purchase a 4WD with a tow bar to use on the land, and she used the remainder towards general living expenses and an amount owed to her daughter.
[36] In August 2015 the parties went on holiday to Vanuatu. That same month Mr Baker described a barn concept plan as “our project”. There were continued discussions about building on the property.
[37] Correspondence in September 2015 indicated the parties were arguing about the relationship. This included a statement by Mr Baker that “living on pa road [Epsom] was not good for you or us, and we made a plan to be together and develop the land”.
[38] In October 2015 the parties had further significant arguments. Mr Baker said in one message: “Will give you a share of any profits when sold”. Arguments continued in November 2015. On 15 November 2015 Mr Baker said: “I will be selling the land, as I said it was for us”. On 19 November 2015 he said: “the intention as I said was for us to share everything, names on deeds the lot, sharing what is to come, what ws made by us what we do together”. Reconciliatory discussions occurred again. The parties corresponded about whether to go ahead with the project together. They handwrote their short and long term goals.
[39] Mr Baker alleges that Ms Rennie assaulted him at the Raglan house on 6 December 2015 and then left. There was further reconciliation and further argument over the December/January period. Mr Baker continued to send through house plans.
He assisted Ms Rennie to move her belongings back from Kaipara to Raglan. They were together over the holiday period. Ms Rennie’s final rental payment at Kaipara was dated 15 January 2016. They lived under the same roof as at January 2016. Mr Baker opened a joint bank account. Ms Rennie said she had an appointment to end her WINZ benefit. But financial arguments followed and in February 2016 Ms Rennie moved to her sister’s house. In late February 2016 the parties attended counselling.
[40] Ms Rennie returned to Raglan at times over the next months, but issues continued. There was a family harm incident on 9 March 2016 with each claiming to be the victim. In June 2016 they made a trip to Fiji together. Ms Rennie says she ended the relationship on 11 August 2016 after she confirmed that Mr Baker was having an online affair.
[41] Ms Rennie subsequently alleged that Mr Baker had drugged and raped her on 5 August 2016. She had a police interview in February 2017. Police did not pursue any charge, having determined that no offence was disclosed. Ms Rennie maintained the allegation in evidence in the Family Court.
Family Court decision
[42] After an eight day hearing, the Judge concluded in a detailed reserved judgment that the parties lived together as a couple for two short periods, from late October 2014 to the end of February 2015, and from December 2015 to February 2016. Thus, the parties were in two de facto relationships of short duration.
[43] The Judge also concluded that the principal asset in dispute, the property at [withheld], was Mr Baker’s separate property as he acquired it before the de facto relationship began in October 2014 and not in contemplation of the de facto relationship.
[44] The Judge also concluded that Ms Rennie had not made out grounds for division of any other property under s 14A of the Property (Relationships) Act 1976 (the Act) applying to de facto relationships of short duration – failure to make an order would not result in serious injustice.
Issues
[45]The issues for determination are:
(a)whether and for how long the parties were in a de facto relationship;
(b)whether there was a child of the de facto relationship;
(c)whether Ms Rennie made a substantial contribution to the de facto relationship;
(d)whether failure to make an order for the division of relationship property would result in serious injustice; and
(e)whether the property at [withheld] was relationship property.
Approach on appeal
[46] This Court’s approach on a general appeal is settled following the Supreme Court’s decisions in Austin, Nichols & Co Inc v Stichting Lodestar and Kacem v Bashir.2 The appellate court has the responsibility of considering the merits of the case afresh.3 The appellate court must be persuaded that the decision is wrong,4 but the weight it gives to the reasoning of the court below is a matter for the appellate court’s assessment.5 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.6
2 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] and [16]; and Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31]-[32].
3 Kacem v Bashir at [31].
4 Austin, Nichols at [13].
5 Kacem v Bashir at [31]. No deference is required beyond the customary caution appropriate when seeing the witnesses provides an advantage because credibility is important: see Austin, Nichols at [13]; and Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [27]-[32].
6 Austin, Nichols at [16].
[47] To the extent that the Judge’s decision involved the exercise of discretion, the approach of an appellate court is that an appellant must show that the Judge acted on a wrong principle, failed to take into account some relevant matter or took account of some irrelevant matter or was plainly wrong.7
Whether and for how long the parties were in a de facto relationship
Legal principles
[48] The applicable legal principles are not in dispute. Section 2D of the Act sets out the approach to determining whether there is a de facto relationship:
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.
