BEACH-WARD v WARD [2023] NZHC 1958

BEACH-WARD v WARD [2023] NZHC 1958 [26 July 2023]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECIV-2022-443-003[2023] NZHC 1958UNDER the Property (Relationships) Act 1976ANDIN THE MATTER of an Application for Leave to Appeal to theCourt of Appeal against the decision of theHigh Court at New PlymouthBETWEEN CHERIE ANNE BEACH-WARDApplicantAND MICHAEL PAUL WARDRespondentOn the Papers1958(submissions received 27 March 2023 and 28 April 2023)Counsel: A Fisher KC and V A Crawshaw KC for ApplicantS Jefferson KC and C A Gelston for RespondentJudgment: 26 July 2023JUDGMENT OF ELLIS J[1] Mrs Beach-Ward seeks special leave to appeal my October 2022 decision inBeach Ward v Ward.1 In that decision, I had dismissed her appeal from a decision inthe Family Court, where Judge L Harrison had ordered a relationship property division(adjusted for economic disparity) of approximately 52:48 in Ms Beach-Ward's favour.21 Beach-Ward v Ward [2022] NZHC 2693, [2022] NZFLR 522.2 Ward v Beach-Ward [2021] NZFC 8512. Ms Beach-Ward had sought a 60:40 split.[2] Leave to bring a second appeal against Judge Harrison's decision is required,and on 7 February 2023 I granted Ms Beach-Ward leave to apply for that leave out oftime. On 24 February 2023 I directed that the application for leave be determined onthe papers. Submissions were subsequently filed but unfortunately were notforwarded to me until last month.Relevant background[3] Although there were a number of points raised by Ms Beach-Ward in herappeal before me, as will shortly become clear, her application for leave is focusedsquarely on economic disparity in terms of s 15 of the Property (Relationships)Act 1976 (the PRA) and, in particular, the application of the Supreme Court's decisionin Scott v Williams.3[4] The majority in Scott confirmed the existence of a "working assumption" thata division of functions within the relationship along traditional lines was to the benefitof both parties and restricted the non-career partner's income earning ability andenhanced the career partner's earning ability.4 In other words, the assumption is thata traditional division of functions within the relationship is assumed to be the cause ofany disparity. The majority observed that while this working assumption can bedisplaced on the facts, only strong evidence of some other causative factor which isclearly independent of the division of functions will be sufficient to negative or limitit. In that regard Arnold J said:5 I accept that it will be legitimate to point to personal characteristics as acomplete or partial explanation of post-separation disparity in some situations,as where, for example, a career partner enters a relationship as awell-established and successful business or professional person. In that typeof case, it may be that only part of the disparity can fairly be said to resultfrom the division of responsibilities in the relationship. In relationships ofrelatively short duration, this may be a complete explanation forpost-separation disparity. Again, however, care must be taken in thesesituations not to undermine the equality of contribution principle thatunderpins the PRA.3 Scott v Williams [2017] NZSC 185, [2018] 1 NZLR 507.4 At [293].5 At [325].[5] This passage from Scott has subsequently been applied in a number of cases,including by this Court on appeal in Gosbee v Gosbee and Little v Little.6 In thosecases, the Court was prepared to find that the assumption could "partly" be rebuttedon the basis that while there was economic disparity, the division of functions in therelationship was neither its sole nor most influential cause.7 In Little (as here) theeconomic disparity was assessed at 20 per cent.8The proposed appeal[6] Ms Beach-Ward's leave application states:91. The specific grounds of appeal are:(a) The appeal raises an important question of law, namely thecorrect application of the "working assumption" test endorsedby the majority in the Supreme Court in Scott v Williams whendetermining the quantum of compensation payable undersection 15 of the Property (Relationships) Act 1976. Inparticular:(i) the High Court erred in finding that the workingassumption was partially displaced in this case;(ii) in reaching the conclusion that the workingassumption was partially displaced, the High Courtrelied on factors that did not meet the test enunciatedby the Supreme Court namely that the workingassumption should only be displaced incircumstances where there is strong evidence of someother causative factor which "would be sufficient tonegative or limit this working assumption".