YC v JL [2018] NZHC 837 (27 April 2018)

Last Updated: 22 May 2018

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002546 [2018] NZHC 837

UNDER	the Property (Relationships) Act 1976
IN THE MATTER	of an appeal against a decision of the Family Court at Manukau
BETWEEN	YC Appellant
AND	JL Respondent

Hearing:	28 March 2018
Appearances:	C M Murphy for the Appellant Z Chen for the Respondent
Judgment:	27 April 2018

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 27 April 2018 at 4pm

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:..............................

Solicitors/counsel:

K3 Legal Ltd, Auckland Simpson Western, Auckland

YC v JL [2018] NZHC 837 [27 April 2018]

Introduction

[1] The appellant, YC, appeals a decision given by Judge Malosi in the Family Court at Manukau on 22 September 2017.¹

[2] The respondent, JL, has commenced proceedings in the Family Court under the Property (Relationships) Act 1976 (the Act). She says that she and YC were in a relationship which lasted just over three years, and she seeks orders determining and settling their respective shares in their relationship property. YC contends that the relationship was one of short duration and that JL has no entitlement to share in his assets.

[3] The duration of the relationship is important. It will dictate how the relevant provisions in the Act will fall to be applied. To advance matters, the parties agreed to a short cause hearing before Judge Malosi to determine the duration of their relationship.

[4] Following a one day hearing (spread over two half days), Judge Malosi determined that the relationship between the parties began on or about 30 December 2010 and ended when they separated on 17 January 2014.

[5] YC challenges the decision, asserting that it is incorrect in both fact and law. He says that the Judge correctly identified the date the relationship commenced, but erred in finding that the relationship did not end until 17 January 2014.

Relevant facts

[6] It is common ground between the parties that they met sometime in late 2010 and commenced living together on or about 30 December 2010. They lived at a property in Sunnyhills owned by YC (the Sunnyhills property).

[7] The parties travelled to China together in August 2011 to meet each other’s parents and they married in a registry office in Shanghai on 1 September 2011. At the time, they were planning another private wedding ceremony to be held at Lake Como

¹ JL v YC [2017] NZFC 4576.

in Italy in May 2012, followed by a larger traditional wedding ceremony in China for family and friends.

[8] In December 2011, the parties opened a joint bank account and set up a family trust. They were the joint settlors, the trustees and the beneficiaries. JL says it was their intention to settle the Sunnyhills property on themselves as trustees but in the event, that did not occur. She says that YC was coming up with all sorts of excuses and saying that he did not have time to attend to it. YC says that the Sunnyhills property in reality belonged to his parents and that he had no intention of settling it on the trust. He says that the trust was set up because, in accordance with Chinese custom, it was expected that he would provide something, perhaps jewellery or some sort of property, for JL as his wife.

[9] It is common ground that the parties experienced some relationship difficulties in early 2012. YC says that he told JL that he wanted to separate. JL accepts that YC told her that he wanted to separate, and that there were discussions around separation and divorce in early 2012. She says, however, that the separation did not occur.

[10] The parties cancelled their plans for the private wedding ceremony at Lake Como and, on 21 March 2012, she ceased making payments into the parties’ joint bank account. Thereafter, she made no further contributions to household expenses, other than to purchase food. She did, however, remain living in the Sunnyhills property.

[11] In February 2012, YC left his then employment and purchased a pita bread delivery business on the North Shore. He set up a company to run this business and he commenced making pita bread deliveries on 1 April 2012. He was working long and inconsiderable hours in the business – from 3am to 3pm each day.

[12] On 11 April 2012, YC transferred ownership of his Toyota motor vehicle to JL. He says this was done because the parties had agreed to separate and the transfer of the motor vehicle was to recognise JL’s financial contributions to the relationship up to that point. He says that they had agreed that after the vehicle was transferred to her, JL would then move out of the Sunnyhills property. JL accepts that the vehicle was transferred to her, but says that the transfer was undertaken by YC as a gesture of
reconciliation because he had been having an affair with another woman – YL. It is common ground that JL did not move out of the Sunnyhills property.

[13] JL went on a spending spree using YC’s credit card. On 23 May 2012, YC removed JL as an additional cardholder from his personal credit card account.

