LITTLE v LITTLE [2022] NZHC 601

LITTLE v LITTLE [2022] NZHC 601 [29 March 2022]NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHERINFORMATION, PLEASE SEEhttps://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-1639[2022] NZHC 601UNDER the Property Relationships Act 1976IN THE MATTER of an appeal under ss 39 and 53 of theProperty Relationships Act 1976 of specifiedissues of determination of 4 December 2020BETWEEN JANET LITTLEAppellantAND COLIN LITTLERespondentHearing: 4 November 2021Appearances: The Appellant in personEG Snedden for the RespondentJudgment: 29 March 2022JUDGMENT OF FITZGERALD JThis judgment was delivered by me on 29 March 2022 at 4.00pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: Simpson Western, AucklandTo: The AppellantIntroduction[1] The appellant appeals from a decision of Judge R von Keisenberg in the FamilyCourt determining a dispute between the appellant and her former husband, therespondent, about the division of their relationship property.1[2] Both parties were self-represented in the Family Court proceedings. At theconclusion of a three day hearing before the Judge, there was a large degree ofagreement on the relationship property pool and its division. The remaining mattersin 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 therelationship following separation;(b) a claim by the appellant for an adjustment under s 18C of the Act fordiminution in value of the family home since separation;(c) a claim by the appellant for compensation under s 15 of the Act foreconomic disparity at separation; and(d) other more minor disputed matters, such as the status of the appellant'scredit card debt at separation.[3] At the outset of her judgment, the Judge noted that the appellant had said inher opening submissions that she was also seeking an award of spousal maintenance,though no application for spousal maintenance under the Family Proceedings Act 1980or a declaration of financial means had been filed. Accordingly, that matter did notform part of the judgment appealed from.1 Little v Little [2020] NZFC 6638. The parties' names have been anonymised in the published formof the Family Court judgment, and the same anonymised names have been adopted in thisjudgment.[4] The Judge made awards in favour of the appellant under ss 15, 18B and 18Cof the Act. The appellant is dissatisfied with aspects of the Judge's decision. Sheappeals against the Judge's decision on the following grounds:(a) The appellant says the award of compensation for economic disparitypursuant 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 thedisparity, and wrong to apply a percentage approach to reflectthat the disparity only partly resulted from the division offunctions within the marriage;(ii) the Judge's approach did not take into account the appellant'scontribution to the respondent's work during the marriage, byassisting him to prepare written reports; and(iii) the Judge's approach did not reflect ongoing benefits to therespondent from work and superannuation schemes.(b) The appellant says that the Judge's decision on the s 18B award was inerror because it:(i) did not sufficiently take into account disadvantages to theappellant post-separation;(ii) granted interest to the respondent in connection with an interimdistribution made to the appellant, while not granting interest tothe appellant on the remainder of her share of property heldundivided by the respondent;(iii) did not reflect the four-month gap from the hearing to the dateof the Judge's decision; and(iv) did not reflect that the respondent retained the post-separationearnings of a Mercer Kiwisaver scheme and two Flexipolretirement schemes for which disclosure was declined.(c) The appellant also says that the Judge failed to make orders requiringthe respondent to provide verified documents evidencing all his incomeand assets.(d) She also says that the judgment wrongly includes sensitive informationthat was not necessary to the decision, and that the judgment should nothave been forwarded to the Inland Revenue Department (IRD).[5] The appellant does not appeal against the Judge's decision in relation to s 18Cof 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 certainbank accounts and AMP products, and that he provide a list of "allincome from investments, including any undisclosed superannuatedgains and the particulars thereof"; and(d) orders to "maintain and rectify privacy in regards to sensitivesuggestions 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 informationcontained in the Family Court judgment, those matters should be raised with the Judgein the Family Court. I do not know whether the appellant has taken that step, butI observe that the version of the judgment available on legal databases has anonymisedthe parties' names and contains extensive redactions in any event. I have noinformation on whether the judgment was forwarded to the IRD, and again, that is nota 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 inanswer to questions prepared to present evidence supporting my case, nor toclarify issues from cross-examination. Oral submissions were also not heardat the end of the hearing (in accommodation of the respondent), nor did thejudge schedule later time for oral submissions.[10] The Judge recorded in her judgment that both parties were self-represented atthe hearing and the challenges to which this gave rise. Each party made openingsubmissions 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 involvingself-representing parties, that all evidence which needs to be before the Courtis provided to ensure that the issues are determined on a just basis. Extensiveevidence was filed by the parties – in total over 1,540 pages plus many moreby way of submissions. (The applicant's final submissions were over 100pages long.) Many of the arguments pursued by the applicant, particularlyaround adjustments, were complex.[11] It was evident, despite several earlier court hearings, neither partyproperly understood court protocol or the court process. This was most clearlyobserved in each parties' cross-examination of the other, requiring frequentjudicial intervention to ensure proper process. The respondent, who is hard ofhearing and dyslexic, also required additional assistance during the hearing.His brother, [Richard Sheffield], was present at the hearing for this purposeand assisted him with cross-examination, reading and locating of documentsas required.[12] Because of these challenges, I gave both parties considerable latitudein the way they questioned the other and how they adduced their evidence. Innormal circumstances this may have stretched the bounds of usual courtpractice, however, I did so with the knowledge that at times both parties werestruggling 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 inrelation to those matters which they could not agree on and, to that end, theparties 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 requestto file further written submissions, which in the ordinary course would have beenprovided to the Court and spoken to orally at the conclusion of the hearing. As theJudge noted, the appellant's final closing submissions were over 100 pages long. I amnot aware of the parties requesting a further oral hearing prior to the delivery of theJudge's judgment.[13] I am therefore not persuaded that there has been a breach of the appellant'sright to be heard, and indeed the Judge seems to have gone out of her way to affordthe parties considerable latitude at the hearing itself, and made provision for the filingof written closing submissions after the hearing.[14] Finally by way of introduction, the appellant also seeks to admit new evidenceon the appeal, being:(a) evidence of a sharp increase in house property prices sinceAugust 2020;(b) IRD documentation from February 2021 which she says suggests thatthe respondent had approximately $20,000 higher income thanexpected in the relevant income period, and thus calls into question hisearlier disclosed income; and2 Little v Little FC Auckland FAM-2015-090-585, 6 August 2020.(c) without prejudice correspondence between the parties, which theappellant says is relevant to the credibility of certain evidence given bythe respondent at the Family Court hearing.[15] The balance of this judgment is structured as follows:(a) I first set out some brief factual background to the proceedings;(b) I next address the appellant's application for leave to admit newevidence on the appeal;(c) I then briefly set out the applicable legal principles to an appeal of thiskind (which are well settled); and(d) I then address each of the grounds of the appellant's appeal, includingsummarising the Judge's decision on that matter, the appellant'sgrounds of appeal and my decision.Factual background[16] The appellant and respondent met in 1996 and commenced a relationship in2000. They had both previously been married. They also both had children from thoseearlier marriages. The respondent also had his own home, which became the familyhome. The parties commenced a de facto relationship in 2002 and married on19 October 2003.[17] Relevant to later aspects of this judgment, both parties also had establishedcareers at the outset of the relationship: the appellant as an occupational therapist andthe respondent as an engineer. Each continued to work in their chosen professionthroughout and following the marriage.[18] There are two children of the parties' marriage. Their son was born inApril 2003, and their daughter in October 2005.[19] Also in 2005, the parties signed a contracting out relationship propertyagreement which, among other matters, defined the home which the respondent hadowned prior to the relationship (and in which the family were residing) as his separateproperty.[20] The parties separated for the first time in July 2011, and the appellant and thechildren moved out of the family home. The couple reconciled in April 2013 and theappellant and the children returned to the family home. The reconciliation did not last,however, and it was later determined that the parties' final date of separation was1 July 2015. The marriage was dissolved on 13 March 2018.[21] The contracting out agreement referred to at [19] above was later set aside byJudge Clarkson on 28 September 2018, on the appellant's application. The familyhome was accordingly reclassified as relationship property.[22] As at the date of the hearing in the Family Court (August 2020), the appellantwas 57 years old and the respondent was 65 years old. Their children were 17 and 14years old respectively (thus 12 and nine years old at separation). Proceedings underthe Care of Children Act 2004 had been commenced in 2015, but were resolved in2017 by consent. I interpolate to note that Judge von Keisenberg found that theappellant had the primary care of the children both during the marriage andpost-separation.[23] Finally, and as the Judge noted in the introduction to her judgment, therelationship property proceedings had an extensive history. The Judge said:3In addition to the application to set aside the s 21 contracting out agreement,there have been several interlocutory applications filed by the applicant,including applications for discovery against the respondent and a third party(Commissioner of Inland Revenue), interrogatories, notice to admit facts andan application for interim distribution.3 Little v Little, above n 1, at [8].Application for leave to admit new evidence on the appealLegal principles[24] Under r 20.16 of the High Court Rules 2016, a party to an appeal may admitfurther evidence only with the leave of the Court.4 The Court may grant leave only ifthere are special reasons for hearing the evidence.5[25] In B v A, Wylie J summarised the principles to be applied as follows:6[25] The relevant principles governing the receipt of further evidence arestraightforward:7(a) the Court can receive further evidence if it thinks that theinterests of justice require it to do so;(b) it is wrong to allow an appellant to bolster his or her case withadditional evidence that was available at the lower Courthearing, but not adduced because of the particular view of thecase being taken at the time;(c) admitting further evidence on appeal is exceptional ratherthan routine. A change of heart about how a case should havebeen run will not suffice. The prospect of further evidencetriggering a substantial relitigation before the appellate Courtof the substantive case will count against admitting the furtherevidence;(d) generally, the further evidence must be fresh, credible andcogent;(e) evidence will not be regarded as fresh if it could, withreasonable 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 beadmitted unless the circumstances are exceptional and thegrounds compelling. In addition, the further evidence needsto pass the tests of credibility and cogency;4 Rule 20.16(2). I note that a party to an appeal may adduce further evidence on a question of factwithout leave if the evidence is necessary to determine an interlocutory application that relates tothe appeal: r 20.16(1).5 Rule 20.16(3).6 B v A [2020] NZHC 580.7 Hodgson v Hodgson [2015] NZCA 404, [2015] NZFLR 979 at [39]–[44]; and see Nation v Nation[2005] 3 NZLR 46 (CA); Telecom Corp of NZ Ltd v Commerce Commission [1991] 2 NZLR 557(CA); Comalco NZ Ltd v TVNZ Ltd (1996) 10 PRNZ 573 (HC); and Complaints Committee No 1of the Auckland District Law Society v P (2007) 18 PRNZ 760 (HC).