Woolridge v Kumari
[2021] NZHC 1975
•2 August 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
https://
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CIV-2020-488-000082
[2021] NZHC 1975
BETWEEN TERENCE WOOLDRIDGE
Appellant
AND
KANCHANA KUMARI
Respondent
Hearing: 13 April 2021 Appearances:
A O’Connor for the Appellant
G Thompson for the Respondent
Judgment:
2 August 2021
JUDGMENT OF WALKER J
This judgment was delivered by me on 2 August 2021 at 4 pm Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
TERENCE WOOLDRIDGE v KANCHANA KUMARI [2021] NZHC 1975 [2 August 2021]
[1] Mr Wooldridge and Ms Kumari met in or around December 2010. They married on 26 March 2012, around 15 months after meeting one another. Mr Wooldridge is now aged 76 and was born in New Zealand. Ms Kumari is aged 46 and is of Fijian Indian heritage. Mr Wooldridge thought he had found the companionship, intimacy and love he was seeking. Ms Kumari in turn thought she had found the supportive partner and financial security she sought.
[2] Sadly, that was not to be. They remained in the relationship until 12 August 2015. Mr Wooldridge stayed in the family home after the relationship broke down. Well after the separation, Ms Kumari applied to the Family Court for division of the relationship property including her share of the family home. Judge Adams determined that the general approach under the Property (Relationships) Act 1976 (“the Act”) applied whereby relationship property is divided equally between the parties. He made orders requiring Mr Wooldridge to pay Ms Kumari the sum of
$261,327.
[3] Mr Wooldridge now appeals that judgment. He argues that equal sharing under the Act is displaced and the relationship property should be divided in accordance with the contribution of each partner to the marriage because:1
(a)the relationship was one of short duration within the definition of the Act;
(b)alternatively, there are extraordinary circumstances that make equal sharing repugnant to justice.2
[4] Mr Wooldridge also filed interlocutory applications for interim stay of the Family Court decision, to admit fresh evidence and for non-party discovery. By minute dated 29 March 2021, Brewer J directed that these applications be heard at the commencement of the appeal hearing on the basis that they might be dealt with in a
1 Mr Wooldridge relies on s 14(2) of the Act which displaces the principle of equal sharing of the home and family chattels in a marriage of short duration if the family home was owned wholly or substantially by one spouse at the date on which the marriage began and s 14(4) which displaces equal sharing of other relationship property in these circumstances where the contribution of one party to the marriage has been clearly greater than the other.
2 Property (Relationships) Act 1976, s 13.
way that preserves the hearing of the substantive appeal. Mr O’Connor on behalf of Mr Wooldridge submitted that, while he was prepared to argue the substantive appeal, in keeping with Brewer J’s minute, the substantive appeal hearing ought to be adjourned in light of the interlocutory applications. I apprehend there was more than one strand to Mr O’Connor’s submission on this point.
[5] The first was a complaint about late filing of a notice of opposition and supplementary submissions by the respondent relating to the interlocutory applications. Ms Thompson in response pointed out that the respondent had in fact met the timetable initially directed by Duffy J by filing no later than 10 working days after service of the affidavit and amended interlocutory application for leave.3 Ms Thompson explained that the 10 working days only commenced from the appellant’s late filing of his affidavit and the notice of opposition and supplementary submissions only fell due on the day of the hearing.
[6] The second strand of Mr O’Connor’s submission in support of deferring the substantive appeal was a new argument, not made before the Family Court nor heralded before the appeal. He contended that there is a jurisdictional issue concerning the application of s 7A of the Act to a pre-marital agreement signed between the parties in Fiji four days before their marriage. The pre-marital agreement was referred to in the judgment below but treated as a nullity for failing to meet the requirements of an agreement under the Act. While the pre-marital agreement was before the Court, the new argument Mr O’Connor raised was not made to the Judge. I return to the point later in my judgment.
[7] Ms Kumari, while initially opposing a stay on the basis that no hardship could be shown by Mr Wooldridge, consented to an interim stay conditional on the substantive appeal proceeding at this hearing.
[8] Conscious of the delays in resolution to date and the imperative that Family Court matters be resolved as inexpensively and speedily as consistent with justice, I proceeded to hear the interlocutory matters and the substantive appeal together.4 This
3 Minute of Duffy J dated 4 March 2021.
4 See Property (Relationships) Act, s 1N(d).
was on the basis that, should I determine that the interlocutory applications succeed, I would permit the parties a further opportunity to be heard and potentially even responsive evidence to be filed. If I declined the interlocutory applications, I would go on to determine the substantive appeal. As to the complaint that supplementary submissions and notice of opposition were served only at the hearing, I am satisfied that this inconvenient timing was a product of the appellant’s own timetabling delays. The grounds of opposition were uncontroversial and orthodox given the nature of the interlocutory applications. The appellant could have been under no illusion about the opposition. It does not behove a party to complain of receiving submissions and notice of opposition on the day of hearing when delays were caused by that party and that party seeks to introduce a novel and unheralded argument on the day of hearing.
Family Court decision
[9] The relationship property pool is modest, comprising the former family home, sums in various bank accounts and the value or proceeds of sale of vehicles and chattels. There were also relationship debts including a mortgage on the former family home and a credit card debt. The appellant’s properties in Fiji, which are also of modest value, were held to be separate property.
