RW v NL [2013] FJMC 222; Family Court Case 31NAS.2010 (30 May 2013)

IN THE MAGISTRATES COURT AT NASINU

Family Court Case No. 311/NAS/2010

BETWEEN:

R W
[Applicant]

AND:

N L
[Respondent]

Ms. Seruwaia Nayacalevu for the Applicant (Shekinah Law)
The Respondent was absent and unrepresented

Ruling on Property distribution

1] Mr. Naco initially appeared for the respondent and they were in process of settlement. The court granted date to file Form 8 consent orders. But later, no one appeared and matter is set for hearing. The applicant filed affidavit evidence.

2] In her evidence she said; that she was married to the Respondent on the 6th of December 2002 in Lautoka and they separated in August of 2008. She was divorced from the Respondent on the 11th day of December 2010. Evidence is in my Bundle of Documents Numbers 1 and 2. At present she is employed with the Bank of the South Pacific (formerly known as Colonial National Bank) ("the Bank") for a period of more than ten (10) years whilst the Respondent is currently employed with the Ministry of Finance as a Senior Economic Officer. There were no children of the marriage. She has remarried and has three young children with her husband. She said she is not aware of the marital status of the Respondent to date.

3] The applicant informed the court about Breakdown of Marriage. She said that after she married the Respondent, she was subjected to series of physical and emotional abuse, after which she became very scared of the Respondent. On one of the occasions, when the abuse inflicted on her by the Respondent was very serious, that she suffered physical harm. She had reported the matter to the Police (Police Report Number 2953/08). To date, she remains fearful of the Respondent man and cannot be in the same room with him, without fearing him. She said that this also resulted in my separation from the Respondent and divorce thereafter.

4] The applicant mentioned about their matrimonial property. She said that whilst married to the Respondent in 2008, they bought a property at Lot 42 Cheng Place, off McFarlane Road in Raiwai ("the said property") for $150,000.00.

The Respondent and the applicant are the registered owners of the said property. Their intention for purchasing this property is so that it can become their family home. Evidence is in Bundle of Documents Number 6. At the time of obtaining the finances for the said property from Colonial National bank, they had utilized her entitlements of the staff housing loan benefits, as an employee of the Bank for a housing loan. There were two loan accounts with Colonial National Bank. The first loan account was the Staff Housing Loan totaling $86,540.00. Given that at the time of the loan, she was only a loans officer with the Bank, her entitlements could only add up to this amount, in order to cover the cost of the property being $150,000.00, the Respondent and the applicant had to apply for a second loan being a Rate saver Home Saver with Colonial National Bank to make up the remaining amount of $36,460.00. Evidence is in Bundle of Documents Numbers 3 and 4. With the Staff Housing Loan, the benefits were such that the interest rates were lower being 5.25% percent which remains fixed compared to the interest rates paid for the Rate saver Home Loan being 8.25% for the first 12 months and 10.5% thereafter. Furthermore, with the Staff Housing Loan Account, there are no fees charged on the loan account compared to the Rate saver Home Loan Account. The understanding that she had with the Respondent was that he would make the repayments for both the Housing Loan. She said that she only lived in the said property with the Respondent for a short period of time, from February to August of 2008 before she moved out of the said property in late 2008. She has never returned to live in the said property after their separation and divorce from the Respondent. The Respondent has continuously lived on the said property since February 2008 and had been making full payments to both loan accounts from February 2008 until about November 2012.

5] The Form 9 Application for distribution of matrimonial property as well the Form 19 was filed on the 12th of April 2011. To date there has never been a Form 10 or Form 19 in response to our Form 9 and 19 Applications filed by the Respondent.

6] Parties have filed a Valuation Report on the said property on the 14th of October 2011. The applicant said there was a settlement but eventually the respondent refused to sign the settlement. The proposal is in her Bundle of Documents Number 12. The applicant in her affidavit evidence shows how the respondent evaded the sighing settlement. The Applicant said that therefore this matter continues to be dragged unnecessarily.