7 May v May (1982) 1 NZFLR 165 (CA) at 169-170. See also Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
(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)one of the de facto partners dies.
[49]Section 2E of the Act provides for relationships of short duration:
2E Meaning of relationship of short duration
(1)In this Act, relationship of short duration means,—
(a)in relation to a marriage or civil union, a marriage or civil union in which the spouses or partners have lived together in the marriage or civil union—
(i)for a period of less than 3 years; or
(ii)for a period of 3 years or longer, if the court, having regard to all the circumstances of the marriage or civil union, considers it just to treat the marriage or civil union as a relationship of short duration:
(ab) [Repealed]
(b)in relation to a de facto relationship, a de facto relationship in which the de facto partners have lived together as de facto partners—
(i)for a period of less than 3 years; or
(ii)for a period of 3 years or longer, if the court, having regard to all the circumstances of the de facto relationship, considers it just to treat the de facto relationship as a relationship of short duration.
(2)For the purposes of paragraphs (a)(i) and (b)(i) of subsection (1), in computing the period for which the parties have lived together as a married couple, civil union partners, or as de facto partners, the court may exclude a period of resumed cohabitation that has the motive of reconciliation and is no longer than 3 months.
Analysis
[50] Applying these provisions, it is common ground that the issue is whether and for how long the parties lived together as a couple having regard to all the circumstances including the relevant matters in s 2D(2).
[51] Mr Zindel, for Ms Rennie, submitted the Judge took an unduly narrow view of the relationship and overly focused on common residence as a factor. He submitted the parties had a passionate relationship, shared many things and spent considerable time together albeit each had the tug of children. He characterised the relationship as intense and committed even though the parties did not continually live under the same roof, and submitted that, but for that duty (to the children), the parties would have been under the same roof more. He also submitted Ms Rennie made the ultimate commitment leaving her boys to move to Raglan.
[52] Mr Zindel submitted that Mr Baker’s rhetoric should not be dismissed – it was real and deep – and the Judge was wrong to minimise it. He noted the relationship had complexity with ups and downs. By analogy with s 40 in the context of separation, he submitted that three months apart should not affect the computation of time together. Thus, Mr Zindel submitted the parties began a de facto relationship in June/July 2012 and it continued until August 2016. He submitted the only real separation was in March 2015, not February to May 2015 as the Judge said.
[53] Mr Roots, for Mr Baker, submitted the parties had an on and off relationship which never acquired the degree of stability to be a qualifying de facto relationship. He acknowledged Mr Baker’s expressions of love but also pointed to his references to the relationship conflict and submitted that the hopes never crystallised.
[54] As a preliminary observation, although Mr Zindel submitted that Mr Baker seemed to minimise everything and his evidence lacked credibility, Mr Zindel’s submissions emphasised the Judge’s overall assessment and the weight given to lack of common residence over the commitment which Mr Zindel submitted was evident. In doing so, Mr Zindel was no doubt conscious of the difficulty inherent in challenging credibility findings. The Judge made a number of factual findings that were contrary to Ms Rennie’s evidence, and a finding that she had a tendency during the course of
the relationship to exaggerate matters to meet her own needs. At least some of these amounted to credibility findings against Ms Rennie, which warrant a degree of deference on appeal since seeing the witnesses provides an advantage when credibility is important.
[55] Bearing in mind that the primary issue is whether the parties lived together as a couple,8 I consider the following s 2D factors are relevant.
(a)Duration of the relationship. It is common ground that the parties were in a relationship from May 2012 until 2016, subject to dispute about periods of separation in 2015 and 2016. The Judge found the relationship ended at the end of February 2015 but the parties re-formed a relationship in late May 2015. Mr Zindel submitted the separation was shorter, but I agree with the Judge. The relationship continued to some degree until August 2016.