[10] The three principal issues before the Family Court were first, was the marriage one of short duration? Second, was this a case for unequal sharing? Third, what adjustments and orders should be made for matters such as compensation for the appellant’s use of the respondent’s share in the former family home.
[11] For the purposes of the Act, the parties’ relationship effectively began when they commenced living together on 15 March 2012.
[12] Mr Wooldridge argued that although the marriage lasted for a little over three years it should nevertheless be considered a marriage of short duration.5 The Judge set out the two pathways to a short duration finding: the first being a finding that the parties lived together in the marriage for a period of less than three years; the second being the discretion in s 2E(1)(a)(ii) of the Act to treat a relationship of over three
5 Section 2E(1)(a).
years as a relationship of short duration if the court considers that just having regard to all the circumstances of the marriage. His Honour considered that none of the factors relied on by Mr Wooldridge warranted a finding that this was a marriage of short duration under either of the two pathways in s2E(1)(a)(i) or (ii).
[13] The factors relied on by Mr Wooldridge included his periodic absences in Fiji leaving Ms Kumari in New Zealand. Although Mr Wooldridge estimated that he spent “in excess of 300 days” apart from Ms Kumari during the course of their relationship, the Judge found that these absences did not “interrupt the fabric of [the] marriage”.6 There was no emotional or marital break between them during these periodic trips. Even while he was away, Ms Kumari continued marital support by managing the home front and she supported his venture in Fiji. The Judge considered the absences to be of no consequence in calculating the duration of the marriage.
[14] The Judge rejected Mr Wooldridge’s contention that the relationship had ended months earlier than Ms Kumari suggested. He accepted the essence of Ms Kumari’s account that although there was a disagreement around 26 January 2015, it was short- lived and the marriage continued. The parties were described by a witness as a “very loving couple”.7 They were affectionate and the messaging between them was at odds with a suggestion that the relationship had cooled by early 2015. Materially, the Judge, having heard and seen the witnesses said:8
I find that Ms Kumari told the truth about the events in February 2015. I find that Mr Wooldridge lied where his version contradicts hers.
[15] This was not the only issue on which the Judge preferred the evidence of Ms Kumari.9
[16] The Judge also rejected the contention that Ms Kumari had been in a sexual relationship with another man during the marriage. Even if infidelity would interrupt the course of a marriage (which the Judge did not need to address) there was no direct evidence of any intimate relationship between them. Although Ms Kumari had been
6 Kumari v Wooldridge [2020] NZFC 7879 at [18].
7 At [22].
8 At [28].
9 At [37]–[38].
involved in a handful of financial transactions with the person in question, these were explained. The Judge considered that Mr Wooldridge was searching “for an external reason for the breakup”.10 The only dissonant note said the Judge was when Ms Kumari was asked why her Facebook page said of herself that she was in a relationship since 2014. To that question she gave no satisfactory answer. The Judge was not minded however to leap from her prevarication to a specific finding of the kind sought by Mr Wooldridge.
[17] Finally, the Judge held that Ms Kumari did not artificially delay her departure in order to support her claim under the Act. He found that proposition did not fit with the facts. The marriage appeared from correspondence to retain some vigour for months after the three-year period had elapsed. Ms Kumari also did not launch her claim until more than two years after separation. In these circumstances, the Judge considered that she had “tried to do her best” but ultimately found the marriage unsatisfactory.11
[18] As none of the alleged grounds were made out, the Judge concluded that the marriage was not one of short duration.
[19] He then moved to consider the second principal issue, namely, whether this was a case for unequal sharing of the relationship property under s 13(1) of the Act.
[20] The Judge was not persuaded that Mr Wooldridge’s contribution of capital and the advantage that Ms Kumari obtained in gaining New Zealand residence were circumstances so extraordinary as to make equal sharing repugnant to justice. He undertook a detailed analysis of the parties’ respective contributions under s 18. He considered that although Mr Wooldridge’s capital contributions were undoubtedly significant, Ms Kumari contributed slightly more in other areas and their respective contributions more or less evened out. This was not therefore a case falling within s 13(1) where unequal sharing of the relationship property was justified.
10 At [37].
11 At [41].
[21] As to the appropriate adjustments and orders to be made, the Judge considered that an adjustment of approximately $30,000 was necessary to compensate Ms Kumari for Mr Wooldridge’s use of her share of the family property in the five years since separation. The total pool of assets was determined to be worth $491,357.12 In the circumstances, orders were made that Mr Wooldridge pay Ms Kumari the sum of
$261,327 by 30 October 2020 if he did not wish for the property to be sold.
Preliminary matters
[22] I turn first to the various interlocutory matters raised by Mr O’Connor at the hearing. It is necessary to briefly traverse the procedural background. On 5 November 2020, Lang J directed the appellant to particularise his grounds of appeal by 1 December 2020. Particularised grounds were not provided until 9 December 2020. On 10 December 2020 Brewer J made timetabling directions.13 One direction was that if the appellant was to rely on alleged trial counsel error, an application seeking leave to file evidence, affidavit evidence and waivers of privilege were to be filed and served by 22 January 2021. The appellant’s submissions were due by 1 February 2021. The timetable was not met. I pause to note Mr O’Connor’s explanation that previous counsel had exercised a lien in respect of the file which caused Mr Wooldridge difficulties in mounting an appeal, in particular to advance grounds of appeal on the basis of trial counsel error.
