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High Court of Fiji |
IN THE HIGH COURT OF FIJI AT SUVA
Appeal no: 0001 of 2012
BETWEEN:
NK
Appellant
AND:
VVR
Respondent
Appearances: Mr SunilSharma with Ms M.Tarai for the appellant
Mr Raman Singh for the respondent
Date of hearing: 11th February, 2013
Anonymised case citation: NK v VVR
JUDGMENT
NK files this appeal on the following grounds of appeal:
" The Learned Trial Magistrate erred in law and in fact:
3.1 The first ground
The first ground of appeal takes issue with the Learned Magistrate proceeding to hear the matter, despite accepting the fact that the threshold for trial had not been met, in that the parties had not provided a valuation of the matrimonial home, the Fiji National Provident Fund charge on the property and the balance in VVR's Fiji National Provident Fund. It is argued that the Learned Magistrate ought to have adjourned the matter and requested the parties to provide this information, prior to making final orders.
3.1.2 The answer to this contention is contained in the judgment of the Learned Magistrate which states that the "parties will have no one but them and their counsels to blame for requesting for matter to be heard when it was not ready for the same". The proceedings of the lower court of 21st May, 2009, provides that both counsel for NK and VVR had stated they were ready; the evidence of NK was led. Moreover, I fail to understand why NK failed to provide a valuation of the matrimonial property, she was in occupation of.
3.1.3 I have dealt with the matter regarding the balance in VVR's Fiji National Provident Fund in paragraph 3.4 below.
3.1.4 In my judgment, the Learned Magistrate was entitled to proceed to determine the matter on the evidence before her. Order 5.02 of the Family Law Rules,2005, empowers the lower court to make an order it thinks fit "if a party does not do all things required by the Rules".
3.2 The second ground
I find fanciful the contention in the second ground that the Learned Magistrate should have put a reserve price on the sale of the matrimonial home, before ordering a sale by tender.
3.3 The third, fifth, sixth, seventh and eighth grounds
Section162 of the Family Law Act forms the basis of the third, fifth, sixth, seventh and eighth grounds of appeal.
3.3.1 Section 162(1) sets out in sub-sections (a),(b),(c) and (d) the fourfold contributions the court must take into account, in making an order with respect to "any property of the parties to a marriage". Sub-section (a) provides that a financial contribution made directly or indirectly to the acquisition, conservation or improvement of the property is to be taken in into account. Sub-section (b), the non-financial contribution to the improvement of the property. The contribution made to the welfare of the family has to be considered by sub-section (c). This is an elusive concept with wide import. Finally, sub-sections (d) requires the eligibility of either party for a pension, allowance or benefit under any superannuation fund to be considered.
3.3.2 Justice Wati's elucidation on section 162(1) is instructive. In KN v MYH, (08/BA 0043), she stated that it "is not suggest(ed) that one of these types of contributions is any more important than any other contribution. It is up to the Court to assess the respective value of each type of contribution."
3.3.3 Sub-section 162 (2) enunciates the rebuttable presumption that the contribution of the parties to a marriage is presumed to be equal.
3.3.4 In SB v MIK,(06/BA/0185) it was held that a contribution made by a home-maker wife is considered to be equivalent to a direct or indirect financial contribution. Since the marriage was of short duration of 4 years, the wife was awarded a one-third share.
3.3.5 The final stage under section 162(3) is to take into account the factors enumerated therein, which has been aptly termed "future needs" by Justice Wati in KN v MYH (supra). As so far as relevant to the present case, these are as follows:
(a) the age and state of health of the parties;
(b) the income, property and financial resources, including any interest in capacity of each of them for appropriate gainful employment;
(c) whether either party has the care and control of a child of the marriage who has not attained the age of 18 years.
(d) the commitments of each of the parties that are necessary to enable the party to support –
(i) himself or herself;
(e) .
(f) .
(g) the duration of the marriage, and
(h) .
(i) any other fact or circumstances which, in the opinion of the court, the justice of the case requires to be considered.(emphasis added)
3.3.6 The third ground
The third ground contends that the matrimonial property was distributed, contrary to the four stage tests for alteration of property interests laid down in section 162(1).
3.3.7 The criteria set out in section 162(a) and (b) has been considered by the lower court. NK was quite correctly found to have contributed to the matrimonial property, as a homemaker parent. The Learned Magistrate held that during the 11 years of marriage, she brought up two children and continues to take care of them, without any support and assistance from VVR.
3.3.8 Next, the Learned Magistrate found that VVR had made financial contributions to the property with his monies held in the Fiji National Provident Fund Account. He had paid the Housing Authority debt and purchased materials to build the house with his wages. It was also found that he contributed to the general welfare of the family by supporting them financially during the 11 years of the marriage.
3.3.9 At the first stage of assessment, the Learned Magistrate held that the parties were each entitled to 50% of the matrimonial property.
3.3.10 The fifth ground
3.3.11 The contention in the fifth ground of appeal argues that the Learned Magistrate acted contrary to sections 26 c) and 86 (1) of the Family Law Act, 2003, when she set off the child maintenance for a 10% adjustment in favour of NK.