[14] In early June 2012, JL went on a five-day trip with a girlfriend to Australia, while YC worked. She sent a text message to YC saying that she would have liked to have gone to Australia with him.

[15] Between June 2012 and June 2013, both parties remained living in the Sunnyhills property, although YC also spent increasing amounts of time housesitting for others and staying at the homes of friends and associates. The parties shared a bed when they were both living in the Sunnyhills property. YC says that there was no sexual activity or intimacy between them. JL does not accept this and she was not asked about these matters at trial. When YC was at home, JL continued to cook for him. She also did his washing and the housework.

[16] On 2 July 2013, YC set up a second trust. He was the settlor, and he and his friend, YL, were the trustees. YC and his parents were the discretionary beneficiaries of the trust.

[17] YC says that he began living permanently at YL’s mother’s house in July 2013. He says that he paid rent to YL’s mother, slept in a separate room, and returned to the Sunnyhills property only occasionally, to check on it.

[18] On 28 August 2013, YC set up another company. He was the sole director and YL was the sole shareholder. He transferred his pita bread delivery business to the new company. On the same day, YC settled the Sunnyhills property on himself and YL as trustees of the second trust.

[19] In November/December 2013, JL’s mother became gravely ill in China. JL went to China to visit her mother on two occasions – on both occasions, without YC.
[20] Matters started coming to a head in late 2013. YC was away on business for a number of days. Neither his mother nor JL could contact him. JL sent him a number of increasingly anxious text messages. He responded on 24 December 2013 saying that he had been really busy and suggesting that they talk in the New Year.

[21] JL’s mother died in late December 2013 and she went back to China for the funeral.

[22] JL then returned to New Zealand. On 17 January 2014, she sent a text message to YC. It read as follows:

I’ve been looking for a chance to talk to you. Let’s break up. All the happy or unhappy moments in the past three years, let it pass from today. Thank you for looking after me, and best wishes for your future. I’ll move out as soon as I’ve sorted out the stuff. We will go through the process after I move out ...

[23] On 28 February 2014, JL sent a text to YC telling him that she had moved out of the Sunnyhills property.

[24] Shortly after, the parties agreed to meet to discuss separation issues. They were unable to resolve them between themselves and JL commenced her relationship property proceedings in June 2014.

The parties differing versions

[25] Both parties filed affidavits and then gave evidence before Judge Malosi.

YC’s version of events

[26] In broad terms, YC says that:

(a) Not long after they married, he found that he could no longer tolerate JL’s “messiness”. He confronted her about this in February 2012.

(b) He then made clear his intention to separate. Arguments ensued over the following months, until JL eventually agreed to move out of the Sunnyhills property if he transferred his Toyota motor vehicle to her.
(c) He transferred the vehicle to JL in April 2012. She ceased making deposits into their joint account. He also cancelled her as an additional cardholder on his credit card account.

(d) He moved out of the Sunnyhills property, but not completely. He returned on occasion because it was convenient.

(e) JL was aware that they had separated, despite him allowing her to remain living in the Sunnyhills property over the next year and a half. He says that he allowed her to do so out of sympathy for the position she was in with her mother, who was severely ill.

(f) He called her “wife”, and did not oppose her calling him “hubby”, to keep the peace between them.

(g) He did not accompany JL on her visits to Australia and China because they had separated.

(h) They no longer undertook any activities together because they were no longer living together in a marriage.

(i) He was confused about JL’s text message indicating her wish to separate in January 2014, but he did not say anything at the time.

(j) He did not tell his mother about the separation, but she knew about it from early on.

JL’s version of events

[27] JL says that:

(a) Arguments arose between them shortly after they set up their joint account, and the first family trust, because she discovered that YC was having an affair with YL.
(b) Separation and divorce were mentioned in the course of their arguments and discussions. The Italian wedding plans fell away and settlement of the Sunnyhills property into the family trust was placed on hold.

(c) YC transferred his Toyota vehicle to her as a gesture of reconciliation. She, however, continued going on shopping sprees, using his credit card, effectively to get back at him for his affair with YL. This caused him to remove her as an additional cardholder.

(d) She decided to try and save the marriage. The parties’ text messages show a move towards each other, for example, by calling each other “wife” and “hubby” again.

