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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lobb v Ryan

Details

AGLC: Lobb v Ryan [2020] NZHC 348
Case: [2020] NZHC 348
Decision Date: 5 March 2020

CaseChat Overview and Summary

The case of Lobb v Ryan involves an appeal by Stuart Lobb against the dissolution of his marriage to Verena Ryan. The Family Court at Auckland had previously granted the dissolution application on the basis that the parties had been living apart for two years, as required by the Family Proceedings Act 1980. The core issue in this appeal was whether Mr. Lobb and Ms. Ryan were indeed living apart within the meaning of the Act at the time the dissolution application was made.

The court examined whether the statutory requirement of living apart for two years was satisfied in this case. Mr. Lobb argued that despite being physically separated from Ms. Ryan due to a Police safety order and a temporary protection order, he was not living apart because he was unable to access his home, finances, and personal records. He contended that his circumstances amounted to a form of legal limbo, which prevented him from leading a normal life separate from Ms. Ryan.

However, the court found that Mr. Lobb's interpretation of "living apart" was too broad and not supported by the legal authorities. The court reiterated that the determination of whether a couple has been living apart requires the presence of two elements: a clear indication from one or both parties that they no longer wish to cohabit, and a two-year period of separation. The court concluded that the evidence demonstrated that Ms. Ryan had made her intentions to separate clear and that both parties had been living apart since 29 October 2016. Given this evidence, the court found that the appeal was misconceived and dismissed it.

The court further ruled that Ms. Ryan was entitled to costs and noted that further directions regarding costs and contempt issues would be issued after the release of the judgment in a related appeal.

Orders