TERENCE WOOLDRIDGE v KANCHANA KUMARI [2021] NZHC 1975

TERENCE WOOLDRIDGE v KANCHANA KUMARI [2021] NZHC 1975 [2 August 2021]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 ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2020-488-000082[2021] NZHC 1975BETWEEN TERENCE WOOLDRIDGEAppellantAND KANCHANA KUMARIRespondentHearing: 13 April 2021Appearances: A O'Connor for the AppellantG Thompson for the RespondentJudgment: 2 August 2021JUDGMENT OF WALKER JThis judgment was delivered by me on 2 August 2021 at 4 pmPursuant to Rule 11.5 High Court RulesRegistrar/Deputy Registrar[1] Mr Wooldridge and Ms Kumari met in or around December 2010. Theymarried on 26 March 2012, around 15 months after meeting one another.Mr Wooldridge is now aged 76 and was born in New Zealand. Ms Kumari is aged 46and is of Fijian Indian heritage. Mr Wooldridge thought he had found thecompanionship, intimacy and love he was seeking. Ms Kumari in turn thought shehad found the supportive partner and financial security she sought.[2] Sadly, that was not to be. They remained in the relationship until 12 August2015. Mr Wooldridge stayed in the family home after the relationship broke down.Well after the separation, Ms Kumari applied to the Family Court for division of therelationship property including her share of the family home. Judge Adamsdetermined that the general approach under the Property (Relationships) Act 1976("the Act") applied whereby relationship property is divided equally between theparties. He made orders requiring Mr Wooldridge to pay Ms Kumari the sum of$261,327.[3] Mr Wooldridge now appeals that judgment. He argues that equal sharing underthe Act is displaced and the relationship property should be divided in accordance withthe contribution of each partner to the marriage because:1(a) the relationship was one of short duration within the definition of theAct;(b) alternatively, there are extraordinary circumstances that make equalsharing repugnant to justice.2[4] Mr Wooldridge also filed interlocutory applications for interim stay of theFamily Court decision, to admit fresh evidence and for non-party discovery. Byminute dated 29 March 2021, Brewer J directed that these applications be heard at thecommencement of the appeal hearing on the basis that they might be dealt with in a1 Mr Wooldridge relies on s 14(2) of the Act which displaces the principle of equal sharing of thehome and family chattels in a marriage of short duration if the family home was owned wholly orsubstantially by one spouse at the date on which the marriage began and s 14(4) which displacesequal sharing of other relationship property in these circumstances where the contribution of oneparty to the marriage has been clearly greater than the other.2 Property (Relationships) Act 1976, s 13.way that preserves the hearing of the substantive appeal. Mr O'Connor on behalf ofMr Wooldridge submitted that, while he was prepared to argue the substantive appeal,in keeping with Brewer J's minute, the substantive appeal hearing ought to beadjourned in light of the interlocutory applications. I apprehend there was more thanone strand to Mr O'Connor's submission on this point.[5] The first was a complaint about late filing of a notice of opposition andsupplementary submissions by the respondent relating to the interlocutoryapplications. Ms Thompson in response pointed out that the respondent had in factmet the timetable initially directed by Duffy J by filing no later than 10 working daysafter service of the affidavit and amended interlocutory application for leave.3Ms Thompson explained that the 10 working days only commenced from theappellant's late filing of his affidavit and the notice of opposition and supplementarysubmissions only fell due on the day of the hearing.[6] The second strand of Mr O'Connor's submission in support of deferring thesubstantive appeal was a new argument, not made before the Family Court norheralded before the appeal. He contended that there is a jurisdictional issue concerningthe application of s 7A of the Act to a pre-marital agreement signed between the partiesin Fiji four days before their marriage. The pre-marital agreement was referred to inthe judgment below but treated as a nullity for failing to meet the requirements of anagreement under the Act. While the pre-marital agreement was before the Court, thenew argument Mr O'Connor raised was not made to the Judge. I return to the pointlater in my judgment.[7] Ms Kumari, while initially opposing a stay on the basis that no hardship couldbe shown by Mr Wooldridge, consented to an interim stay conditional on thesubstantive appeal proceeding at this hearing.[8] Conscious of the delays in resolution to date and the imperative that FamilyCourt matters be resolved as inexpensively and speedily as consistent with justice, Iproceeded to hear the interlocutory matters and the substantive appeal together.4 This3 Minute of Duffy J dated 4 March 2021.4 See Property (Relationships) Act, s 1N(d).was on the basis that, should I determine that the interlocutory applications succeed, Iwould permit the parties a further opportunity to be heard and potentially evenresponsive evidence to be filed. If I declined the interlocutory applications, I wouldgo on to determine the substantive appeal. As to the complaint that supplementarysubmissions and notice of opposition were served only at the hearing, I am satisfiedthat this inconvenient timing was a product of the appellant's own timetabling delays.The grounds of opposition were uncontroversial and orthodox given the nature of theinterlocutory applications. The appellant could have been under no illusion about theopposition. It does not behove a party to complain of receiving submissions and noticeof opposition on the day of hearing when delays were caused by that party and thatparty seeks to introduce a novel and unheralded argument on the day of hearing.Family Court decision[9] The relationship property pool is modest, comprising the former family home,sums in various bank accounts and the value or proceeds of sale of vehicles andchattels. There were also relationship debts including a mortgage on the former familyhome and a credit card debt. The appellant's properties in Fiji, which are also ofmodest value, were held to be separate property.