IN THE FAMILY DIVISION OF THE MAGISTRATE'S COURT
AT NASINU

CASE NUMBER: 2010/NAS/019

BETWEEN:

V D P
APPLICANT

AND:

M P
RESPONDENT

Appearances

Applicant appeared in person
Mr. Tirath Sharma as counsel for the Respondent for limited purposes

Trial Details

Date of Hearing: 09th February 2012. 
Place of Hearing: Nasinu- Family Court Division.
Date of Judgment:  28th June 2012
Place of Judgment: Nasinu -Family Court Division
Judgment of:  Resident Magistrate Sumudu Premachandra.

JUDGMENT

FAMILY LAW ACT- PROPERTY-wife's application for distribution of property under s.161 of the Family Law Act.
Legislations:
FAMILY LAW ACT No. 18 of 2000

The Application

1. This is an application for final orders for distribution of the property of the parties to the marriage.

2. The application was filed by the applicant lady on 12-01-2010. The respondent man has filed Form 10 and amended response to this Form 9 property distribution. Both have filed form 19- financial statement. Case record indicates both have filed bundle of documents as well. It is seen that the respondent has gone to New Zealand while he was subject to maintenance order by this court and without getting the permission of court. He also evaded the distribution of property hearing and it was heard ex parte. It is noted that the respondent was keep changing his solicitors. Initially Mr. Diven Prasad Lawyers appeared for the respondent. Then Mr. Avinesh Reddy appeared for him. Finally Mr. Tirath Sharma appeared for him but limited purpose for settle the property issue. But he eventually informed to this court that his client is not responding to his e-mails and he is vulnerable. To facilitate the settlement this court differed this ruling for considerable period of time, but it is understood that the respondent is in delaying in tactics. By this time the respondent has dodged the payment of child's maintenance and housing loan repayment. Thereby the housing property is subject to be on mortgage sale which is in pool of assets. Considering these facts this court had granted absconding warrant against the respondent no to go overseas or if he had already gone to arrest him on arrival to Fiji, immigration to provide travel history of the respondent, housing authority is barred to transfer title number 419093 to anybody until further order, LTA is barred to transfer Taxi permit number LT6630 and Vehicle number EP 585, FNPF is barred to release any money of the respondent and JDS to be recovered. Up to now the respondent has not communicated or settled the maintenance JDS and not contested property distribution application. Furthermore, the respondent only gave limited instruction to Mr Tirath Sharma to facilitate a settlement which failed. Meantime, the Housing Authority has issued a demand notice to settle the loan in full before 30-06-2012. I now consider my judgment. 

3. In relation to the property distribution, both seek the following orders:-

•	The applicant seeks half share in all properties and assets namely;

i.	Residential property at lot 7, DP 7296, S01081, Caubati Housing Lease No 419093

ii.	Taxi permit T6630/17274 be declared matrimonial property.

•	The respondent seeks following orders by his response (form 10) namely;

iii.	Fiji National Provided Fund be declared matrimonial property.

iv.	Taxi permit T6630/17274 be excluded as it belongs to the State.

v.	The applicant's life insurance policy number 2491265 be declared matrimonial property.

vi.	The monies of the applicant's bank account numbers; Westpac A/C 9802554825, ANZ Bank A/C 5595796 be declared matrimonial property 

vii.	Wooden house dwelling located at 112 Riverward Narere be declared matrimonial property.

viii.	Household items in annexure "A" be declared matrimonial property. 

4. The applicant in her response to form 10 not disputed above items number i,iii, and v. The applicant says to item iv that this taxi and accompanying permit is cost around $25,000 and should be declared matrimonial property. The applicant further averred there is no money in those bank accounts which is referring to in item no vi. Referring to item numbers vii and viii, the applicant says the wooden house dwelling located at 112 Riverward Narere is her father's house to be excluded from pool of assets and the respondent has removed all household items and there is no household to be shared by now. 

The Background

5. The parties were married on the 28th April 2004. The conditional dissolution of marriage was granted on 05th May 2011 and that order was made absolute on 06th June 2011. The parties are now divorced. 