(b)Common residence. The parties lived together at times although the extent of common residence is disputed. As Mr Zindel submitted, the lack of a continually shared roof is not determinative. The nature and extent of common residence is a relevant factor but, as with the other factors in s 2D, it is not a necessary prerequisite.9 I also accept that couples may cohabit from time to time where one party has to spend long periods away from home.10 The parties’ respective parenting obligations may have impacted to some extent on the amount of time they spent under the same roof at least in the period before late 2014. But common residence means more than spending nights under the same roof. I agree with the Judge that there was no common residence prior to or while Ms Rennie had the rental property in Hillsborough from September 2012 to January 2014 even though Mr Baker sometimes stayed nights there and his evidence likely minimised the frequency. I also agree with the Judge that Mr Baker was not a tenant
8 L v P [Division of property] [2008] NZFLR 401 (HC) at [48]; and B v F [2010] NZFLR 67 (HC) at [51].
9 Section 2D(3)(a).
10 Scragg v Scott [2006] NZFLR 1076 (HC) at [41].
of Ms Rennie’s rental property in Epsom from January 2014 and that, while they saw each other when realistically possible (there and in Raglan), there was no common residence until Ms Rennie moved to Mr Baker’s rental property in Raglan in mid December 2014. There was common residence in Raglan until late February 2015 (when Ms Rennie left Raglan and soon after moved to Kaipara Harbour) and again from December 2015 (when Ms Rennie moved back to Raglan) until mid February 2016 (when she moved to her sister’s house). Except for these periods, the parties had their own rental properties. Finally, as the Judge found, there was also some extent of common residence between June and August 2016.
(c)It is common ground that the parties had a sexual relationship until sometime in 2016.
(d)I consider there was only limited financial interdependence. Mr Baker was working and Ms Rennie remained on her WINZ benefit. With limited exceptions, each party supported his/her household and children.11
(e)Ownership, use, and acquisition of property. [Withheld] was purchased in Mr Baker’s name. Ms Rennie did not contribute to the purchase price. The bank borrowing was also in Mr Baker’s name alone. The vehicle purchased by Ms Rennie in mid 2015 was in her name and Mr Baker did not contribute to the purchase price.
(f)The Judge found that the parties shared quite a high degree of a mutual commitment to a shared life from late October 2014 until they separated by March 2015, and the mutual commitment began to redevelop from June 2015 until it broke down again in 2016. I also consider there was mutual commitment to a shared life at times, but this often broke down.
11 The Judge found Mr Baker’s boarding school payments were more likely a loan given Ms Rennie’s repayment of $6,700 in December 2015 even though Mr Baker then returned the funds. The Judge ultimately declined to find that Ms Rennie still owed money to Mr Baker.
In this regard, one of the issues was whether Mr Baker’s expressive and emotive language reflected the intensity of the relationship, was aspirational or even involved some hyperbole. Mr Baker’s expressive statements started early in the relationship. For example, his Gmail chat of 31 July 2012 asked Ms Rennie “would you mind signing a contract.. binding you to me for life”. I accept Mr Zindel’s submission that Mr Baker’s expressions of commitment meant something and should not be dismissed as hyperbole or otherwise minimised, especially as time went on. But they were aspirational and were countered by other statements indicating the difficulties in the relationship. There was intensity in the relationship but, despite the statements of mutual commitment, the parties for whatever reason did not grasp earlier opportunities to integrate their lives more by living together, and when they did so they could not maintain it.
(g)Care and support of children. As indicated, with limited exceptions, each party supported his/her children. Neither provided regular care for the other’s children. The only child in either party’s primary care was Ms Rennie’s daughter who then went to boarding school from late 2014. But Mr Baker did state his commitment to Ms Rennie’s children.
(h)Public aspects of the relationship. As the Judge said, the relationship was well established to family, acquaintances and work colleagues. They presented as a couple. But the alleged engagement around Christmas 2013 was not publicly announced and the Judge could not find it was proved.
[56] The WINZ records are also relevant. Ms Rennie said that she told WINZ about Mr Baker but the Judge indicated the records did not support that.12 They show that Ms Rennie declared to WINZ that she did not have a partner, she was single. Even if she told WINZ about Mr Baker, she indicated that he had not moved in. In any event,
12 The Judge’s reference at [482] to Ms Rennie’s receipt of income support other than one short period in early 2014 should be to early 2015.
as Mr Roots submitted, this factor was not over-emphasised by the Judge. The Judge correctly treated it as a relevant factor, but not decisive.