(e) YC was transitioning to his new business, doing delivery runs and working long hours. As a result, he was away on business a lot.

(f) YC used to explain his absences to her, often saying that they were work related.

(g) She continued to manage and run the household as before, and cook and wash for YC when he was at home. She was supportive of his new business venture.

(h) There was a decrease in communications in 2013, but it was gradual. She attributed this change to his new work commitments. She still wanted to make the marriage work.

(i) YC did not accompany her on her trip to Australia, and on the trips to China, because of his work commitments. She was particularly disappointed that he did not travel with her to China when her mother passed away.

(j) When she returned to New Zealand in January 2014, she discovered that YC had transferred the Sunnyhills property to himself and YL. As a result, she then ended the relationship.

District Court decision

[28] Judge Malosi first decided when the relationship commenced. She reviewed the competing evidence and considered that YC’s version of when and why the parties commenced living together was more plausible than JL’s. She accepted that the relationship commenced on or about 30 December 2010.²

[29] The Judge then reviewed other milestones in the parties’ relationship, considered the relevant law and assessed the evidence. She itemised those matters she considered to be consistent with YC’s position on the date of separation. She noted YC’s evidence, accepting that between 2012 and 2014 there were occasions when he stayed at the Sunnyhills property, and that when he did he shared the same bed as JL.³ She stated as follows:

[27] ... It is difficult to see how sleeping together in the same bed and being free to stay at will is consistent with being separated.

She next referred to the text messages which were exchanged between the parties, and noted YC’s contention that they were consistent with his strategy of keeping the peace and maintaining a level of civility between the parties. She considered this explanation to be disingenuous.⁴ She noted the texts after May 2012 in which the parties continued to refer to each other as “hubby” and “wife”. She also noted the texts where JL would be making enquiries about whether YC would be home for dinner, or where YC would be advising JL that he would not be home to sleep on certain nights. She considered that all of the many texts in this vein were consistent with the parties still being in a relationship.⁵

[30] The Judge next considered the evidence of the two witnesses called by YC, a Mr Luo, who described himself as a close friend of YC, and YC’s mother. The Judge noted that under cross-examination, Mr Luo struggled to give a coherent assessment about how often he visited the parties at the Sunnyhills property, and the extent to which he actually knew what was going on in their relationship.⁶ The Judge concluded

² JL v YC, above n 1, at [7].

³ At [27].

⁴ At [28].

⁵ At [31].

⁶ At [32].

that Mr Luo was not a compelling witness.⁷ She then referred to the evidence of YC’s mother, who was visiting from China. She noted that, in an affidavit sworn on 23 December 2016, YC’s mother had deposed that by June 2012 at the latest she knew that the parties had separated. However, under cross-examination, it was her position that, in June 2012, YC told her that he was going to separate. The Judge noted that the mother could not be “nailed down” as to when she knew that the parties had separated.⁸ The Judge also noted that the mother continued to exchange text messages with JL after June 2012, including one on 6 November 2012, when she was due to come to New Zealand, and where she enquired whether JL wanted her to bring sanitary pads for her from China.⁹ The Judge commented as follows:

[33] ... I simply cannot be persuaded that was a ‘normal’ kind of text to send to your son’s estranged wife.

[31] The Judge considered that it was significant that YC stopped responding to JL’s texts around January 2014, after she sent him the text saying that she wished to end the relationship.¹⁰

[32] The Judge then reviewed the evidence of a Ms Hu, who gave evidence in support of JL. The Judge did not find Ms Hu’s evidence “enlightening”.¹¹

[33] The Judge concluded that there was no physical separation between the parties until JL finally left the Sunnyhills property in February 2014.¹² She noted that while YC may have contemplated separating from JL between February and April 2012, his actions thereafter were inconsistent with separation or living apart.¹³ She was also unable to conclude that YC, at any time, communicated clearly to JL an intention to separate.¹⁴ Rather, she found that it was JL who communicated that intention in January 2014.¹⁵ She concluded that YC had not discharged the onus on him of proving that the parties ceased living together as husband and wife by at least April 2012.¹⁶

⁷ At [32].

⁸ At [33].

⁹ At [33].

¹⁰ At [34].

¹¹ At [36].

¹² At [45].

¹³ At [46].