(g) the interests of justice require the parties to put their best caseforward at trial, in order to avoid wasting the Court's limitedtime and resources. A high value is placed on finality whenthe parties have been afforded the opportunity and failed totake it; and(h) the standard to be met is "rightly high".The proposed new evidence and my decision[26] The first piece of new evidence the appellant wants to admit on the appeal isinformation on the percentage increase in house prices from August 2020. Thisinformation of course post-dates the Family Court hearing, and in that way is "fresh".[27] The appellant confirmed that she did not seek to use this evidence to revisit theagreed value of the family home ($690,000). Rather, she said that the proposed newevidence was relevant to her living standards following separation, and thereforerelevant to her appeal against the Judge's s 15 award.[28] I decline to grant leave to admit this aspect of the new evidence. Admittingnew evidence on an appeal will be exceptional rather than the norm. While theproposed new evidence is strictly fresh, it is technically hearsay evidence rather than,for example, affidavit evidence given by an independent expert witness on propertyhouse prices. But more importantly, I am not persuaded it is so relevant or necessaryto the issues I must determine that it ought otherwise to be admitted. The assessmentof the disparity for the purposes of s 15 is to be made as at the date of separation,though it is a forward-looking exercise. The appellant's claim for compensation unders 15 in the Family Court only extended over the period from separation to 2019, or inthe alternative, to July 2020. The new information the appellant wants to rely onaccordingly relates to a later time period than that covered by her claim.[29] Further and in any event, there must be limits on the information put before theCourt on an appeal, otherwise parties could routinely seek to introduce new evidencein any appeal against a s 15 award. I take judicial notice of the fact that house priceswill fluctuate over time (though generally rise over the longer term). If I admitted theevidence of price increases from August 2020, should I also admit evidence of whatnow appears to be a plateauing of, or potentially a fall in, house prices? Further, theappellant has been in rental accommodation since separation; should expert evidencebe admitted as to the interaction between rising (and perhaps plateauing or falling)house prices and rental accommodation?[30] Standing back, I do not consider it to be in the interests of justice for thisevidence to be admitted on appeal.[31] The second aspect of the proposed new evidence is without prejudicecorrespondence between the parties which the appellant says demonstrates that therespondent had asked her to be primarily responsible for the care of the children post-separation. The appellant says that this is relevant because it shows that the respondentlied under oath in the Family Court hearing, when he denied asking her to undertakechildcare arrangements.[32] Again, I decline to grant leave for this aspect of the proposed new evidence tobe admitted on the appeal. Ultimately, I do not consider it relevant to the mattersI must determine, or sufficiently relevant or cogent to justify setting aside what is avery important privilege.8 Most importantly, the Judge proceeded on the basis that theappellant had primary responsibility for the care of the children post-separation.Whether or not that came about through a request by the respondent or otherwise isnot in my view relevant. In addition, having reviewed the notes of evidence, it is notclear to me that the respondent "lied under oath" as the appellant suggests. Therelevant part of the notes of evidence is quite difficult to follow, in terms of thequestions put by the appellant and the answers given by the respondent. Further, tothe extent the appellant wants to admit this aspect of the proposed new evidence toundermine the respondent's credibility more generally, as discussed in the followingsection of my judgment, matters of credibility are very much the domain of the trialJudge.[33] The third item of new evidence which the appellant wants to admit on theappeal comprises IRD records in relation to the respondent from February and March2021. She says that these show that the respondent had about $20,000 more incomethan anticipated, and thus call into question the source of this income, and whether he8 Smith v Shaw [2020] NZHC 238, [2020] 3 NZLR 661 at [34]–[42].had similar additional income in earlier years that was not disclosed. Counsel for therespondent confirmed their instructions from the respondent that the increase inFebruary and March 2021 related to an increase in overtime work carried out by himafter the hearing and judgment, in order to pay for legal fees.[34] Again, I am not persuaded that these IRD records should be admitted on theappeal. The information is fresh, but I am not satisfied it is sufficiently relevant orcogent. Ultimately the appellant stated at the appeal hearing that she did not reallyknow what the material showed, but that it needed to be investigated. This has adistinct air of a "fishing expedition". Again, a line needs to be drawn in the context ofappeals, and it will only be in exceptional circumstances and when consistent with theinterests of justice that new evidence will be admitted. I also observe that the Judgehad proceeded on the basis that the respondent had a base salary which fluctuated fromtime to time, depending on the amount of overtime he carried out. Accordingly, andat least on the face of the materials, there is nothing obviously "sinister" which justifiesa fresh inquiry on appeal into the respondent's income.Legal principles applicable to the appeal[35] Relationship property appeals from the Family Court proceed by way ofrehearing.9 Because the classification of relationship property is an evaluativeexercise (rather than a discretionary one), appeals against such decisions are generalappeals. While I must take into account the advantage the Judge had in hearing andseeing the parties give evidence, I am free to substitute my own findings if I reach adifferent conclusion.10[36] It is relevant to note, however, that an appeal by way of rehearing does notproceed as if there has been no decision at all in the lower court. It is only if the appealcourt considers that the trial Judge was wrong that the appeal Judge ought to interferewith the decision on the appeal.119 Property (Relationships) Act 1976, s 39, incorporating District Courts Act 1947, s 75.10 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16]; andB v F [2010] NZFLR 67 (HC) at [6].11 Austin, Nichols, above n 10, at [16]; Kidd v Russell [2018] NZHC 3032, [2018] NZFLR 841 at[5]–[9]; and Bowden v Bowden [2016] NZHC 1201, [2017] NZFLR 56.[37] The Court of Appeal has also commented on the proper approach to be takenon a general appeal when credibility and factual matters are in issue. In Green v Green,the Court made the following observations:12[29] Austin, Nichols reaffirmed the appellate court's obligation to form itsown independent judgment on the merits of an appeal by way of rehearing.But two fundamentals remain constant.[30] First, it is still axiomatic that the appellant bears the onus ofpersuading the appellate court to reach a different conclusion. Of necessity, indischarging that onus the appellant must identify the respects in which thejudgment under appeal is said to be in error.[31] Second, it is also axiomatic that in determining whether the judgmentwas wrong the appellate court will take into account any particular advantagesenjoyed by the trial court. The advantages possessed by a trial judge indetermining questions of fact are obvious, especially where assessments ofcredibility and reliability are involved. The trial judge gets to see and hear thewitnesses, and is able to evaluate the strength of the evidence as itprogressively unfolds within the context of the trial as a whole. As this Courtpointed out in Rae v International Insurance Brokers (Nelson Marlborough)Ltd:As the evidence unfolds the trial Judge gains an impression from the evidencewhich is not necessarily or usually apparent from the cold typeface of thetranscript of that evidence on appeal. The Judge forms a perception of thefacts in issue from which he or she adds or subtracts further facts as witnessesgive their evidence, and so obtains as complete a picture as is possible of theevents in issue. The Judge perceives first hand the probabilities inherent inthe circumstances traversed in the evidence and can obtain a superiorimpression of those probabilities as a result.[32] It was for those reasons the Supreme Court in Austin, Nicholsexpressly stated an appellate court should exercise caution in consideringchallenges to findings of credibility.[38] In the context of any particular advantage of the first instance court, I also noteWoolford J's observations in an appeal relating to other aspects of the Act that:13While no particular technical expertise is called for, this sort of case is theFamily Court's bread and butter.[39] That observation is equally applicable to applications for compensationpursuant to provisions such as ss 15 and 18B of the Act.12 Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 (footnotes omitted).13 Venter v Trenberth [2015] NZHC 545, [2015] NZFLR 571 at [18].[40] I turn now to the appellant's appeal against the Judge's s 15 award.Appeal against s 15 award[41] To put the Judge's reasons for her s 15 award in context, it is helpful first tosummarise the applicable legal principles.Legal principles[42] Section 15 of the Act empowers the Court to order a payment of compensationwhere, at the end of a relationship, one partner has a significantly higher income andstandard of living than the other partner, and that disparity is the result of the divisionof functions within the relationship. It is helpful to set s 15 out in full:15 Court may award lump sum payments or order transfer ofproperty(1) This section applies if, on the division of relationship property, thecourt is satisfied that, after the marriage, civil union, or de factorelationship ends, the income and living standards of one spouse orpartner (party B) are likely to be significantly higher than the otherspouse or partner (party A) because of the effects of the division offunctions within the marriage, civil union, or de facto relationshipwhile the parties were living together.(2) In determining whether or not to make an order under this section, thecourt may have regard to—(a) the likely earning capacity of each spouse or partner:(b) the responsibilities of each spouse or partner for the ongoingdaily care of any minor or dependent children of the marriage,civil union, or de facto relationship:(c) any other relevant circumstances.(3) If this section applies, the court, if it considers it just, may, for thepurpose of compensating party A,—(a) order party B to pay party A a sum of money out of party B'srelationship property:(b) order party B to transfer to party A any other property out ofparty B's relationship property.(4) This section overrides sections 11 to 14A.[43] The legislative history to s 15 was summarised by Arnold J in the SupremeCourt in Scott v Williams.14 The provision was a response to a perceived deficiencyin the way the then Matrimonial Property Act 1976 addressed the position of non-career partners in relationships that operated on "traditional lines" – that is, with oneparty (usually female) assuming the primary responsibility for homemaking andchildcare (referred to as the non-career partner), and the other assuming responsibilityfor income earning (the career partner). Arnold J noted that despite equal sharing ofrelationship property, a recognised concern was that the non-career partner was oftenleft in an economically disadvantaged position at separation, and was unlikely to havethe same income earning ability as the career partner.15 Section 15 was enacted toseek to deal with these issues.