S AND B HC DUN CIV-2011-412-000841

S AND B HC DUN CIV-2011-412-000841 [24 May 2012]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYCIV-2011-412-000841[2012] NZHC 1121UNDER Section 15 of the Marriage Act 1955IN THE MATTER OF S and BHearing: 27 April 2012Counsel: C Elder for ApplicantsJudgment: 24 May 2012In accordance with r 11.5 I direct that the delivery time of this judgment is 11am on the 24th day of May 2012.RESERVED JUDGMENT OF MACKENZIE JThe proceedings[1] This is an application for consent to the marriage of the applicants under s 15(2) of the Marriage Act 1955. The Court's consent is required because theparties are within the degrees of affinity prohibited by sch 2 of the Act.[2] I consider it appropriate to preserve the privacy of all persons involved in this proceeding to the extent consistent with the principle of open justice. I bear in mind the confidentiality principles which apply in Family Court proceedings. Sections 11B and 11C of the Family Courts Act 1980 would be engaged, because of the reference to S's children. Also, the Family Proceedings Act 1980 reflects a principle that a degree of privacy is preserved in relation to proceedings concerning marriages. I consider that the importance of this case requires that my reasons, which necessarily include a description of the evidence, should not be restricted, but thatthe parties' privacy should be preserved as far as possible. I direct that no personmay, without the leave of the Court, publish or report on the proceedings which include identifying information of any of these persons. To that end, I have anonymised the persons referred to in the judgment. Because of that a brief description of those involved is required.[3] The persons referred to are:S: the male applicant.B: the female applicant. She is S's daughter-in-law, she having been previously married to S's son, P.P: S's son, the former husband of B.PN: S's former wife.C: P's brother, and son of S.PF: S's first wife.G & N: The sons of P and B.[4] Leave was given to commence the proceeding by way of originating application. Directions were given that the proceedings were to be served on S'sformer wife, PN, and on B's former husband, P. P has taken no steps followingservice of the proceedings on him. PN filed notice of opposition, and a timetable was fixed, directed towards a defended hearing. Subsequently, counsel for PN advised that she did not wish to take any further steps in relation to the proceeding. She advised through counsel that she did not withdraw her opposition, and wished her affidavit to be read by the presiding Judge, but did not propose to take an active part in the hearing. She was granted leave not to appear at the hearing.[5] The hearing before me proceeded on that basis. Ms Elder appeared for the applicants, and both applicants were present in Court. I had read all of the affidavits,including PN's. There were some aspects on which I considered that furtherevidence was necessary, and S and B have each subsequently sworn a further affidavit with that additional information.Background[6] S was born on 14 December 1950, and so is presently 61 years old. He was married, at the age of 20, to PF. There were two children of that marriage, P and C. They later separated, and the marriage was dissolved on 22 December 1981.[7] S met PN in 1979. They lived together for some time before marrying on 28 August 1982. There are no children of the marriage. They separated on 5 March 2009 and were divorced on 24 August 2011, the divorce becoming final on 25 September 2011.[8] B was born on 30 April 1969, and so is now 43 years old. She was married to S's son P on 26 December 1996. She had previously had a long term de facto relationship which produced one son. There are two children of her marriage to P, sons (G and N) who are now aged 11 and seven years. She and P separated in 2009.The legislation[9] Section 15 of the Marriage Act 1955 provides as follows:(1) Subject to the provisions of this section, a marriage which is forbidden by the provisions of Schedule 2 to this Act shall be void.(2) Any persons who are not within the degrees of consanguinity but are within the degrees of affinity prohibited by the said Schedule 2 may apply to the [High Court] for its consent to their marriage, and the Court, if it is satisfied that neither party to the intended marriage has by his or her conduct caused or contributed to the cause of the termination of any previous marriage of the other party, may make an order dispensing with the prohibition contained in Schedule 2 to this Act so far as it relates to the parties to the application and, if such an order is made, that prohibition shall cease to apply to the parties.(3) The Registrar of the Court where any order under this section is made shall send a copy in duplicate of the order to the Registrar- General.(4) No marriage not forbidden by the provisions of Schedule 2 to this Act shall be void only on the ground of consanguinity or affinity.