¹⁴ At [47].

¹⁵ At [47].

¹⁶ At [48].

She determined that the date of separation was 17 January 2014, when JL sent the text set out above to YC indicating that she wanted to separate, and then followed through by moving out of the Sunnyhills property in February 2014.¹⁷

The notice of appeal

[34] The notice of appeal alleges that Judge Malosi erred in her determination, and in particular when she found that:

(a) the text messages between the parties suggested that they were still together as husband and wife;

(b) there was no physical separation between the parties until JL finally left the Sunnyhills property in February 2014;

(c) YC’s actions were inconsistent with separation or living apart;

(d) YC did not communicate clearly to JL an intention to separate; and

(e) YC did not discharge the onus of proving that the parties ceased living together as husband and wife by April 2012.

[35] YC seeks judgment from this Court reversing the Family Court’s decision as to the separation date, and finding that the parties separated no later than 31 July 2013.

Approach to appeal

[36] The appeal is brought pursuant to s 39(2) of the Act. It confers a general right of appeal to this Court. Section 39(3) provides that the High Court Rules 2016 and ss 126 to 130 of the District Court Act 2016 apply. Section 127 of the District Court Act states that such appeals must be by way of rehearing. Section 128(1) sets out the power of this Court on any appeal. Essentially, this Court can make any order it thinks should have been made or send the matter back to the Family Court.

¹⁷ At [49].

[37] The approach discussed by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar¹⁸ applies to such general appeals. There, Elias CJ stated as follows:

[13] The procedure prescribed for appeals by s 27 does not provide for full de novo rehearing of evidence. While “further material” can be brought forward under subs (8) either “in the manner prescribed or by special leave of the Court”, it is clearly envisaged that there will be rehearing on the record. That is usual, and is for example the manner of appeals under s 76 of the District Courts Act 1947. The appeal court must be persuaded that the decision is wrong, but in reaching that view no “deference” is required beyond the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important ...

...

[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court's opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court's assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

(Citations omitted)

Analysis

[38] The parties have accepted Judge Malosi’s decision as to the date their relationship commenced. The issue between them is when they ceased living together as a married couple, in accordance with s 2A(2)(a) of the Act.

[39] The Act does not provide any specific guidance to the Courts to assist them in determining when a marriage has ended because the parties have ceased living together as a married couple. Some assistance can, however, be gleaned from s 2D(2) dealing with de facto relationships. It requires that all the circumstances of the de facto relationship be taken in account when determining whether or not two persons are living together and refers, inter alia, to the duration of the relationship, the nature and extent of common residence, whether or not a sexual relationship exists, the degree of financial dependence or inter-dependence, the ownership, use and acquisition of

¹⁸ Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

property, the degree of mutual commitment to a shared life, the care and support of children, the performance of household duties, and the reputation and public aspects of the relationship.¹⁹

[40] Counsel did not disagree on the relevant case law. It was common ground that, for a Court to find that a marriage has come to an end and that the parties have separated, it must be satisfied, on the balance of probabilities, of the following:

(a) physical separation,²⁰ although recognising that physical separation alone does not amount to separation, even if long continued;²¹

(b) a mental attitude, by at least one of the parties, which is consistent with separation or living apart;²²

[41] The intention to separate must be communicated in some form by one spouse to the other, either by words or conduct. It is not, however, necessary for both parties to accept the fact of separation.²³

[42] Parties can separate even though they continue to live under the same roof. In such cases, it is necessary to examine and contrast the state of the relationship both before and after the alleged separation. An analysis of whether separation has occurred will generally turn on the proper inferences and conclusions to be drawn from the whole of the evidence. The parties must explain why they continued to live in a common residence, and demonstrate that there was a change in their relationship, gradual or sudden, constituting a living apart. When spouses continue to live in the same residence, the Court must determine whether they did so “to keep their marriage going at a reduced level of happiness and satisfaction, as distinct from a situation in which common aspects of family life have been deliberately discarded”.²⁴

¹⁹ And see Hatch v Cole FC Wellington FP409/00, 31 October 2003 at [62].

²⁰ U v U [1994] NZFLR 474 (HC).

²¹ Sullivan v Sullivan [1958] NZLR 912 (CA) at 924.