[23] The hearing was scheduled for 4 March 2021. At a telephone conference before Duffy J on 2 March 2021, the appellant sought an adjournment on the grounds that he did not wish to proceed by AVL.14 Duffy J refused the adjournment. However, later the same day, Duffy J became aware that the notes of evidence from the Family Court were not available to the Court despite direction from the Court that the notes of evidence be obtained pursuant to r 20.14 of the High Court Rules 2016. Nor was there a common bundle of the relevant documents for the appeal which the appellant was obliged to file and serve in accordance with the direction in counsels’ joint consent memorandum to the Court. A further telephone conference was convened.
12 At [80].
13 Minute of Brewer J, 10 December 2020.
14 Auckland was at level 3 of the Covid-19 restrictions and the rest of New Zealand was at level 2.
[24] At that conference, a number of issues relating to readiness to proceed emerged. Duffy J adjourned the hearing and made directions to progress the appeal. Mr O’Connor indicated that trial counsel error would not be pursued as a substantive ground of appeal. Duffy J directed the appellant to confirm in writing within five working days whether he proposed to pursue the question of trial counsel error as a basis to support his application to adduce fresh evidence on appeal or as a substantive ground. No such notice was given.
[25] However, on 26 March 2021, counsel for the respondent received a copy of an as yet unfiled affidavit in support of the application to adduce fresh evidence.15 She protested that the affidavit seeks to rely on alleged trial counsel error as justification for not adducing the evidence earlier. She pointed out that issues now arise under s 65(3) of the Evidence Act 2006 in terms of waiver of privilege. She sought an urgent telephone conference. A second minute was issued by Brewer J on 30 March 2021 in which he directed that there was no time to make a substantive decision on this prior to the fixture; it would be a matter for the presiding judge but that should the appellant create a situation where a further adjournment is required, then that might well be a matter to be addressed by a costs order.16
[26] I observe that Mr O’Connor’s challenge to the Family Court decision was not wanting in any respect. There was no evident disadvantage in the way in which the appeal was mounted, in spite of the difficulties obtaining prior counsel’s file.
Section 7A: the jurisdictional issue
[27] Mr O’Connor submits that s 7A of the Act may have application to the pre- marital agreement which the parties signed in Fiji on 22 March 2012, four days prior to their marriage.17 Materially, he puts it no higher than a possibility because he submits that Fijian law informs the interpretation of the agreement.
[28] That document purported to record that each party agreed to keep their own property. However, it was signed by Ms Kumari without any disclosure of assets or
15 The affidavit was filed on 30 March 2021.
16 Minute of Brewer J (on the papers) dated 30 March 2021.
17 Wooldridge, above n 6, at [20].
legal advice, let alone independent legal advice, and was witnessed by a “teacher”. Ms Kumari had no way of assessing what her rights would be in any circumstances that might arise. The Judge found that it did not satisfy New Zealand law and treated it as a nullity.18 He did not consider whether s 7A was engaged. This is not surprising as it was not argued by Mr Wooldridge’s former counsel at the hearing.19
[29] The failure to include this argument in the notice of appeal is conceivably enough to justify dismissal of the argument. But, it can be disposed of in short order in any event and so I deal with it.
[30] Mr O’Connor submits that this agreement may ‘impliedly’ oust the jurisdiction of New Zealand courts by virtue of s 7A which provides:
(a)This Act applies in any case where the spouses or partners agree in writing that it is to apply.
(b)Subject to subsections (1) and (3), this Act does not apply to any relationship property if—
(i)the spouses or partners have agreed, before or at the time their marriage, civil union, or de facto relationship began, that the property law of a country other than New Zealand is to apply to that property; and
(ii)the agreement is in writing or is otherwise valid according to the law of that country.
(c)Subsection (2) does not apply if the court determines that the application of the law of the other country under an agreement to which that subsection applies would be contrary to justice or public policy.
[31] It is common ground that there is nothing on the face of the document to suggest the parties agreed that the property law of a country other than New Zealand was to apply. However, Mr Wooldridge argues that because the pre-marital agreement was signed by the parties in Fiji, at a time when they were contemplating living in Fiji, it would be a mistake to conclude that the law of New Zealand should apply in interpreting the effect of the agreement.
18 At [50].
19 Mr O’Connor did not appear for Mr Wooldridge at the Family Court hearing.
[32] I disagree. The argument is strained and does not withstand scrutiny. The clear terms of s 7A lend no support to the suggestion that parties may impliedly agree for the property law of a country other than New Zealand to apply. Even if such an agreement could be implied—an unlikely proposition in my assessment—I would nevertheless have concerns over that agreement’s validity. For the same reasons that the pre-marital agreement was considered to be a “nullity” by the Family Court Judge as a contracting out agreement, an implied agreement as to jurisdiction faces similar hurdles. Ms Kumari was not presented with disclosure of Mr Wooldridge’s various assets nor did she receive legal advice, much less independent legal advice, of the consequences of any such agreement. She was not in a position to assess “what her rights would be in [the] circumstances that might arise”,20 nor was she in any position to evaluate whether it was in her interests to accede to the property laws of a country other than New Zealand. I consider that such an agreement would, even if capable of argument, have been contrary to justice or public policy under s 7A(3).