[7] The application also says that the proposed appeal raises an issue of publicimportance: in that the approach taken by the High Court represents an erosion of thebroad-brush approach taken to the issue of economic disparity andcompensation adopted by the Supreme Court.6 Gosbee v Gosbee [2020] NZHC 1001; Little v Little [2022] NZHC 601, [2022] NZFLR 316.7 Gosbee v Gosbee, above n 6, at [43]; Little v Little, above n 6, at [78].8 At [105].9 Citations omitted, emphasis in original.[8] In the submissions filed in support of leave, the grounds are further elaborated,as follows:105. The working assumption should not be readily displaced. The facts ofthe case under appeal do not reach the requisite threshold enunciatedby the Supreme Court to justify departure from the workingassumption let alone by 80%. The Family Court found that the portionof the disparity attributable to the division of functions in the marriagewas 20%, thereby reducing the overall economic disparity figure of$368,355 to $73,670. This sum was then halved to $36,835.20.6. The appellant argues that the decision of the High Court to rely on theFamily Court finding in this regard was wrong in the followingrespects:(a) It was incorrect to place weight on the fact that the parties'relationship commenced when the parties were aged 28 and32 to find that it was not a relationship entered into 'early inadult life' (paragraph [91]).(b) It was incorrect to place weight on the qualification andskillset of the proposed respondent at the beginning of therelationship and the fact that he had an "established career"at commencement (see paragraph [85]).(c) Given the facts of this case, it was incorrect to placesignificant weight on the disparity in the parties' earnings atthe commencement of the relationship particularly in light ofthe proposed appellant's significantly greater financialcontribution at commencement (including the provision of ahome).(d) The following unchallenged evidence was not accordedsufficient weight by the High Court:i. The parties operated their marriage along traditionallines.ii. The appellant was the marriage partner whose centralpriorities and focus were the parties' three children.iii. The appellant prioritised family demands overemployment outside of the home.iv. The respondent's living standards were significantlyhigher than the appellant's at separation, due in partto the division of functions of the marriage.v. At separation, there remained a disparity of incomebetween the parties, the respondent earningapproximately three times more than the appellant.10 Citations omitted, emphasis in original.vi. There was an element of enhancement of therespondent's career due to his continuity ofemployment in his chosen field because the appellantaccepted the role as the stay-at-home parent. Thevalue of the respondent's 18-year period ofemployment, during the relationship, cannot beoverlooked as contributing to his ability to maintainhis status and reputation in the IT Industry.vii. This would not have been possible had the proposedappellant not been home-based and looking after thechildren during working hours.7. Against the backdrop of this accepted evidence, the conclusion of theHigh Court that the division of functions in the relationship did notappear to have been a major contributor to the post separationdisparity (paragraph [93]) is difficult to reconcile.8. The High Court's reliance on the judgments in Little v Little andGosbee v Gosbee was misplaced in the present case. The facts of thosecases differed markedly from the facts in the present case. Thereliance on these decisions is more broadly problematic as itrepresents an erosion of the broad-brush approach formulated in Scottv Williams to the determination of the question whether compensationshould be paid for economic disparity under s15.9. It is in the interests of justice to ensure that the test which the appellantsays was stated by the majority of the Supreme Court regarding theapplication of this provision is clear and should not be undermined bythe Family Court. We ask that the Court of Appeal provide thenecessary guidance to ensure that the Supreme Court's test is properlyapplied. This will more readily promote resolution of s15 claimswhich are otherwise negated by ongoing uncertainty, minimal awardsand a lack of economic viability.Applications for leave to bring a second appeal: relevant principles[9] The decision in Waller v Hider was concerned with leave to appeal a decisionunder the Matrimonial Property Act 1976 (the predecessor to the PRA).11 There, theCourt of Appeal stated that for leave to be granted:12The appeal must raise some question of law or fact capable of bona fide andserious argument in a case involving some interest, public or private, ofsufficient importance to outweigh the cost and delay of the further appeal:Rutherford v Waite ; Cuff v Broadlands Finance Limited. In the latter casethe Court also remarked that in the end the guiding principle must be therequirement of justice.11 Waller v Hider [1998] 1 NZLR 412 (CA).12 At 413 (citations omitted).