[10] The three principal issues before the Family Court were first, was the marriageone of short duration? Second, was this a case for unequal sharing? Third, whatadjustments and orders should be made for matters such as compensation for theappellant's use of the respondent's share in the former family home.[11] For the purposes of the Act, the parties' relationship effectively began whenthey commenced living together on 15 March 2012.[12] Mr Wooldridge argued that although the marriage lasted for a little over threeyears it should nevertheless be considered a marriage of short duration.5 The Judgeset out the two pathways to a short duration finding: the first being a finding that theparties lived together in the marriage for a period of less than three years; the secondbeing the discretion in s 2E(1)(a)(ii) of the Act to treat a relationship of over three5 Section 2E(1)(a).years as a relationship of short duration if the court considers that just having regardto all the circumstances of the marriage. His Honour considered that none of thefactors relied on by Mr Wooldridge warranted a finding that this was a marriage ofshort duration under either of the two pathways in s2E(1)(a)(i) or (ii).[13] The factors relied on by Mr Wooldridge included his periodic absences in Fijileaving Ms Kumari in New Zealand. Although Mr Wooldridge estimated that he spent"in excess of 300 days" apart from Ms Kumari during the course of their relationship,the Judge found that these absences did not "interrupt the fabric of [the] marriage".6There was no emotional or marital break between them during these periodic trips.Even while he was away, Ms Kumari continued marital support by managing the homefront and she supported his venture in Fiji. The Judge considered the absences to beof no consequence in calculating the duration of the marriage.[14] The Judge rejected Mr Wooldridge's contention that the relationship had endedmonths earlier than Ms Kumari suggested. He accepted the essence of Ms Kumari'saccount that although there was a disagreement around 26 January 2015, it was short-lived and the marriage continued. The parties were described by a witness as a "veryloving couple".7 They were affectionate and the messaging between them was at oddswith a suggestion that the relationship had cooled by early 2015. Materially, the Judge,having heard and seen the witnesses said:8I find that Ms Kumari told the truth about the events in February 2015. I findthat Mr Wooldridge lied where his version contradicts hers.[15] This was not the only issue on which the Judge preferred the evidence ofMs Kumari.9[16] The Judge also rejected the contention that Ms Kumari had been in a sexualrelationship with another man during the marriage. Even if infidelity would interruptthe course of a marriage (which the Judge did not need to address) there was no directevidence of any intimate relationship between them. Although Ms Kumari had been6 Kumari v Wooldridge [2020] NZFC 7879 at [18].7 At [22].8 At [28].9 At [37]–[38].involved in a handful of financial transactions with the person in question, these wereexplained. The Judge considered that Mr Wooldridge was searching "for an externalreason for the breakup".10 The only dissonant note said the Judge was whenMs Kumari was asked why her Facebook page said of herself that she was in arelationship since 2014. To that question she gave no satisfactory answer. The Judgewas not minded however to leap from her prevarication to a specific finding of thekind sought by Mr Wooldridge.[17] Finally, the Judge held that Ms Kumari did not artificially delay her departurein order to support her claim under the Act. He found that proposition did not fit withthe facts. The marriage appeared from correspondence to retain some vigour formonths after the three-year period had elapsed. Ms Kumari also did not launch herclaim until more than two years after separation. In these circumstances, the Judgeconsidered that she had "tried to do her best" but ultimately found the marriageunsatisfactory.11[18] As none of the alleged grounds were made out, the Judge concluded that themarriage was not one of short duration.[19] He then moved to consider the second principal issue, namely, whether thiswas a case for unequal sharing of the relationship property under s 13(1) of the Act.[20] The Judge was not persuaded that Mr Wooldridge's contribution of capital andthe advantage that Ms Kumari obtained in gaining New Zealand residence werecircumstances so extraordinary as to make equal sharing repugnant to justice. Heundertook a detailed analysis of the parties' respective contributions under s 18. Heconsidered that although Mr Wooldridge's capital contributions were undoubtedlysignificant, Ms Kumari contributed slightly more in other areas and their respectivecontributions more or less evened out. This was not therefore a case falling withins 13(1) where unequal sharing of the relationship property was justified.10 At [37].11 At [41].[21] As to the appropriate adjustments and orders to be made, the Judge consideredthat an adjustment of approximately $30,000 was necessary to compensate Ms Kumarifor Mr Wooldridge's use of her share of the family property in the five years sinceseparation. The total pool of assets was determined to be worth $491,357.12 In thecircumstances, orders were made that Mr Wooldridge pay Ms Kumari the sum of$261,327 by 30 October 2020 if he did not wish for the property to be sold.Preliminary matters[22] I turn first to the various interlocutory matters raised by Mr O'Connor at thehearing. It is necessary to briefly traverse the procedural background. On 5 November2020, Lang J directed the appellant to particularise his grounds of appeal by1 December 2020. Particularised grounds were not provided until 9 December 2020.On 10 December 2020 Brewer J made timetabling directions.13 One direction was thatif the appellant was to rely on alleged trial counsel error, an application seeking leaveto file evidence, affidavit evidence and waivers of privilege were to be filed and servedby 22 January 2021. The appellant's submissions were due by 1 February 2021. Thetimetable was not met. I pause to note Mr O'Connor's explanation that previouscounsel had exercised a lien in respect of the file which caused Mr Wooldridgedifficulties in mounting an appeal, in particular to advance grounds of appeal on thebasis of trial counsel error.