[33]As a result, I go on to deal with the interlocutory applications.
Application for non-party discovery
[34] Mr O’Connor applies for non-party discovery to obtain a letting file from Northland Realty. It is clear from the evidence at trial that Ms Kumari assisted an acquaintance in establishing himself at a new residential address. This involved a handful of financial transactions including the payment of $1,080 for the purpose of a bond (which was paid back to Ms Kumari the same day), $100 for a bed and $500 for rent. The suggestion at trial was that Ms Kumari was in a sexual relationship with the acquaintance and this had some bearing on whether their marriage was of a short duration under s 2E. This argument was dismissed in the Family Court. The Judge said that there was no direct evidence of any intimate relationship between the two.
[35] The purpose of the application for non-party discovery to obtain a letting file is said to be to reveal which individuals were listed on the tenancy application form. Mr O’Connor suggests that this information will be relevant to establishing when the relationship ended. In particular, it will be relevant to the quality of the parties’
20 At [50].
marriage and Ms Kumari’s specific intentions in the months leading up to their separation.
[36] Ms Thompson responds that this application should have been made in the Family Court proceedings. I agree. Discovery applications are more suited to the hearing at first instance than on appeal. Indeed, as Clark J observed in Brand v Registrar of Companies:21
[28] The operative principle is that discovery on appeal is rare and unless the statute under which the appeal is brought envisages discovery (expressly or by necessary implication) it will be ordered only in exceptional circumstances.
[37] The application in that case necessarily failed as the applicant demonstrated no “compelling reason … for avoiding the principle that discovery is not available on appeals”.22 Likewise, in the Court of Appeal’s decision in Comalco New Zealand Ltd v Broadcasting Standards Authority, it was observed that “[s]o far as appeals are concerned, the proper time for discovery is while the case is before the lower Court.”23 The position here is no different. Any application for non-party discovery ought to have been made in the course of proceedings before the Family Court. Notwithstanding the change in counsel representing Mr Wooldridge since those proceedings, I do not see any compelling reason why this application ought to be granted on appeal.
[38]I decline this application accordingly.
Application to adduce evidence on appeal
[39] Mr O’Connor also applies to adduce further evidence on appeal. The evidence in question is Mr Wooldridge’s immigration records showing the precise number of days that he was out of the country during the course of their relationship. He submits that this evidence clearly bears on whether the marriage relationship was of a short duration. He submits that it should have been produced at the trial but was not in reliance on trial counsel advice and it is cogent and probative of the nature and characteristics of the marriage.
21 Brand v Registrar of Companies [2016] NZHC 2983.
22 At [24].
23 Comalco New Zealand Ltd v Broadcasting Standards Authority (1995) 9 PRNZ 153 (CA) at 160.
[40] In general terms, appeals are said to proceed on the evidence which was presented to the decision maker at first instance and parties do not automatically have an opportunity to bolster their case with new evidence on appeal. Leave is generally required.24 The Court will only grant leave if there are special reasons for hearing the evidence.25 Wylie J recently summarised the principles governing the receipt of further evidence in the context of an appeal under the Act. I respectfully adopt those principles:26
(a)the Court can receive further evidence if it thinks that the interests of justice require it to do so;
(b)it is wrong to allow an appellant to bolster his or her case with additional evidence that was available at the lower Court hearing, but not adduced because of the particular view of the case being taken at the time;
(c)admitting further evidence on appeal is exceptional rather than routine. A change of heart about how a case should have been run will not suffice. The prospect of further evidence triggering a substantial re-litigation before the appellate Court of the substantive case will count against admitting the further evidence;
(d)generally, the further evidence must be fresh, credible and cogent;
(e)evidence will not be regarded as fresh if it could, with reasonable diligence, have been produced at the trial;
(f)the absence of freshness is not an absolute disqualification. When the further evidence is not fresh, it will not generally be admitted unless the circumstances are exceptional and the grounds compelling. In addition, the further evidence needs to pass the tests of credibility and cogency;
(g)the interests of justice require the parties to put their best case forward at trial, in order to avoid wasting the Court’s limited time and resources. A high value is placed on finality when the parties have been afforded the opportunity and failed to take it; and
(h)the standard to be met is “rightly high”.
[41] These principles make clear that the present application cannot succeed. In particular, further evidence must be fresh, credible and cogent. Although a lack of freshness is not an “absolute disqualification”, evidence that is not fresh will only be admitted in exceptional circumstances. The grounds must be compelling. Evidence
24 High Court Rules 2016, r 20.16(2).
25 Rule 20.16(3).
26 B v A [2020] NZHC 580 at [25].
will not be considered fresh if it could, with reasonable diligence, have been produced at trial. The immigration records in question here cannot be considered fresh against these criteria. They could have been requested from immigration services for the purpose of the Family Court hearing. They were not requested.27 Although I am conscious of the stated difficulties faced by Mr Wooldridge who deposed that he did not have access to his previous counsel’s files due to a lien, the grounds are not compelling in this instance.