²² W v H [2002] 3 NZLR 408 (HC) at [55]; Sullivan v Sullivan, above n 21, at 924.

²³ McGregor v McGregor (No 2) [2002] 22 FRNZ 582 (DC) at [19].

²⁴ Singh v Singh [2015] NZHC 1314 at [35](c).

[43] The question whether parties to a relationship have separated on a particular date is one of fact.²⁵

[44] I turn to consider this appeal by reference to these various principles.

[45] In the Family Court, YC was contending that the relationship came to an end at the latest by 10 April 2012. In this Court, it was his position that the relationship ended by way of separation at some point between April 2012 and July 2013.

[46] The evidence that was adduced before the Family Court paints a picture of a relationship that moved quickly at the beginning, but soured after a year or so. The parties accept that they discussed separation in early 2012. They did not, however, then physically separate. They both remained living in the Sunnyhills property and stayed there together for some time. While it is YC’s case that he thought the parties had separated – that is that he had a mental attitude consistent with separation or living apart from an early stage – that is not JL’s position. She says that the relationship went through what she described as a “rough patch”, because of YC having an affair with YL, but that she decided to put that behind her, try and get over it, and start afresh.

[47] Having considered the available evidence, I do not accept that the parties ceased living together as a married couple in 2012. The parties certainly discussed separation, but they did not physically separate. They continued living together albeit at a reduced level of happiness and satisfaction.

[48] It was YC’s evidence that he gave JL his car in April 2012, because the parties had separated and because he wanted to recognise her contribution to their joint finances up to that point. He says that she was then supposed to move out of the Sunnyhills property.

[49] YC’s evidence in this regard does not withstand close scrutiny. By way of example:

²⁵ W v H, above n 22, at [57]; Sullivan v Sullivan, above n 21.

(a) JL consistently referred to YC in contemporaneous text messages as “hubby”. He did not protest. For example, on 29 May 2012, YC sent a text to JL, saying “happy birthday my wife”.

(b) There were numerous discussions by text as to whether or not he was coming home for dinner on various evenings.

(c) They made joint arrangements by text to visit friends.

(d) He disclosed his monthly income to her.

(e) He allowed her to use his new computer.

(f) When JL told YC that she was going to Australia, he told her to take care of herself and he put a “smiley face” after the message. She then asked whether he was going to miss her. He responded “of course. Keep the phone on, just in case I need to contact you”. He also said “I’ve always wanted to go with you, but now you don’t have any holidays”. It is clear from the text messages that when she returned from Australia, he was staying at the Sunnyhills property. She did not wake him up out of consideration.

(g) A series of texts on 30 June 2012 is instructive:

JL Hub, are you willing to come back to our home YC Ah?

JL Will you?

YC I’m Home

JL Are you willing to be back to our life? Having troubles to decide what to eat in supper, or where to go in the weekends? Will you still let me be the girl? Often quarrel, Often jokes, time to time you’ll enjoy some chicken skin. When I’m pitifully having pies and instant noodles, will you come to save me?

0. I don’t even have money to travel, how can I go back to get married?
0. Are you willing? Are you really willing to get married?

YC All I’m thinking about now is to pay back debts JL Do you love me?

YC [I do] love [you].

JL Thank you. That’s all I need.

(h) He occasionally protested about some of the food she cooked and the few occasions when she did not cook for him.

(i) When she was going for an interview, he sent her a text – “Good luck to my wife on interview”. She responded: “Thanks my hubby”.

(j) On 11 September 2012, he sent a text to her: “Tomorrow, mortgage repayment tonight, do you have some extra cash”. A little later, he followed up with another email: “I mean cash, not credit on cards”. She responded asking how much he wanted and later offered to transfer “500”. He gave her instructions on where to send the money and which account to put the money into.

(k) At one stage, when he was feeling unwell, he sent her a text saying: “Sorry wife I must have made you lose sleep last night”.

(l) She enquired after his health on a number of occasions without protest from him.

(m) When she was unwell, he sent her a text reminding her to take her medicine.

(n) On 24 December 2012, he sent her a text telling her that he had bought her a present.

[50] Nowhere in the texts over 2012 (or at any other time) is there any suggestion by YC that she had breached the separation agreement he alleges required him to transfer the car to her, and her to move out of the Sunnyhills property. There is no
request that she move out. He does not ask her whether she has moved out. There is no reference to separation.

