DRUMMOND V TOWNSEND COA CA125/2009

DRUMMOND V TOWNSEND COA CA125/2009 13 May 2011NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS)ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITHSS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHERINFORMATION PLEASE SEEWWW.JUSTICE.GOVT.NZ/FAMILY/LEGISLATION/RESTRICTIONS.IN THE COURT OF APPEAL OF NEW ZEALANDCA125/2009[2011] NZCA 185BETWEEN CAROL MARGARET DRUMMONDAppellantAND JACK TOWNSENDRespondentHearing: 12 April 2011Court: O'Regan P, Stevens and Wild JJCounsel: S W Hughes QC for AppellantP J Mooney for RespondentJudgment: 13 May 2011 at 3:00 PMJUDGMENT OF THE COURTA The appeal is allowed.B The case is remitted to the High Court in terms of [15] of this judgment.C The respondent is to pay the appellant's costs incurred before any grantto the respondent of legal aid, as for a standard appeal on a band A basis with usual disbursements.REASONS OF THE COURT(Given by Wild J)Introduction[1] The parties to this appeal agree that the judgment of the High Court appealed from1 is wrong in law and must be quashed. We share that view. Some background is necessary before we give our reasons.Background[2] The parties, who are in dispute over their relationship property, asked theFamily Court to "define the length of their relationship".2 After marrying in 1977 and separating in 1996 or 1997, they had reconciled and again lived together, or at least in the same house, during two periods. They separated for the last time in November 2002. Their marriage was dissolved by order of the Family Court on 22 December 2004.[3] Toward the start of his decision Judge Murfitt defined what the Family Court was asked to decide in this way:3The preliminary question which arises is whether a "marriage" defined forthe purposes of the Property (Relationships) Act 1989 by s 2A(2) subsists after the parties separate, and if so what is the nature of their relationship when they reconcile. Is it a marriage or is it a de facto relationship?[4] Section 2A of the Property (Relationships) Act 1976 (the Act) provides:2A Meaning of marriage(1) In this Act, marriage includes a marriage that –(a) is void; or(b) is ended while both spouses are alive by a legal process that occurs within or outside New Zealand; or(c) is ended by the death of one of the spouses, whether within or outside New Zealand; -And husband, spouse, and wife each has a corresponding meaning.1 Townsend v Drummond HC New Plymouth CIV 2007-443-144, 4 February 2009.2 At [1] in the decision which is reported as JT v CMD [Length of Relationship] [2007] NZFLR618.3 At [10].(2) For the purposes of this Act, the marriage of a husband and wife ends if –(a) they cease to live together as husband and wife; or(b) their marriage is dissolved; or(c) one of them dies.[5] Judge Murfitt interpreted the word "cease" in s 2A(2)(a) as requiring a finalcessation, at least prior to the proceeding being determined. But he immediately added that intermediate separations will be relevant in a variety of ways, instancing the following two ways:4(a) "Property acquired while a married couple are not living together as husband and wife will still, on the face of it, be separate property."(b) The circumstances surrounding any intermediate separation(s) will be relevant to an argument concerning "extraordinary circumstances", in terms of s 13 of the Act.[6] That made it necessary for the Judge still to determine "when, in thisparticular case, the parties ceased, and then resumed, living together as husband and wife".5 So Judge Murfitt made factual findings about that, summarising them at the end of his decision in this way:6...a) the parties lived apart from 3 April 1996 until January 1997;b) they lived together as a couple from January 1997 until July 1997;c) they lived apart from July 1997 until July 1998;d) they lived under the same roof, but not as husband and wife between July 1998 and January 2002;4 At [20].5 At [21].6 At [98].e) they lived together as husband and wife between January 2002 and November 2002.[7] Mr Townsend's disagreement with those findings prompted him to appeal tothe High Court. In her judgment, the subject of this appeal, Duffy J defined what she had to decide, and her conclusion, thus:7... the issue here was, for the purposes of the Property (Relationships) Act, how many endings can a marriage have. I have concluded that it can only have one ending. ...[8] The practical effect of Duffy J's conclusion emerges from this, next, part of her judgment:8... There is no evidence to suggest the appellant disputes 15 November 2002 as being the date of final separation. I propose, therefore, to treat 15 November 2002 as the date of the final and, therefore, the decisive separation. It follows that from the date of their marriage until 15 November 2002, the parties must be treated as married to each other. This will have the consequence that all property acquired between those dates will have to be treated as property acquired during the duration of the marriage and subjectto the Act's provisions for property of that character....At [20] of the judgment the Family Court stated that property "acquiredwhile a married couple is not living together as husband and wife will stillon the face of it be separate property". In terms of s 2A(2)(a) that statement is correct in principle. However, in this case that approach could only be applied to property acquired after 15 November 2002. Before then the parties could not be said to have ceased to live together as husband and wife in terms of s 2A(2)(a).Reasons why High Court judgment is wrong[9] Unfortunately, Duffy J's judgment confuses the legal status of marriage with the relevance of that status to its relevance to a Court's determination of an application for the division of relationship property under the Act.