[42] But, in any event, this is not the principal ground on which I dismiss the application. I consider there is a short answer. Materially, the records in question would only be adduced to establish precisely how many days that the parties were apart during their relationship. The Family Court Judge expressly considered in his determination of whether the marriage was of a short duration that the figure was “in excess of 300 days” over the course of their relationship.28 In my view, the precise figure over 300 days makes little difference to this finding. The determination under s 2E is not one made solely on the basis of the number of days apart. It requires a qualitative assessment of the relationship in the round. The Judge was very clear in his finding that Mr Wooldridge’s periodic absences did not “interrupt the fabric of [the] marriage”.29 Accordingly, this evidence is not compelling, nor the circumstances so exceptional, as to warrant granting special leave.
[43]I decline the application.
[44]I turn now to the substantive appeal.
Approach on appeal
[45] Appeals from the Family Court in relationship property proceedings are governed by s 39 of the Act. Section 39(3) imports ss 126–130 of the District Court Act 2016. An appeal of this kind is by way of rehearing. It is considered a general appeal.
27 There was some suggestion that trial counsel competence was the reason for this lapse but the ground was not pursued at the hearing.
28 I note that Mr Wooldridge appeared to say “in excess of 300 days a year in total” but the Judge took him to mean over the course of their relationship.
29 Wooldridge, above n 6, at [18].
[46] The principles set out by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar apply in respect of general appeals.30 The appellate court is required to arrive at its own assessment of the merits of the case. It is not required to defer to the Court below. It is for the appellate court to assess the appropriate weight to give to the lower court’s reasoning.31 However, caution (but not deference) is appropriate where the original decision maker has technical expertise or an opportunity to assess the credibility of witnesses. As Woolford J remarked when considering an unequal division under s 13 of the Act:32
[18] While no particular technical expertise is called for, this sort of case is the Family Court’s bread and butter. The Family Court also heard from a number of witnesses in person before determining the contributions (both financial and non-financial) made by the parties to the relationship.
[47]As recognised by Heath J in B v F, the application of the Austin, Nichols
principles is not altogether easy in the context of appeals from the Family Court:33
Many first-instance decisions represent a mix of findings of fact (after seeing and hearing witnesses), the formation of an evaluative judgment and the exercise of statutory discretions. Sometimes it is difficult to characterise a particular decision as evaluative, factual or discretionary in nature.
[48] Heath J set out the approach to an appeal of this kind in particularly practical terms. I adopt that approach as follows:34
(a)first, it must be recognised that the Family Court Judge had the advantage of hearing and seeing witnesses give evidence in the Family Court;
(b)secondly, where the Judge exercised any discretion in reaching his or her decision, this Court must determine whether the discretionary decisions were open based on May v May and Blackstone v Blackstone;35 and
30 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].
31 K v B [2010] NZSC 112, [2011] 2 NZLR 1 at [31].
32 Venter v Trenberth [2015] NZHC 545, [2015] NZFLR 571.
33 B v F [2010] NZFLR 67 at [7].
34 At [8].
35 May v May (1982) 1 NZFLR 165 (CA) at 170; and Blackstone v Blackstone [2008] NZCA 312 at [8].
(c)thirdly, this Court is free to reconsider the Family Court’s decision and substitute its own views on factual questions or evaluations if it is convinced the first instance decision was wrong.
[49] The decision as to whether a marriage relationship was one of short duration is largely a factual determination. But there is an element of discretion in the second limb to s 2E(1)(a) in that a marriage over three year’s duration may be treated as one of short duration if it is just to do so. As to the second limb of the substantive appeal, whether any extraordinary circumstances exist is principally a factual enquiry but an assessment of whether those circumstances render equal sharing repugnant to justice is an evaluative exercise.
[50] I am mindful of the need to distinguish these separate approaches in determining the issues before me.
Discussion
A marriage of short duration?
[51] The first ground concerns whether the Judge erred in concluding that the relationship was not one of short duration. Section 2E(1) of the Act defines a relationship of short duration as:
(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:
…
(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.
[52] In his written submissions, Mr O’Connor said the Court’s conclusion was that the appellant had spent 300 days apart over the course of the entire relationship. In fact, the Judge said:
[15] Although he did not offer details in his affidavits, nor was the issue put to Ms Kumari, in his oral evidence-in-chief, Mr Wooldridge was asked how many times he had been back to Fiji and what sort of time he spent back there. He answered: “Oh six or seven times a year, sometimes five.” He suggested they had over 40 weeks apart, and then estimated a total of 300 days. Although he said, “in excess of 300 days a year in total” I took him to mean he estimated they had been in separate places for 300 days over the course of the entire relationship.
(footnotes omitted)
[53] The Judge noted that within his estimate of times spent in separate places, Mr Wooldridge included Ms Kumari’s Sydney trip from 28 February 2015 to 23 March 2015 when she accompanied her sister and niece to attend to Hindu ceremonies relating to her niece’s marriage.36
[54] Mr O’Connor suggests, based on the further evidence that the appellant sought to adduce that it was in fact 364 days that the parties spent apart during their marriage and the Judge should have concluded that the marriage fell within either s 2E(1)(a)(i) or (ii). He noted that the Court was critical of the appellant for not providing details of the absences in affidavits and not cross-examining the respondent on the issue. This point dovetailed with his submissions as to the approach taken by former counsel.
