Little v Little

• Jurisdiction: New Zealand
• Judge: Fitzgerald J
• Judgment Date: 29 March 2022
• Neutral Citation: [2022] NZHC 601
• Docket Number: CIV-2021-404-1639
• Court: High Court

UNDER the Property Relationships Act 1976

IN THE MATTER of an appeal under ss 39 and 53 of the Property Relationships Act 1976 of specified issues of determination of 4 December 2020

Between

Janet Little

Appellant

and

Colin Little

Respondent

[2022] NZHC 601

Fitzgerald J

CIV-2021-404-1639

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

Family — appeal against a Family Court decisions which determined a dispute between the parties about the division of their relationship property — both parties aged in their mid-60s — economic disparity — approach to calculation of disparity — contributions made following separation — occupational rent — adjustment for diminution in value of the family home since separation — Property (Relationships) Act 1976

Appearances:

The Appellant in person

EG Snedden for the Respondent

The appeal against the FC s15 PRA award was allowed. Mr L was to pay an additional NZ $12,000 by way of compensation. The appeal was otherwise dismissed.

JUDGMENT OF Fitzgerald J

This judgment was delivered by me on 29 March 2022 at 4.00pm; pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date

Introduction

1 The appellant appeals from a decision of Judge R von Keisenberg in the Family Court determining a dispute between the appellant and her former husband, the respondent, about the division of their relationship property. 1

2 Both parties were self-represented in the Family Court proceedings. At the conclusion of a three day hearing before the Judge, there was a large degree of agreement on the relationship property pool and its division. The remaining matters in issue comprised:

• (a) a claim by the appellant for compensation under s 18B of the Property (Relationships) Act 1976 (the Act) for contributions made by her to the relationship following separation;

• (b) a claim by the appellant for an adjustment under s 18C of the Act for diminution in value of the family home since separation;

• (c) a claim by the appellant for compensation under s 15 of the Act for economic disparity at separation; and

• (d) other more minor disputed matters, such as the status of the appellant's credit card debt at separation.

3 At the outset of her judgment, the Judge noted that the appellant had said in her opening submissions that she was also seeking an award of spousal maintenance, though no application for spousal maintenance under the Family Proceedings Act 1980 or a declaration of financial means had been filed. Accordingly, that matter did not form part of the judgment appealed from.

4 The Judge made awards in favour of the appellant under ss 15, 18B and 18C of the Act. The appellant is dissatisfied with aspects of the Judge's decision. She appeals against the Judge's decision on the following grounds:

• (a) The appellant says the award of compensation for economic disparity pursuant to s 15 of the Act should have been higher, because:

  • (i) the Judge was wrong in her calculation of the disparity (including the salary levels adopted), wrong to halve the disparity, and wrong to apply a percentage approach to reflect that the disparity only partly resulted from the division of functions within the marriage;

  • (ii) the Judge's approach did not take into account the appellant's contribution to the respondent's work during the marriage, by assisting him to prepare written reports; and

  • (iii) the Judge's approach did not reflect ongoing benefits to the respondent from work and superannuation schemes.

• (b) The appellant says that the Judge's decision on the s 18B award was in error because it:

  • (i) did not sufficiently take into account disadvantages to the appellant post-separation;

  • (ii) granted interest to the respondent in connection with an interim distribution made to the appellant, while not granting interest to the appellant on the remainder of her share of property held undivided by the respondent;

  • (iii) did not reflect the four-month gap from the hearing to the date of the Judge's decision; and

  • (iv) did not reflect that the respondent retained the post-separation earnings of a Mercer Kiwisaver scheme and two Flexipol retirement schemes for which disclosure was declined.

• (c) The appellant also says that the Judge failed to make orders requiring the respondent to provide verified documents evidencing all his income and assets.

• (d) She also says that the judgment wrongly includes sensitive information that was not necessary to the decision, and that the judgment should not have been forwarded to the Inland Revenue Department (IRD).

