PCD and PP [2009] FJHC 103; HBM65.2008L (9 April 2009)

IN THE HIGH COURT OF FIJI
FAMILY DIVISION
AT LAUTOKA
IN THE WESTERN DIVISION

HBM No. 65 of 2008L

PCD
Applicant/Respondent

AND:

PP
Respondent/Appellant

Counsel for Applicant/Respondent: Ms N. Khan
Counsel for Respondent/Appellant: Ms S. Shah

Date of Hearing: 9 April 2009
Date of Judgment: 9 April 2009

JUDGMENT (No 1)

Application for abridgment of time for final Order (decree absolute); Need for ‘exceptional circumstances’; Marriage ceremony scheduled within 28 day period after conditional order (decree nisi); Contention that marriage plans ‘exceptional circumstances’; Appeal against dissolution; Contention no 12 months separation; Magistrate took into account period between filing of application & hearing; No appeal against final Order for dissolution; Family Law Act 2003, ss. 30, 31, 34, 35(1), (2), (2)(b), (3), 36(b)(i), (ii), 39, 41, 181; Marriage Act (Cap 50), s. 36

HA and SG and Human Rights Commission (Appeal No. HBA 15/08S; 06/SUV/0156; 16 January 2009)

In the Matter Of: John Murray Abbott Appellant/Husband and Annette Jean Abbott Respondent/Wife Appeal [1995] FamCA 5; (1995) FLC 92-582 (6 February 1995)
Maunder Maunder [1999] FamCA 1430 (20 October 1999)

1. Application & Appeal

This proceeding involves an application and an appeal. The application is made by the party who instituted dissolution proceedings, PCD. The appeal is filed by the Respondent to the dissolution proceedings, PP.

1.1 (a) The Application: The application was filed with the High Court in Lautoka on 8 April 2009 as an urgent application. It was heard in Suva on 9 April 2009. The Orders sought are:

1. That there be an order that due to the special circumstances shown herein the conditional order granted on the 5th day of March 2008 become absolute forthwith, notwithstanding the appeal filed by the Respondent;
   
2. Alternatively, this Honourable Court make an order that the appeal filed by the Respondent on the 10th day of March 2009 discloses no proper grounds of appeal, is an abuse of process and is therefore struck out.
   

1.2 (b) The Appeal: The appeal was filed in the High Court at Lautoka on 10 March 2009, setting forth Grounds of Appeal as:

1. The Learned Trial Magistrate had no jurisdiction to grant the dissolution of Marriage when 12 months had not expired from the date of separation and the filing of the application for Dissolution of Marriage to the Respondent particularly when the Counsel for the Appellant specifically raised objection as to this issue.
   
2. The Learned Trial Magistrate erred in law and in fact in holding that he could take into account facts of the period of separation after the filing of the application for Dissolution of Marriage by the Appellant and this is particularly when Counsel for the Appellant specifically raised objection as to this issue.
   
3. The Learned Trial Magistrate erred in law and in fact in not taking relevant matters into account and taking irrelevant matters into account in making his decision.
   
4. The decision of the Learned Trial Magistrate is unreasonable and cannot be supported having regard to the clear Mandatory Provisions of the Family Law Act 2003.
   
5. The Learned Trial Magistrate had no jurisdiction to make the Order that the Conditional Order would become final after the expiry of 28 days as had been done.
   
6. The Learned Trial Magistrate erred in law and in fact in making the decision without hearing any evidence particularly Oral Evidence particularly when Counsel for the Appellant specifically required him to do so.
   

1.3 As to Orders sought, the Notice of Appeal provides:

1. That the Order by the Learned Trial Magistrate for the Dissolution of Marriage of the Appellant and the Respondent be set aside.
   
2. That the Decree Nisi not be made absolute until the determination of the Appeal and/or further Order of the Court.
   
3. That the Respondent do pay costs on indemnity basis as the Application at the hearing by the Respondent was absolutely frivolous and without any ground whatsoever.
   