[10] Schedule 2 provides that a man may not marry his son's wife and, that a woman may not marry her husband's father. By cl 4 of sch 2, the term "wife" meansa former wife, whether she is alive or deceased, and whether her marriage wasterminated by death or divorce or otherwise and the term "husband" has acorresponding meaning.[11] Those relationships are of affinity, not consanguinity. Accordingly, s 15(2) applies.[12] Applications under s 15(2) are, perhaps unsurprisingly, rare. Counsel'sresearches have discovered only two reported cases, Re Woodcock and Woodcock,1and Re Hoskin and Pearson.2Discussion[13] The essential precondition to the making of an order under s 15(2) is that theCourt "is satisfied that neither party to the intended marriage has by his or herconduct caused or contributed to the cause of the termination of any previousmarriage of the other party". In the circumstances as I have briefly described them, that requires a consideration of whether S has by his conduct caused or contributedto the cause of the termination of B's marriage to P, and whether B, by her conduct,has caused or contributed to the cause of the termination of S's marriage to PN. No possible issue arises in relation to S's first marriage, to PF.[14] S's evidence is that he first met B in or around 1996, after she and P had decided to marry but before the marriage. He says that after they met he and B exchanged some friendly e-mails which continued for a brief time until he recognised that the tone of the e-mails was becoming too friendly and seemed inappropriate. He says that they stopped e-mailing and never discussed their friendship.1 Re Woodcock and Woodcock [1957] NZLR 960 (CA).2 Re Hoskin and Pearson [1958] NZLR 604 (SC).[15] For the 13 years between P and B getting married and their separation in early 2009 S was living overseas, with PN. He worked as a directional driller on oil rigs and was based in different parts of the world. Ultimately being located in Brisbane. Until then, when he was living further afield, his trips to New Zealand were relatively infrequent perhaps every couple of years. After he had settled in Brisbane he was able to come to New Zealand more frequently, perhaps once a year for a week or so at a time. Sometime he and PN would stay with B and P and at other times they would stay at a motel. The communication and contact between him and B was relatively limited and usually restricted to friendly greetings and discussions about the children.[16] In July 2008 he came to New Zealand for a visit to attend an All Blacks game with his two sons, P and C. During that visit he noticed that B and P were not getting on very well. There appeared to be a distance between them and there was none of the usual warmth between them. He witnessed P being, as he considered it, unnecessarily angry with B over trivial things. His recollection is that his next visit to New Zealand was at Christmas time 2008 to 2009. He stayed with B and P and the children, and also spent time with friends. He decided that he wanted to come back to New Zealand to live. He says that his marriage to PN had not been happy for a long time. He told her that he wished to separate and settle in New Zealand. When he finished his next work stint on the oil rig he decided, rather than returning to Queensland, to come straight to New Zealand. He came to New Zealand on the weekend of 28 February/1 March 2009. P collected him from the airport. P told S that he and B had decided to separate. S says that only after he knew that B and P had decided to separate that he allowed himself to acknowledge the feelings of attraction and love which he felt for B.[17] B says that she and P agreed to separate on 21 February 2009 and that P started sleeping in the spare bedroom from that date. He moved out of the family home on 1 March 2009 and that was recorded as the separation date in their relationship property agreement. She and P jointly applied for an order dissolving the marriage which was made on 10 June 2011. She describes her marriage as being"not good" for several years prior to the separation. On the night they agreed toseparate she says that they both acknowledged that neither of them was getting whatthey needed from each other and that both were unhappy. She says that it is difficult to identify specific factors to describe the termination of the marriage. She says that she had for several years prior to the separation felt very unhappy and that began when she realised that she and P had grown apart. She describes this as a devastating realisation. She says that she made attempts to reconcile the situation. Immediately prior to the separation, they spent time together in the holiday period over Christmas/New Year 2008/2009 to try and make things better in the relationship. She says that essentially both of them were unhappy but neither acknowledged it to the other. An argument in February 2009 was the event which motivated them to have the discussion about their relationship on 21 February 2009.