6. The parties have one child namely Miss S S P, was born on 22nd February 2005. The custody is given to the applicant mother with weekend limited contact to the respondent father on Sundays from 9am to 3pm at 8 miles police station. The applicant said in her evidence that the respondent left her when she was two months pregnant for second child. The second child was not considered for following orders. 

7. The respondent was ordered to pay child maintenance at $30 per week with effect from 24-02-2010 which he is defaulting at this moment. 

The Issues

8. The following are the issues to be determined by the Court, and nothing more:-

(i)	The pool and the value of assets.

(ii)	Should there be any alteration of interest in respect of any of the properties in the pool?

(iii)	If yes, then what orders justify the parties' entitlements in the property; and /or the terms of the orders to give effect to the property division?

The Law

9. Under the Family Law Act, the court is empowered to make two principal kinds of orders in respect of the property of the parties to the marriage. The first is an order under section 160 of the Act through which a court can make a declaration of the interests of parties to the marriage in their property. The second is an order under section 161 for an alteration of interests of the parties in the property including an order for settlement of property in substitution for any interest in the property and an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage, such settlement or transfer of property as the court determines. 

10. I will now outline the statutory provisions of the law governing property settlement as well the basic steps that a deciding court must take before making any orders under the provisions governing property distribution. 

11. The parties are seeking for their share in the property of the parties to the marriage. Their claim therefore falls under section 161 of the Act.

12. Section 161 of the Act gives the court general powers to make any orders it considers appropriate in altering the interest of parties to a marriage in their property. S. 162 outline the matters to be taken into account in deciding upon the order.

13. Specifically the material sections read as follows and I reproduce it for clarity:-

Alteration of property interests

161.-(1) In proceedings with respect to the property of the parties to a marriage or either of them, the court may make such order as it considers appropriate altering the interests of the parties in the property, including- 

(a) an order for a settlement of property in substitution for any interest in the property; and 

(b) an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage, such settlement or transfer of property as the court determines…

(6) The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

Factors to be taken into account

162.-(1) In considering what order (if any) should be made under section 161 in proceedings with respect to any property of the parties to a marriage or either of them, the court must take into account- 

(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of the last-mentioned property, whether or not the last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; 

(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; 

(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent. 

(d) the eligibility of either party for a pension, allowance or benefit under- 

(i) any law of the Fiji Islands or of another country; or 

(ii) any superannuation funds or scheme, whether the fund or scheme was established, or operates, within or outside the Fiji Islands. 

(2) For the purposes of subsection (1) the contribution of the parties to a marriage is presumed to be equal, but the presumption may be rebutted if a court considers a finding of equal contribution is on the facts of the case repugnant to justice, (for example as a marriage of short duration.)

(3) The court must also take into account- 

(a) the age and state of health of the parties; 

(b) the income, property and financial resources, including any interest in inalienable property, of each of the parties and the physical and mental 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; and 

(ii) a child or another person that the party has a legal or customary duty to support. 

(e) a standard of living that in all circumstances is reasonable; 

(f) the financial resources available to a person if cohabiting with another person; 

(g) the duration of the marriage; 

(h) the terms of any order for spousal or child maintenance made in favour of or against a party; 

(i) any other fact or circumstances which, in the opinion of the court, the justice of the case requires to be taken into account. 

14. In this judgment, I will reiterate the three basic steps the court will take in proceedings for alteration of property interests under s. 161 of the Family Law Act 2003. Under the Family Law Act the property distribution is based on 3 steps. That is; 

a) The First Step: Ascertainment of the Property of the Parties. First, it must ascertain what property is owned by each of the parties to the marriage at the time of hearing. It is now firmly established that upon hearing of an application by a party to a marriage for an alteration of property interests under s. 161, the court is required to take into account all the property of both of the parties to the marriage. 

b) The Second Step: Valuation of Property: After ascertainment of the property of the parties, the court must then determine the value the property of the parties to the marriage. In doing so the court normally also takes into account the liabilities of the parties. In determining the value of the property of the parties to a marriage, the court must deduct from the gross value of the property the value of any encumbrances secured upon it. The Family Court must take the property of a party to the marriage as it finds it. The Family court must accordingly take the property of a party to a marriage subject to any mortgage, charge, restrictive covenant or other encumbrance that has been placed upon it. 

c) The Third Step: Exercise of the Court' Discretion- The third and the final step is the exercise of the courts discretion concerning what order to make under section 161 of the Act. In considering what order to make under section 161, the court must take into account certain matters. These certain matter are outlined in section 162(1) and s. 162(3). 