[51] The interaction of the parties revealed by their text messages through to the end of 2012 demonstrates that they had not physically separated. Further, and to use the language in the case law – there was no mental attitude evinced by either of them consistent with separation or living apart.

[52] It seems that in 2013, the parties gradually moved further apart. The number of text messages exchanged dropped off markedly. YC was spending less and less time at the Sunnyhills property, but there is still nothing to suggest that he evinced the intention to separate or that he communicated that intention to JL clearly and unequivocally. Rather, the text messages are to the contrary:

(a) He repeatedly explained to YL why he was not coming home. This poses the rhetorical question – why would he do this if they had separated?

(b) He did not protest when she called him “hubby” in texts.

(c) He did not protest or query the fact that she was still living in the Sunnyhills property.

(d) He sent her a number of texts asking her what was for dinner.

(e) He returned to the Sunnyhills property from time to time, and when he did, they slept together in the same bed. In many of the texts YC sent to JL, he said that he was coming home to sleep. She generally volunteered to cook something for him when he arrived.

(f) She sent him a text wishing him a happy birthday in June 2013.

(g) Also in mid-2013, there were numerous texts exchanged about his finances. He complained that he had endless bills to pay and they discussed the mortgage repayments due.
(h) On one occasion, after he had been away for a few days, she sent him a text asking him how he was keeping and when he was coming back. He responded saying he should be returning the following week, once he had completed training a new driver. She responded: “Okay then, keep warm in the cold weather, and don’t drive on empty stomach”.

(i) In September 2013, he told her that he was coming home to sleep for the night and asking her to keep a space for him. She responded: “Okay, haha, the front door is always open to you”. He did not protest.

[53] Nowhere in the texts is there any reference to separation, or to other matters, for example, her vacating the Sunnyhills property or the division of their relationship property, which might have been expected had the parties separated.

[54] While there were less texts exchanged in 2013 than there were in 2012, in my judgment, the nature of the texts did not fundamentally change. The texts reveal considerable discussion between the parties about everyday domestic and on occasion more intimate matters. There are a number of texts referring to the purchase of milk formula – presumably to be sent to China. The parties transferred money between themselves in order to enable these purchases to occur. There are texts about looking after their pet turtle. The parties continued to exchange text messages about when YC was or was not coming home, what food JL should prepare when he came home, where his dirty clothes were, arrangements to visit “aunty” for a mid-Autumn festival, YC going to a temple and praying for JL’s mother, an invitation from her to him asking him to attend her Christmas work function, and discussions about immigration documents – it seems for his parents. When JL’s mother passed away, she advised him. He asked her when she would go back to China, and she responded “that night” and asked whether he would go back with her. He responded that he could leave until after the New Year. He then said that he would call her father.

[55] While both parties advanced differing explanations for these texts in their respective affidavits, and in their evidence given in Court, in my judgment, the texts are the best indicator of what was actually happening at the time. There is nothing to suggest that either had formed the mental attitude consistent with separation or living
apart, nor that they had physically separated, albeit that they were spending considerable and increasing amounts of time apart. Nor is there anything to suggest that he communicated to her his intention to separate, either by words or conduct.

[56] I bear in mind that Judge Malosi had the opportunity of hearing and seeing the witnesses give their evidence at the hearing before her. There were a number of disputes between the parties and credibility was in issue. The Judge was entitled to prefer the evidence of JL over that of YC.

[57] A number of YC’s explanations for events were in conflict and unconvincing. For example, YC said in evidence that when the parties returned to New Zealand after their marriage in September 2010 in China, he found that JL was not a very good wife to him, and that he was then thinking about separating. He also affirmed his affidavits where he said the relationship began to deteriorate after January 2012, and that he decided to separate in December 2011, or possibly earlier. These assertions were inconsistent with the fact that he set up a family trust and joint account with JL in December 2011.