[44] As the authors of Westlaw Family Property observe, the operation of s 15requires an assessment of the future economic circumstances of the parties, based uponthe effects of the division of functions during the relationship.16 The first part of thatassessment is future looking, and is accordingly not an assessment of the parties'present income and living standards. The second part looks to the past. The disparitymust be attributable to the division of functions in the relationship while the partieswere living together.[45] It is generally accepted that the assessment is made as from the date ofseparation, but that the calculation is made once the extent of relationship propertyand the relevant shares in the property are known.17[46] The authors also summarise two approaches that, at least until the SupremeCourt's decision in Scott v Williams, were commonly adopted by the courts whenassessing whether an award under s 15 ought to be made and if so, in what amount:1814 Scott v Williams [2017] NZSC 185, [2018] 1 NZLR 507 at [282].15 At [282].16 Nicola Peart (ed) Family Law – Family Property (online looseleaf, Thomson Reuters) at[PR15.02].17 See X v X [Economic disparity] [2007] NZFLR 502 (HC) at [86]; and Scott v Williams, aboven 14, at [216]–[220].18 Peart, above n 16, at [PR15.02]; and see [PR15.17].(a) The first, referred to as the "diminution method", is based on anassessment of what the disadvantaged partner would have earned in thefuture, "but for" the intervention of the division of functions within therelationship.(b) The second, referred to as the "enhancement method", assesses howmuch the advantaged partner's earning capacity had been enhanced bythe division of functions within the relationship.[47] The diminution method was endorsed by the Court of Appeal in X v X.19 It ishelpful to address some aspects of that decision, and the Family Court decision at firstinstance, which are relevant to matters discussed later in this judgment.[48] In describing the diminution method, O'Regan J, writing for himself and EllenFrance J, said the following:20[172] The basic methodology of the calculation of the compensation awardadopted by Judge Clarkson [at first instance in X v X] involved calculating afigure representing the present value of the cumulative difference between thefuture after-tax income which Mrs X could have expected to earn but for herrole within the relationship and the after-tax income which she is projected toactually earn if she works to the full extent of her future income-earningcapacity. Appropriate allowances are then made to reflect the time value ofmoney and the chances of non-collection of future income (because of reducedtime in the workforce for reasons such as death, deteriorating health, changesin personal priorities, repartnering or early retirement). The outcome of theadoption of this methodology is a capital sum reflecting the net present valueof future income that would have been earned by the disadvantaged partnerbut for the division of roles in the relationship. The resulting award is halfthat sum.(emphasis added)[49] O'Regan and Ellen France JJ considered the diminution method provided "aworkable methodology guiding judges in the calculation of income shortfall awardsmeeting the statutory objectives of s 15".21 O'Regan J noted, however, that there was19 X v X [Economic disparity] [2009] NZCA 399, [2010] 1 NZLR 601.20 The italicised parts of this extract from O'Regan J's judgment are relevant to matters discussedlater in my judgment.21 X v X, above n 19, at [173].no argument before the Court in X v X about the appropriateness of the methodologyused, nor any suggestion of an alternative one. His Honour therefore stated that:22 we do not say the methodology is the only appropriate one for cases of thiskind. Rather, we endorse its use in this case and cases like it. Themethodology is unlikely to provide a complete answer for every case of thistype: the statutory requirement is that the award be just, and that is theoverriding consideration.[50] On appeal, Mrs X argued that the Family Court Judge had been wrong to rejectthe use of Mrs X's actual income figures when applying the diminution method. TheFamily Court Judge had considered to do so would be wrong, because althoughMrs X's career progress had not followed the experts' predictions, this was somethingthat was within her control. The Judge had been concerned that if actual incomefigures were used, this would "skew" the calculations and might provide an incentivefor disadvantaged partners to defer re-entry to the workforce or minimise their actualincome in order to bolster their s 15 claims.[51] The Court of Appeal endorsed the Judge's approach to this issue. For themajority, O'Regan J stated:23The focus of the s 15 quantum exercise is on the difference between the actualearning capacity of the disadvantaged partner as against what he or she wouldhave been capable of earning but for the division of roles within therelationship. While the actual income figures may inform the assessment ofearning capacity in the relevant years, actual earnings will not necessarilyrepresent actual earning capacity. The extensive expert evidence in this case,including projections based on robust assessments, made it appropriate to dealwith the case on the basis of projections of income capacity after full re-entryinto the workforce, rather than actual income.(emphasis added)[52] The Court of Appeal in X v X was divided, however, on whether the figurearrived at by applying the diminution method ought to be halved. O'Regan J, writingfor the majority, stated:24[231] The loss for which the disadvantaged partner is being compensated inan income shortfall case is the loss of future earning capacity brought aboutby the division of roles in the relationship. It would be just for the advantaged22 At [175].23 At [200].24 X v X, above n 19.partner to pay the full amount of this if that partner had sole responsibility forthat division of roles. But the reality is that the division of roles within arelationship is a matter of joint decision.[53] The majority accordingly agreed with Judge Clarkson's approach of halvingthe amount determined by the diminution method.25[54] Three points from the decision in X v X which are relevant to the appeal in thiscase are worth emphasising:(a) First, it is clear that, when applying the diminution method, the "actualfuture income" to be earned by the disadvantaged partner is to reflectwhat the disadvantaged partner would actually earn if they worked tothe full extent of their future income earning capacity.(b) Second, the methodology adopted in the Family Court had assessed theyear in which Mrs X could reasonably have been expected to resumefull-time work. The experts called to give evidence on behalf of eachparty had disagreed on that matter, one adopting a return to full-timework within a year of separation, the other a return to full-time workthree years from separation. The Family Court Judge had adopted thelatter, though the model provided by the expert whose position theJudge accepted had included actual income earned by Mrs X for theperiod from separation to re-entry to full-time employment (rather thanusing a nil figure for each year).26 The majority of the Court of Appealendorsed the Judge's approach on this issue.(c) Third, and as noted earlier, the majority endorsed halving the figuredetermined by the diminution method.[55] The approach to s 15 awards was subsequently considered by the SupremeCourt in Scott v Williams.27 While the members of the Court, including the majority,differed somewhat in their approaches to determining quantum in the event of a25 Robertson J did not consider it appropriate to halve the award: at [143].26 X v X, above n 19, at [188].27 Scott v Williams, above n 14.successful s 15 claim, a number of general principles can be drawn from thejudgments.[56] Turning to the majority judgments, I start with that of Arnold J. After notingsome preliminary difficulties with the s 15 assessment, Arnold J highlighted that todate, assessment of the "causation requirement" of s 15(1) had tended to focus on thenon-career partner's lost earning potential (that is, the diminution method), or thecareer partner's earning enhancement (the enhancement method). His Honour wasconcerned that these approaches required consideration of various counterfactuals, forexample what was the non-career partner's likely career path in the absence of divisionof responsibilities within the relationship, or how would the career partner's careerhave progressed absent the division of responsibilities in the relationship. In casesfocusing on the non-career partner's likely career path in the absence of the divisionof responsibilities (the diminution method), Arnold J said that this assessment wouldbe based on contrasting that partner's "but for" income with likely future income afterseparation, calculating a net present value in respect of the difference, deducting taxand contingencies, and then halving the resulting sum – an exercise his Honourconsidered demeaning, costly and contentious, as well requiring expert evidence.28Arnold J also considered that the diminution method may not be appropriate forcalculating s 15 awards in the context of a "traditionally arranged" relationship, giventhe difficulty of assessing the "but for" income of the non-career partner, which isoften the subject of conflicting expert evidence. Arnold J also noted that thediminution method may work unfairly in the case of a non-career partner who enteredthe relationship at a comparatively young age, without any real opportunity to beginor develop an occupational career. In those circumstances, his Honour observed that"there is no obvious career path to provide a basis for an assessment of 'but for'income".29[57] Arnold J accordingly considered that the appropriate focus under s 15 shouldbe on the disparity in income and living standards as between the parties themselves,and the extent to which that disparity was because of the division of functions in the28 At [292] and [310].29 Scott v Williams, above n 14, at [307].relationship.30 For ease of reference, I will refer to this approach as the "disparitymethod".[58] In the context of the threshold requirement under s 15(1), Arnold J stated:31If there has been a division of functions in a relationship along traditional linesand there is likely to be economic disparity after separation, the workingassumption should be that the division in functions caused the disparity, andthat is what should be compensated to the extent "just". Only strong evidenceof some other causative factor would be sufficient to negative or limit thisworking assumption.(emphasis added)[59] And further, that:32[311] Accordingly, s 15's causation requirement seems to me to be a broadone, in the sense that where a relationship has been conducted along traditionallines and there is a disparity of income and living standards post-separation, itshould generally be assumed that the division of responsibilities in therelationship:(a) was for the benefit of both parties;(b) restricted the non-career partner's income-earning ability; and(c) enhanced the career partner's earning ability.As I see it, these working assumptions are supported by research; they areconsistent with the Justice and Electoral Committee's report to the House onthe Matrimonial Property Amendment Bill and Supplementary Order PaperNo 25; and they will, in my view, generally reflect the parties' expectations inlong-term relationships of the type at issue in this case.[60] Arnold J noted that these working assumptions "could be displaced if theevidence was sufficiently compelling, but that would be unusual, at least inrelationships of long duration entered into at the outset of a career partner's career".33His Honour nevertheless stated:34 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 a well-established and successful business or professional person. In that type of case,30 At [289].31 At [293].32 Footnotes omitted.33 Scott v Williams, above n 14, at [323].34 At [325].it may be that only part of the disparity can fairly be said to result from thedivision of responsibilities in the relationship. In relationships of relativelyshort duration, this may be a complete explanation for post-separationdisparity. Again, however, care must be taken in these situations not toundermine the equality of contribution principle that underpins the [Act].