2. Basis of Application

The Affidavit in Support traverses the matters pursued in the application this day and provides a foundation for Mr D’s Counsel’s submissions as to why the Appeal should not stand in the way of granting the Orders sought in the application, or should be struck out. It is as well to set it out relatively fully. Sworn by Mr D it states amongst other matters:

On 29th day of February 2008, I filed an application for Dissolution of Marriage from the Respondent stating we had separated on 20 day of February 2007 ...

On the 2nd day of April 2008, the Respondent filed a response stating:

‘That we have not been separated for minimum period of 12 months s claimed by the applicant.’

‘Accordingly, this Honourable Court has no jurisdiction to grant the Application for Dissolution of Marriage.’

‘It is also false that both Families concluded that the marriage be dissolved’ ...

I note that the Affidavit part (D) of the Response is neither signed by the Respondent or intervener, but by her solicitor.

After numerous adjournments my application for Dissolution of Marriage was heard on the 5th day of March, 2009.

The Respondent was not present but her solicitor appeared on her behalf.

The application was argued and the Learned Magistrate made a conditional order for dissolution of the marriage to become absolute in 28 days.

An appeal was filed by the Respondent on the 10th day of March 2009 and served on my then solicitors on the 11th day of March 2009 ...

I was informed of the appeal having been filed on the 13th day of March 2009.

From some time in late last year my family had held talks with the N family in the Indian traditional way to have me remarried to their daughter once my divorce got finalised. By this time both my family and I were aware that the marriage between the Respondent and I had broken down absolutely.

From the time of our separation the Respondent has not shown any interest in getting back with me and in fact she has refused to let me even see our daughter who was born after our separation once the Respondent had moved to Australia.

Based on these facts I proceeded to make arrangements to get remarried once the conditional order was pronounced. By the time I became aware of the appeal having been lodged, wedding invitations had been printed and cards disturbed.

It has been arranged for me to get married on Saturday the 11th day of April 2009 ...

On Wednesday the 1st day of April 2009 I called into the Ba Magistrates Court Registry to enquire if the Decree Absolute will be issued only to be informed by the clerks that once an Appeal is filed they do not issue a Decree Absolute. This is the first I had been told of such a rule.

My family and the family of the lady I am to get married to are both reputed families in Fiji, in the businesses and social community. I am afraid that if the marriage does not take place as planned it will cause our families grave embarrassment, shame and mental stress. I am further afraid that S, the lady I am to be married to, and her family will both refuse for the marriage to take place at a later date due [o] the embarrassment they will have to suffer as a result of any cancellation of the proposed marriage.

S’s and my family are traditional Indian families and cancellation of marriages are viewed as a bad reflection on either both parties and/or the family or one party and their family. This also reduces the prospects of any future planned marriages for both or either one of the parties in the traditional Indian setting ...: paras 2.-16.

3. Opposition to Application & Hearing of Application

The day before the hearing, Ms P’s solicitors advised the Court Registry of the inability of Counsel for Ms P to appear in Suva at short notice due to Court commitments in Lautoka and Ba. Counsel for Ms P appeared at the hearing as a courtesy to the Court however advised that an adjournment of seven (7) was sought so that a response to the application could be filed and served.

3.1 A substantial letter with attachments was faxed to Counsel for Mr D and to the Court, so that the Court had the advantage of taking its content into account. Amongst other matters it expressed surprise at receiving the Deputy Registrar’s letter advising of the application’s being listed for Thursday 9 April 2009 and stating:

1. We acted for the wife PP in the Magistrates Court in Ba. The application was filed for maintenance of the child and the mother who are living in Sydney.

(i) Then there was an application filed by PCD for Dissolution of Marriage end which was filed on 29th day of February, 2008 and in that application the Petitioner alleged that he separated from his wife on 20th day of February 2007. Our client strongly disputed that and put in the response and stated quite clearly that the separation took place in July 2007. Accordingly, that became a major issue to be determined by the Court.

2. However, the Learned Magistrate on the 17th day of April 2009 held that just because the 12 months from the Respondent’s admission of separation had been completed by 5th day of March 2009 the Divorce be granted. You are very well aware that we very strongly objected to the same and accordingly, filed an appeal on 10th day of March 2009. We enclose herein a copy of the Notice of Appeal and we drawn the attention to the Grounds of Appeal, particularly Grounds 1, 2 and 6 [then set out] ...