3.3.12 Section 26 c) enshrines the need to protect the rights of children and promote their welfare. Section 86(1) states the primary duty of parents is to maintain their offspring.
3.3.13 The lower court, on a consideration of VVR's "age and state of health" as laid down in section 162(3)(a), found that he could not perform hard work since he had contracted heart disease. His earnings by engaging in light duties was insufficient for his survival. In my view, it was quite correctly concluded that he could not pay maintenance.
3.3.14 NK had not worked for 20 years and was supporting the child, while VVR was not. Accordingly, NK was granted a 10 % increase in the share from the matrimonial property for the future maintenance of the child. In my judgment, this increase, adequately covers child maintenance.
3.3.15 The sixth ground
3.3.16 The sixth ground of appeal provides that the Learned Magistrate failed to incorporate VVR's Fiji National Provident Fund, as part of property distribution.
3.3.17 The lower court declined to make an order for division of VVR's Fiji National Provident Fund for several reasons. Firstly, VVR would not be able to uplift this money, in the next ten years . Secondly, in view of his state of health, it was held that he may require the monies, in the evening of his life. Thirdly, NK' s entitlement to this asset was set off against her enjoyment of the matrimonial property for the past ten years, with VVR having to find alternative accommodation. Finally, as a further adjustment in favour of NK, VVR was held responsible for all costs incurred in the realisation of the entitlements of the parties to the matrimonial home. The reasoning of the Learned Magistrate appeals to me.
3.3.18 The seventh ground
3.3.19 The seventh ground argues that the payment of the debts and charges in the matrimonial home by NK was not recognised as a contribution, contrary to section 162(1) (b) of the Family Law Act. I do not accede to this argument.
3.3.20 In my view, the Learned Magistrate rightly came to a conclusion that the payment of rents and town rates was not an exclusive contribution made by NK to the matrimonial home, since she was in occupation of same .
3.3.21 The eighth ground
I find this ground of appeal deeply unattractive. The complaint is that the Learned Magistrate ordered the reimbursement of the Fiji National Provident Fund charge to VVR from the proceeds of sale, whereas NK was ordered to pay all the outstanding rates, rents and bills.
3.3.22 VVR purchased the matrimonial property with his wages and a charge on his monies in his Fiji National Provident Fund. The proceeds of the sale must necessarily first, be used to pay that charge.
3.3.23 The third, fifth, sixth, seventh and eighth grounds of appeal cannot, in my view, be sustained.
3.4 The fourth ground
3.4.1 It is argued under the fourth ground, that VVR should have been held liable or accountable for failure to disclose his Fiji National Provident Fund balance, the Fiji National Provident Fund charge on the property and the valuation of the matrimonial home.
3.4.2 In SLB VNW,(09/SUV/005) it was contended that Form 9 application for property distribution was not filed. Justice Wati held that failure to file this form did not invalidate the proceedings. She stated that there was "no miscarriage of justice or prejudice that was caused to the appellant. She had access to justice and she also did not take objection to the issue when she appeared in court as a party to the proceedings". Her Ladyship relied on Regulation 7(1) and (2) of the Family Law Rules. Regulation 7(1) provides that non- compliance "with these Regulations, or with a rule of practice or procedure in a court exercising jurisdiction under the Act, does not render proceedings in that court void unless the court so directs". Regulation 7(2) reads as follows: "in exercising discretion under this regulation, the court shall have regard to the real merits of the case, the minimizing of expense, and whether any party to the proceedings, has suffered injustice or has been prejudicially affected by non-compliance with these Regulations".(emphasis added)
3.4.3 Mr Sharma, counsel for NK has submitted copies of several authorities of the Australian courts on the issue of non-disclosure in property settlement proceedings. I would refer to one relevant case, namely In the marriage of SW an WH Weir,(1992)16 Farm LR 154.This case held that there must be clear and sufficient evidence of non-disclosure, for a court to make an order in relation to unidentified and undisclosed property.
3.4.4 In the present case, VVR had testified that his balance in his Fiji National Provident Fund Account was $ 3000. NK had not challenged this evidence.
3.4.5 I dismiss the fourth ground of appeal.
3.5 The ninth ground
The remaining ground of appeal contends that the lower court should have laid down the procedures and the safeguards to be followed, prior to the acceptance of the tender. In my judgment, adequate safeguards were made by the Learned Magistrate when she ordered the solicitor for the NK or VVR appointed to conduct the sale, " to accept an offer to purchase by a suitable buyer".
3.6 I conclude there are no merits in any of the grounds of appeal.
4 NK had sought leave to appeal out of time, the judgment I have reviewed. The Resident Magistrate Mr Sumudu Premachandra had granted leave and a stay of the judgment, until final determination of this appeal. The stay is uplifted.
NK is represented by the Legal Aid Commission. Accordingly, I make no order as to costs.
A.L.B. Brito-Mutunayagam
9th July, 2013
Judge
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