(emphasis added)[61] Glazebrook J adopted a similar approach to s 15's threshold requirements. Shesummarised what she saw as being the proper approach as follows:35[263] Section 15 permits an order to be made which compensates for adisparity in income and living standards between partners after the end of therelationship if this disparity was caused by the division of roles in therelationship. Living standards will normally (but not always) be equated withincome.[264] The assessment of disparity is a broad one and it must be consideredin light of provisions in the [Act] that treat all contributions made by bothpartners to the relationship as equal. In long-term relationships where onepartner has had primary responsibility for home-making and child-care and theother partner for income-earning activities, this means that the [Act] operateson the assumption that any disparity at the end of the relationship is equallyattributable to both partners. This assumption can be rebutted but this wouldnot be easy to do in the case of long-term relationships. In shorter or differentlyorganised relationships, the principle of equal contribution may also mean thatthe assumption applies, but it will likely be much easier to show that all orsome of the disparity following separation resulted from something other thanthe division of functions in the relationship.(emphasis added)[62] The other member of the majority, Elias CJ, adopted a similar approach, at leastin relation to the threshold or jurisdictional questions within s 15(1). In particular, herHonour agreed with Glazebrook J's summary set out at [61] above and with ArnoldJ's overall approach.36[63] O'Regan J expressed concern at the concept of adopting "assumptions" unders 15(1), given the positive statutory requirement that the economic disparity has comeabout "because of" the division of functions in the relationship. He neverthelessstated:3735 Footnotes omitted.36 Scott v Williams, above n 14, at [331] and [356].37 At [385]–[386].I think Arnold J and I would agree that, where the relationship was not atraditional relationship of the kind he describes, the judge has to make adecision about the extent of the caused disparity without assumptions.The judge would need to make a broad assessment taking into account thequalifications and career stage of the partners when the relationship began andwhen the relationship ended, the period for which the functions were divided,what, in broad terms, the respective functions were and any other relevantmatters.(emphasis added)[64] William Young J was also concerned at the concept of assumptions, and didnot support the overall approach taken by the majority. Like O'Regan J, he concludedthat the words "because of" in s 15(1) require a positive causative link betweendivision of functions and disparity, such that it would be inappropriate to say that in alarge range of cases, causation may simply be assumed.38[65] The judgments in Scott v Williams also address the appropriate method ofquantifying an award to be made under s 15, making a number of points that arerelevant to the present appeal.[66] Arnold J provided the most detailed discussion of how a court might approachthe calculation of an award using the disparity method.39 As a preliminary point, hisHonour was clear that the claimant/non-career partner will be expected to take stepspost-separation to become financially independent over time,40 and to undertakeincome earning activities.41[67] Arnold J then set out a potential calculation method as follows:42(a) First, identify the extent of the disparity resulting from the division offunctions within the relationship. I interpolate to note that this step38 At [446].39 While the statutory provision refers to both income and living standards, the judgments proceedon the basis that relative income levels and living standards will in most cases be closelycorrelated. See for example at [289] per Arnold J; and at [212] and [263] per Glazebrook J.40 At [318].41 At [326(b)(i)].42 At [326]. O'Regan J agreed with this quantification methodology, though as noted did not endorsethe suggested adoption of the "working assumption": at [385].ultimately involves two inquiries: the first as to the disparity betweenthe parties, and the second being an assessment of the extent to whichthat disparity has come about because of the division of functionswithin the relationship. Where the working assumption is notdisplaced, the whole of the established disparity will be attributable tothe division of functions within the relationship. But if the workingassumption is rebutted, the extent of the disparity resulting from thedivision of functions within the relationship will need to be assessed.43As I discuss further below, I respectfully agree with Walker J's decisionin Gosbee v Gosbee that first, the evidence in any given case may drivea conclusion that only part of the disparity results from the division offunctions within the relationship, such that apportionment is requiredat the quantification stage,44 and second, that this approach is availablefollowing the Supreme Court's decision in Scott v Williams.(b) Returning to Arnold J's quantification method, the second step is toconsider for how long the disparity should be compensated. Arnold Jnoted that it should not be assumed that this period will be the same asthe potential working life of either partner, given in the ordinary course,the non-career partner will be expected to undertake income earningactivities and the career partner's personal autonomy must berecognised (in terms of being left with the ability to move on with hisor her life).45 Arnold J further observed that it may be relevant toconsider how long it might take the non-career partner to retrain orupskill, which will be affected by matters such as whether or not he orshe has responsibility for the daily care of minor or dependent childrenof the relationship.(c) The third step is to apply the necessary discounts to cover the"contingencies of life" and taxation.43 See [385] per O'Regan J.44 Gosbee v Gosbee [2020] NZHC 1001. See below at [78]–[79].45 Scott v Williams, above n 14, at [326(b)].(d) Fourthly, the Judge should calculate a present value for the annualfigures derived to identify a particular sum.(e) Lastly, the Judge should halve that sum, which is necessary to avoidtransferring the full disparity onto the career partner.[68] Arnold J emphasised that consideration must ultimately be given to what is"just" in the overall circumstances, and an award should not create disparity the otherway.46[69] It is perhaps worth emphasising the observation at (e) above, namely that theresulting award should be halved. Glazebrook J agreed that halving the award wouldbe appropriate where necessary to ensure disparity is not created for the other party.47William Young J set out his approach to calculating the award based on a disparitymethod, the last step also being to halve the figure arrived at.48[70] The Court of Appeal in Scott v Williams had adopted the diminution method inorder to calculate the award under s 15.49 Glazebrook J's judgment is the onlyjudgment in the Supreme Court to comment in any detail on the Court of Appeal'sapproach to the diminution method.[71] A key issue raised on the appeal was the contingency rate the Court of Appealhad applied, namely 35 percent (being the same rate adopted in X v X). Counsel forMs Scott submitted that if the disadvantaged partner's estimated income is areasonable estimate, then it should have already struck a balance between high andlow possibilities, and thus a further and significant contingency discount was notrequired. Counsel also argued that a contingency was also not required for that periodbetween separation and the hearing, given it would be known if the non-career partnerhad experienced any of the contingencies to which the discount is directed. Counselfurther submitted that the Court of Appeal had been wrong to halve the award arrivedat by applying the diminution method.46 At [327].47 At [215].48 At [475]–[476].49 Scott v Williams [2016] NZCA 356, [2016] NZFLR 499.[72] Glazebrook J noted that the first step under the diminution method is tocalculate the difference between the disadvantaged partner's actual income and his orher projected income.50 She said that this should be calculated over the period to theearlier of retirement or when the disparity will cease.51 In terms of the claimant'sactual likely income going forward, her Honour noted that the Family Court Judge hadheld that Ms Scott should not have been required to return to highly stressful work forthe purposes of the calculation, and had therefore adopted an actual income figure of$84,000. Noting that that figure was no longer challenged before the Supreme Court,Glazebrook J was nevertheless concerned at the approach adopted. She said:52[242] While not suggesting the use of the $84,000 figure was inappropriatein this case, I do comment that calculating an actual income figure that is notbased on a return to the type of work for which a disadvantaged partner isqualified should not be taken too far. Purely lifestyle choices (as againstrational choices based on, for example, age, health or uncertainty as toadvancement) should not be accepted as diminishing the actual income figureused in the calculations. The future actual income figure should reflect theaptitudes, abilities, qualifications and circumstances of the disadvantagedpartner at the time the s 15 order is calculated.(emphasis added)[73] Glazebrook J emphasised, however, that the same considerations do not applyto "choices" made during the relationship.53[74] Glazebrook J further observed that no contingency, or at least not as significanta contingency, should be necessary if the non-career partner's "but for" income is setat a realistic level and accordingly takes into account the vagaries of life.54 HerHonour also inclined to the position that no contingency should apply from the timeof separation to hearing, if none of the "contingency events" (my phrase, notGlazebrook J's) had occurred, though was not prepared to be definitive on these pointsgiven the lack of expert evidence.5550 Scott v Williams, above n 14, at [240].51 At [240].52 Footnotes omitted.53 At [242], n 327; see also [317]–[318] per Arnold J.54 Scott v Williams, above n 14, at [243].55 At [243].[75] Glazebrook J did not endorse the approach routinely taken in the lower courtsof halving the figure ascertained by the diminution approach.56 Even if the award werenot halved, however, her Honour was clear that there still remained a residual inquiryas to what would be "just" compensation for the disparity in any particular case.57In that context, her Honour disagreed with a number of the factors the Court of Appealhad taken into account when assessing the "just" award, observing that the claimant'sshare in the amount of relationship property and any income from it is neutral whenconsidering what is a just order. Glazebrook J did consider, however, that the factMs Scott was likely to work longer post-separation than Mr Williams (given their agedifferential) was a relevant matter.58 In the event, Glazebrook J considered it fair toboth parties to adopt the midpoint of the Court of Appeal's range, which avoided thematter being remitted to the Family Court.59[76] Arnold J did not separately consider the approach to quantum under thediminution method, but agreed with Glazebrook J's analysis.60 Elias CJ consideredthe approach taken to s 15 in the lower courts to have been wrong, and therefore didnot address the calculation of a s 15 award using the diminution method. O'Regan Jagreed with Glazebrook J's approach to the appeal and the application of thediminution method.61 William Young J did not address quantification under thediminution method.[77] I have flagged earlier whether the majority judgments in Scott v Williams leaveopen the possibility that the working assumption may be partially, though not wholly,rebutted. In other words, is the working assumption an "all or nothing" approach?