Lobb v Ryan

[2020] NZHC 348

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1543

[2020] NZHC 348

UNDER

Family Proceedings Act 1980

IN THE MATTER

of a defended application for dissolution of marriage and application for maintenance (relief under section 168)

BETWEEN

STUART JAMES LOBB

Appellant

AND

VERENA COLLEEN RYAN

Respondent

Hearing:

27 February 2020

Appearances:

The Appellant in person

P Cobcroft for the Respondent

Judgment:

5 March 2020

JUDGMENT OF POWELL J

[Dissolution appeal]

This judgment was delivered by me on 5 March 2020 at 3.30 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

LOBB v RYAN [2020] NZHC 348 [5 March 2020]

[1]    The appellant, Stuart Lobb, has appealed the dissolution of his marriage to Verena Ryan,  granted  by  Judge  Burns  in   the  Family  Court  at  Auckland  on   10 July 2019.1

[2]    Section 39 of the Family Proceedings Act 1980 makes it clear that a dissolution must be granted upon application if the parties to a marriage have been living apart for two years.2 Although Mr Lobb identified a large number of grounds in support of his appeal, as I discussed with him, because there is no dispute that Mr Lobb and Ms Ryan have been effectively separated since 29 October 2016, the sole issue is whether they were living apart for two years at the time Ms Ryan applied for a dissolution of the marriage on 7 November 2018.

[3]    Mr Lobb submits that in the particular circumstances of this case, where he was kept from the family home as a result of a combination of a Police safety order and a temporary protection order obtained by Ms Ryan, that while he was physically separated from Ms Ryan he was not “living apart” from Ms Ryan for the purposes of s 39(2). Instead Mr Lobb considers that as his life was in a form of legal limbo, without access to his home, finances, and personal and financial records, he was not living. He therefore submits:

The Oxford Dictionary of English (Second Edition) defines living as “an income sufficient to live on or the means of earning it” or “the pursuit of a lifestyle of the specified type” and apart as “no longer living together or close emotionally”. It is, therefore, submitted that the plain meaning of the words living apart requires two elements:

(a)one, both parties having an income sufficient to live on or the means of earning it, which in the present case would include not being burdened with unnecessary costs and expenses that prevents one party from having an income sufficient to live on or at least some degree of separation of the parties’ affairs, which may not reach the level of full and final settlement of the parties’ relationship property matters, to give each of them the opportunity and means of being able to earn an income sufficient to live on; and

(b)two, physical separation or ceasing to be close emotionally (this second part of the second element being the mental element referred to in Sullivan v Sullivan).

1      Lobb v Lobb [2019] NZFC 5268.

2      Family Proceedings Act 1980, s 39(1), (2) and (4).

[4]In Mr Lobb’s view insufficient consideration was given by Judge Burns to:

… the facts and circumstances surrounding the reasons for the physical separation of the parties and the subsequent conduct of the respondent that prevented the appellant from being able meet his reasonable needs and move on with his life and whether this constituted a state of living apart.

[5]In this regard Mr Lobb continued:

It is submitted that while a state of living apart may not require complete financial independence or even the resolution of the parties’ relationship property matters it does require that the parties at least have the freedom and ability to live [a]part and to be free from the control of the other spouse.

Discussion

[6]    There can be no doubt that Mr Lobb’s appeal against the dissolution is misconceived. The deeper meaning of “living apart” suggested by Mr Lobb reads too much into those words and is neither consistent with the authorities, nor indeed his own understanding as a lay person noting that in June 2017 he confirmed in an affidavit (as in subsequent applications made by Mr Lobb):

Verena and I have been living apart since 29 October 2016 and there is no prospect of reconciliation.