3. The Notice of Appeal was served on you as the Solicitors for the Petitioner on 11th of March 2009.

4. Section 30(2) of the Family Law Act clearly states that the 12 months separation must be:-

Not less than 12 months immediately preceding the date of the filing of the application for dissolution of marriage. (Underlines Supplied)

Accordingly, when the Petition is filed the 12 months must have expired and not at the date of hearing.

Therefore, the Learned Magistrate had no jurisdiction at all to grant the Dissolution of Marriage as that was a matter to be contested.

5. There was very strong evidence that it was absolutely false that your client alleged that parties had parted on 20th day of February 2007. A letter from the then Solicitors of the Petitioner dated 30th day of August 2007 clearly admitted that the parties had lived together at the Matrimonial home in Valalevu, Ba until 17th day of July 2007. We enclose herein a copy of the letter dated 30th day of August 2007 from AK Lawyers to our client in Sydney. Paragraph 2 of the letter clearly states:-

Our client informs us that he was married to you on 9th July 2006 in Ba, Fiji. Since that time both our client and you had occupied and stayed at the matrimonial home at Valalevu, Ba, Fiji until 17th July 2007 when you left for Australia and have not returned since.

Therefore, clearly there was this triable issue.

6. We have just been informed that the application of Form 12 has been served on Messrs Gordon and Company. They are not the agents of the Respondent in this matter. Therefore, the service cannot be accepted as proper. In any event Messrs Gordon and Company received the application without prejudice and we enclose herein a copy of the backing where Messrs Gordon and Company have signed ‘received without prejudice’.

7. Our Dr MS Sahu Khan who has been handling the matter for PP the Respondent is engaged in a hearing matter in Ba Magistrate’s Court and in Lautoka Family Court at 2.00pm where the Respondent is from New Zealand and the Court had ordered that no adjournment will be granted. Accordingly, our Dr MS Sahu Khan cannot appear in Suva ...

8. Accordingly, we are asking the Court by a copy of this letter that it will be not in the interest of Justice that your application be heard tomorrow. We will need to file a Reponses in any event.

9. In any event, you were served with the Notice of Appeal on the 11th day of March 2009. It is amazing that your client waited until today to make this application. (Emphasis in original)

4. Counsel’s Submissions for Applicant

Counsel’s Submissions for the Applicant were comprehensive, albeit succinct, focusing upon both the application and the appeal. She stated as to the appeal that it should be ‘disregarded absolutely’ and that the application should be granted in light of the special circumstances, provision for which exists in section 35(2)(b) of the Family Law Act.

4.1 (a) The Appeal – Submissions: Counsel said that Ms P, as Respondent to the application for Dissolution of Marriage, had responded a month and ‘a bit’ after the application was made and served. In so doing:

• She provided no date of separation so that this could not be accepted as against Mr D’s sworn evidence that the date was 20 February 2007;
  
• She provided no Affidavit so that there was no evidence from her that the Court could take into account as countering Mr D’s evidence;
  
• The Affidavit in Response to the application for Dissolution of Marriage was not sworn by her, but was signed by her solicitor – it does not bear her signature.
  

4.2 The Affidavit could not be accepted as the Affidavit of Ms P in accordance with Order 41 of the High Court Rules 1988.

4.3 This meant:

• The dates of the Applicant, Mr D, were all that were before the Magistrate as evidence;
  
• There was no objection by way of evidence as to Mr D’s evidence, simply statements from the Bar table.
  

4.4 Further, there was a maintenance application made by Ms P, under which Mr D is required to pay $AUS 69.00 per week through the Child Support Agency in Australia, and $FJ 150.00 per week, so that the Magistrate could properly take this into account as evidence of separation. This confirmed that the marriage had broken down and the only contention now is that a fresh application requires filing, so as to conform to Ms P’s recitation as to the date of separation.

4.5 Counsel said as to the Grounds of Appeal, that there is not any issue raised as to children – matters as to the child of the marriage are not in contention. Further, there is no issue that the marriage has not broken down – the material before this Court and before the Magistrates Court confirms the marriage is at an end and there will be and can be no reconciliation between the parties.