[78] Walker J considered this issue in Gosbee v Gosbee.62 In that case, the Judgeaccepted that the division of functions within the parties' marriage was not the solecause of economic disparity at separation, nor was it the single most influential cause.56 At [244]. I observe that Arnold J appeared to endorse halving the amount, or at least did notsuggest it would be an error to do so: see [292].57 At [244].58 At [257].59 At [258].60 At [329].61 At [389].62 Gosbee v Gosbee, above n 44.She considered the disparity arose from multiple factors, including the "choicesMs Gosbee made after separation by taking no further steps or training in heremployment as an occupational therapist".63[79] The Judge concluded that the Supreme Court left open the possibility that theworking assumption may be partially rebutted.64 I respectfully agree with Walker J'sconclusion and her analysis of the judgments in Scott v Williams.65 I would only addthat the majority in Scott v Williams emphasised that in longer, traditionally arrangedrelationships it will be difficult to displace the working assumption, and that anyassessment must adhere to the principle that all contributions to the relationship,whatever form they take, are to be treated equally.[80] With those legal principles in mind, I turn now to the Judge's assessment ofcompensation under s 15.The Judge's s 15 award[81] The Judge first assessed whether there was likely to be a disparity between theincome and living standards between the respondent and the appellant after theirmarriage had ended. The Judge noted that in order to attract a s 15 award, the disparitymust be significant.[82] The Judge noted that the respondent was, at the date of the hearing, 65 yearsof age with existing health issues, and had had income over the period 31 March 2015to 31 March 2019 ranging from approximately $86,000 to $100,000 per annum. Sherecorded that the respondent's income "also includes interest on investments".66 TheJudge observed that at 65 years old, the respondent foresaw working only for a fewmore years.63 At [45].64 At [47]–[53].65 The following aspects of the majority judgments in Scott v Williams, above n 14, suggest partialrebuttal is available: at [197], [204] and [213] per Glazebrook J; at [293], [325] and [326(a)] perArnold J; and at [356] per Elias CJ. I also note the helpful discussion of the issue in TasneemHaradasa "Causation in Section 15 of the Property (Relationships) Act 1976: Analysing the NewZealand Supreme Court's "Working Assumption" – Is It Really Working?" (2019) 50 VUWLR77.66 Little v Little, above n 1, at [155(d)].[83] In contrast, the Judge noted that at the end of the marriage in 2015, theappellant was earning approximately $6,000 per annum as an occupational therapist,supplementing her income with WINZ benefits, accommodation supplement and childsupport. The Judge found that her income from these sources had risen to $16,000 in2019. The Judge recorded that during the marriage, the appellant had worked bothpart-time and full-time, and had earned up to $66,000 in 2011 and $55,000 in 2013.[84] The Judge found that the respondent clearly had a higher income than theappellant at separation, and noted that while there was little evidence as to comparativeliving standards (the respondent's evidence being that the quality of the appellant'srental accommodation was far superior to the standard of the family home), income isoften an important indicator of standards of living. The Judge was therefore satisfiedthat the respondent's income and living standards were likely to be (and indeed were)significantly higher than the appellants.[85] The Judge then turned to the "backward looking" exercise of whether thatdisparity was caused by the division of functions within the marriage. The primaryfocus of the Judge's discussion was the respondent's submission that the "workingassumption" discussed in Scott v Williams ought to be rebutted in its entirety, giventhe nature and duration of the parties' relationship, and the appellant's working history,both before and during the marriage.[86] The Judge addressed in some detail the appellant's working history as at thetime of the entry into the marriage and during the marriage itself. In particular, theJudge noted that on entry into the marriage, the appellant was already a fully trainedoccupational therapist, though after the birth of the children, she had worked part-time.The Judge noted that in June 2004, between the births of the two children, the appellantworked at a college as an occupational therapist and by 2011, her salary had risen to$66,891. The appellant's evidence was that she later reduced her work to allowflexibility to care for the children, though continued to work during the period ofseparation between July 2011 and 2013. In early 2013, the appellant obtained full-time employment as an occupational therapist earning $55,000 per annum, thoughagain reduced her hours again following reconciliation with the respondent.[87] The Judge noted that in 2014, the appellant started a new role as aself-employed contractor, but it was not as well remunerated as hoped for. The Judgenoted that despite the reduced earnings, the appellant had continued in that contractorrole for five years following separation.[88] The appellant's evidence as to why she had not returned to full-time work afterseparation was that this was because of:(a) the lack of a reliable motor vehicle;(b) vision problems, which she later rectified with getting new glasses;(c) applying for full-time work but having missed out on positions; and(d) after separation, the children needing her full-time support, despitebeing older than they were during the marriage.67[89] The Judge found that there were inconsistencies in the reasons given by theappellant for not re-engaging in full-time work following separation, and was satisfiedthat the appellant could have re-engaged in full-time work as an occupational therapistimmediately following separation.68 In this context, the Judge said the following:[185] The applicant was unable to give a credible or reasonable explanationwhy, when the children were much younger and arguably more dependent onher, that she was able to maintain well-paid employment [as an occupationaltherapist at a college] from approximately 2004 to 2011 and later in 2013. Shemaintained full-time employment even for a period when she was separatedin 2011.[186] Therefore, I am satisfied that it is not wholly as a result of the divisionof functions in the marriage that at separation the applicant was in lowerpaying contracting work but as a result of other factors outside of therelationship. As earlier noted, she herself has proffered other reasons for notreturning to full-time work which are not directly related to the division offunctions. She started contracting work for the flexibility acknowledging thishas been at the expense of better remuneration. (I observe that this flexibilityhas enabled the applicant to fully engage in these proceedings – under boththe Care of Children Act and [the] Act – which have been complex and timeconsuming, a point made by the respondent.)67 The children being nine and 12 years old at the date of separation, and 14 and 17 years old by thetime of the Judge's judgment.68 Little v Little, above n 1, at [183].[187] Against that, I am satisfied that there is also clear evidence thatbecause the applicant bore the major responsibility for the care of the children,after school activities, cared for other family members throughout themarriage, and took work which was mostly in family friendly hours that thiscontributed in part to the disparity in income and living standards.[188] Accordingly, I determine that the applicant is entitled to the workingassumption accorded to a relationship in which the division of functionsoperations along traditional lines but that external factors have alsosignificantly contributed to the economic disparity. This means the workingassumption has been partially but not wholly displaced.(emphasis added)[90] Having made those factual findings, the Judge then turned to the quantificationof the s 15 award, first adopting the diminution method.69 The appellant's approachadopted a "but for" gross income figure of $77,000 (net being $60,670), and comparedthat with her actual post-separation earnings over the period from separation toMarch 2019 (being the year of the respondent's retirement). This resulted in what theappellant submitted to be the "minimum" compensation on the diminution method of$147,359.[91] The Judge adopted the amount of $77,000 per annum as what an occupationaltherapist could earn in the present market in a full-time role, which was in fact agreedby the parties. The Judge held, however, that an income of around $55,000 per annum,which she said the appellant had earned in 2013, was a fairer estimate of what theappellant's actual income earning capacity was at the date of separation. The Judgeaccordingly found that there was a disparity between the appellant's "current earnings"(as adjusted) and "earning capacity", namely the difference between the $55,000 and$77,000 per annum figures.[92] Adopting this methodology, the Judge calculated the disparity as follows:70Taking the difference between the net income for "but for" income (net of$77,000) $60,670 and (net of $55,000) $44,682 is $15,988 x 4 years is$65,714. Half is $31,976.69 The Judge no doubt did so as this was the first method of calculation adopted by the appellant inher written submissions filed following the hearing.70 Little v Little, above n 1, at [195(a)].[93] The Judge did not apply any contingency or other discounts.[94] The Judge rejected the appellant's claim based on the enhancement method,noting that "there is no compelling or direct evidence of enhancement or contribution"to the respondent's career.71[95] The Judge then adopted the disparity method from Scott v Williams, essentiallyas a cross-check of the amount arrived at under the diminution method. Again, theappellant had also adopted a similar method in her written submissions (with hercalculation set out at Table 2 of those submissions). The appellant had assessed thedisparity between her and the respondent's incomes over the period from separationto March 2019 (on the basis the respondent turned 65 that year, and assumingretirement), and also to July 2020 (reflecting that by the time of the hearing, therespondent was in fact still working and thus the disparity continued).72 Over the firstperiod, the appellant assessed the disparity to be $212,402, and then halved thatamount to reach an indicative award of $106,201. Extending the period to July 2020resulted in an indicative award of $138,118.[96] For this cross-check approach, the Judge adopted the appellant's assessment ofthe disparity (that is, those calculations in Table 2 of the appellant's writtensubmissions). Based on her factual findings, however, the Judge concluded thatappellant and respondent's relationship was not a traditionally arranged one, at leastas envisaged in Scott v Williams (though had traditional aspects in terms of theappellant's primary role in caring for the children). Having concluded that thedisparity between the parties' incomes and living standards was significantly causedby factors outside of the relationship, the Judge concluded that only 15 percent of thedisparity was attributable to the division of functions within the marriage. Thisequated to $31,806.30, which the Judge observed was very similar to the outcomeunder the diminution method. I interpolate to note that the Judge did not go on tohalve the amount calculated on the basis of the disparity method, which could be said71 At [198].72 Though the appellant acknowledged in her written submissions that the respondent "hasprerogative to change this position when he so desires".to be generous to the appellant (putting aside the percentage rate adopted, with whichthe appellant of course disagrees).[97] The Judge then stood back and considered whether it was just to make an awardin all of the circumstances. She observed:73 that a just result in the circumstances is a compensatory payment to theapplicant in the sum of $30,000 under s15. This award, in conjunction withprevious adjustments in her favour under s 18B and s 18C reflects a divisionof all property approximately 63 per cent in favour of the applicant and 37 percent in favour of the respondent.The appellant's appeal[98] To recap: the appellant says that the Judge was wrong to halve the awards unders 15, was wrong to find the "working assumption" had been displaced (by 85 percent),did not take into account her assistance to the respondent in preparing work reportsduring the marriage,74 and did not take into account ongoing benefits to the respondentfrom work and superannuation schemes. The appellant further says that it was wrongof the Judge to adopt $55,000 as her "but for" salary when applying the diminutionmethod, and to assume that in 2015 she could have obtained full-time pay for part-time work (ignoring, for example, the need to "up skill" to obtain health equipmentaccreditation).Decision on appeal of s 15 award[99] Given the Supreme Court's endorsement of the disparity method, and itssomewhat underwhelming enthusiasm for the diminution method, I first turn to theJudge's assessment of the s 15 award based on the disparity method.