Schoonderwoerd v McLean HC Whangarei CIV 2007-488-278

[2007] NZHC 2068

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV 2007-488-278

IN THE MATTER OF     The Property (Relationships) Act 1976

BETWEEN  SIMME CORNELIUS MARIA SCHOONDERWOERD Appellant

ANDSANDRA FELICE MCLEAN Respondent

Appearances: A Wright for the appellant

M H Miles for the respondent

Judgment:      29 August 2007

CONSENT JUDGMENT OF PRIESTLEY J

Solicitors:

A E Wright, Private Bag 9012, Whangarei

M H Miles, P O Box 1725, Whangarei

SCHOONDERWOERD V MCLEAN HC WHA CIV 2007-488-278 29 August 2007

[1]      The  appeal  today  is  the  latest  stage  in  a  long  and  I  suspect  somewhat embittered journey which the parties have made since their separation in August

2003.  It was a marriage of 15 years duration which produced two sons.

[2]      A large number of issues were presented to Judge Druce in the Whangarei

Family Court at a defended hearing in November last year.

[3]      Various orders were made in the Judge’s reserved decision dated 30 March

2007.

[4]      The appellant challenged some  aspects of those orders  although, to their credit, the parties have accepted most of the other determinations made in the Family Court. The issues presented by the appellant were:

a)       Whether an entitlement of the appellant under the United States Social Security legislation (which he would have, subject to certain conditions, received when he was 66) can properly be regarded as an accountable item of property for the purposes of s 7 of the Property (Relationships) Act 1976.

b)If so, whether the Judge, in valuing that entitlement, gave correct weight to a number of contingencies.

c)       Whether the quantum of lump sum future maintenance ($28,350) was correctly assessed by the Judge under the various powers exercised under s 64 of the Family Proceedings Act 1980.

[5]      I record the Court’s gratitude to counsel for the highly competent written submissions presented on both sides.   In particular, the conflict of laws problem would have been fascinating.  One possible intermediate difficulty, however, would have been the evidential void before the Family Court on the relevant foreign law.

[6]      At the afternoon tea adjournment I made some observations and suggested to the parties that they confer to see whether they could negotiate a final settlement. One patent concern of this Court was the fact that despite the parties’ separation four

years ago, the respondent has  yet to receive her capital entitlement.   There are various reasons perhaps to explain the delay but nonetheless I do not consider the respondent’s general well-being has been enhanced by the situation she has been in during those four years.

[7]      The appellant too has had personal difficulties with which to contend.

[8]      Despite  what  I  apprehend  is  a  large  degree  of  suspicion  and  aggrieved feelings shared by the parties, they have this afternoon seen the benefit of finality.  In respect of the capital sums involved in the above issues they have compromised.

[9]      Accordingly, and by consent, I make the following orders:

a)        The appeal is allowed.

b)        The specific orders made by the Family Court at Whangarei on 30

March 2007 in respect of the appellant’s United States Social Security entitlement and the respondent’s lump sum of future spousal maintenance award are quashed.

c)       In full and final settlement of the respondent’s claims in respect of the Social Security entitlement and future lump sum maintenance (quantified  by  the  Judge  at  $28,350)  there  is  an  order  that  the appellant is to pay to the respondent the agreed sum of $32,500.

[10]     Each party will bear his or her costs in respect of this appeal.

………………………

Priestley J