7] The Applicant said the respondent has defaulted in House Loan Repayments for the said property. She said that in January of this year (2013) she started receiving notifications from a collection officer of the Bank, Mr. Suliasi Kurulo Bolakiei that the Housing Loan Accounts are in arrears and that she needed to ensure that the necessary repayments are made. Evidence is in her Bundle of Documents Number 9. she was informed that the Respondent was not making the necessary full repayments for the loan as the amount of money going into his account when deductions were being made was not sufficient. She said that the Respondent holds a very senior position in the Ministry of Finance and is well paid and it is hard to believe that he has defaulted. Due to this she was verbally advised by the Collection Department of the Bank that should she fail to ensure necessary repayments are made, then she is likely to face disciplinary actions by her employers. She received further emails in February from the Bank's Collection Officer informing her arrears in the Home Loan Accounts and advising her of the need for payments to be done. Evidence is in her Bundle of Documents Number 10. She said that she made the necessary payments to the arrears accumulated in both the Housing Loan Accounts for the months of January and February 2013. Evidence is in her Bundle of Documents Number 11. she also received emails from the Bank Collection Officer that the arrears in March are due to be paid and she has requested that they await the decision of the Court for the sale of the property, as she is being affected financially, given that she also has three young children to look after.

8] The Applicant said that currently, the total loan repayments due for the loan accounts are $73,593.15 and $32,961.31 respectively. Evidence is in her Bundle of Documents Number 7 and 8.

9] The Applicant also said that Housing Authority Ground Rent Arrears on the said property has accumulated. She had been contacted by a Ms. Laisani Tovata of Housing Authority informing that they have owing on the said property ground rent of $1,132.35. Evidence is in her Bundle of Documents Number 15.

10] The Applicant in her affidavit mentioned SCC Rates owing on the said property She said that she had been contacted Mr. Leon Whippy of the Suva City Council (SCC) on email in regards to SCC Rates owing on the said property and she was advised that the Outstanding City Rates and the garbage fees owing on the said property comes to $1674.77 and this will change on a daily basis, considering the daily interest rates charged. Evidence is in her Bundle of Documents Number 18.

11] The Applicant elaborated her hardship that has been undergoing and seeks early court intervention.

12] When property distribution is done pool of assets should be ascertained. In this matter the applicant only her concern is the matrimonial house. The respondent did not file response, which means he admits that the only matrimonial property left is at Lot 42 Cheng Place, off McFarlane Road in Raiwai. I have perused bundle of documents 1 to 19. It proves the matrimonial house is subjected to property loan and it has accumulated loan repayment arrears and other arrears which I have mentioned above.

13] Section 161, 162 and 163 of the Family Law Act elaborates the procedure and matters to be concerned in property distribution. It says;

"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.

(2) An order made under Subsection (1) in proceedings with respect to the property of the parties to the marriage or either of them may, after the death of a party to the proceedings, be enforced on behalf of, or against as the case may be, the estate of the deceased party.

(3) The Court may adjourn proceedings with respect to the property of the parties to a marriage or either of them, except where the parties to the proceedings are-

(a) parties to concurrent, pending or completed proceedings for principal relief:

(b) parties to a marriage that has been dissolved or annulled under the law of an overseas country, where that dissolution or annulment is recognized as valid in the Fiji Islands under Section 193; or

(c) parties to a marriage who have been granted a legal separation under the law of an overseas country, where that legal separation is recognized as valid in the Fiji Islands under Section 193.

On such terms and conditions as it considers appropriate, and of such period as it considers necessary to enable the parties to the proceedings to consider the likely effects (if any) of an order under this section on the marriage or the children of the marriage.

(4) Nothing in subsection (3) limits any other power of the Court to adjourn proceedings with respect to the property of the parties to a marriage.

(5) Where the period for which a Court had adjourned proceedings with respect to the property of the parties to a marriage or either of them as provided by subsection (3) has expired and-

(a) proceedings for principal relief are instituted by one or both of those parties;

(b) the marriage is dissolved or annulled under the law of an overseas country and the dissolution or annulment is recognized as valid in the Fiji Islands under Section 193; or

(c) The parties are granted a legal separation under the law of an overseas country and the legal separation is recognized as valid in the Fiji Islands under Section 193.