[18] B says that she first met S just prior to her marriage to P and that from the beginning they always got on really well. She says that when she became conscious that there could be some form of attraction between her and S she took steps to avoid communication with him. The only communication between them was during S'svisits to New Zealand. Usually these visits were with his wife PN and occasionally he would come on his own.[19] B says that after she and P decided to separate on 21 February 2009 they told some close friends and family but decided not to tell the children until they had worked out further arrangements. When S came to Dunedin on the weekend of 28 February P picked him up from the airport and told S of this separation. On the evening of 28 February she and S acknowledged to each other for the first time that they were attracted to each other and wanted to have a relationship together. She says that when P discovered this he left the family home on the following day, 1 March.[20] She says that although P was hurt and angry about the relationship between her and S he acknowledged to B, sometime after the separation, that he knew the relationship between B and S did not cause the separation between them. She acknowledges that the dates of the separation and of her and S acknowledging their affection for each other are very close together but she says that the mutual affection had been present for a long time and it seemed natural to reach out to each other atthis point. It was not a frivolous decision. She says that there was at that stage no physical relationship between them.[21] In her affidavit, PN says that she and S had a happy marriage until they metB, about 12 months prior to B and P's marriage. She says at the time of P and B'swedding she observed both S and B had a fascination for each other. She describes them as extremely flirtatious with each other. After the wedding S and PN returned to the United States. S told her that he and B were e-mailing each other and PN grew increasingly concerned about the relationship. She described things as becoming so bad in her marriage that they went to a marriage counsellor. She describes S's relationship with B as an obsession. She says that as a result of counselling S agreed not to contact B again. She says that she and S saw P and B approximately once every two years. If they were visiting New Zealand they mostlystayed in a motel as she refused to stay in P and B's house. She says that after theymoved to Perth in 2000 S went to New Zealand approximately twice a year, without her as he did not want her to go. She says that at Christmas 2008 S went to New Zealand by himself. He did not want her to go but she insisted on going for a fewdays. On that occasion she stayed at P and B's house. She says that on one occasion she caught S and B kissing each other. She confronted S about it and he refused to talk about it. They left the following day. S returned to work in Indonesia and did not return home. He was due back at the end of February 2009 but did not arrive. She heard from him when he rang to say that he was at P's house and that P and B had separated. PN says that she realised that the marriage was over in mid March when she learned that S and B were living together in a relationship. She says thatshe considers that S and B's relationship with each other is the reason her marriageto S ended.[22] B and S have each filed affidavits in response. I do not describe those in detail. Each of them denies the kissing incident which PN infers.[23] I turn, in the light of that evidence, to consider whether the Court can be satisfied that neither S nor B has by his or her conduct caused or contributed to the cause of the termination of the marriage between S and PN and the marriage of P and B. The standard to which the Court must be satisfied is discussed in Re Woodcock vWoodcock.3 Different tests were applied by the five judges in the Court of Appeal. Finlay ACJ said:4In my view, therefore, a Court which has to deal with an application of the character at present under discussion must be satisfied, on the preponderance of probability arrived at by due caution, and in the light of the seriousness of the issue involved, that neither party to the intended marriage has, by his or her conduct, caused or contributed to the cause of the termination of any previous marriage of either party.[24] Hutchison J discussed a number of authorities dealing with the meaning ofthe word "satisfied", in similar contexts. He described the subject matter of the caseas "of gravity and public importance. In my opinion, therefore, the degree of probability required is a high degree."5 North J, discussing the standard to be applied said:6 In my opinion, it is sufficient in cases coming within s 15 of theMarriage Act 1955, if the learned Judge with due regard to the gravity of the subject-matter comes to a clear conclusion that the condition has been complied with.