[57] Taking these matters together, I do not accept Mr Roots’ submission that the relationship never acquired the commitment required to satisfy the s 2D criteria. The combination of common residence and mutual commitment to a shared life was sufficient, at times, to conclude that the parties lived together as a couple. But it is also clear that even those factors were not present throughout the relationship. In determining when the parties lived together as a couple, I do not consider the Judge overly focused on common residence. The Judge accepted the first de facto relationship period commenced before the parties had a common residence given the combination of Mr Baker’s email to Ms Rennie with house plan ideas on 19 October 2014, the fact that the parties started to spend time on the land at [withheld] following settlement on 21 October 2014 (including some clearing work), Mr Baker’s payment of a $1,000 deposit for boarding school fees on 31 October 2014, and Mr Baker’s attendance at Ms Rennie’s marae for a tangi in November 2014. It seems the parties agreed that Ms Rennie would move to Raglan in the first or second week of November 2014, and the Judge found she moved in mid December 2014.
[58] In all the circumstances, including those factors in s 2D(2), I agree with the Judge that the parties lived together as a couple from late October 2014 – or at least from November 2014 – to the end of February 2015, and from December 2015 to February 2016. I also agree the parties separated during the intervening period in 2015 when Ms Rennie moved to Kaipara even though they spent nights together during that period and began to renew their commitment to live together again from about June 2015 albeit with another period of doubt around November 2015. Thus, the parties were in two de facto relationships of short duration (as defined in s 2E).
Relationships of short duration
Legal principles
[59] Where a de facto relationship is a relationship of short duration, instead of applying the equal sharing regime for division of relationship property, s 14A of the Act applies:
14A De facto relationships of short duration
(1)This section applies if a de facto relationship is a relationship of short duration (as defined in section 2E).
(2)If this section applies, an order cannot be made under this Act for the division of relationship property unless—
(a)the court is satisfied—
(i)that there is a child of the de facto relationship; or
(ii)that the applicant has made a substantial contribution to the de facto relationship; and
(b)the court is satisfied that failure to make the order would result in serious injustice.
(3)If this section applies, and the court is satisfied that the grounds specified in subsection (2) for making an order on an application under this Act are made out, the share of each de facto partner in the relationship property is to be determined in accordance with the contribution of each de facto partner to the de facto relationship.
(4)Nothing in this section prevents a court from making a declaration or an order under section 25(3), even though the de facto partners have lived in a de facto relationship for less than 3 years.
(5)This section is subject to sections 15 to 17A.
[60] Thus, the next issues are whether there was a child of the de facto relationship, or alternatively whether Ms Rennie made a substantial contribution to the de facto relationship, and in either case whether failure to make an order for the division of relationship property would result in serious injustice.
Child of the de facto relationship
Child of the de facto relationship is defined in s 2:
child of the de facto relationship—
(a)means any child of both de facto partners; and
(b)includes any other child (whether or not a child of either de facto partner) who was a member of the family of the de facto partners—
(i)at the time when they ceased to live together; or
(ii)at the time immediately before an application under this Act, if at that time they had not ceased to live together; or
(iii)at the date of the death of one of the de facto partners
[62] The Judge said that Ms Rennie’s daughter was based with the parties in Raglan over the 2014/2015 summer, and so the Judge could find she was a child of the relationship for that period. But the Judge declined to make a finding of serious injustice.
[63] Mr Zindel submitted that Ms Rennie’s daughter was a child of the relationship. Mr Roots submitted she was only in Raglan for brief periods and was at boarding school in 2015. I consider the Judge was correct to accept that Ms Rennie’s daughter could be a child of the de facto relationship during that summer holiday period even though she may have just gone back to boarding school by the time the parties ceased to live together in February 2015.
Substantial contribution
[64] In terms of the alternative requirement in s 14A(2)(a), the Judge found that Ms Rennie had not made a substantial contribution to the de facto relationship. This alternative requirement is unnecessary given the undisturbed finding that the first branch of the test (child of the de facto relationship) could be satisfied, but the extent of the contribution may be relevant to whether failure to make an order for the division of relationship property would result in serious injustice.
[65] Mr Zindel submitted that Ms Rennie had used her funds (including from her previous relationship property settlement) towards the relationship when Mr Baker stayed with her in Auckland, to purchase the 4WD partly for farm work and for household items in Raglan. She also worked on the Raglan land, gave up her life in Auckland and performed household duties.