4.6 The evidence is that the marriage broke down on 20 February 2007 and that the parties lived in the same house, but separated under the one roof. At that time, said Counsel, there was ‘talk of divorce’.

4.7 Counsel said that the Magistrate did not rely upon the period after the lodging of the application for Dissolution of Marriage to bring the period of separation into the required 12 month span. Rather, the Magistrate said that even if one accepted the date put forward by Ms P, then taking into account the period after filing of the application, 12 months had expired during which the parties were separated.

4.8 Further, Mr D could always have made another application to bring it within the 12 month rule if Ms P’s contention were correct (which was denied by Mr D), which would have meant that there would be no contest as to the validity of the dissolution. The only reason the matter is in the position it now is, is that the application for Dissolution of Marriage was ‘held off’ whilst the maintenance application was being dealt with, this specifically at the behest of Ms P’s Counsel. This meant that the matter ‘dragged on’, initially in consequence of this, and then the severe flooding in Ba meant that Ba Magistrates Court was shut for some months.

4.9 (b) Application re ‘Special Circumstances’ for Shortening of the Period for Final Order of Dissolution: Counsel for Mr D said that the special circumstances are that during the lengthy period (which was not his doing) of matters being dealt with through the Magistrates Family Court, his and his prospective bride’s families came together in the traditional Indian Fijian manner to arrange the marriage, and:

• the marriage is scheduled for Saturday 11 April 2009;
  
• all arrangements for the marriage have been made;
  
• the appeal has no chance of success;
  
• it is unlikely that Ms P and Mr D would ever ‘get together’ again;
  
• Mr D would like to be able to ‘get on with his life’ just as Ms P has been able to do in Australia.
  

5. Matters Raised by the Court

Various matters were raised by the Court, as follows.

5.1 (a) Issues re Appeal Raised by Court: That it may be said that the delay in the proceedings in the Magistrates Court in consequence of the Maintenance application having been lengthy could have been due to Mr D’s not cooperating in that regard. Counsel for Mr D emphasised at this point that there was no delay as to Child Maintenance; the dispute was as to Spousal Maintenance.

5.2 Albeit it is said that there is no issue in relation to the child and that is not raised in the Grounds of Appeal, nonetheless Mr D raises it in his Affidavit in Support where he says:

From the time of our separation the Respondent has not shown any interest in getting back with me and in fact she has refused to let me even see our daughter who was born after our separation once the Respondent had moved to Australia: Affidavit in Support, para 11

5.3 In this regard, the Court referred to section 36 of the Family Law Act which says that where there are children of the marriage below 18 years, an Order for Dissolution of Marriage can become final only if proper arrangements have been made for their care and welfare, etc or the Court determines that there are circumstances which obviate the Court’s being required to make this determination.

5.4 Counsel for Mr D said that she and Counsel for Ms P had discussed the need for access/contact and endeavouring to resolve this aspect, albeit no undertakings had been made in the Magistrates Court to this effect. However, as this Court noted, it is for the Magistrates Family Court to address its mind specifically and explicitly to the care and welfare of the child and arrangements made in this regard before making an Order for Dissolution absolute.

5.5 The difficulty in the present case is that the Court has not received the Magistrates Family Court file.

5.6 Counsel for Mr D said that no written reasons had been produced by the Magistrate who had said that should the parties wish, then written reasons would be produced - however the parties had not requested them.

5.7 As to the separation date and the dispute surrounding it, the Court referred to paragraphs of the earlier referred to letter attached to that sent to Mr D’s solicitors vis-à-vis the application and present hearing, namely from Mr D’s former solicitors. In addition to the paragraph quoted by Ms P’s solicitor, the letter says:

Since [29 July 2007] you have refused and/or neglected to return to Fiji to live with our client at the matrimonial home despite various requests and pleas made by him.

Your persistent refusal to resume co-habitation with our client has causes much distress and discomfort to our client. You have also stated to our client, in the presence of his sister .. .that you gladly agree to divorce our client and break the marriage.