[25] Turner J, after discussing the authorities, said:7 When, therefore, a New Zealand Court has to decide (pursuant to s 15 (2) of the Marriage Act 1955) whether it is "satisfied" that neither party to the marriage has by his or her conduct caused or contributed to the cause of the termination of any previous marriage of the other of them, it will use the standard of proof appropriate to the subject matter of this inquiry. No question of the liberty of the subject is involved, as in criminal cases. No one's status is automatically changed by the decision of the Court, as it is in divorce. The standard of proof may, therefore, be regarded as not so high as is required in such cases. Nevertheless, an important question of public policy is involved; and the fact that this statute for the first time gives the Court power to relax what has hitherto been an absolute prohibition, gives some indication of the care with which the Court will be required to scrutinize the evidence—a care which the word "satisfied" recognizes, to echo the words of Lord MacDermott in Preston-Jones v Preston-Jones[1951] AC 391, 417; [1951] 1 All ER 124, 138. It seems to me that, while the Court need not use the highest standard in the present case, it is required by the statute to "come to a clear conclusion" (to use the words of Smith J inAngland v Payne [1944] NZLR 610, 626; [1944] GLR 266, 270), and that in doing so it will require the evidence to be such as will satisfy "the guarded discretion of a reasonable and just man" (to use the famous words of Lord3 Re Woodcock and Woodcock [1957] NZLR 960.4 At 964.5 At 966.6 At 973.7 At 980.Stowell in Loveden v Loveden (1810) 2 Hagg Con 1, 3; 161 ER 648): a standard of proof, moreover, "appropriate to the subject-matter of the inquiry (to paraphrase the words of Denning LJ in Bater v Bater [1951] P 35).[26] Henry J, in discussing this question said that it was, in his view, clear that the degree of assurance requisite for a criminal charge is not necessary.8In a matter such as this, it is sometimes said that the Court should have "clear proof" or be able to reach a "clear conclusion". I hesitate, with respect, to use either term. Having concluded that the high standard of proof required in criminal cases has no application, I consider that the word "satisfy" is of itself sufficient to inform the Court of its task—namely, that before it comes to a positive finding, the Court should be of the opinion that the proof is adequate having regard to the nature of the subject matter to be decided. With respect, I do not agree that there is any element of proof of a negative, as it was suggested by counsel for the applicants. The inquiry is as to the causes of the termination of the relative marriage or marriages, and if no conduct of the applicants appears as a cause, then a finding may follow to that effect.[27] Having regard to these various statements I adopt the standard, in deciding whether the Court is satisfied, that the issue is one of gravity and public importance, such that the evidence must be sufficient to lead the Court to a clear conclusion that the condition has been complied with.[28] It is clear that there has been an attraction between S and B for a long time, throughout the whole time that they have known each other. If the question were whether the existence of that mutual attraction between S and B had caused or contributed to the termination of S and PN's marriage, then the Court could not besatisfied that it had not done so.[29] The position is less clear as to the extent to which the existence of the mutualattraction between S and B may have contributed to the termination of P and B'smarriage. On the state of the evidence, I do not consider that I could properly reach the conclusion that I was satisfied that the existence of the mutual attraction had not contributed to the termination of that marriage.[30] But the existence of a mutual attraction is not of itself conduct causing or contributing to a termination of marriage. PN's reaction to the existence of that8 At 985.attraction is readily understandable. The question is whether the conduct of S or B has contributed to the termination of the marriage of the other, not whether the existence of a mutual attraction has contributed to the termination. The totality of the evidence suggests that both S and B have avoided conduct which would give expression to the mutual attraction. There was no physical relationship between them before both marriages had broken down. They had not been in frequent contact before that time.