15. The above are the procedural steps that the court must take when determining a party's entitlement under a property alteration claim. In this case pool of assets can be ascertained, valuation report for property is out dated. 

The Evidence

16. The evidence of the applicant was derived from her application,, her oral testimony under oath and documents.

17. The evidence of the respondent on the other hand was taken through his response and documents. But he has not given oral evidence. But In my judgment, since both parties must be heard and interest of justice, though he is not present at the hearing, I consider his (the Respondent) claim as well.

18. I will now consider the applicant's oral evidence briefly. She said they married in 2004 and have two issues (Children) from this marriage. When she was two months pregnant the respondent left her. They were separated after six years of marriage and the respondent is not paying any money at the moment. They bought a property which state in item i. She stated the respondent dodged their housing repayment and it is going to be on mortgage sale soon. Housing Authority loan offer letter was tendered as Ex-1. FNPF housing financial assistance scheme marked as EX-2. Title deed tendered as Ex-3. It indicates that it was transferred to M P and V D P on 29-08-2008. There are the joint, current owners subject to mortgage of Housing Authority. The Ex-4 is the valuation Report and it was done by Mr. S.T. Lomaiviti, registered valuer on 10th January 2008. The estimated market value of the property was $25,000 in 2008. The Housing Authority's statement of account tendered as EX-5. The copy of taxi permit has been tendered as EX-6. The applicant said that the original of the taxi permit was removed by the respondent. She further said the vehicle was under her name and the respondent applied for taxi permit so she transferred vehicle to the respondent. They both spent money to get vehicle and permit. The applicant stressed in her evidence that she wants house to be saved for her children. For taxi permit, she said that it could be equally divided. She said "I am ready to pay loan arrears, house may be given to me, it is under my name. Daughter's access was given to him. He has to pay $30 per week. He has defaulted $1500 money till to date. He wanted to talk to the daughter. He called me. I got his New Zealand number. He was texting me. He said that he had settled in New Zealand and he got wife and adopted daughter there. He asked me to sell the property. I am not willing to sell the property. This JDS is accumulating. I am a kindergarten teacher …I can pay repayment.". The applicant told that all furniture were sold by the respondent and she did not get any share for it, the house need to be renovated and no one is occupying the house. The applicant asked since the respondent is not paying child maintenance his share of house could be attached to the maintenance order. She asked since house on sale she needs urgent decision. 

The Determination

19. The Pool of Assets of asset need to be decided first. Following were identified as pool of assets. 

a)	Residential property at lot 7, DP 7296, S01081, Caubati Housing Lease No 419093

b)	Taxi permit T6630/17274 be declared matrimonial property.

c)	Fiji National Provided Fund be declared matrimonial property.

d)	The applicant's life insurance policy number 2491265 be declared matrimonial property.

e)	The monies of the applicant's bank account numbers; Westpac A/C 9802554825, ANZ Bank A/C 5595796 be declared matrimonial property 

f)	Wooden house dwelling located at 112 Riverward Narere be declared matrimonial property.

g)	Household items in annexure "A" be declared matrimonial property. 

20. I now turn to the Residential property at lot 7, DP 7296, S01081, Caubati Housing Lease No 419093. Both are seeking that this matter be declared matrimonial property. I am satisfied that this property is matrimonial property and jointly owned by the applicant and the respondent. I hereby declare the Residential property at lot 7, DP 7296, S01081, Caubati Housing Lease No 419093 is a matrimonial property. 

21. With relation to Taxi permit T6630/17274 the applicant asked that this property be declared matrimonial property. In contrast the respondent asks that it be excluded from matrimonial property. The respondent says it is merely a permit has no value and it belongs to the State. It is to be noted with this permit the vehicle registration number EP 585 is entangled. The applicant says it values around $25000. The court notes the taxi based business is a widely spread business in Fiji and it is merely not a permit. It has earning capacity and has considerable value thereby it need to be a matrimonial property. I therefore declare Taxi permit T6630/17274 and Vehicle Registration number EP 585 are matrimonial properties. 