[23] The hearing was scheduled for 4 March 2021. At a telephone conferencebefore Duffy J on 2 March 2021, the appellant sought an adjournment on the groundsthat he did not wish to proceed by AVL.14 Duffy J refused the adjournment. However,later the same day, Duffy J became aware that the notes of evidence from the FamilyCourt were not available to the Court despite direction from the Court that the notesof evidence be obtained pursuant to r 20.14 of the High Court Rules 2016. Nor wasthere a common bundle of the relevant documents for the appeal which the appellantwas obliged to file and serve in accordance with the direction in counsels' joint consentmemorandum to the Court. A further telephone conference was convened.12 At [80].13 Minute of Brewer J, 10 December 2020.14 Auckland was at level 3 of the Covid-19 restrictions and the rest of New Zealand was at level 2.[24] At that conference, a number of issues relating to readiness to proceedemerged. Duffy J adjourned the hearing and made directions to progress the appeal.Mr O'Connor indicated that trial counsel error would not be pursued as a substantiveground of appeal. Duffy J directed the appellant to confirm in writing within fiveworking days whether he proposed to pursue the question of trial counsel error as abasis to support his application to adduce fresh evidence on appeal or as a substantiveground. No such notice was given.[25] However, on 26 March 2021, counsel for the respondent received a copy of anas yet unfiled affidavit in support of the application to adduce fresh evidence.15 Sheprotested that the affidavit seeks to rely on alleged trial counsel error as justificationfor not adducing the evidence earlier. She pointed out that issues now arise unders 65(3) of the Evidence Act 2006 in terms of waiver of privilege. She sought an urgenttelephone conference. A second minute was issued by Brewer J on 30 March 2021 inwhich he directed that there was no time to make a substantive decision on this priorto the fixture; it would be a matter for the presiding judge but that should the appellantcreate a situation where a further adjournment is required, then that might well be amatter to be addressed by a costs order.16[26] I observe that Mr O'Connor's challenge to the Family Court decision was notwanting in any respect. There was no evident disadvantage in the way in which theappeal was mounted, in spite of the difficulties obtaining prior counsel's file.Section 7A: the jurisdictional issue[27] Mr O'Connor submits that s 7A of the Act may have application to the pre-marital agreement which the parties signed in Fiji on 22 March 2012, four days priorto their marriage.17 Materially, he puts it no higher than a possibility because hesubmits that Fijian law informs the interpretation of the agreement.[28] That document purported to record that each party agreed to keep their ownproperty. However, it was signed by Ms Kumari without any disclosure of assets or15 The affidavit was filed on 30 March 2021.16 Minute of Brewer J (on the papers) dated 30 March 2021.17 Wooldridge, above n 6, at [20].legal advice, let alone independent legal advice, and was witnessed by a "teacher".Ms Kumari had no way of assessing what her rights would be in any circumstancesthat might arise. The Judge found that it did not satisfy New Zealand law and treatedit as a nullity.18 He did not consider whether s 7A was engaged. This is not surprisingas it was not argued by Mr Wooldridge's former counsel at the hearing.19[29] The failure to include this argument in the notice of appeal is conceivablyenough to justify dismissal of the argument. But, it can be disposed of in short orderin any event and so I deal with it.[30] Mr O'Connor submits that this agreement may 'impliedly' oust the jurisdictionof New Zealand courts by virtue of s 7A which provides:(a) This Act applies in any case where the spouses or partners agree inwriting that it is to apply.(b) Subject to subsections (1) and (3), this Act does not apply to anyrelationship property if—(i) the spouses or partners have agreed, before or at the time theirmarriage, civil union, or de facto relationship began, that theproperty law of a country other than New Zealand is to applyto that property; and(ii) the agreement is in writing or is otherwise valid according tothe law of that country.(c) Subsection (2) does not apply if the court determines that theapplication of the law of the other country under an agreement towhich that subsection applies would be contrary to justice or publicpolicy.[31] It is common ground that there is nothing on the face of the document tosuggest the parties agreed that the property law of a country other than New Zealandwas to apply. However, Mr Wooldridge argues that because the pre-marital agreementwas signed by the parties in Fiji, at a time when they were contemplating living in Fiji,it would be a mistake to conclude that the law of New Zealand should apply ininterpreting the effect of the agreement.18 At [50].19 Mr O'Connor did not appear for Mr Wooldridge at the Family Court hearing.[32] I disagree. The argument is strained and does not withstand scrutiny. The clearterms of s 7A lend no support to the suggestion that parties may impliedly agree forthe property law of a country other than New Zealand to apply. Even if such anagreement could be implied—an unlikely proposition in my assessment—I wouldnevertheless have concerns over that agreement's validity. For the same reasons thatthe pre-marital agreement was considered to be a "nullity" by the Family Court Judgeas a contracting out agreement, an implied agreement as to jurisdiction faces similarhurdles. Ms Kumari was not presented with disclosure of Mr Wooldridge's variousassets nor did she receive legal advice, much less independent legal advice, of theconsequences of any such agreement. She was not in a position to assess "what herrights would be in [the] circumstances that might arise",20 nor was she in any positionto evaluate whether it was in her interests to accede to the property laws of a countryother than New Zealand. I consider that such an agreement would, even if capable ofargument, have been contrary to justice or public policy under s 7A(3).