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Property settlement- New Zealand or Australia? Matters to take into account

Posted by Benchmark Lawyers in Family Law | 0 comments

Nevill [2016] FCCA 235 (17 March 2016)

Keywords- divorce- property settlement – most assets in New Zealand – jurisdiction – Trans-Tasman Proceedings Act 2010 (TTPA) – most appropriate court

Background

Property proceedings were initially brought to the Federal Circuit Court of Australia (FCC). A finding was made by Kent J that the High Court of New Zealand was the most appropriate court and the proceedings in the FCC were permanently stayed.

The wife appealed the decision to have the matter permanently stayed in the FCC.

This court

At [5] “… the Australian court is given a discretion that is constrained by two matters. First, the court must take into account a number of matters prescribed in s 19(2). Secondly, the court must not take into account “the fact that the proceeding was commenced in Australia”. Otherwise, the discretion is at large.”

S 19(2) of the TTPA sets out the matters that the Australian court must take into account: (a) residence of parties or principal place of business; (b) residence of witnesses; (c) location of subject matter; (d) any agreement between the parties about the court or jurisdiction; (e ) what laws are most appropriate; (f) whether there are related or similar proceedings against the defendant or another person in new Zealand; (g) financial circumstances of parties; (h) regard to regulations (i) other matters that the Court may been relevant; and the court is not to take in account the fact that the proceedings commenced in Australia.

The Wife contended that she would have been disadvantaged if proceedings were to occur in New Zealand, in that she would be receiving less in the property settlement.

At [32]:

In respect of the central contention as to juridical disadvantage, his Honour [Kent J] found that:

Having regard to the scheme of this legislation generally, it does not seem to me that there is any merit in the contention that an Australian court is more appropriate than a New Zealand court because the party invoking the jurisdiction of the Australian court has some juridical advantage, procedural or substantive, by so doing. That necessarily means disadvantage to the other party.”

In dismissing the Wife’s appeal the Full Court agreed at [38] with Kent J regarding the following:

  • That the parties spent most of the married life in New Zealand;
  • That the accumulation of assets and interest in assets were predominantly in New Zealand while they were married;
  • That their property was substantially situated in New Zealand;
  • That the Wife and Husband’s trust were New Zealand trusts;
  • That neither party has acquired assets of relevance in Australia other than personal items; and
  • That most of the acquisition or improvement of property was done in New Zealand.

Kent J stated “In my judgment, overwhelmingly, the connecting factors in this case tend in favour of the conclusion that the law of New Zealand would be the most appropriate law to apply to the determination of property issues consequent upon the breakdown of the parties’ marriage.”

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