[10] Duffy J was correct in holding that a marriage subsists from its solemnisation9 until it ends when one of the spouses dies or the marriage is earlier7 At [16].8 At [17] and [19].9 Under Part V of the Marriage Act 1955.dissolved by an order of the Family Court10. However, s 2A(2)(a) of the Actstipulates, "for the purposes of this Act", that a marriage ends if the husband and wife cease to live together as husband and wife. The key words are "for the purposes of this Act". Unsaid by s 2A(2) is that, for the purposes of the Act, themarriage resumes if and when the husband and wife resume living together as husband and wife. That is unsaid because it is the logical, obvious corollary. Thus, for the purposes of the Act, a husband and wife are treated as married only during the time or times they are living together as husband and wife. Duffy J erred in notgiving effect to the key words "for the purposes of this Act". The interpretation we have spelt out makes ready sense because the Act is concerned with the division of relationship property, as that term is extensively defined by s 8 of the Act.[11] Duffy J recognised that her view of the law would result in a different outcome upon a division of relationship property, depending on whether the parties were married or in a de facto relationship as defined in s 2D of the Act. She observed:11The different outcomes, depending on whether a couple is married or in a de facto relationship, which I have identified do not fit well with the statements in Scragg v Scott [2006] NZFLR 1076 at [24] and in Benseman v Ball [2007] NZFLR 127 at [43]. These statements evince a view that Parliament intended to place de facto couples and married couples in the same position.Whilst this may be the overall thrust of Parliament's intent, with theparticular matter in issue here there is an insufficiency in the Act to achieve that end.[12] With one exception, we agree both with what Duffy J says there, and with what is said in the two paragraphs she cites. The exception is that we disagree withDuffy J's view that the Act fails to achieve its aim of drawing no distinction between parties who are married and those who are in a de facto relationship. It is her oversight of the aim and effect of the words "for the purposes of this Act" that ledDuffy J into error.10 Made under s 38 of the Family Proceedings Act 1980.11 At [15].[13] Consequent upon her view of the law as we have set it out in [7] above, Duffy J allowed the appeal and gave this answer to the preliminary question we have set out in [3] above:12... the parties' marriage ... commenced on 5 March 1977 and ended on 15 November 2002. Between those dates, for the purpose of s 2A(2)(a) of the Property (Relationships) Act, the parties must be seen as being married to each other.An inconsistency emerging from that answer is worth noting. Duffy J found theparties' marriage ended on 15 November 2002 because she treated that "as the date of the final and, therefore, the decisive separation". She does that notwithstanding that the parties' marriage subsisted for a further two years. Not clearly emerging from Duffy J's judgment is the basis for her view that the parties' final separationwas operative to end their marriage for the purposes of the Act, while any intermediate separation(s) were not. The correct position is that any cessation of living together as husband and wife is equally effective.Disposition[14] Although Mr Townsend succeeded on appeal to the High Court, he did so because Duffy J took a view of the law which Mr Townsend accepts is wrong. On his appeal to the High Court Mr Townsend had sought to challenge, as erroneous in fact, Judge Murfitt's findings as to when he and Ms Drummond were living togetheras husband and wife. Duffy J's approach meant that she did not need to deal with those challenges, and she did not do so.[15] For those reasons the parties agree that the appropriate course is to quash the judgment, and remit the case to the High Court with the direction that it determine Mr Townsend's appeal afresh, applying the law as stated in this judgment. We remit the case and direct accordingly. Counsel agreed that it is appropriate Duffy J deal with the matter, given that she has heard argument on the issues now requiring decision. We agree.12 At [26].[16] We voiced to counsel our concern that the parties' dispute as to theirrelationship property remains unresolved, although they separated for the last time on 15 November 2002. We therefore urge the parties to seek the earliest possible telephone conference with Duffy J so that directions can be agreed or given as to any further submissions or hearing.Costs[17] Mrs Hughes asked for an order that Mr Townsend pay Ms Drummond's costsof this appeal. The basis for this was that Mrs Hughes was unaware that Mr Townsend accepted that the judgment under appeal was wrong in law and must be quashed until she received Mr Mooney's submissions dated 5 April 2011.[18] Subject to two points, Mr Mooney was obliged to accept this. His first point was that Mr Townsend had articulated further reasons why Duffy J was wrong in a notice under r 33 of the Court of Appeal (Civil) Rules 2005. We reject this. Both on its cover page and in its text, the r 33 notice, dated 8 October 2009, is described as a notice of grounds on which Mr Townsend supported the decision appealed against.Two "alternative" grounds are set out in the notice, each alleging error in the decision of Judge Murfitt. There is nothing in the r 33 notice to indicate, let aloneadvise, that Mr Townsend agreed Duffy J's judgment was wrong in law.[19] Mr Mooney's second point was that Mr Townsend had, on 14 October 2010, applied for legal aid. His application had not yet been determined. The costs order that follows accommodates this point.[20] Mr Townsend's advice, that he agreed the appeal must succeed, came only a few days before the hearing on 12 April. In those circumstances an order for costs in favour of Ms Drummond is appropriate. In respect of costs Ms Drummond incurred before Mr Townsend was granted legal aid, we allow her costs as for a standard appeal on a band A basis, with usual disbursements.Solicitors:Quin Law, New Plymouth for AppellantMooney & Webb, New Plymouth for Respondent