[33] As a result, I go on to deal with the interlocutory applications.Application for non-party discovery[34] Mr O'Connor applies for non-party discovery to obtain a letting file fromNorthland Realty. It is clear from the evidence at trial that Ms Kumari assisted anacquaintance in establishing himself at a new residential address. This involved ahandful of financial transactions including the payment of $1,080 for the purpose of abond (which was paid back to Ms Kumari the same day), $100 for a bed and $500 forrent. The suggestion at trial was that Ms Kumari was in a sexual relationship with theacquaintance and this had some bearing on whether their marriage was of a shortduration under s 2E. This argument was dismissed in the Family Court. The Judgesaid that there was no direct evidence of any intimate relationship between the two.[35] The purpose of the application for non-party discovery to obtain a letting fileis said to be to reveal which individuals were listed on the tenancy application form.Mr O'Connor suggests that this information will be relevant to establishing when therelationship ended. In particular, it will be relevant to the quality of the parties'20 At [50].marriage and Ms Kumari's specific intentions in the months leading up to theirseparation.[36] Ms Thompson responds that this application should have been made in theFamily Court proceedings. I agree. Discovery applications are more suited to thehearing at first instance than on appeal. Indeed, as Clark J observed in Brand vRegistrar of Companies:21[28] The operative principle is that discovery on appeal is rare and unless thestatute under which the appeal is brought envisages discovery (expressly orby necessary implication) it will be ordered only in exceptional circumstances.[37] The application in that case necessarily failed as the applicant demonstrated no"compelling reason for avoiding the principle that discovery is not available onappeals".22 Likewise, in the Court of Appeal's decision in Comalco New Zealand Ltdv Broadcasting Standards Authority, it was observed that "[s]o far as appeals areconcerned, the proper time for discovery is while the case is before the lower Court."23The position here is no different. Any application for non-party discovery ought tohave been made in the course of proceedings before the Family Court.Notwithstanding the change in counsel representing Mr Wooldridge since thoseproceedings, I do not see any compelling reason why this application ought to begranted on appeal.[38] I decline this application accordingly.Application to adduce evidence on appeal[39] Mr O'Connor also applies to adduce further evidence on appeal. The evidencein question is Mr Wooldridge's immigration records showing the precise number ofdays that he was out of the country during the course of their relationship. He submitsthat this evidence clearly bears on whether the marriage relationship was of a shortduration. He submits that it should have been produced at the trial but was not inreliance on trial counsel advice and it is cogent and probative of the nature andcharacteristics of the marriage.21 Brand v Registrar of Companies [2016] NZHC 2983.22 At [24].23 Comalco New Zealand Ltd v Broadcasting Standards Authority (1995) 9 PRNZ 153 (CA) at 160.[40] In general terms, appeals are said to proceed on the evidence which waspresented to the decision maker at first instance and parties do not automatically havean opportunity to bolster their case with new evidence on appeal. Leave is generallyrequired.24 The Court will only grant leave if there are special reasons for hearing theevidence.25 Wylie J recently summarised the principles governing the receipt offurther evidence in the context of an appeal under the Act. I respectfully adopt thoseprinciples:26(a) the Court can receive further evidence if it thinks that the interests ofjustice 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 Court hearing, butnot adduced because of the particular view of the case being taken atthe time;(c) admitting further evidence on appeal is exceptional rather thanroutine. A change of heart about how a case should have been run willnot suffice. The prospect of further evidence triggering a substantialre-litigation before the appellate Court of the substantive case willcount against admitting the further evidence;(d) generally, the further evidence must be fresh, credible and cogent;(e) evidence will not be regarded as fresh if it could, with reasonablediligence, have been produced at the trial;(f) the absence of freshness is not an absolute disqualification. When thefurther evidence is not fresh, it will not generally be admitted unlessthe circumstances are exceptional and the grounds compelling. Inaddition, the further evidence needs to pass the tests of credibility andcogency;(g) the interests of justice require the parties to put their best case forwardat trial, in order to avoid wasting the Court's limited time andresources. A high value is placed on finality when the parties havebeen afforded the opportunity and failed to take it; and(h) the standard to be met is "rightly high".[41] These principles make clear that the present application cannot succeed. Inparticular, further evidence must be fresh, credible and cogent. Although a lack offreshness is not an "absolute disqualification", evidence that is not fresh will only beadmitted in exceptional circumstances. The grounds must be compelling. Evidence24 High Court Rules 2016, r 20.16(2).25 Rule 20.16(3).26 B v A [2020] NZHC 580 at [25].will not be considered fresh if it could, with reasonable diligence, have been producedat trial. The immigration records in question here cannot be considered fresh againstthese criteria. They could have been requested from immigration services for thepurpose of the Family Court hearing. They were not requested.27 Although I amconscious of the stated difficulties faced by Mr Wooldridge who deposed that he didnot have access to his previous counsel's files due to a lien, the grounds are notcompelling in this instance.[42] But, in any event, this is not the principal ground on which I dismiss theapplication. I consider there is a short answer. Materially, the records in questionwould only be adduced to establish precisely how many days that the parties wereapart during their relationship. The Family Court Judge expressly considered in hisdetermination of whether the marriage was of a short duration that the figure was "inexcess of 300 days" over the course of their relationship.28 In my view, the precisefigure over 300 days makes little difference to this finding. The determination unders 2E is not one made solely on the basis of the number of days apart. It requires aqualitative assessment of the relationship in the round. The Judge was very clear inhis finding that Mr Wooldridge's periodic absences did not "interrupt the fabric of[the] marriage".29 Accordingly, this evidence is not compelling, nor the circumstancesso exceptional, as to warrant granting special leave.