[7]    On the contrary, the authorities to which both parties have referred3 make it clear that determining whether a couple have been living apart requires looking at two elements:

(a)a clear indication from one or both parties to the marriage that one or both no longer wish to co-habit;4 and

(b)two years separation.5

3      Sullivan v Sullivan [1958] NZLR 912 (CA); Williams v Williams (1988) 3 FRNZ 589 (FC); Bailey v Bailey [1992] NZFLR 702 (HC); McBride v McBride [1999] NZFLR 651 (FC); Excell v Department of Social Welfare [1991] NZFLR 241 (HC); CLM v KBI FC Hamilton FAM-2010- 019-1877, 8 March 2011.

4      See for example Sullivan v Sullivan [1958] NZLR 912 (CA) at 922; Williams v Williams (1988) 3 FRNZ 589 (FC) at 598; McBride v McBride [1999] NZFLR 651(FC) at 655; Excell v Department of Social Welfare [1991] NZFLR 241 (HC) at 248; CLM v KBI FC Hamilton FAM-2010-019- 1877, 8 March 2011 at [6].

5      See for example Williams v Williams (1988) 3 FRNZ 589 (FC) at 600; McBride v McBride [1999] NZFLR 651(FC) at 655; CLM v KBI FC Hamilton FAM-2010-019-1877, 8 March 2011 at [4].

[8]    Given this position there is no room for any qualitative analysis of the type suggested by Mr Lobb. While, as Mr Lobb noted, the authorities refer to the courts analysing the factual circumstances,6 any analysis necessary is clearly for the sole purpose of ascertaining whether one or both parties no longer wishes to co-habit and does not extend to some sort of objective assessment as to the quality of the relationship, still less the circumstances either party finds themselves in after separation. The fact that the question is whether one or both parties no longer wish to cohabit is also significant, as it makes clear that agreement is not necessary: it is clearly sufficient if one party no longer wishes to cohabit – the other does not get a veto. Moreover, it is clear from the wider legislative framework that matters relating to the former matrimonial home (whether occupation or ownership), finances and personal possessions stand to be considered entirely separately from whether or not the parties’ marriage should be dissolved.

[9]    Given that legal position, and as Judge Burns noted in his judgment,7 the evidence in in fact overwhelming that the parties were living apart for the purposes of the s 39(2) Family Proceedings Act for over two years prior to Ms Ryan’s application for a dissolution of the marriage.

[10]   As Ms Cobcroft submits, Ms Ryan made her intentions very clear at the point at which the parties’ physical separation began. In summary it is clear from a letter dated 27 October 2016 from Ms Ryan’s then counsel that separation had been discussed prior to the letter being sent. A subsequent letter from Ms Ryan’s then counsel on 28 October 2016 effectively confirmed the position, and Mr Lobb confirmed that he and Ms Ryan advised their children of the separation that night. The fact that Ms Ryan subsequently proceeded to obtain both a Police safety order and a temporary protection order only served to confirm her position that she no longer wished to cohabit with Mr Lobb. There is indeed no dispute that since 29 October 2016 the parties have not cohabited and indeed that both acquired new partners in the following two years.

6      Williams v Williams (1988) 3 FRNZ 589 (FC) at 597.

7      Lobb v Lobb [2019] NZFC 5268 at [3](a).

[11]   Together this evidence,  confirmed in substance  in affidavits filed by both  Mr Lobb and Ms Ryan, constitutes a more than sufficient basis to establish the mental element of living apart identified in the authorities. The fact that Ms Ryan’s desire to separate appears to have come as a genuine shock to Mr Lobb does not alter this fact. Likewise, the fact that Mr Lobb considers that neither the Police safety order nor the temporary protection order were appropriate or otherwise properly obtained, that he believes he was wrongly excluded from his home, or indeed any of the other matters of which Mr Lobb has complained at length in his evidence and submissions do not have a bearing on whether he and Ms Ryan were living apart. Instead they are simply irrelevant for the purposes of dissolution, given the limited ambit of what constitutes living apart. As a result, the appeal must be dismissed.

Decision

[12]   The appeal is dismissed. Ms Ryan is entitled to costs. Further directions in relation to costs and issues of contempt arising out of this appeal will be issued following the release of judgment in the second appeal heard with this appeal.

Powell J