You have left our client with no choice but to very reluctantly adhere to your demand for a divorce and as such he has instructed us to file the necessary applications in the Fiji Courts in due course.

5.8 It may arguably be said that this could or may support the proposition put for Ms P that the separation date was July 2007 rather than February 2007 as said by Mr D.

5.9 Counsel for Mr D submitted that there was no evidence from Ms P before the Magistrates Court, however, in support of this proposition (July rather than February separation date) due to the lack of evidence from her and no Affidavit in Response as required.

5.10 (b) ‘Special Circumstances’ re Application for Final Order for Dissolution Raised by Court: As to the application that there are special circumstances for shortening the time for the Final Order so that Mr D’s planned marriage might go ahead, the Court raised the question whether the traditional or religious wedding could go ahead and the legal or civil marriage be postponed until the appeal was resolved. Counsel for Mr D said that celebrants are reluctant to do this, because the legal marriage is an important aspect and they have been persuaded that they should not do the religious marriage without the civil marriage having been effected.

5.11 Counsel also said that it is within the Court’s discretion to grant the shortened time for the Final Order and this is a case where discretion should be exercised in accordance with section 35(2)(b) on the basis of the special circumstances here existing.

5.12 The Court was also advantaged by Counsel for Ms P’s drawing to the Court’s attention that traditional weddings are cancelled if there is a death in the family and if important matters intrude. That the Court is involved and there are court proceedings could be a basis upon which a wedding could legitimately be cancelled without shame falling upon the families, for it is not their doing.

5.13 Counsel for Ms P also raised the matter of prudence – that waiting for the Order to become Final would have meant that the arrangements were not in the precarious position now existing. She also raised the fact that the application had not been instituted earlier, albeit the appeal had been made filed on 11 March 2009 and served shortly thereafter, becoming known to Mr D on 13 or 14 March 2009.

6. Determination

First, the Court determined to hear submissions from Counsel for Mr D in light of the pending nuptials – if the requested adjournment were granted and the matter were not heard, then the application would be nugatory. This does not mean, however, that the Court did not take into account Counsel for Ms P’s letter and oral request through Counsel for an adjournment to enable a response and appearance of her Counsel in person. That was clearly borne in mind.

6.1 As to the issues in the application and the submissions made, the Court is mindful of Mr D’s position, that of his intended bride and of the families, their relatives and friends and the importance of the arrangements made for the wedding which is an important event in anyone’s life and particularly for Mr D.

6.2 The law of Fiji does recognise and hence place a store upon religious marriage. Thus section 36 of the Marriage Act (Cap 5)) says::

Additional religious ceremony

36. (1) At any time after the solemnization of a marriage by the Registrar-General or a district registrar, the parties to such marriage may, if they so desire, upon the production of the certificate of the Registrar-General or district registrar as to the marriage, have a further marriage service performed according to the form ordained or used by the religion or religious denomination to which either or each of such parties belongs.

(2) Nothing in the reading or celebration of a marriage service under the provisions of subsection (1) shall superseded or invalidate any marriage previously solemnized nor shall such reading or celebration be entered as a marriage in the register of marriages.

6.3 The Court has borne this in mind and the importance as recognised in the Constitution of religious freedom and the importance of honouring cultural identity.

6.4 At the same time, the Court cannot ignore the fact that:

1. There is an appeal on foot, and the Grounds of Appeal are not unarguable;
   
2. Counsel for Ms P was not able to appear at short notice and Counsel who did appear did so as a courtesy to the Court (albeit being of assistance to the Court which is appreciated);
   
3. The arrangements for the marriage were made before the Order for Dissolution became final, albeit it was clear to the parties by reason of the Order’s being conditional only, that it was necessary to wait for it to become final before the marriage would be at an end;
   
4. The Court cannot ignore the requirement in the Family Law Act that an Order for Dissolution cannot be made unless the marriage has broken down, there is no chance of reconciliation, and the separation has lasted for 12 months – those three aspects are ‘key’ to the dissolution of marriage and the absence of any one of them means that dissolution cannot be granted;
   
5. That Mr D says the marriage broke down earlier than is contended by Ms P cannot overcome the difficulty now raised by way of appeal – the contention that the Dissolution Order has been made in the face of dispute as to the requirement of 12 months’ separation;
   
6. Even if an application could have been made taking into account Ms P’s contention as to the separation date, and the Dissolution have been granted within time for Mr D’s planned wedding, the fact is that it was not, so that this cannot be rectified effectively by a side wind by this Court’s granting a shortened period for the Final Order.
   