[55] I have already refused leave to adduce the further evidence. I also consider that the Judge had not misconstrued the evidence. It was clear that he was referring to evidence of absences greater than 300 days. The last sentence in the passage quoted at [52] above expressly clarified whether Mr Wooldridge was referring to absences in any given year or over the course of the entire relationship.
[56] The Judge was entirely correct in finding that the marriage lasted for a period of greater than three years and that such absences as there were did not of themselves make the marriage one of short duration. Many marriages nowadays involve the parties spending a great deal of time apart, whether for employment purposes or
36 At [16].
otherwise. Such absences cannot fairly be considered to detract from the length of the parties’ relationship as a matter of course. Although a relatively significant portion of time, the days spent apart in the present case are appropriately included in calculating the length of their relationship. The marriage therefore does not fall within s 2E(1)(a)(i).
[57] For the same reason, I do not consider these extended absences as circumstances which justify treating the marriage as one of short duration under s 2E(1)(a)(ii). The Judge’s discretion in this regard is not a factor merely of number of days but a qualitative assessment made after hearing the parties give evidence and the evidence of other witnesses. The question was whether despite being longer than three years, was the marriage so “unduly limited in terms of quality that it may justly be described as a marriage of short duration”?37 Essential in this respect was the Judge’s finding that despite periodic absences there was no interruption to the “fabric” of the marriage.38 The parties remained loving and committed. There were no significant emotional or marital breaks between them during these trips. He accordingly found that the circumstances did not warrant a finding under s 2E(1)(a)(ii) that the marriage was of a short duration. I agree. There is no identifiable basis on which it would be appropriate to intervene in the Judge’s exercise of discretion.
[58] Accordingly, I am satisfied that the Judge was correct in finding that the marriage was not of short duration.
Extraordinary circumstances?
[59]Section 13(1) of the Act provides:
If the court considers that there are extraordinary circumstances that make equal sharing of property or money under section 11 or section 11A or section 11B or section 12 repugnant to justice, the share of each spouse or partner in that property or money is to be determined in accordance with the contribution of each spouse to the marriage or of each civil union partner to the civil union or of each de facto partner to the de facto relationship.
37 Martin v Martin [1979] 1 NZLR 97 (CA) at 101.
38 Wooldridge, above n 6, at [18].
[60] The Judge described the test in s 13 as setting a high bar, referring to Martin v Martin and Joseph v Johansen.39 He noted that it is settled law that for one party to provide the home in a marriage of three years or thereabouts is not “extraordinary”.40 He analysed the evidence and reached the following conclusions in respect of the parties’ contributions to the marriage against the framework of s 18:
(a)Their non-monetary contributions under s 18(1)(a) were equal in that Mr Wooldridge supported Ms Kumari’s parental concern and Ms Kumari visited Mr Wooldridge’s elderly mother.41
(b)In relation to s 18(1)(b) Ms Kumari’s contribution to household duties probably exceeded that of Mr Wooldridge by a little.42
(c)The provision of money was a mixed contribution. After the first 13 months, Ms Kumari worked, earning more than Mr Wooldridge’s universal superannuation and his income was spent on his separate property in Fiji. Over the period of the marriage, Ms Kumari provided more money for the purposes of the marriage than Mr Wooldridge did.43
(d)Mr Wooldridge’s capital contributions amounted to a significant credit on his side of the ledger as he provided the house and furnishings in Onerahi valued at $482,000, along with modest chattels.44
(e)Each of the parties performed work on the Onerahi property. Ms Kumari’s attentions were predominantly directed towards marital matters or to contribute to maintenance of Mr Wooldridge’s separate property while Mr Wooldridge’s contributions to his separate property cannot count for him.45
39 Joseph v Johansen (1993) 10 FRNZ 302.
40 Wooldridge, above n 6, at [45] referring to Martin, above n 37
41 At [52].
42 At [53].
43 At [54].
44 At [55].
45 At [58].
(f)Neither party had to forgo a higher material standard of living within the contemplation of s 18(1)(g) but Ms Kumari had the burden of coping in the less familiar cultural situation in New Zealand while managing their household and assisting Mr Wooldridge in his business affairs.46
(g)Another aspect of s 18(h) was the permanent benefit of obtaining New Zealand residence which could be characterised as a contribution. However, conflating residence rights enabling a person to work with the work they subsequently undertake was not a balanced approach. Such benefit is not as out of the ordinary as it once may have seemed in cases such as Banda v Hart and Lebajo v Lebajo.47 To count her gains alone, without offsetting the hardship of cultural loss, would be to take a New Zealand-centric approach, perhaps at odds with the Act’s vision of equal partnership.
[61] The Judge acknowledged that Mr Wooldridge’s capital contributions were notable but considered that otherwise their respective contributions evened out. It was Mr Wooldridge’s attentions to his separate property which diminished his contributions. Ultimately, by crediting Ms Kumari’s acquisition of New Zealand residence rights to Mr Wooldridge, those factors also evened out.48 In the circumstances of the marriage, the provision of the home did not take the case outside the Martin parameters.49 Even if there were extraordinary circumstances, the Judge concluded that if equal sharing in Martin was proper, he could not see the facts in this case as producing repugnancy to justice. Rather, on careful analysis, the application of the correct test to the facts meant that this case falls within the class of cases for which the Act prescribes equality.