[66] Mr Roots submitted that Ms Rennie had not made a substantial contribution. He submitted the parties resided in different locations and had limited input into each other’s lives on a day to day basis; Ms Rennie did not apply funds to the land purchase or in supporting Mr Baker; she did not provide substantial childcare support; and her contribution to planting and honey gathering was not substantial. He submitted that
Ms Rennie’s separate funds from her previous relationship property settlement were used to pay child support and support daily living expenses.
[67] In this context, substantial has its natural meaning of real importance or value.13 The relevant contribution is Ms Rennie’s contribution to the short de facto relationships from late October/November 2014 to February 2015 and from December 2015 to February 2016. In those short periods, I agree with the Judge that Ms Rennie’s contribution was not substantial in financial or non-financial terms, just as Mr Baker’s contribution was not substantial. I will deal separately with whether [the property] was relationship property, but in those periods Ms Rennie’s work on the land was not substantial.
Serious injustice
[68] The operative issue is whether failure to make an order for the division of relationship property would result in serious injustice. Having separately dealt with [the property], the Judge said he could not find that failure to make any orders for division of residual assets would result in serious injustice. The Judge said there was a lack of specificity about chattels and they would be of very modest financial value. There was a KiwiSaver policy. The Judge said it was not possible to identify its value at the relevant times but it would have been minor. There were two vehicles and a ride-on mower, also without valuations.
[69] Mr Zindel submitted there would be serious injustice if the Court did not grant an order. He submitted Ms Rennie has no civil remedies, was disadvantaged at the end of the relationship and would not be compensated for the financial and non- financial contributions she made. He referred to the property at [withheld] (which, as indicated, I too will deal with separately) and the other assets. In relation to the unvalued KiwiSaver and chattels, he submitted that the Court may fill the gap where the evidence is scant,14 that the Judge could have proceeded on the information referred to in the judgment, and the Judge was wrong to use the lack of information provided by Mr Baker as a partial reason to deny Ms Rennie any entitlement at all.
13 L v P [Division of property] [2008] NZFLR 401 (HC) at [70].
14 Johnson v Johnson [2005] NZFLR 301 (HC) at [42] per Winkelmann J.
[70] I accept Mr Zindel’s submission that Mr Baker’s failure to provide information should not be used to deny Ms Rennie. But making assumptions to fill the gap is difficult here. 15 Given the two very short periods of de facto relationship found, the limited information about the value of the residual assets is not only scant, it is almost meaningless. In particular, I do not consider it would be appropriate to fill the gap by assuming the residual assets are valued at $41,022 (the total attributed to those disputed assets in the judgment at [11]) or $48,300 (the amount of Mr Baker’s contents insurance in 2014). For example, the separation value of $15,072 attributed to Mr Baker’s KiwiSaver in 2016 bears no relationship to the value at the relevant times. Its value on 20 May 2015, between the two short periods of de facto relationship, was only $3,439.08. Only a small part of the higher value would be attributable to the second short period of de facto relationship. Similarly, Ms Rennie’s vehicle was purchased in July 2015 out of her separate funds while the parties were separated, and its unknown value at the end of the second short period of de facto relationship should not necessarily be treated as relationship property.
[71] In the circumstances, and subject to dealing with [the property], I do not consider the Judge was wrong to decline to find that the failure to make an order for the division of relationship property would result in serious injustice.
[72] It appears that the Judge did not address Ms Rennie’s separate request for an order that Mr Baker return to her several items of furniture or personal effects that she said he had retained. In the absence of any division of relationship property, any such items of separate property should be returned. I reserve leave in this respect.
[The property]
[73] The remaining issue is whether the property at [withheld] is relationship property. As indicated, the Judge concluded that [withheld] was Mr Baker’s separate property as he acquired it by 8 October 2014, before the de facto relationship began in late October 2014, and not in contemplation of the de facto relationship.
15 As well as the items referred to by the Judge, Mr Zindel referred to a life insurance policy which Mr Baker refused to disclose. But Mr Zindel acknowledged that it is not known whether this policy had any surrender value.