[31] In 1955, both the law and social attitudes as to the termination of marriage were very different from those today. The concept of matrimonial fault dominated divorce law at the time. I consider that that view is relevant in determining what type of conduct Parliament may have had in mind in enacting s 15(2). An important question then would have been whether that conduct constituted what the law then regarded as matrimonial fault. Section 15 is not fixed in 1955. Under s 6 of the Interpretation Act 1999, an enactment applies to circumstances as they arise. I do not consider that conduct causing or contributing to the cause of the termination of a marriage should be limited to conduct which would have been regarded as a matrimonial fault in 1955. I do however consider that the word is to be interpreted as requiring some acts on the part of the person concerned which would be regarded as morally reprehensible on the part of the person concerned.[32] Applying that test, I am satisfied, to the degree of conviction which the seriousness of the case merits, that neither S nor B has, by his or her conduct, caused or contributed to the termination of the marriage of the other. On my review of the evidence, I do not find that there has been any conduct on the part of B which has led to the breakup of S's marriage to PN. Nor do I find that there has been any conduct on the part of S which has led to the breakup of B's marriage to P.[33] That conclusion means that I am satisfied that the threshold test in s 15(2) is met. The Court therefore has a discretion whether or not to make the order sought. That discretion is unfettered, in the sense that no guidance as to the manner of itsexercise is directed by Parliament in s 15. In Woodcock North J discussed the approach to the exercise of the discretion in these terms:9The statement of principle, which for many years has been regarded as indicating the correct approach, is contained in the judgment of Bowen LJ inGardner v Jay (1885) 29 ChD 50, where that learned Judge said: "When a tribunal is invested by Act of Parliament . . . with a discretion, without any indication in the Act . . . of the grounds upon which the discretion is to be exercised, it is a mistake to lay down any rules with a view of indicating the particular grooves in which the discretion should run, for if the Act . . . did not fetter the discretion of the Judge why should the Court do so?" (ibid 58). This statement now carries the high authority of Lord Wright in Evans v Bartlam [1937] AC 473, 488; [1937] 2 All ER 646, 656.[34] Ms Elder has referred to the following considerations which Shorland J identified as relevant to the exercise of the discretion in Re Hoskin and Pearson, which was a case of a stepfather and stepdaughter.10 These were:a) The realities of the technical relationship of the applicants from the time the relationship first came into existence until the date of the application;b) What course is most likely to serve the best interests of public morality as it is likely to have been expressed in public opinion;c) Whether the wish to marry springs from any ulterior motive; andd) The consequences, if any, for any children existing or yet to be born.[35] Ms Elder has also referred to a wider range of factors referred to in Re An Application by P and P, a case involving a father-in-law and daughter in-law, on the differently worded Australian provision. These factors included such matters as any substantial disparity in ages, and factors relevant to the welfare of any children involved.11[36] A relevant factor is that S and B are already living in a relationship in the nature of marriage. In Woodcock Hutchison J said that was not in itself a factor favourable to the application. In the changed societal conditions over 50 years later, it seems to me that this is a factor which points in favour of the exercise of the discretion. The relationship will continue, whether the application is granted or not.9 At 971.10 Re Hoskin and Pearson [1958] NZLR 604.11 Re An Application by P and P [1973] VicRp 53.I consider that, as the relationship is one which the law does not absolutely prohibit, it would be better for the relationship to be a recognised legal one, rather than a de facto one.[37] P and B's children are being raised in a household where the person who fillsthe role of stepfather is their grandfather. That situation will continue, whether ornot the application is granted. I consider that there is merit in counsel's submissionthat granting consent will promote the welfare of the children by creating a legal certainty about the relationship between those who are now providing their day to day care.[38] There is no such disparity in the age of the parties as should weigh against the making of the order. There is no element of vulnerability in the relationship between father-in-law and daughter-in-law, in this case, which might indicate a need for caution. The possibility of the complications which might arise if there were children of the relationship do not require consideration, as the evidence is that S has had a vasectomy.[39] In all the circumstances, I consider that the discretion of the Court should be exercised in favour of the applicants. There will be an order dispensing with the prohibition in schedule 2 of the Marriage Act 1955 so far as it relates to the applicants."A D MacKenzie J"Solicitors: Claire Elder Law, Dunedin