[43] I decline the application.[44] I turn now to the substantive appeal.Approach on appeal[45] Appeals from the Family Court in relationship property proceedings aregoverned by s 39 of the Act. Section 39(3) imports ss 126–130 of the District CourtAct 2016. An appeal of this kind is by way of rehearing. It is considered a generalappeal.27 There was some suggestion that trial counsel competence was the reason for this lapse but theground was not pursued at the hearing.28 I note that Mr Wooldridge appeared to say "in excess of 300 days a year in total" but the Judgetook him to mean over the course of their relationship.29 Wooldridge, above n 6, at [18].[46] The principles set out by the Supreme Court in Austin, Nichols & Co Inc vStichting Lodestar apply in respect of general appeals.30 The appellate court isrequired to arrive at its own assessment of the merits of the case. It is not required todefer to the Court below. It is for the appellate court to assess the appropriate weightto give to the lower court's reasoning.31 However, caution (but not deference) isappropriate where the original decision maker has technical expertise or anopportunity to assess the credibility of witnesses. As Woolford J remarked whenconsidering an unequal division under s 13 of the Act:32[18] While no particular technical expertise is called for, this sort of case isthe Family Court's bread and butter. The Family Court also heard from anumber of witnesses in person before determining the contributions (bothfinancial and non-financial) made by the parties to the relationship.[47] As recognised by Heath J in B v F, the application of the Austin, Nicholsprinciples is not altogether easy in the context of appeals from the Family Court:33Many first-instance decisions represent a mix of findings of fact (after seeingand hearing witnesses), the formation of an evaluative judgment and theexercise of statutory discretions. Sometimes it is difficult to characterise aparticular decision as evaluative, factual or discretionary in nature.[48] Heath J set out the approach to an appeal of this kind in particularly practicalterms. I adopt that approach as follows:34(a) first, it must be recognised that the Family Court Judge had theadvantage of hearing and seeing witnesses give evidence in the FamilyCourt;(b) secondly, where the Judge exercised any discretion in reaching his orher decision, this Court must determine whether the discretionarydecisions were open based on May v May and Blackstone vBlackstone;35 and30 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].31 K v B [2010] NZSC 112, [2011] 2 NZLR 1 at [31].32 Venter v Trenberth [2015] NZHC 545, [2015] NZFLR 571.33 B v F [2010] NZFLR 67 at [7].34 At [8].35 May v May (1982) 1 NZFLR 165 (CA) at 170; and Blackstone v Blackstone [2008] NZCA 312 at[8].(c) thirdly, this Court is free to reconsider the Family Court's decision andsubstitute its own views on factual questions or evaluations if it isconvinced the first instance decision was wrong.[49] The decision as to whether a marriage relationship was one of short duration islargely a factual determination. But there is an element of discretion in the secondlimb to s 2E(1)(a) in that a marriage over three year's duration may be treated as oneof short duration if it is just to do so. As to the second limb of the substantive appeal,whether any extraordinary circumstances exist is principally a factual enquiry but anassessment of whether those circumstances render equal sharing repugnant to justiceis an evaluative exercise.[50] I am mindful of the need to distinguish these separate approaches indetermining the issues before me.DiscussionA marriage of short duration?[51] The first ground concerns whether the Judge erred in concluding that therelationship was not one of short duration. Section 2E(1) of the Act defines arelationship of short duration as:(a) in relation to a marriage or civil union, a marriage or civil union inwhich the spouses or partners have lived together in the marriage orcivil union—(i) for a period of less than 3 years; or(ii) for a period of 3 years or longer, if the court, having regard toall the circumstances of the marriage or civil union, considersit just to treat the marriage or civil union as a relationship ofshort duration:(2) For the purposes of paragraphs (a)(i) and (b)(i) of subsection (1), incomputing the period for which the parties have lived together as a marriedcouple, civil union partners, or as de facto partners, the court may exclude aperiod of resumed cohabitation that has the motive of reconciliation and is nolonger than 3 months.[52] In his written submissions, Mr O'Connor said the Court's conclusion was thatthe appellant had spent 300 days apart over the course of the entire relationship. Infact, the Judge said:[15] Although he did not offer details in his affidavits, nor was the issue putto Ms Kumari, in his oral evidence-in-chief, Mr Wooldridge was asked howmany times he had been back to Fiji and what sort of time he spent back there.He answered: "Oh six or seven times a year, sometimes five." He suggestedthey had over 40 weeks apart, and then estimated a total of 300 days. Althoughhe said, "in excess of 300 days a year in total" I took him to mean he estimatedthey had been in separate places for 300 days over the course of the entirerelationship.(footnotes omitted)[53] The Judge noted that within his estimate of times spent in separate places,Mr Wooldridge included Ms Kumari's Sydney trip from 28 February 2015 to23 March 2015 when she accompanied her sister and niece to attend to Hinduceremonies relating to her niece's marriage.36[54] Mr O'Connor suggests, based on the further evidence that the appellant soughtto adduce that it was in fact 364 days that the parties spent apart during their marriageand the Judge should have concluded that the marriage fell within either s 2E(1)(a)(i)or (ii). He noted that the Court was critical of the appellant for not providing detailsof the absences in affidavits and not cross-examining the respondent on the issue. Thispoint dovetailed with his submissions as to the approach taken by former counsel.