[10] The Court observed:13 this Court is not engaged in the general correction of error. Its primaryfunction is then to clarify the law and to determine whether it has beenproperly construed and applied by the Court below.[11] And where the proposed appeal was concerned with a question of fact, theCourt said:14When the disputed matter is entirely or largely a question of fact the task ofthe applicant is harder. An issue of fact in a matter falling within thejurisdiction of an inferior Court will seldom be of public importance. It isbetter that we make no attempt to define the circumstances in which a factualcontest can be taken to have private importance but obviously it may do so ifthe amount at stake is very substantial or the decision reflects seriously on thecharacter or conduct of the would-be appellant or, as in Cuff, the judgmentbelow has special consequences (for example bankruptcy) for the losing party.Even then, however, leave cannot be anticipated if the applicant is seeking todisturb concurrent findings of fact in the lower Courts.[12] As well, the cost and delay caused by a further appeal is as important a factoras any other when applying these principles. Mr Jefferson KC submitted that this isof particular significance here considering the relatively modest sum in issue in thismatter.15Should leave be granted?[13] As I recorded in my judgment, Ms Beach-Ward's principal s 15 submissionbefore me was that—when assessing her income at the beginning of the relationship—the Family Court had erred by not taking into account the $45,000 per annum she wasreceiving from ACC for the four years following her first husband's death in anaccident.16 I agreed with the Family Court that those sums could not properly be seenas relevant income at that time because they said nothing about her income earningcapacity in future. She does not now seek to pursue that argument.13 At 413.14 At 214.15 The total relationship property pool is a little under $2 million. The difference between theeconomic disparity amount claimed by Ms Beach-Ward and that awarded by the Family Court isjust under $150,000.16 Above n 1, at [87].[14] As I also recorded, Ms Beach-Ward submitted that the Family Court had overanalogised with the decision in Gosbee (the Little decision had not been delivered atthe time of the first instance hearing).17 She did not seek to argue that those decisionswere wrong. At [94] of my decision I observed that I did not find comparisons withother cases particularly helpful.18[15] The difficulty faced by Ms Beach-Ward here is that all the matters listed atpara 6 of her submissions (set out above) are factual matters, all of which areconcerned with matters of weight. They simply do not raise the kind of questions—either individually or collectively—that might warrant a grant of leave.[16] The only remaining question raised by the proposed appeal is whether theCourts are wrongly applying the decision in Scott, and too readily finding that thepresumption is (partially) displaced. That is what I take Ms Beach-Ward to mean bythe second half of para 8 and all of para 9.19 It was not an argument that was advancedbefore me at the hearing.[17] It is not, however, my understanding that Ms Beach-Ward seeks to contend thatpartial displacement of the presumption is not possible. That question was carefullyconsidered by both High Court judges in Little and Gosbee and (in my respectful view)seems clearly contemplated in the passage from Scott set out earlier. And once thatpoint is reached, whether displacement is established, and the extent of anydisplacement, is a question of fact, as it was here. As I tried to make plain in myjudgment, although the relationship between the parties was quite longstanding, itcould not be said to have commence particularly "early" in their adult lives.Ms Beach-Ward was 32, and already a widow. And the differences in theirqualifications and income at the outset of the relationship were stark. Again, these aresimply matters of fact, peculiar to this case.17 Above n 1, at [87].18 Above n 1.19 The first half of para 8 is difficult to understand, given I expressly recorded that I did not findcomparisons with other cases helpful.[18] I am therefore unable to accept that there are questions here that are capable ofserious argument involving either a public or private interest of sufficient importanceto outweigh the cost and delay of the further appeal. The application for leave toappeal is declined, accordingly.________________________________Rebecca Ellis JSolicitors:Legal Solutions, New Plymouth for ApplicantShaun Gifford, New Plymouth for Respondent