6.5 The Court is further mindful of two further aspects.

6.6 First, in In the Matter Of John Murray Abbott Appellant/Husband and Annette Jean Abbott Respondent/Wife Appeal [1995] FamCA 5; (1995) FLC 92-582 (6 February 1999) it was held by the Family Court of Australia that dissolution is a separate matter from maintenance and property proceedings. Hence, that the dissolution proceedings were delayed by maintenance proceedings, even if that was a consequence of any delay on Mr D’s part, cannot be ‘held "against" him’ in considering the application now before the Court. That is, it should not be said that because (assuming he did which is not accepted by the Court here but put forward as a possible proposition) Mr D caused delay through the maintenance proceedings, he himself effectively delayed the dissolution proceedings, and that should figure negatively against his present application.

6.7 Hence, the Court does not take into account here any matter going to delay in maintenance proceedings conducted in the Magistrates Family Court between the parties.

6.8 Secondly, in Maunder Maunder [1999] FamCA 1430 (20 October 1999) the Family Court of Australia allowed an appeal against a dissolution order where:

1. It was abundantly clear that his Honour could not be satisfied that proper arrangements had been made for the children: Opperman (1978) ...
   
2. Section 55A places a positive obligation on the Court to protect the interests of children of divorcing spouses. Where the Court is not satisfied that proper arrangements have been made for the children it must not grant a decree absolute, unless there are circumstances by reason of which the decree should become absolute.
   
3. His Honour appeared to rely on circumstances here, being that it is not customary to hold parties to ransom over divorce applications and that the respondent’s applications had been set down for hearing. These were inadequate for the purposes of s. 55A(1)(b)(ii) and there was no evidence of relevant overriding circumstances.
   
4. It was appropriate to set aside the declaration and give the parties liberty to apply to a Judge at first instance to have a fresh declaration made.
   

6.9 In HA and SG and Human Rights Commission (Appeal No. HBA 15/08S; 06/SUV/0156; 16 January 2009) this Court considered the interpretation, impact and effect of section 36 of the Family Law Act, the equivalent to section 55A of the Family Law Act 1975 (Cth) upon which Fiji’s Family Law Act is based. Earlier alluded to, that section says:

Final order where children of the marriage

36. -(1) A conditional order of dissolution of marriage does not become final unless the court has, by order, declared that it is satisfied: -

(a) that there are no children of the marriage who have not attained 18 years of age; or

(b) that the only children of the marriage who have not attained 18 years of age are the children specified in the order and that:-

• (i) proper arrangements in all the circumstances have been made for the care, welfare and development of those children; or
  
• (ii) there are circumstances by reason of which the conditional order should become final even thought the court is not satisfied that such arrangements have been made ...
  

6.10 In HA and SG and Human Rights Commission (Appeal No. HBA 15/08S; 06/SUV/0156; 16 January 2009) the Court set aside a final Order for Dissolution because section 36 had not been taken into account. That this issue has not been raised in the Grounds of Appeal does not rule out the Court’s responsibility for ensuring that section 36 is properly applied. It is the Court’s responsibility under the Family Law Act to bear in mind always where relevant the best interests of the child. Section 41 of the Family Law Act and Part VI – ‘Children’ makes this abundantly clear.

6.11 The importance of this obligation on Magistrates in granting Dissolution Orders cannot be understated. It appears to me in the present case that there is an arguable case for a review of the grant of the Dissolution and hence it is not appropriate to grant the present application.

ORDERS

1. The application for the Conditional Order for Dissolution to be made absolute is refused.
   
2. The application that the Appeal be struck out is refused.
   
3. Costs reserved.
   

Jocelynne A. Scutt
Judge

High Court, Family Court/Division
Suva

9 April 2009