[55] I have already refused leave to adduce the further evidence. I also considerthat the Judge had not misconstrued the evidence. It was clear that he was referringto evidence of absences greater than 300 days. The last sentence in the passage quotedat [52] above expressly clarified whether Mr Wooldridge was referring to absences inany given year or over the course of the entire relationship.[56] The Judge was entirely correct in finding that the marriage lasted for a periodof greater than three years and that such absences as there were did not of themselvesmake the marriage one of short duration. Many marriages nowadays involve theparties spending a great deal of time apart, whether for employment purposes or36 At [16].otherwise. Such absences cannot fairly be considered to detract from the length of theparties' relationship as a matter of course. Although a relatively significant portion oftime, the days spent apart in the present case are appropriately included in calculatingthe length of their relationship. The marriage therefore does not fall withins 2E(1)(a)(i).[57] For the same reason, I do not consider these extended absences ascircumstances which justify treating the marriage as one of short duration unders 2E(1)(a)(ii). The Judge's discretion in this regard is not a factor merely of numberof days but a qualitative assessment made after hearing the parties give evidence andthe evidence of other witnesses. The question was whether despite being longer thanthree years, was the marriage so "unduly limited in terms of quality that it may justlybe described as a marriage of short duration"?37 Essential in this respect was theJudge's finding that despite periodic absences there was no interruption to the "fabric"of the marriage.38 The parties remained loving and committed. There were nosignificant emotional or marital breaks between them during these trips. Heaccordingly found that the circumstances did not warrant a finding under s 2E(1)(a)(ii)that the marriage was of a short duration. I agree. There is no identifiable basis onwhich it would be appropriate to intervene in the Judge's exercise of discretion.[58] Accordingly, I am satisfied that the Judge was correct in finding that themarriage was not of short duration.Extraordinary circumstances?[59] Section 13(1) of the Act provides:If the court considers that there are extraordinary circumstances that makeequal sharing of property or money under section 11 or section 11A or section11B or section 12 repugnant to justice, the share of each spouse or partner inthat property or money is to be determined in accordance with the contributionof each spouse to the marriage or of each civil union partner to the civil unionor of each de facto partner to the de facto relationship.37 Martin v Martin [1979] 1 NZLR 97 (CA) at 101.38 Wooldridge, above n 6, at [18].[60] The Judge described the test in s 13 as setting a high bar, referring to Martin vMartin and Joseph v Johansen.39 He noted that it is settled law that for one party toprovide the home in a marriage of three years or thereabouts is not "extraordinary".40He analysed the evidence and reached the following conclusions in respect of theparties' contributions to the marriage against the framework of s 18:(a) Their non-monetary contributions under s 18(1)(a) were equal in thatMr Wooldridge supported Ms Kumari's parental concern andMs Kumari visited Mr Wooldridge's elderly mother.41(b) In relation to s 18(1)(b) Ms Kumari's contribution to household dutiesprobably exceeded that of Mr Wooldridge by a little.42(c) The provision of money was a mixed contribution. After the first 13months, Ms Kumari worked, earning more than Mr Wooldridge'suniversal superannuation and his income was spent on his separateproperty in Fiji. Over the period of the marriage, Ms Kumari providedmore money for the purposes of the marriage than Mr Wooldridgedid.43(d) Mr Wooldridge's capital contributions amounted to a significant crediton his side of the ledger as he provided the house and furnishings inOnerahi valued at $482,000, along with modest chattels.44(e) Each of the parties performed work on the Onerahi property.Ms Kumari's attentions were predominantly directed towards maritalmatters or to contribute to maintenance of Mr Wooldridge's separateproperty while Mr Wooldridge's contributions to his separate propertycannot count for him.4539 Joseph v Johansen (1993) 10 FRNZ 302.40 Wooldridge, above n 6, at [45] referring to Martin, above n 3741 At [52].42 At [53].43 At [54].44 At [55].45 At [58].(f) Neither party had to forgo a higher material standard of living withinthe contemplation of s 18(1)(g) but Ms Kumari had the burden ofcoping in the less familiar cultural situation in New Zealand whilemanaging their household and assisting Mr Wooldridge in his businessaffairs.46(g) Another aspect of s 18(h) was the permanent benefit of obtaining NewZealand residence which could be characterised as a contribution.However, conflating residence rights enabling a person to work withthe work they subsequently undertake was not a balanced approach.Such benefit is not as out of the ordinary as it once may have seemedin cases such as Banda v Hart and Lebajo v Lebajo.47 To count hergains alone, without offsetting the hardship of cultural loss, would beto take a New Zealand-centric approach, perhaps at odds with the Act'svision of equal partnership.[61] The Judge acknowledged that Mr Wooldridge's capital contributions werenotable but considered that otherwise their respective contributions evened out. It wasMr Wooldridge's attentions to his separate property which diminished hiscontributions. Ultimately, by crediting Ms Kumari's acquisition of New Zealandresidence rights to Mr Wooldridge, those factors also evened out.48 In thecircumstances of the marriage, the provision of the home did not take the case outsidethe Martin parameters.49 Even if there were extraordinary circumstances, the Judgeconcluded that if equal sharing in Martin was proper, he could not see the facts in thiscase as producing repugnancy to justice. Rather, on careful analysis, the applicationof the correct test to the facts meant that this case falls within the class of cases forwhich the Act prescribes equality.