[100] First, there is no cross-appeal or suggestion by the respondent that there wasno disparity in the parties' income and living standards at separation. That must beright in my view. Nor does the respondent challenge the Judge's adoption of theappellant's assessment of that disparity.73 Little v Little, above n 1, at [197].74 Though at the hearing before me, the appellant acknowledged this was a relatively minor point.[101] On the majority approach in Scott v Williams, the application of the workingassumption would ascribe the whole of that disparity to the division of responsibilitieswithin the relationship. As noted, however, the Judge found that appellant andrespondent's marriage was not a traditionally arranged relationship, and I agree withthat assessment:(a) As the appellant accepts, both parties had established careers andearned similar income at the start of the marriage.(b) The appellant continued to work in her role as an occupational therapistthroughout the relationship, in full-time, part-time and "full-timefamily friendly hours" scenarios. There were not, therefore, "lengthyabsences" from the workforce as discussed by Walker J in Gosbee vGosbee.75(c) The appellant also continued to work in her chosen profession duringthe first period of separation from 2011 to 2013, despite having primarycare of the children at that time.[102] I am of the view, however, that the Judge erred in her assessment of the degreeto which the working assumption was displaced (or to put the point another way, theapportionment adopted when calculating quantum). By concluding that only15 percent of the disparity at separation was attributable to the division of functions inthe marriage, the Judge effectively found that the vast majority of the disparity was, atall times following separation, due to factors unrelated to the division of roles withinthe marriage. Looking at the evidence as a whole, the following factors persuade methat that conclusion was in error:(a) First, the appellant's change to contract work (in 2014) was a decisionor choice made within the marriage, and not unilaterally by theappellant following separation. Accordingly, it was not correct tocategorise that decision as the appellant "opting" to do so,76 at least to75 Gosbee v Gosbee, above n 44, at [45].76 Little v Little, above n 1, at [180(d)].the extent that it reflected a choice by the appellant only, and not adecision "shared" by the respondent. In this context, I remind myselfof Arnold J's cautionary note in Scott v Williams that choices made bya wife during the marriage to focus on family life are to be viewed as acontribution to the marriage equal to that of her husband.77(b) Second, there is no doubt that the appellant had, at all times during themarriage, carried the main burden of childcare, at least in terms oftailoring her working hours around that role.(c) Third, I consider the assessment of 15 percent, and that the appellantcould have immediately re-entered the workforce on a full-time basis atseparation, to underestimate the impact of reasonably consistentperiods of part-time work during the marriage, and then the change,within the marriage, to contract work only. I also consider theassessment underemphasises the appellant's primary role in care of thechildren both during the marriage and following separation, and that itwas not unreasonable for the appellant not to look to make verysignificant changes in her working role, at least in the immediateaftermath of separation. In this context, and consistent with thequantification approach suggested by Arnold J (set out at [66]–[68]above), consideration must be given to whether the appellant ought tohave been expected to return to the workforce full-time immediatelyfollowing separation.[103] Balanced against these factors, however, I do not accept the appellant'ssubmission that the Judge was wrong to take into account decisions made subsequentto separation.78 As Arnold J made clear in Scott v Williams, the claimant partner will77 Scott v Williams, above n 14, at [317]. See also [317], n 407, where Arnold J stated "But even ifthe choice was primarily that of the non-career partner rather than the couple, that does not seemto me sufficient to justify a reduction in the amount that might otherwise be awarded, for thereasons given in the text." See also [242], n 328 per Glazebrook J; and Walker J's comments inGosbee v Gosbee, above n 44, on choices made within the marriage relationship: at [55].78 For example, the appellant relies on aspects of the Court of Appeal's judgment in X v X, aboven 19, whereas the extract relied on in fact confirms that post-separation decisions may be relevant,Robertson J stating at [136]: "If Mrs X has not been vigorous in her re-entry into the workforceso that her actual income has been less than what, in the experts' opinion, it could have been, andbe expected to take steps post-separation to become financially independent over time,and to undertake income earning activities.79[104] The Judge was in the best position to assess the credibility and reliability ofthe appellant's explanations for why she did not or could not engage in moreremunerative work in the years following separation. Ultimately a compelling factor,as the Judge noted, is that at most times during the marriage, the appellant was earningor capable of earning significantly more than she did post-separation. I also do notconsider the Judge erred in rejecting the appellant's submission that the childrenneeded her more at this time, when they were older and less dependent than they hadbeen when the appellant had worked full- and part-time during the marriage (includingduring the period of the couple's first separation). I also do not consider it to be anerror not to adjust the approach to reflect, for example, the appellant and respondent'sdaughter's illness in 2020, as the appellant suggested in her appeal submissions. Thoseevents occurred some five years after separation, and matters such as this wouldnormally be reflected in discounts for the "contingencies of life" (step three inArnold J's suggested quantum approach). As noted, no discounts or contingencieswere adopted in this case.[105] Reflecting the above, and adopting the appellant's calculation of the disparityfrom Table 2 of her written submissions filed following the Family Court hearing:(a) I consider it appropriate to compensate the disparity until June 2020,given at the time of the Family Court hearing, it was known that thedisparity continued (and that the respondent expected to continue towork for a few more years). The appellant did not suggest the timeperiod should extend any further than this, and I consider thatappropriate, given the respondent's age, health issues and the differencein age between the parties.if she chooses to maintain substantial houses in the city and at the beach, she cannot expect toreceive greater compensation under s 15."79 See [66] above.(b) I consider the extent of the disparity resulting from the division offunctions within the relationship in the immediate aftermath ofseparation to have been significantly higher than 15 percent. As noted,the appellant's choice to change to a contracting role, in order to focuson childcare, was made within the marriage in 2014. She continued tohave primary care of the children following separation. I consider theworking assumption continued to apply for that first year followingseparation, or to put the matter another way, it was not unreasonable forthe appellant not to have immediately returned to full-time work uponseparation.(c) For the following four years, however, and reflecting her incomeearning capacity at separation, the appellant was expected to return tothe workforce and I do not consider the Judge to have erred in largelyrejecting the appellant's explanations for why she did not do so. I do,however, consider the assessment that in those years only 15 percent ofthe disparity was due to the division of functions within therelationship, to be in error, and while a broad-brush approach is all thatcan be taken, would assess it as around 20 percent.80(d) I do not consider the Judge erred in halving the resulting amount. Thiswas endorsed by Arnold J in Scott v Williams as the final step in thecalculation method, as well as in general terms by Glazebrook J. Notto do so in this case would, in my view, risk creating disparity the otherway, particularly given the respondent's age. Indeed, the appellant'ssuggested approach in her submissions in the Family Court also halvedthe resulting award.[106] The following table reflects the above approach and the appellant's assessmentof disparity (from Table 2 of her written submissions in the Family Court):80 This largely reflects the undisputed fact that both during and following the marriage, the appellanthad the primary role of caring for the children.Year Difference inIncomeExtent disparitycaused by division offunctions in marriageQualifyingDisparity2015–2016 $27,978 100% $27,9782016–2017 $60,033 20% $12,0072017–2018 $59,077 20% $11,8152018–2019 $65,314 20% $13,0632019–2020 $65,31481 20% $13,063Total $77,926Less 50% $38,963[107] This reflects a (modest) increase on the Judge's assessment of $30,000 by a(rounded) $9,000.[108] Turning to the diminution method as a cross-check, I do not consider the Judgewas wrong per se to have adopted that method; as the judgments in Scott v Williamsnote, there is no prescribed method for assessing a s 15 award. Moreover, thedifficulties in applying that method as identified by Arnold J (see [56] above) are notin issue in this case. The appellant did have an established career at the outset of therelationship, which continued largely uninterrupted throughout the marriage. Further,the parties agreed on the appropriate "but for" salary of $77,000.[109] As noted earlier, the appellant says the Judge was wrong to adopt $55,000 asthe appropriate comparator to her "but for" salary. The majority judgment in X v Xand that of Glazebrook J in Scott v Williams were clear that the claimant's actualearnings may need to be adjusted to reflect the claimant's projected income "if sheworks to the full extent of her future income earning capacity".82 As best as I canpiece together the evidence concerning the appellant's work and salary over the courseof the marriage:81 The appellant's Table 2 does not extend to 2019–2020, thus the precise difference in income forthat year is unknown. Adopting the 2018–2019 figure is likely to be generous to the appellant.82 X v X, above n 19, at [172]. See also [200]; and Scott v Williams, above n 14, at [240] perGlazebrook J.(a) from September 2001 to July 2003, the appellant worked full-time;(b) from July 2003 to September 2003, the appellant worked part-time(15 hours per week, for childcare reasons);(c) from September 2003 to January 2004, the appellant increased herhours to 28 hours per week (earning around $41,000 per annum);(d) at some time over the next two years, the appellant worked at a full-time rate but with "family friendly hours", with a salary ofapproximately $44,000;(e) in 2007, she reduced her hours to three days per week (for childcarereasons) and in 2008, to two and a half days per week;(f) part-time work continued in 2009, as in 2010 (the appellant stating shewas earning around $30,000 per annum);(g) hours clearly increased in or around 2011, as payslip information andthe appellant's affidavit confirmed that salary around this time"peaked" at $66,891;83(h) for the tax year ending 31 March 2013, IRD records disclose theappellant's taxable income as approximately $20,000;(i) in early 2013, during the first period of separation from the respondent,the appellant obtained a full-time role with a salary of $55,000 (beingthe adjusted actual earnings figure adopted by the Judge);(j) for the tax year ending 31 March 2014, the appellant earned (gross)$27,000 (reflecting that while she had initially taken on a full-time roleat a salary of $55,000 per annum, she reduced her working hours uponreconciliation with the respondent); and83 The appellant said this level of salary was "one off".(k) from 2015 onwards, her income has been significantly less given thechange in 2014 to contract work.