5 The appellant does not appeal against the Judge's decision in relation to s 18C of the Act.

6 The respondent does not cross-appeal against any aspects of the judgment.

7 The appellant seeks the following relief on appeal:

• (a) additional s 15 compensation;

• (b) additional s 18B compensation;

• (c) orders for disclosure by the respondent of verified records of certain bank accounts and AMP products, and that he provide a list of “all income from investments, including any undisclosed superannuated gains and the particulars thereof'; and

• (d) orders to “maintain and rectify privacy in regards to sensitive suggestions noted in [the judgment appealed from]”.

8 I do not propose to consider further, or to make, orders of the nature sought at (d) above. If the appellant is concerned that there is sensitive private information contained in the Family Court judgment, those matters should be raised with the Judge in the Family Court. I do not know whether the appellant has taken that step, but I observe that the version of the judgment available on legal databases has anonymised the parties' names and contains extensive redactions in any event. I have no information on whether the judgment was forwarded to the IRD, and again, that is not a matter appropriately dealt with on appeal.

9 The appellant also raises a number of “process” issues in her notice of appeal, and in particular, the right to be heard. She says:

… I was not afforded opportunity to be heard presenting evidence orally in answer to questions prepared to present evidence supporting my case, nor to clarify issues from cross-examination. Oral submissions were also not heard at the end of the hearing (in accommodation of the respondent), nor did the judge schedule later time for oral submissions.

10 The Judge recorded in her judgment that both parties were self-represented at the hearing and the challenges to which this gave rise. Each party made opening submissions at the hearing, following which there were three days of hearing. The Judge said the following:

[10] It is always a concern for any judge, when hearing a matter involving self-representing parties, that all evidence which needs to be before the Court is provided to ensure that the issues are determined on a just basis. Extensive evidence was filed by the parties — in total over 1,540 pages plus many more by way of submissions. (The applicant's final submissions were over 100 pages long.) Many of the arguments pursued by the applicant, particularly around adjustments, were complex.

[11] It was evident, despite several earlier court hearings, neither party properly understood court protocol or the court process. This was most clearly observed in each parties' cross-examination of the other, requiring frequent judicial intervention to ensure proper process. The respondent, who is hard of hearing and dyslexic, also required additional assistance during the hearing. His brother, [Richard Sheffield], was present at the hearing for this purpose and assisted him with cross-examination, reading and locating of documents as required.

[12] Because of these challenges, I gave both parties considerable latitude in the way they questioned the other and how they adduced their evidence. In normal circumstances this may have stretched the bounds of usual court practice, however. I did so with the knowledge that at times both parties were struggling with the process.

11 In a minute issued immediately after the hearing, the Judge said: 2

[6] Both parties are seeking additional time to file final submissions in relation to those matters which they could not agree on and, to that end. the parties are to file their submissions contemporaneously by Monday, 4.00 pm. 10 August 2020. These can be filed by email.

12 It accordingly appears that the Judge accommodated the parties' own request to file further written submissions, which in the ordinary course would have been provided to the Court and spoken to orally at the conclusion of the hearing. As the Judge noted, the appellant's final closing submissions were over 100 pages long. I am not aware of the parties requesting a further oral hearing prior to the delivery of the Judge's judgment.

13 I am therefore not persuaded that there has been a breach of the appellant's right to be heard, and indeed the Judge seems to have gone out of her way to afford the parties considerable latitude at the hearing itself, and made provision for the filing of written closing submissions after the hearing.

14 Finally by way of introduction, the appellant also seeks to admit new evidence on the appeal, being:

• (a) evidence of a sharp increase in house property prices since August 2020;

• (b) IRD documentation from February 2021 which she says suggests that the respondent had approximately $20,000 higher income than expected in the relevant income period, and thus calls into question his earlier disclosed income; and

• (c) without prejudice correspondence between the parties, which the appellant...