[62] Whether extraordinary circumstances exist is a factual question.50 Whetherthey make equal sharing repugnant to justice is a value judgment.51 While the test is46 At [59].47 Banda v Hart [1998] NZFLR 930; and Lebajo v Lebajo [1994] NZFLR 665.48 At [72].49 See Martin, above n 37.50 Kidd v Russell [2018] NZHC 3032, [2018] NZFLR 841 at [27].51 At [27]."stringent" and "difficult to overcome" it was "never designed to be an impossibleone".52 As Richardson J observed in Martin, the terms of s 13 must be viewed withinthe broader statutory framework of the Act:53 the justice with which the statute is concerned at so many points is justiceweighed in terms of the policy and scheme of the legislation itself rather thanaccording to an abstract ideal.[63] Mr O'Connor submitted that the Judge set the bar too high and that a marriageof just three years and some months where there was an absence of cohabitation ofalmost one third of the marriage's duration is an extraordinary circumstance. Hecontended that the Judge erred by taking into account the effect of the separate Fijiproperties. As I understand the submission it is that no regard whatsoever should behad to those properties since they are outside the jurisdiction.[64] This point may be answered briefly. I do not consider that the references to theFiji property were material to the Family Court's decision other than in respect ofdiscounting Mr Wooldridge's contributions to those properties for the purposes of thes 18 assessment. That approach is correct in my view. The references to the value ofthose properties was properly an aside, making the point that equal division would nothave the same impact on Mr Wooldridge as the party in Martin or Wilson v Wilson.54[65] Mr O'Connor also referred to the decision of Tipping J in Hashish v Howesand the decision of the Family Court in Brown v Starke as illustrations of cases withsimilar circumstances.55 In each case the party introducing the home in a marriage ofshort duration was awarded more than 50 per cent of the relationship property.[66] However, Hashish was a case of a marriage treated as one of short durationbecause it lacked the qualities of marriage as generally understood. The 14 periods ofabsence ranged from 10 days to over a year and for much of the marriage's nominallength, it was a marriage in name only with little companionship or mutual support. Ido not find it especially helpful by comparison with the circumstances of this case.52 Brown v Starke [2016] NZFC 7132 at [42].53 Martin, above n 37, at 108.54 Wilson v Wilson [1991] 1 NZLR 687 (CA).55 Hashish v Howes (1996) 14 FRNZ 592 (HC); and Brown, above n 52.[67] In Brown, by contrast, the marriage lasted three years and six months but indifficult and volatile circumstances. The Family Court Judge was not prepared to treatthe relationship as one of short duration because they shared their lives and finances,holidayed together, transferred a substantial asset into joint names and set about tryingto acquire another property.56 Nonetheless, the Judge considered the very highdisparity of capital contribution to a relationship of brief duration meant that the othernon-monetary contributions did not yet balance out that capital contribution.[68] The Judge was influenced in this assessment by the fact that the wife whobrought the assets into the marriage was aged 74 years (22 years older than herhusband) and in receipt of a benefit.57 The circumstances were thereforeextraordinary. Equal sharing would be repugnant to justice given the wife wasestablished in her own home which provided her with security and which was intendedto be her home for the rest of her life, while the husband had, at least theoretically,prospects of improving his financial situation at his age.[69] While there are some factual similarities with the case of Brown, Ms Thompsonpointed out that every case has to be assessed in its particular factual context andcherry-picking first-instance cases which appear, at first blush, to have similarities isan unhelpful exercise. There is merit to Ms Thompson's submission.[70] Standing back and viewing all the circumstances of this marriage holistically,I depart from the Judge on the question of whether the circumstances of this marriagemeet the threshold of "extraordinary". I set out my reasons.[71] First, I accept that neither the significant capital contribution nor the parties'time apart is of itself extraordinary. It is not unusual for parties to spend a considerableamount of time apart in today's world, just as it is not uncommon for one partner toown a home prior to marriage. Those factors alone would not justify a finding unders 13 that equal sharing is inappropriate in this case.56 At [23].57 At [48].[72] However, there is more to the relationship between Mr Wooldridge andMs Kumari which appropriately bears on the holistic assessment required under s 13.The age and stage of life of Mr Wooldridge is relevant in this respect. Mr Wooldridgeis now 76 (70 years of age or thereabouts at separation). I consider that his age, andits consequences, is a factor which the Judge did not explicitly refer to at this stage ofthe assessment. It must be the case that Mr Wooldridge's future earning potential isrelatively limited by comparison to Ms Kumari, who is about 30 years younger. Thiswarrants consideration, both in respect of whether the circumstances are extraordinarybut more materially in determining the justice or injustice which results from thepresumption of equal sharing of relationship property.[73] The assessment under s 13 must be informed by the duration of the parties'relationship. I accept that there is no explicit recognition by the Family Court Judgein this part of his analysis about the effect of the duration of their marriage on thecontributions under s 18. Care must of course be taken not to elevate financialcontributions over and above non-monetary contributions. To do so would be contraryto the policy and presumption in s 1N(b) of the Act. However, non-monetarycontributions are more likely to even out capital contribution over time, depending onthe level of the financial contribution. The assessment must depend upon theparticular circumstances of the case at hand and, in this case, the combination of arelatively short relationship and the periods of absence informs the evaluation.