[58] By way of further example, it was put to YC in cross-examination that the reason he gave for saying that he could not remain in the marriage – namely her messiness – was implausible, given that the parties had lived together for a period of some nine months before they married. He explained that this was because the hours he was then working were standard 9am to 5pm hours, and that he had time to clean the house. He said that when he started his pita bread delivery business, he had to work much longer hours, and that he could not bear that the house was untidy. When it was put to him that his explanation did not make sense, given his evidence that he resigned from his previous employment in February 2012, and his assertion that he had decided to separate sometime in 2011, he was unable to explain the conflict in his evidence.

[59] There were other difficulties with YC’s evidence. For example, he emphasised in his first affidavit that the Sunnyhills property was his property, and that his intention was to settle it on the first family trust, because JL was not a beneficiary. When JL pointed out in her affidavit of 27 June 2016 that she was in fact both a settlor and
beneficiary, YC’s evidence changed. In his affidavit of 23 December 2016, he said that the Sunnyhills property was in fact his parent’s property and that he had never intended to settle it into the family trust. When these matters were put to him in cross- examination, YC’s response was that he was not a lawyer and that he was not sure about such matters. This was an unconvincing response.

[60] A number of the text messages were put to YC during cross-examination. He was asked to explain why they were on relatively intimate terms after May 2012, if, as he asserted, the parties had agreed to separate either in or before April 2012. He explained that this was his way of keeping the peace. When asked why he would do this, given his assertion that the parties had agreed to separate, and that he had transferred the vehicle to her, he explained as follows:

Um, well in my opinion, I used to run a pub and if you have a customer, um, that you don’t like you still call him “honey”, “dear” and sometimes you still have to do that.

Again, this was unconvincing. While he attempted to explain the intimate texts by saying that he wanted to keep the peace and that he was being considerate of the fact that JL’s mother was ill, these explanations were inconsistent with other actions that he took, such as cancelling JL as an account holder on his credit card account and not going with JL to visit her mother in China, first when JL’s mother was ill, and later when she passed away.

[61] YC accepted under cross-examination that he used to give explanations to JL when he was not coming home. He said that he always gave her reasons when he was not coming home. Judge Malosi found that this behaviour was consistent with the parties still being together. I agree.

[62] Another significant factor is that JL continued living at the Sunnyhills property for almost two years after YC asserted that the parties separated in February/April 2012. YC acknowledged under cross-examination that he continued to pay the mortgage on the property throughout this period. Although he claimed that he repeatedly asked JL to move out, there is no written record of this. Further, his version of events is inconsistent with his text messages. In his text messages, he constantly claimed that he was working hard, that he did not have enough money, and that he had
many bills to pay. The Sunnyhills property was rented out prior to the parties moving into it. From July 2013, YC was living at YL’s mother’s house – he said as a tenant – but there is no evidence to corroborate this. If YC was as financially stressed as he suggested in his text messages, and if JL had in fact agreed to move out of the Sunnyhills property, one would have thought that YC would have pushed the issue if for no other reason than to re-let the Sunnyhills property, thereby maximising his income. Further, his evidence that he wanted JL to move out, and that he repeatedly asked her to do so, is inconsistent with his protestation that he wanted to keep the peace and not upset JL while her mother was ill. While there is a suggestion in some of the affidavits filed by YC that he was concerned about the impact on JL if the parties were to divorce, there is no evidence of that in the texts, or in any other documentation.

[63] I accept that there are some indicia in favour of YC’s position, but YC has failed to convince me that Judge Malosi’s determination was wrong. Put simply, there is nothing to show that the parties had physically separated, or that either of them had formed a mental attitude consistent with separation until 17 January 2014, when JL sent a text to this effect to YC. It is noteworthy that texts after that date make it clear that even then, YC did not communicate the position to his parents in China.

[64] The appeal is dismissed.

Costs

[65] JL is entitled to her costs on the appeal. It is my preliminary view that they should be assessed on a 2B basis. JL is also entitled to her reasonable disbursements.

[66] I anticipate that counsel should be able to reach agreement on costs and disbursements. If there is any dispute, then I direct as follows:

(a) Within 10 working days of the date of the release of this judgment, JL is to file a memorandum detailing the costs and disbursements she seeks.
(b) Within a further 10 working days, YC is to file a memorandum indicating what aspects of the costs and disbursements awarded he disputes.

(c) Memoranda are not to exceed five pages.

I will then deal with the issue of costs and disbursements on the papers, unless I require the assistance of counsel.











Wylie J