22. The parties have not disputed that Fiji National Provided Fund be declared matrimonial property. It is apparent it should be a matrimonial property. I therefore declare it as matrimonial property.

23. The respondent asked that the applicant's life insurance policy number 2491265 be declared matrimonial property. The applicant had not objected to this application. I therefore declare it as matrimonial property however applicant may change the beneficiaries of the life insurance policy. 

24. The respondent asked the monies of the applicant's bank account numbers; Westpac A/C 9802554825, ANZ Bank A/C 5595796 be declared matrimonial property. The outstanding balance was not proved by any party. The applicant said there are no monies in those accounts. The respondent as a taxi business man must have bank accounts but he failed to disclose details of hi bank accounts. Since there is no proof and no value in the bank accounts, I decline to declare those bank accounts are matrimonial property. 

25. The respondent asked that wooden house dwelling located at 112 Riverward Narere be declared matrimonial property. The applicant said that is her father's house. The respondent has no proved the title of this property. Burden lies on the respondent to prove this is a matrimonial property, mere assertion in the affidavit is not enough. As there is no proof this is a matrimonial property, I therefore exclude this property from pool of assets.

26. The applicant said that the household items have already been removed and sold by the respondent. The respondent is in his form 10 asked that household items be declared matrimonial property. But there is no list of household property was provided by the parties. It is to be noted the respondent mentioned in his affidavit annexure "A" as list of items, but there is no annexure "A" in the record. However no one has proved that there are existing household items and who contributed to what extent. I therefore decline to include household items as matrimonial property. 

27. I have mentioned above which item is to be taken in and out of the pool of assets which is to be divided as matrimonial property. In considering facts and evidence before me, this court cannot decide how much they had contributed to each item. But both are asking equal share that is 50%. I note when the parties were residing together, they were both earning and both fulfilling responsibilities in the home, there is no reason to attach greater value to the contribution of one than to that of the other. This is the way they arrange their affairs and I hold that the contribution of each should be given equal value.

28. Therefore, in my judgment I hold the applicant and the respondent have contributed equally to the said properties of the parties to the marriage financially and non-financially and I assess their contribution at the sum of 50 per cent of all above declared matrimonial properties. 

29. The applicant asked that the respondent's share of Residential property at lot 7, DP 7296, S01081, Caubati Housing Lease No 419093 should be attached to child maintenance payment as the respondent defaulting the child's maintenance.

30. I note section 162(3) (h) of Family Law provides terms of any order for spousal or child maintenance made in favor of or against a party is a matter to be concerned when property distribution. The respondent is not paying any maintenance now and he has defaulted nearly $1500 child maintenance and this maintenance payment is subject to be increased when child is growing. This court has no clue how to recover said maintenance as this respondent evading the court. On the other hand the applicant is ready to secure the property and I think her application is just an equitable. 

31. Considering all these facts, I make following final orders.

The Final Orders

32. The Applicant and the Respondent are entitled to get 50% share of the current estimated value of the property situated at Residential property at lot 7, DP 7296, S01081, Caubati Housing Lease No 419093. But the Respondent 50% of share has permanently been attached as child maintenance has no right hereinafter to dispose this property and Housing Authority and Registrar General to be informed. The applicant may settle the arrears and keep the property. If the property was sold at market value the applicant could get remaining money (if any) after settling full debt to the Housing Authority and no half share to be given to the respondent.

33. The Applicant and the Respondent are entitled to get 50% share of the Taxi permit T6630/17274. Vehicle and permit to be ceased and sold and half share to be given to each party. LTA to be notified. 

34. The Applicant and the Respondent are entitled to get 50% share of the monies lies in Fiji National Provided Fund both FNPF accounts. FNPF to be notified.

35. The Applicant and the Respondent are entitled to get 50% share of the applicant's life insurance policy number 2491265. Insurance company to be notified.

36. Senior Court Officer to dispatch this order forthwith to said authorities as mentioned in this judgment. 

37. Each party to bear their own costs.

38. Appeal period is 30 days from the date of this order.

39. Orders accordingly.

Sumudu Premachandra (Mr)
Resident Magistrate-Nasinu
28th June 2012