[62] Whether extraordinary circumstances exist is a factual question.50 Whether they make equal sharing repugnant to justice is a value judgment.51 While the test is
46 At [59].
47 Banda v Hart [1998] NZFLR 930; and Lebajo v Lebajo [1994] NZFLR 665.
48 At [72].
49 See Martin, above n 37.
50 Kidd v Russell [2018] NZHC 3032, [2018] NZFLR 841 at [27].
51 At [27].
“stringent” and “difficult … to overcome” it was “never designed to be an impossible one”.52 As Richardson J observed in Martin, the terms of s 13 must be viewed within the broader statutory framework of the Act:53
… the justice with which the statute is concerned at so many points is justice weighed in terms of the policy and scheme of the legislation itself rather than according to an abstract ideal.
[63] Mr O’Connor submitted that the Judge set the bar too high and that a marriage of just three years and some months where there was an absence of cohabitation of almost one third of the marriage’s duration is an extraordinary circumstance. He contended that the Judge erred by taking into account the effect of the separate Fiji properties. As I understand the submission it is that no regard whatsoever should be had to those properties since they are outside the jurisdiction.
[64] This point may be answered briefly. I do not consider that the references to the Fiji property were material to the Family Court’s decision other than in respect of discounting Mr Wooldridge’s contributions to those properties for the purposes of the s 18 assessment. That approach is correct in my view. The references to the value of those properties was properly an aside, making the point that equal division would not have the same impact on Mr Wooldridge as the party in Martin or Wilson v Wilson.54
[65] Mr O’Connor also referred to the decision of Tipping J in Hashish v Howes and the decision of the Family Court in Brown v Starke as illustrations of cases with similar circumstances.55 In each case the party introducing the home in a marriage of short duration was awarded more than 50 per cent of the relationship property.
[66] However, Hashish was a case of a marriage treated as one of short duration because it lacked the qualities of marriage as generally understood. The 14 periods of absence ranged from 10 days to over a year and for much of the marriage’s nominal length, it was a marriage in name only with little companionship or mutual support. I do not find it especially helpful by comparison with the circumstances of this case.
52 Brown v Starke [2016] NZFC 7132 at [42].
53 Martin, above n 37, at 108.
54 Wilson v Wilson [1991] 1 NZLR 687 (CA).
55 Hashish v Howes (1996) 14 FRNZ 592 (HC); and Brown, above n 52.
[67] In Brown, by contrast, the marriage lasted three years and six months but in difficult and volatile circumstances. The Family Court Judge was not prepared to treat the relationship as one of short duration because they shared their lives and finances, holidayed together, transferred a substantial asset into joint names and set about trying to acquire another property.56 Nonetheless, the Judge considered the very high disparity of capital contribution to a relationship of brief duration meant that the other non-monetary contributions did not yet balance out that capital contribution.
[68] The Judge was influenced in this assessment by the fact that the wife who brought the assets into the marriage was aged 74 years (22 years older than her husband) and in receipt of a benefit.57 The circumstances were therefore extraordinary. Equal sharing would be repugnant to justice given the wife was established in her own home which provided her with security and which was intended to be her home for the rest of her life, while the husband had, at least theoretically, prospects of improving his financial situation at his age.
[69] While there are some factual similarities with the case of Brown, Ms Thompson pointed out that every case has to be assessed in its particular factual context and cherry-picking first-instance cases which appear, at first blush, to have similarities is an unhelpful exercise. There is merit to Ms Thompson’s submission.
[70] Standing back and viewing all the circumstances of this marriage holistically, I depart from the Judge on the question of whether the circumstances of this marriage meet the threshold of “extraordinary”. I set out my reasons.
[71] First, I accept that neither the significant capital contribution nor the parties’ time apart is of itself extraordinary. It is not unusual for parties to spend a considerable amount of time apart in today’s world, just as it is not uncommon for one partner to own a home prior to marriage. Those factors alone would not justify a finding under s 13 that equal sharing is inappropriate in this case.
56 At [23].
57 At [48].
[72] However, there is more to the relationship between Mr Wooldridge and Ms Kumari which appropriately bears on the holistic assessment required under s 13. The age and stage of life of Mr Wooldridge is relevant in this respect. Mr Wooldridge is now 76 (70 years of age or thereabouts at separation). I consider that his age, and its consequences, is a factor which the Judge did not explicitly refer to at this stage of the assessment. It must be the case that Mr Wooldridge’s future earning potential is relatively limited by comparison to Ms Kumari, who is about 30 years younger. This warrants consideration, both in respect of whether the circumstances are extraordinary but more materially in determining the justice or injustice which results from the presumption of equal sharing of relationship property.
[73] The assessment under s 13 must be informed by the duration of the parties’ relationship. I accept that there is no explicit recognition by the Family Court Judge in this part of his analysis about the effect of the duration of their marriage on the contributions under s 18. Care must of course be taken not to elevate financial contributions over and above non-monetary contributions. To do so would be contrary to the policy and presumption in s 1N(b) of the Act. However, non-monetary contributions are more likely to even out capital contribution over time, depending on the level of the financial contribution. The assessment must depend upon the particular circumstances of the case at hand and, in this case, the combination of a relatively short relationship and the periods of absence informs the evaluation.