Legal principles
[74]Section 8(1) of the Act relevantly defines relationship property as:
…
(d)all property owned by either spouse or partner immediately before their marriage, civil union, or de facto relationship began, if—
(i)the property was acquired in contemplation of the marriage, civil union, or de facto relationship; and
(ii)the property was intended for the common use or common benefit of both spouses or partners; and
(e)subject to sections 9(2) to (6), 9A, and 10, all property acquired by either spouse or partner after their marriage, civil union, or de facto relationship began; and
(ee) subject to sections 9(3) to (6), 9A, and 10, all property acquired, after the marriage, civil union, or de facto relationship began, for the common use or common benefit of both spouses or partners, if—
(i)the property was acquired out of property owned by either spouse or partner or by both of them before the marriage, civil union, or de facto relationship began; or
(ii)the property was acquired out of the proceeds of any disposition of any property owned by either spouse or partner or by both of them before the marriage, civil union, or de facto relationship began; …
[75] It is common ground that Mr Baker committed to purchase [withheld] by 8 October 2014. I have already agreed with the Judge that the parties were not in a de facto relationship until later. Hence, s 8(1)(e) and (ee) do not apply. The final issue is whether [withheld] was acquired in contemplation of the de facto relationship and for the common use or common benefit of both parties in terms of s 8(1)(d). Mr Zindel submitted that it was.
[76] The phrase “acquired in contemplation of” has been interpreted as requiring a serious expectation that the de facto relationship will occur, not merely that it is feasible, possible or even likely.16
16 M v H [2018] NZCA 525, [2018] NZFLR 918 at [50], citing Plimmer v Plimmer (1979) 2 MPC 153 (SC) at 154.
[77] The Judge considered that the quite unilateral nature of Mr Baker’s steps taken in the purchase and uncertainty as to what Ms Rennie would be doing (given that on 9 October 2014 she applied for a position in Auckland) meant that he could not find that Mr Baker purchased the land in contemplation of the de facto relationship. Mr Zindel submitted that the job in Auckland was only a summer position and Ms Rennie moved to Raglan once boarding school for her daughter had been arranged for the following year. Mr Roots submitted that on 9 October 2014 Ms Rennie had applied for a fulltime position in Auckland.
[78] Apart from Ms Rennie’s claims in evidence that she was involved in the purchase, which the Judge did not accept, there is little evidence to support the contention that the de facto relationship was in contemplation earlier in October 2014. Ms Rennie’s application on 9 October 2014 for a fulltime position in Auckland is consistent with the mutual commitment to living together coming later, but that document is far from decisive in relation to the acquired in contemplation issue.
[79] I accept the proximity in time between early October and late October/November 2014 suggests that the de facto relationship was possibly in contemplation when [withheld] was acquired. In addition, Mr Baker emailed the sale and purchase agreement to Ms Rennie on 5 October 2014. But that does not establish there was a serious expectation of a de facto relationship. I have already referred to the Judge’s reasons for accepting there was a de facto relationship from late October 2014.17 Some of those reasons related to the property and so reinforce the proximity in time even though they occurred after Mr Baker acquired the property – Mr Baker’s email to Ms Rennie with house plan ideas on 19 October 2014 (two days before settlement) and the fact that the parties started to spend time on the property following settlement. But these also do not establish there was a serious expectation of a de facto relationship when the land was acquired.
[80] Even if I could infer such a serious expectation before 8 October 2014 and that the land was acquired in contemplation of the de facto relationship, there is insufficient evidence to conclude that at that time the property was intended for the common use
17 At [57] above.
or common benefit of both partners. The Judge did not address this, having found the acquisition was not in contemplation, but I consider this separate branch of s 8(d) is not made out. Ms Rennie was aware of the purchase – she was sent the agreement – but, as the Judge found, Mr Baker purchased the land unilaterally using his separate funds and borrowing. The Judge did not accept Ms Rennie’s evidence as to why she was not on the title. An inference that when the property was acquired in early October 2014 it was intended for the common use or common benefit of the parties is not warranted. In 2015, when the parties were contemplating resuming living together, and there were communications about common use or common benefit, Mr Baker was concerned to protect his investment in the property. If anything, this suggests the intention was lacking before the parties entered into a de facto relationship.
[81] Accordingly, I agree with the Judge that [withheld] was not relationship property.
Result
[82]The appeal is dismissed.
[83] Depending on whether legal aid was confirmed, there may be an issue as to costs. If so, and if costs cannot be agreed, I will receive memoranda (not exceeding three pages) within 20 working days and determine costs on the papers.
Gault J
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