[110] In light of the above, I do not consider it wrong for the Judge to have proceededon the basis that following separation, and had she worked to her full earning capacity,the appellant could have obtained work with remuneration of around $55,000 (whichreflects a salary in 2013, some two years earlier). The appellant was able to securesuch a role in 2013 despite having worked part-time in prior years, and while alsohaving primary care of the children (who were then younger).[111] As to the point at which the appellant could be expected to return to full-timework at that salary level, for the reasons already given, I consider that it would not beunreasonable to consider this to be around one year after separation, thoughrecognising that the appellant did carry out some, albeit limited, income earning workin that first year. This approach leads to a higher award than that arrived at by theJudge, as the differential of $15,988 per annum adopted by the Judge would apply onlyto three years, rather than to four. Adopting a differential of $51,923 for the first year,84the resulting difference between the appellant's "but for" income and (adjusted) actualincome would be $99,887, and halved is $49,943.50. I do not consider the Judge erredin halving the award; this is consistent with the majority judgment in X v X,85 as wellas Arnold J's articulation of the diminution method in Scott v Williams.86[112] This result is obviously higher than the amount arrived at under the disparitymethod, and approximately $20,000 higher than the Judge's actual s 15 award. I donot disagree with the Judge that a just s 15 award in this case ought to be relativelymodest. This reflects the respective income earning capacity of both parties at theoutset and throughout the marriage; that the appellant's actual income post marriagewas significantly influenced by matters other than the division of functions within themarriage; and that the appellant, following separation, had a longer period of workinglife than the respondent.84 Based on the appellant's figures in Table 1 in her written submissions filed following the hearing.85 See [53] above.86 See [56] above.[113] The parties agreed that, in the event any aspect of the appeal was successful,the matter should not be remitted to the Family Court. It is therefore appropriate thatI fix the quantum of the s 15 award. I consider a just and fair outcome would be toincrease the s 15 award made in the Family Court by $12,000, being slightly belowthe midpoint of the increased award determined by the two approaches discussedabove. This is, I acknowledge, somewhat broad-brush, but reflects that while I agreewith the Judge that a modest s 15 award is just, the award actually made was a littletoo modest. This also reflects the Supreme Court's endorsement in Scott v Williamsof the disparity method. I also take into account the respondent's age, that allowing afull year for the appellant to re-integrate into the workforce is likely to be generous,the need to take care that disparity is not transferred to the respondent, and the needfor the parties to have a clean break and to get on with their lives.[114] Finally, I do not agree that the Judge overlooked the appellant's claim basedon the enhancement method, namely that the appellant assisted the respondent to writework reports given his dyslexia. The Judge simply found that there was no compellingor direct evidence of enhancement of the respondent's career by the division offunctions during the relationship. This was accepted by the appellant to be a relativelyminor point on the appeal, and I discern nothing in the evidence to suggest the Judgeerred in her approach. Nor do I accept that the Judge failed to take into account therespondent's benefit of ongoing investments. As noted at [82] above, the Judgeobserved that the respondent's income information included investment earnings.[115] There will accordingly be an order that the respondent pay the appellant afurther $12,000 by way of compensation pursuant to s 15 of the Act.[116] I turn now to the appeal against the s 18B award.Appeal against s 18B award[117] Again, it is helpful first to summarise the applicable legal principles, beforesetting out the Judge's decision on the appellant's claim under s 18B, the appellant'sgrounds of appeal and then my decision.Legal principles[118] Section 18B of the Act confers on the Court a broad discretion to compensatea spouse or partner for post-separation contributions made by them to the relationship.[119] Following separation, the parties agreed that the respondent would remain inoccupation of the family home. The appellant was therefore required to seek and rentalternative accommodation for herself and the couple's two children.[120] The authorities are clear that continued occupation by one party of the familyhome post-separation can be considered a contribution to the relationship by the non-occupying party.87 The non-occupying party is effectively contributing their share inthe capital of the family home, which for a time is being used exclusively by theoccupying party. The occupying party accordingly retains emotional and practicalbenefits from their continued occupation, and avoids the financial burden of relocatingto alternative accommodation.[121] In such circumstances, and when considered just, the courts will often awardcompensation to the non-occupying party based on "occupational rent" (namely a halfshare of a notional rent of the property), or order the occupying party to pay intereston the non-occupying party's share of capital. I discuss these alternative approachesfurther below, when addressing the grounds of the appellant's appeal.The Judge's s 18B award[122] The Judge noted that the appellant sought compensation under s 18B for bothoccupational rent (in the sum of $128,000) and a sum for any potential gain she hasforegone had she been able to invest her share of the family home ($95,000), as wellas the $128,920 that she had paid in rent since separation (the Judge noting that thathad been paid in part through WINZ by way of an accommodation benefit).8887 See, for example, E v G HC Wellington CIV-2005-485-1895, 18 May 2006; C v C HC HamiltonCIV-2007-419-1313, 26 June 2008; and Griffiths v Griffiths [2012] NZFLR 327 (HC).88 Little v Little, above n 1, at [71].[123] The Judge concluded that having considered all of the evidence, it was just thatcompensation was paid to the appellant pursuant to s 18B of the Act, and that thelargest contribution by her to the relationship post-separation was the respondent'srent-free occupation of the family home.89 The Judge stated:[75] To calculate the appropriate sum, I am mindful that the overarchingpurpose of compensation under s 18B is to ensure there is a just division. Iconsider that an award by way of compensation of an appropriate sum basedon occupation rent payable to the applicant will address all her claims forcontributions to the relationship post-separation. Such a sum will include herclaims for use of capital by the respondent and the potential loss of investmentopportunity.[124] The Judge declined to include in any aspect of the award the cost of care of thechildren post-separation. In doing so, the Judge referred to authorities which confirmthat s 18B is not intended to compensate a party for the financial costs of childcare.[125] The parties agreed that a notional weekly rent for the family home was $500.The Judge also took into account that the appellant had paid rent since October 2015,at an average rate of approximately $520 per week. She also noted that no spousalmaintenance was either claimed by the appellant or had been paid by the respondentpost-separation.[126] The Judge considered that occupational rent ought to be payable for the fullperiod from October 2015 (when the appellant had moved out of the family home) tothe date of hearing of 4 August 2020. The Judge also took into account that theappellant had had a part, although a relatively small part, of her capital tied up in thefamily home released through the interim distribution of $55,000 (paid in two tranchesin 2018 and 2019). The Judge also took into account that the respondent had paid thehouse insurance and rates following separation, totalling $17,500. The Judge addedto this a nominal amount to take into account the interim distribution, rounding the$17,500 up to a $20,000 "credit" to be offset against the occupational rent award.[127] Adopting the rental figure of $500 per week from 15 October 2015 until4 August 2020, and deducting the $20,000 credit, led to an amount of $105,000. Givenhalf of the capital in the family home "belonged" to the respondent, the Judge then89 At [73].halved that amount to arrive at the s 18B compensation in the appellant's favour of$52,500.The appellant's appeal[128] The appellant says that the s 18B award did not compensate, through interest,the loss of her potential to benefit from investment of the value of her share of thefamily home following separation. She says that mathematically it is impossible forthe award to have incorporated compensation for this matter, given the award wasbased solely on occupational rent. The appellant also submits the award wasinequitable by "granting interest to the respondent in respect of a portion of my shareof property provided as an interim distribution", while not granting interest to her forthe remainder of her share of property held undivided by the respondent. The appellantfurther submits that the Judge was wrong not to compensate her for her own rentalaccommodation costs since moving out of the family home, and by failing tocompensate her for the lost potential to benefit from investment of that rentalaccommodation expenditure. The appellant also says that the judgment did not takeinto account the four-month delay between the hearing and delivery of judgment, andtherefore for the purposes of s 18B(1) (which defines the "relevant period" for whichcompensation under s 18B may be paid), the date of hearing ought to be "extended"to the date of judgment.Decision on appeal of s 18B award[129] I consider the Judge's approach to the s 18B award to be appropriate andconventional, with there being no error justifying interference on appeal.[130] Turning first to the appellant's submission that the award should have includedcompensation for her foregone ability to benefit from the investment of her share ofthe family home, the case law is clear that awards of occupational rent and interest onthe non-occupying party's capital are true alternatives. In Griffiths v Griffiths, Kós Jexplained that "[w]here appropriate the Court may order either a payment ofoccupational rent, or an award of interest on the non-occupying party's capital"(emphasis added).90 His Honour cited the following passage by Ronald Young J inE v G which also makes clear that the two approaches are alternatives:91Payment of occupational rental has been a way in which a "just" payment ofcompensation is assessed for exclusive use of the spouse's capital tied up inthe occupied family home. A judge could, if seen as just and appropriate,instead order interest payable on the capital being used. Where there is, ashere, an unmortgaged house occupied by one spouse on which the otherspouse has also enjoyed a capital gain, occupational rental has an obviousattraction.(emphasis added)[131] Kós J went on to observe that "[w]hich alternative course is taken is essentiallya matter of judicial discretion".92 His Honour noted that the competing interests to beconsidered were helpfully discussed by Judge Callinicos in S v B as follows:93In terms of whether the Court should approach matters of compensation byway of an award of "occupational rent" or interest calculated on capital value,it should be noted there are two separate financial interests at play when familyhomes are utilised by one party at the exclusion of the other. One of thefinancial interests is the capital item, namely the composition of two half-shareinterests in the subject real estate. The other financial interest is an incomeasset which would normally carry benefits of rights of use, enjoyment or rent.Take for instance a situation where say, after separation both parties elected tovacate the property and rent it to a third party. In that instance each party wouldbe entitled to a half of any increase in the capital value of the item, and wouldalso be entitled to a half share of any net income derived from the gross rental,less the costs of maintaining the rented property. In situations where one partyretains the other's share by way of occupation, there is a risk thatcompensation by way of interest alone might not achieve a just outcome byvirtue of interest being a somewhat arbitrary tool. In such situations it is, inmy view, preferable to approach matters by way of assessing occupationalrental for the use of the income asset and by way of a share in any increase inthe capital component, if any. The choice of approach will very much dependupon the range and nature of assets at play between the parties and the specificcircumstances existing on a case-by-case basis.