[74] In the context of this relationship, Mr Wooldridge's capital contribution in theform of the Onerahi property is plainly very notable. The net value of the homecomprises approximately 93 per cent of the total pool of relationship assets.58 It bearssimilarities in this respect to the decision in Venter v Trenberth where the respondentprovided a home worth "well over 90 per cent of the total relationship property".59Further similarities with Venter include that there were no children of the relationshipbetween Mr Wooldridge and Ms Kumari and she has not been economicallydisadvantaged by entering the relationship or by the relationship ending.60 She did notgive up work or a career for the purpose of the relationship and her earning ability58 At [79]. The net value of the home was valued at $456,000 from a total pool of assets worth$491,357.59 Venter, above n 32, at [28].60 Venter, above n 32, at [25].remains unaffected, or indeed improved by the benefit of New Zealand residency. InVenter, Woolford J upheld on appeal the finding of the Family Court Judge thatextraordinary circumstances justified an 85/15 split of the relationship property infavour of the respondent.61[75] Woolford J found no error in the approach taken by the Family Court Judgewho concluded that:62[41] Financial contributions alone do not of course mean there areextraordinary circumstances but in combination with other factors includingin particular the brevity of the relationship can support such a finding. As hasbeen noted before, the effects of a substantial financial contribution may bebalanced out by other contributions in a lengthy relationship but this is farfrom a lengthy one.[76] This reasoning is particularly germane in the present case. The relationship inVenter lasted some four years or approximately 10 and 15 per cent of the parties'respective adult lives.63 Mr Wooldridge and Ms Kumari's relationship was evenshorter. It lasted just under three years and five months or approximately six percentof Mr Wooldridge's adult lifetime.64 That brevity is further compounded by theextended time the parties spent apart during the period—accepted to be in excess of"300 days over the course of the entire relationship".65 While those absences wereappropriately not such as to render the marriage of a short duration within the meaningof s 2E(1)(a),66 I nevertheless consider them material in assessing the extent to whichMs Kumari's non-monetary contributions (and particularly contributions such ascompanionship) can be said to have offset Mr Wooldridge's significant capitalcontribution.6761 At [30]. Of course no two cases are identical and further factors in Venter justified such a division,including the respondent paying outgoings on the house and for other essentials alongside almostall luxuries which the couple enjoyed.62 Venter v Trenberth [2014] NZFC 4902. The Family Court Judge was again Judge Fleming, as inthe decision in Brown, above n 52.63 Venter, above n 32, at [21(m)].64 Wooldridge, above n 6, at [12]–[13].65 At [15].66 In this sense, they did not "interrupt the fabric of [the] marriage" to such an extent that it shouldbe considered a relationship of short duration.67 Those non-monetary contributions will of course not be entirely diminished by prolongedabsences and other such contributions may remain unaffected.[77] Although Ms Kumari's non-monetary contributions including love andcompanionship warrant significant attention for the purpose of this assessment, Iconsider them insufficient to offset the otherwise unjust consequences of equal sharingin the context of Mr Wooldridge's significant capital contribution, advanced age (andcorrespondingly reduced earning potential) and the brevity of the relationship. Iconsider these are collectively extraordinary circumstances for the purpose of s 13,which make equal sharing of the relationship property repugnant to justice. This isnot to devalue the intangible benefits of the relationship, nor the insightful observationof the Judge about the hardship Ms Kumari experienced due to the cultural differencesin New Zealand.[78] I acknowledge the element of uncertainty in assessing a party's contributionson the state of the evidence, save that the net value of the home recorded in thejudgment below accounted for approximately 93 per cent of the total asset pool.Ms Kumari made some financial contribution to the household expenses and lookedafter the couple's affairs in New Zealand while Mr Wooldridge was in Fiji.Mr Wooldridge, on the other hand, diverted money to his separate properties in Fiji.Indeed, the Judge found on the evidence that Ms Kumari provided more money forthe purpose of the marriage than Mr Wooldridge did.[79] In my assessment therefore, an appropriate division of the relationship propertyin accordance with the parties' respective contributions is 65 per cent toMr Wooldridge and 35 per cent to Ms Kumari.[80] I note Ms Thompson's submission that because of the time which has passedbetween delivery of the judgment of Judge Adams and disposal of this appeal, therewill need to be application to the Family Court to update the valuation evidence.[81] I also note that the outcome of this appeal may have a bearing on theassessment of compensation for use of the property after separation, which had beenbased on equal sharing of the former family home. This was not specifically addressedby the parties at the hearing. I therefore grant leave for both parties to file memorandawithin 21 days on this aspect should the need arise.Result[82] I decline the applications for non-party discovery and to adduce furtherevidence on appeal.[83] I allow the appeal. I set aside the order that Mr Wooldridge pay $261,327 toMs Kumari. I make an order that Mr Wooldridge is entitled to 65 per cent of the valueof the relationship property and Ms Kumari is entitled to 35 per cent of its value. Inall other respects the scheme of the orders made by the Family Court is preservedincluding the deductions and allowances directed by the Family Court subject to anyadjustment of compensation for occupation of the relationship property sinceseparation.[84] The parties have leave to apply for further directions to give effect to theseorders.Costs[85] I reserve the question of costs. If the parties cannot agree costs, memorandashould be filed no later than 21 days from delivery of judgment with a responsivememorandum no later than 14 days thereafter. Costs memoranda should be no morethan four pages in length plus schedules.............................................................Walker J