[74] In the context of this relationship, Mr Wooldridge’s capital contribution in the form of the Onerahi property is plainly very notable. The net value of the home comprises approximately 93 per cent of the total pool of relationship assets.58 It bears similarities in this respect to the decision in Venter v Trenberth where the respondent provided a home worth “well over 90 per cent of the total relationship property”.59 Further similarities with Venter include that there were no children of the relationship between Mr Wooldridge and Ms Kumari and she has not been economically disadvantaged by entering the relationship or by the relationship ending.60 She did not give up work or a career for the purpose of the relationship and her earning ability
58 At [79]. The net value of the home was valued at $456,000 from a total pool of assets worth
$491,357.
59 Venter, above n 32, at [28].
60 Venter, above n 32, at [25].
remains unaffected, or indeed improved by the benefit of New Zealand residency. In Venter, Woolford J upheld on appeal the finding of the Family Court Judge that extraordinary circumstances justified an 85/15 split of the relationship property in favour of the respondent.61
[75] Woolford J found no error in the approach taken by the Family Court Judge who concluded that:62
[41] Financial contributions alone do not of course mean there are extraordinary circumstances but in combination with other factors including in particular the brevity of the relationship can support such a finding. As has been noted before, the effects of a substantial financial contribution may be balanced out by other contributions in a lengthy relationship but this is far from a lengthy one.
[76] This reasoning is particularly germane in the present case. The relationship in Venter lasted some four years or approximately 10 and 15 per cent of the parties’ respective adult lives.63 Mr Wooldridge and Ms Kumari’s relationship was even shorter. It lasted just under three years and five months or approximately six percent of Mr Wooldridge’s adult lifetime.64 That brevity is further compounded by the extended time the parties spent apart during the period—accepted to be in excess of “300 days over the course of the entire relationship”.65 While those absences were appropriately not such as to render the marriage of a short duration within the meaning of s 2E(1)(a),66 I nevertheless consider them material in assessing the extent to which Ms Kumari’s non-monetary contributions (and particularly contributions such as companionship) can be said to have offset Mr Wooldridge’s significant capital contribution.67
61 At [30]. Of course no two cases are identical and further factors in Venter justified such a division, including the respondent paying outgoings on the house and for other essentials alongside almost all luxuries which the couple enjoyed.
62 Venter v Trenberth [2014] NZFC 4902. The Family Court Judge was again Judge Fleming, as in the decision in Brown, above n 52.
63 Venter, above n 32, at [21(m)].
64 Wooldridge, above n 6, at [12]–[13].
65 At [15].66 In this sense, they did not “interrupt the fabric of [the] marriage” to such an extent that it should be considered a relationship of short duration.
67 Those non-monetary contributions will of course not be entirely diminished by prolonged absences and other such contributions may remain unaffected.
[77] Although Ms Kumari’s non-monetary contributions including love and companionship warrant significant attention for the purpose of this assessment, I consider them insufficient to offset the otherwise unjust consequences of equal sharing in the context of Mr Wooldridge’s significant capital contribution, advanced age (and correspondingly reduced earning potential) and the brevity of the relationship. I consider these are collectively extraordinary circumstances for the purpose of s 13, which make equal sharing of the relationship property repugnant to justice. This is not to devalue the intangible benefits of the relationship, nor the insightful observation of the Judge about the hardship Ms Kumari experienced due to the cultural differences in New Zealand.
[78] I acknowledge the element of uncertainty in assessing a party’s contributions on the state of the evidence, save that the net value of the home recorded in the judgment below accounted for approximately 93 per cent of the total asset pool. Ms Kumari made some financial contribution to the household expenses and looked after the couple’s affairs in New Zealand while Mr Wooldridge was in Fiji. Mr Wooldridge, on the other hand, diverted money to his separate properties in Fiji. Indeed, the Judge found on the evidence that Ms Kumari provided more money for the purpose of the marriage than Mr Wooldridge did.
[79] In my assessment therefore, an appropriate division of the relationship property in accordance with the parties’ respective contributions is 65 per cent to Mr Wooldridge and 35 per cent to Ms Kumari.
[80] I note Ms Thompson’s submission that because of the time which has passed between delivery of the judgment of Judge Adams and disposal of this appeal, there will need to be application to the Family Court to update the valuation evidence.
[81] I also note that the outcome of this appeal may have a bearing on the assessment of compensation for use of the property after separation, which had been based on equal sharing of the former family home. This was not specifically addressed by the parties at the hearing. I therefore grant leave for both parties to file memoranda within 21 days on this aspect should the need arise.
Result
[82] I decline the applications for non-party discovery and to adduce further evidence on appeal.
[83] I allow the appeal. I set aside the order that Mr Wooldridge pay $261,327 to Ms Kumari. I make an order that Mr Wooldridge is entitled to 65 per cent of the value of the relationship property and Ms Kumari is entitled to 35 per cent of its value. In all other respects the scheme of the orders made by the Family Court is preserved including the deductions and allowances directed by the Family Court subject to any adjustment of compensation for occupation of the relationship property since separation.
[84] The parties have leave to apply for further directions to give effect to these orders.
Costs
[85] I reserve the question of costs. If the parties cannot agree costs, memoranda should be filed no later than 21 days from delivery of judgment with a responsive memorandum no later than 14 days thereafter. Costs memoranda should be no more than four pages in length plus schedules.
............................................................
Walker J
5
1