[132] Accordingly, it was not an error for the Judge in this case to have based thes 18B award on compensation for occupational rent, rather than the alternative ofawarding interest to the appellant on her share of capital pending division of therelationship property pool.90 Griffiths v Griffiths, above n 87, at [37]. See also MMB v HMH [2012] NZHC 2991.91 E v G, above n 87, at [24].92 Griffiths v Griffiths, above n 87, at [38].93 S v B [s 18B compensation] [2010] NZFLR 1045 (FC) at [15].[133] Nor was it an error to calculate the award to the date of the hearing, rather thanto the date of the judgment. Doing so was consistent with the definition of "relevantperiod" in s 18B(1), which ends with the hearing date. Simply because the Judgereserved her decision and delivered it four months later is not a basis to override thatstatutory directive. Judges have very busy workloads, and judges of the Family Courtare no exception. It is therefore routine for judges to reserve their decisions in mattersof this kind, and the time from hearing to delivery of judgment was nothing out of theordinary.[134] To the extent that the appellant says that the s 18B award did not reflect herpayment of accommodation costs, I am similarly unpersuaded that the Judge erred inthis regard. The appellant did not refer me to, nor has research disclosed, an examplewhere the Court has awarded a non-occupying party's own accommodation costs aspart of a s 18B award. Rather, the common theme in the authorities is that the fact thenon-occupying party has incurred their own rental costs will be a relevant factor indetermining whether it is "just" to make an award pursuant to s 18B. For example, inLester v Wheeler, Judge Riddell said:94 a claim [for occupational rent] must be justified. Where one party hasincurred rental costs living elsewhere and has been denied access to theirequity in the former family home, then such a claim may be reasonable.[135] Similarly, in Saunders v Sloan, Judge O'Dwyer explained:95Where the non-occupying party has incurred their own rental costs, that is afactor that is taken into account as E v G and Griffiths v Griffiths both showan alternative route to consider is an award of interest on the non-occupyingparty's capital.[136] In Griffiths, Kós J made the related (albeit brief) point that:96... although the Judge might have allowed a grace period post-separationbefore occupational rent was payable (such as the six-months period providedfor in JAK v BMCC) [it is] by no means clear that such a provision is equitablewhere the non-occupying spouse immediately incurs his or her own rentalcosts.94 Lester v Wheeler [2013] NZFC 3634 at [75]. See also KVM v LMM [2012] NZFC 680 at [46].95 Saunders v Sloan [2020] NZFC 3453, [2020] NZFLR 544 at [33].96 Griffiths v Griffiths, above n 87, at [39] (footnotes omitted).[137] I note that in Merriman v Plunkett97 and RWR v AJR,98 it was explicitlyacknowledged that the non-occupying party had based their occupational rent claimon the fact they had incurred their own rental costs post-separation, while the otherparty remained in occupation. There was no suggestion that the actual accommodationcosts incurred be paid as part of the s 18B award.[138] Finally, in S v B, Judge Callinicos said:99 the applicant was deprived not only of access to the significant capital itembut also the practical benefits of the accommodation it offered. She had to re-house herself and the children without any capital base and incur the financialcost of that transition. From separation until the present point she hasexpended approximately $86,000 towards rent. It cannot be disputed that bythe respondent's retention of the home, as both a capital and income earningasset, this applicant had to forego a higher standard of living for some periodof time. If she had received either her share in the home or half a share of anynotional rent during the period of the respondent's occupation she would haveenjoyed a better financial situation. the interests of justice require the applicant to be compensated under s 18Bfor the respondent's use of her half interest in the family home. Payment ofoccupational rental is, in the situation before me, a just manner ofcompensating her for the other party's exclusive use of her share in the capital.[139] The italicised text in the above extract highlights that an award of occupationalrent itself compensates the non-occupying party for having to pay for alternativeaccommodation. This reflects the interests that are at play and being compensated forby a s 18B award, as also discussed in S v B and set out at [131] above.[140] Further and in any event, as noted by the authors of Westlaw Family Property,s 18B "should not be used as a 'cure all' if other provisions in the [Act] or otherlegislation provide a more appropriate remedy".100 In Wilton v Crimmins,Judge Mather in the District Court said:101[81] Obviously any claim must be offset by any child support or spousalmaintenance liability. If a claim is made on the basis of provision for children,financial or otherwise, then some inquiry will be necessary as to the overallarrangements for the children. A non-custodial parent should be discouragedfrom seeking compensation under s 18B for money spent for the benefit of97 Merriman v Plunkett [2019] NZFC 9983 at [117]–[118].98 RWR v AJR [Trusts] [2010] NZFLR 82 (HC) at [70].99 S v B, above n 93, at [29]–[30].100 Peart, above n 16, at [PR18B.03(2)].101 Wilton v Crimmins (2003) 23 FRNZ 357 (DC).children, other than in the most unusual circumstances. Section 18B shouldnot be seen as a substitute for explicit statutory provisions addressing childsupport and spousal maintenance issues.(emphasis added)[141] This view has been affirmed in various cases, including Bell v Bell102 and KBHv LJD.103 So, for example, to the extent the appellant's accommodation costs reflectedor were greater than they otherwise might have been because they involved financialprovision for children, other statutory remedies directed specifically to such matterswould be the appropriate route for compensation.[142] Finally, the appellant objects to the Judge granting the respondent "interest" onthe interim distribution but not awarding her interest on her undivided capital sharepending division of relationship property. I proceed on the basis that this is a referenceto the Judge "rounding up" the credit to be offset against the occupational rent award(see [126] above), without also granting the appellant interest on her share of retainedcapital.[143] I have already discussed above how an award of occupational rent is analternative to payment of interest on capital. In S v B, Judge Callinicos addressed asimilar issue, noting that both parties in that case agreed that it was appropriate to takeinto account the payment of an interim distribution when considering a s 18B award;indeed the Judge observed that it would be "unjust" not to do so (being a partial"release" of the non-occupying party's interest in the relationship property).104 Furtherand in any event, the "rounding up" by the Judge to reflect the interim distribution wasfrom $17,500 to $20,000, an increase of $2,500. Had the interim distribution not beentaken into account, the s 18B award would have been $53,750 and not $52,500. Thedifference is trivial and does not warrant interference on appeal.[144] The appellant's appeal against the Judge's s 18B award is accordinglydismissed.102 Bell v Bell HC Auckland CIV-2005-404-5479, 11 April 2006.103 KBH v LJD FC Gisborne FAM-2004-016-140, 21 December 2005 at [85].104 S v B, above n 93, at [27]. In that case, the Judge reduced the award of occupational rent from thedate of payment of the interim distribution to the date of the hearing by 27 percent.Verified documentation of records in regard to assets and income[145] The appellant's notice of appeal raises her general concern as to whether therespondent had disclosed in advance of the Family Court hearing all income and assetsearned and held by him, exacerbated by the unknown item referred to in the morerecent IRD records and mentioned at [33] above. The appellant refers in this regardto an absence of verified documentation in relation to the respondent's Kiwibankaccounts, ASB accounts, and verified records of all income from investments madeduring the marriage. The appellant submits that: rather than relying on the respondent's suggestions as to the nature andextent of his income and assets directions [are made] to provide verifieddocumentation of records in regards to assets and income .[146] The appellant was clearly focussed on disclosure of information by therespondent throughout the history of the proceeding in the Family Court, which ispeppered with applications by her for disclosure of information. I have read all of theFamily Court minutes in the lead up to the substantive hearing, many of which addressthe provision of information. Various orders were made for the respondent to provideinformation being sought. He was represented by counsel at most stages of theproceedings, and thus would have been advised of his obligations in this regard.Counsel assisting the Court was also appointed for a reasonably lengthy period of time,including to "ensure that the information is obtained".105 On 23 July 2019, JudgePidwell said in a minute issued that day:These proceedings were initially filed in 2015. They have had a long causefixture in relation to the s 21 agreement, but they need resolution. ThereforeI will not be making any further directions in relation to discovery. The issuesthat have been raised by the parties as being outstanding can be addressedappropriately in my view through cross-examination.[147] Despite the above, some further orders for disclosure by the respondent weremade in the lead up to the hearing. There was also a separate hearing before the Judgeprior to the substantive hearing on whether disclosure orders ought to be made againstthe Commissioner of Inland Revenue (which was ultimately declined, but followed bydirections for the respondent to provide the information to the appellant directly). The105 Little v Little FC Auckland FAM-2015-090-585, 8 April 2019 (Minute of Judge Parsons).appellant also confirmed that she cross-examined the respondent on what sheconsidered to be contradictory or confusing evidence in relation to his income andassets.[148] It is therefore clear from both the record and the Family Court judgment thatthere were extensive interlocutory processes prior to the substantive hearing, initiatedmainly by the appellant, aimed at eliciting further information and documentationfrom the respondent and third parties.[149] Whether the information before the Judge about the parties' income and assetswas perfect is unknown. Nevertheless, the Family Court Judge, an experiencedpractitioner in this area, was plainly satisfied she had the appropriate informationbefore her to make the rulings and orders that she did.[150] In her oral submissions on the appeal, the appellant said that she suspectedthere was up to $100,000 more in assets or income which ought to be divided.Ultimately, however, this is speculation. Inconsistencies in the respondent's evidencesimilarly do not justify the orders the appellant seeks on appeal. The trial Judge,hearing the evidence first-hand, would have been alive to any material inconsistencieswhich gave rise to a real and credible risk that there was significant undisclosedincome or assets.[151] I accordingly decline to make what are effectively broad-ranging discoveryorders on an appeal. This would be wholly inappropriate in a matter of this kind, givenit would essentially "wind the clock back" to a very significant degree, andfundamentally undermine the clean break policy. As Judge Pidwell noted, theproceedings were initiated in 2015 and there must be final resolution to them so bothparties can get on with their lives. This is particularly so when the request is largelybased on suspicion, and the relationship property pool is modest.[152] This aspect of the appellant's appeal is also dismissed.Result[153] The appellant's appeal against the Family Court s 15 award is allowed. Therespondent is to pay the appellant an additional $12,000 by way of compensationpursuant to s 15.[154] The appeal is otherwise dismissed._____________________________Fitzgerald J