Gibson v Nakacia [2001] FJLawRp 102; [2001] 1 FLR 427 (15 November 2001)

IVAN HAROLD GIBSON v SALASEINI NAKACIA

High Court Civil Appellate Jurisdiction

13, 15 November, 2001

HBA 17/01S

Appeal against property adjustment order – whether Magistrate considered the onus placed on the petitioner to prove the existence of a ground for divorce – whether the Magistrate took the children's age into consideration when giving the order that decree nisi be made absolute - Whether Magistrate heard all the evidence relating to property adjustment - Matrimonial Causes Act ss56, 58, 86 and 93; Magistrates' Court Rules r.21(1).

In July 1999, the Respondent petitioned for divorce on the grounds of cruelty. Apart from decree nisi she also sought custody of the two children then aged 6 and 5 respectively with reasonable access to the Appellant, and transfer of the Appellant's half share in a property at Wailekutu, Lami to her. Upon hearing the matter, which the Appellant did not attend, the Magistrate granted the orders sought by the Respondent as contained in her petition. The Appellant now appeals against the order transferring his half share in the property at Wailekutu, Lami to the Respondent.

Held – the Resident Magistrate failed to comply with ss56, 58, 86 and 93 of the Matrimonial Causes Act (Cap 51) and rule 21(1) of the Magistrates' Court Act. He failed to satisfy himself that the petitioner has proved the existence of a ground for divorce, and heard no evidence on property, thus had no material on which to base his decision to award a half share to the Respondent, and therefore took the wrong approach when giving an order to dissolve the marriage. Property adjustment orders are orders have far reaching consequences. Thet be made by a full exal examination of the parties' means and needs, the needs of any children of the family, the history of the acquisition of the property and whether the parties are possesf any other properties.&#16. Faito adhere to this generaeneral approach will lead to property adjustment orders being wrongly decided and set aside on appeal.

Appeal against the property adjustment order allowed.

[Note: the Family Law Act 18/03 repealed the Matrimonial Causes Act WEF 1 November 2005]

Appellant in person
Rt Joni Mdraiwiwi for the Respondent

15 November, 2001

JUDGMENT

Scott, J

The Appellant (husband) and the Respondent (Wife) were married in April 1993.

In July 1999 the wife petitioned for divorce on the grounds of cruelty. The petition showed that there were two children of the family then aged 6 and 5. Apart f decree nisi the wihe wife sought custody of the children with reasonable access to the hus She also sought transfer to her of the husband's undividedvided half share in a property at Wailekutu, Lami. No Answer was filed.

On 5 January 2000 the petition came on for hearing. Tsband was absent althoughhough he had been present on four previous occasions.

The only nce given by t by the petitioner was as follows:

"I agree that paragraph 1 to 9y petition is true and corr correct. I tender the marriage certificate as exhibit No. 1, the children's birth certificates as exhibit No. 2 and 3. I am asking for rders cont contained in my petition dated 21/7/99 i.e. Orders (a) to (e). The Respondas been sea copa copy of thof the petition on 14/12/99 and he has appeared in Court and (been) given an opportunity to answer. He haled twer the petitionition as of today."

Having heard the petition the Court dert delivered the following judgment which t out in its entirety:

"the Respondent has not answered the petition despite bete being served on 14/12/99. I theregrant the orders sors sought by the Petitioner as contained in paragraphs (a), (b), (c) and (d) in her petition dated 21/7/99.&#The decree nisi to be made absolute within 30 days."

As will be seen from the pthe petition, prayer (c) sought transfer of the Respondent's share of a property at Wailekutu, Lami.

The following May, for reasons which are not known, the Resident Magistrate adjourned to 26 June "for settlement of matrimonial property".

On 26 June the Resident Magistrate made the following note on the file:
"property order both parties (2 undivided share)"

This is the husband's appeal against the order transferring his share in the property at Wailekutu to the wife. In etter of appeal dated 1ted 18 May 2001 (page 7 of the record) the husband states that he misplaced the date of the hearing. He to have his half shartsharthe property held in trust for the children of the marriageriage until they reach "a mature age".

Just prior to the heari the appeal on 13 November a document headed "Respondent's nt's submissions" and signed by the Respondent in person was filed. ubmissions asked for the athe appeal to be dismissed on the ground that the Resident Magistrate was wrong to grant the Appellante to appeal out of time. Ratu Jelied entirely on thon these submissions however no crno cross-appeal by the wife is on the file.

Perusal of the record of the proceedings in the Magistrates' Court reveals what I find to be an alarming state of affairs which I hope is not typical.

Proceedings for divorce in the Magistrates' Courts are governed by the Matrimonial Causes Act (Cap. 51) and the Rules thereto.

Under Section 56 of the Act a Court may pronounce a decree of divorce if "satisfied of the existence of any ground in respect of which relief is sought."

Under Section 93 of the Act "a matter of fact shall be taken to be proved if it is established to the reasonable satisfaction of the Court".

Under Section 86(1) the Court is given power to make such property adjustment orders as it considers "just and equitable in the circumstances of the case".

Under Section 58 a decree nisi shall not become absolute until a certificate of satisfaction in relation to the children of the family (or a Section 58(1)(b)(ii) certificate) has been granted.

By Rule 21(1) a Resident Magistrate hearing a petition for divorce or an application of ancillary relief must place on the file:

"a minute of the Judgment ... being a minute setting out the matters for determination in the cause, the decision on those matters and the reasons for the decision ...".

In the present case, as is apparent from his judgment, the Resident Magistrate dissolved the marriage merely because the Petitioner had asked for dissolution and the Respondent had failed to file an answer. That was the wronroach.&#1h. Whether or not an A is fils filed the Resident Magistrate is required by Sections 56 and 93 to ask himself whether he is satisfied that the Petitioner has proved the existence of a ground for divorce. Thisnot d/p>

The RThe RThe Resident Magistrate did not comply with Section 58, a serious omission in view of the ages of the chiland the matters set out in paragraphs 6 (I) and 6 (iii) of the Petition.

The Rehe Resident Magistrate heard no evidence at all relating to the property at Wailekutu. He therefore o material upal upon which to base a decision, as required by Section 86(1) that the transfer of the husband's one half share to the wife was "just and equitable in the circumstances of the ca#160; No judgment containinaining the reasons for ordering the transfer of the property was placed on the file.

The appeal against the property adjustment order must be allowed. Tspect of the Petitioner'sner's case is to be remitted to the Magistrates' Court for retrial before another Resident Magistrate. Resident Magistrates must remember that property adjustmeners are orders of utmost sest seriousness having far reaching consequences. They must not be made wi tout the fullest enquiry.& Such an enquiry will typically include examination of the the parties means and needs, the needs of any children of the family, theory of the acquisition of the property and whether the part parties are possessed of any other properties which should be taken into account. Failure to adherehis genergeneral approach will lead to property adjustment orders being wrongly decided and set aside on appeal.

Appeal granted.

Alesi Macedru