Either party to the first mentioned proceedings may apply to the Court for the hearing of those proceedings to be continued.

(1) 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."

14] Section 162 says factors to be taken into account are as follows;

"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 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 funds 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 stage 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; and

(ii) a child to 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 cohabitating with another person;

(g) the duration of the marriage;

(h) the terms of any order for spousal or child maintenance made in favor 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.

(4) If, before proceedings with respect to the property of the parties to a marriage or either of them are completed, either party to the proceedings dies-

(a) the proceedings may be continued by or against, as the case may be, the legal personal representatives of the deceased party and the Rules of the respective Division may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;

(b) if the Court is of the opinion-

(i) that it would have made an order with respect to property if the deceased party had not died: and

(ii) that it is still appropriate to make an order with respect to property, the Court may make such order as it considers appropriate with respect to any of the

property of the parties to the marriage or either of them; and

(c) an order made by the Court Pursuant to Paragraph (b) may be enforced on behalf of or as the case may be, against the estate of the deceased party.

(5) A Court must not make an order under this Section in proceedings with respect to the property of the parties to a marriage or either of them (other than an interim order or an order made with the consent of all parties to the proceedings) unless-

(a) the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate with a Registrar or of the respective Family Division.

(b) the Court is satisfied that, having regard to the need to make an order urgently, or to any other special circumstances, it is appropriate to make the order notwithstanding that the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or

(c) the Court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a).

(6) Evidence of anything said or of any admission made at a conference referred to in subsection (5) or at any conference with a registrar in proceedings under this Part is not admissible in any Court or in proceedings before a person authorized by law, or by consent of parties, to hear evidence.

(7) A person who files an application seeking an order under Section 163 (1) in relation to land is deemed to have a beneficial interest in the land within the meaning of Section 106 of the Land Transfer Act. Such beneficial interest will cease on the proceedings being finalized by order or the withdrawal of the application."

15] In practice there are three basic steps to be taken by courts 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;

1. 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.
   
2. 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.
   

100. 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).
     

16] In this case only pool of asset can be ascertained is matrimonial house.

17] The Valuation of the matrimonial property has been done by LandProp and it is in the bundle of documents Number 06.

18] Now time to exercise court's discretion. This discretion must be done judicially within accepted property settlement norms. The Respondent never appeared court in person and their solicitors also appeared in lethargic manner. Though, they informed that they are trying to reach a settlement, but it seems to me this is delaying tactics. The respondent evaded signing the transfer deed and he is in possession of said property and continued to be stayed as much as he can by accumulating arrears. The Respondent did not file response and did not dispute the claim of the applicant. Therefore applicant claim succeeds.

19] I therefore make following final orders:

1. That the matrimonial property should be sold to the Purchaser arranged by the Applicant at present market value or highest offer no later than one month from the date of this Order.
   
2. That if either party fails to execute the Transfer deed and relevant documents to bring about the sale of the matrimonial property, which one month, from the day of the issued this orders, then the Deputy Registrar of the Family Court is to sign on behalf of the defaulting party all necessary documents.
   

100. That there be equal distribution ( 50%) of the matrimonial property at Lot 42 Cheng Place, off McFarlane Road in Raiwai ("the matrimonial property") subject to the following:
     
     1. That all the debts and encumbrances of the matrimonial property be fully paid from the proceeds of the sale;
        
     2. That the money which the Applicant had paid for the arrears on the home loan accounts amounting to $1,314.96 and any further payments be paid to the Applicant; and
        
     3. That the parties are to equally make payment of any duty or tax, relating to the matrimonial property during the transfer process. If any party failed to pay any duty or tax deduction, those should be paid by from the proceeds of the sale and thereafter it must be deducted from share of defaulting party.
        
     4. All the dues raising from matrimonial property such as FEA and water bills to be settled and to be deducted from share of defaulting party.
        
     5. the parties to bear their own cost of this litigation
        
     6. 30 days to appeal
        

On 30th May 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu