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Howard v Howard [2021] NZFC 964

Published 20 November 2023

Minute — division of relationship property — property held in trust — Family Proceedings Act 1980, s 182 — Trusts Act 2019, ss 141(2) & 141(3) — Property (Relationships) Act 1976, s 33(3)(m). The parties had separated and were in the process of dividing their relationship property. Two properties were owned by the family trust, which was not independently represented in these proceedings. The parties were the trustees and the Court held that any decision relating to the trust would need to follow the substantive issues in the proceedings as they affected each party. The parties had not made an application under the Family Proceedings Act to determine their relationship property entitlements, so the Court raised the s 141 Trusts Act provision, which grants the Family Court jurisdiction to address the matter. Subject to the consent of the parties, the Family Court would then have the ability to make any order under the Act to resolve an issue between the parties which is closely related to those proceedings, so long as such an order would be necessary or desirable to assist in resolving the proceedings. The respondent requested extra time to decide whether to grant consent pursuant to s 141(3) of the Trusts Act for the Court to deal with issues arising in respect of the parties' trust. If this consent was withheld, the Court indicated that it would be for the Judge to consider whether to utilise s 141(2) of the Trusts Act and s 33(3)(m) of the Property (Relationships) Act to make any necessary adjustments to the terms of the trust. Alternatively, the Court indicated that all issues in dispute may need to be transferred to the High Court for determination. As the judge had conducted the judicial settlement conference, he could not consent to hearing the case, and the Court ordered the proceedings to be called before another judge for determination. Judgment Date: 4 February 2021. * * * Note: names have been changed to comply with legal requirements. * * *