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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
MC No. 06 OF 2003
BETWEEN:
HENRY To-ROBERT
Petitioner/Cross-Respondent
AND:
MARY To-ROBERT
Respondent/Cross-Petitioner
AND:
JANET To-ROBERT
Cross-Co-Respondent
Waigani : Gavara-Nanu, J
2007 : 7, 10, 11 & 18 December
2010 : 31 March
FAMILY LAW - Property Settlement - Matrimonial Causes Act, Chapter No. 282, ss. 73 and 75 - Matrimonial properties - Meaning thereof - Husband and wife domiciled in PNG - Husband owning properties abroad - Jurisdiction of the Court over such properties - Husband financially strong - Parties' contributions - Parties' financial resources and means - Just and equitable apportionment of matrimonial properties between the parties - Husband holding high positions - Husband a busy person with demanding responsibilities.
FAMILY LAW – Property settlement – Matrimonial Causes Act, Chapter No. 282; s. 75(1) – A party acquiring properties prior to parties' marriage –– A party acquiring property from funds acquired during the course of the parties' marriage – Whether such properties can be regarded as matrimonial properties and be subject to court's scrutiny and determination for property settlement between the parties.
FAMILY LAW – Property settlement – A party not making full and frank disclosures –Duty to disclose - Party disadvantaged by such non disclosures should be treated favorably by the Court – In such cases it is fair for the Court to treat the property pool as less than demonstrated by the evidence – Consequences of a failure by a party to make full and frank disclosures.
Cases cited:
Papua New Guinea Cases
Aundak Kupil v. The State [1983] PNGLR 350
Avia Aihi v. The State (No. 1) [1981] PNGLR 81
Dent v. Thomas Kavali [1981] PNGLR 488
Manikam Nadesalingam v. Alima Nadesalingam & Paul Solien (1998) N1754
S.C.R No. 2 of 1981; Re s. 19 (f) of the Criminal Code [1982] PNGLR 150
Overseas cases cited:
French v. French [1998] I NZLR 62
In Marriage of FERRARO [1992-1993] 111FLR 124
Kewaliw [1981] FamCA 70; (1981) FLC 91-092
Mallet v. Mallet (1948) 156 CLR 605
Miller v. Miller [2006] 3 All E.R I
Nation v. Nation [2004] NZCA 288; [2005] 3 NZLR 46
Re Adoption of M [1992] FLR 111
Richard West & Partners (Inverness) Ltd v. Dick [1969] 2 Ch. 424; [1969] 1 All ER 289.
White v. White [2000] UKHL 54; [2001] A.C 596, [2000] 3 WLR 1517
Counsel:
J.L. Shepherd, for the petitioner/cross-respondents
S.L. Kassman, with G. Gorua for the respondent/cross-petitioner
31 March, 2010
Factual background
2. The petitioner and the respondent are both Papua New Guinea citizens and are domiciled in Papua New Guinea.
3. The petitioner was born at Ramale village near Kokopo, East New Britain Province on 22 October, 1942. The respondent was born at Dabora village, Cape Vogel, Milne Bay Province on 12 June, 1948. They were married by a civil ceremony conducted at Korobosea, National Capital District on 27 June, 1981.
4. This was the petitioner's second marriage, but for the respondent, it was her first marriage. The petitioner was first married to Iroto ToRobert (nee Eliuda) on 24 June, 1967. That marriage was dissolved by the National Court by decree absolute granted on 20 June, 1981. Thus the parties were married a week after the dissolution of the petitioner's first marriage.
5. There is only one child of the marriage, Henry ToRobert Jr, ("Henry Jr") who is now in his 20s. Henry Jr attended Central Queensland University in Australia and obtained his Bachelors degree in Business Management. He then continued with further studies for his Masters degree which he attained in 2007. He is currently residing in Brisbane, Australia.
6. The petitioner claims that the parties separated around mid-November, 2000. The respondent on the other hand claims that the petitioner withdrew from cohabitation with her around October, 2001. There is therefore disagreement between the parties over when they separated and cohabitation ceased, which according to the petitioner was during the period of his recuperation from a quadruple heart by-pass surgery he under-went at Wesley Hospital in Brisbane, Australia in August, 2000. Either way, it does not appear to be of any real significance.
7. The decree nisi for dissolution of the parties' marriage was granted by the National Court on 17 October, 2005. The parties obtained decree absolute for the dissolution of their marriage on 18 November, 2005, thus marking their divorce. The parties' marriage therefore lasted for just over 24 years.
8. Although the petitioner remarried six months after the dissolution of the parties' marriage became absolute to Janet, who is the cross co-respondent in these proceedings, on 27th May, 2006, he and Janet started cohabiting in June, 2002.
9. It is convenient that the respective employment histories of the parties be set out.
10. The petitioner was the Governor of the Bank of Papua New Guinea ("Bank of PNG") from 1973 to 1993, which is a period of 20 years. It was during his term as the Governor of Bank of PNG that the parties got married (1981).
11. The petitioner left the Bank of PNG in 1993 and joined the Port Moresby office of Deloitte Touche Tohmatsu Accountants as a partner. In early 2001, the petitioner accepted an appointment with the Independent Public Business Corporation ("IPBC"), formerly known as the PNG Privatization Commission, as its Managing Director. The petitioner's post with IPBC came to an end about mid or late 2002, when he retired.
12. The petitioner also held several other positions in a number of entities, a notable one being with the Credit Corporation Ltd ("Credit Corporation"), from 1993 to 2007, as the Chairman of its Board of Directors. He resigned from the directorship of Credit Corporation on 4 May, 2007.
13. In 1995, the petitioner was appointed as the Chairman of Gazelle Restoration Authority ("GRA"), a position he held until 2003. It is noted that his involvement with GRA started in 1994, when the Rabaul volcano erupted.
14. Other notable positions currently held by the petitioner are the President of the Papua New Guinea Sports Federation ("PNG Sports Federation") and the President of the Papua New Guinea Olympic Games Committee ("PNG Olympic Games Committee"). The petitioner has held these positions since 1991.
15. The petitioner is also a director of two family companies namely Hema Investments Ltd ("Hema") and Midal Enterprises Ltd ('Midal").
16. The petitioner is also a director of a company called Alhambra Investments Ltd. ("Alhambra"). It is noted that the petitioner acquired 10% of the shares issued by Alhambra in the joint names of the parties. The total number of shares held jointly by the parties is 60,000. According to the petitioner, as at December, 2005, these shares were worth about K1, 881, 380.91. The principal asset of the company is Cuthbertson House, a prime commercial office building in down town, Port Moresby.
17. In regard to the employment history of the respondent, it is quite brief, before the parties' marriage, she was employed by the State through the Department of Foreign Affairs. She made her way up in the Department to the position of Deputy Secretary. She held the position from 1981 to July, 1991, when she was retrenched.
18. The question of which of the real estate properties and assets owned by Hema, Midal and the parties, especially by the petitioner between the parties forms the central issue for the Court.
Offers made by the parties for property settlement based on their respective lists of matrimonial properties.
(i) Petitioner's list of matrimonial properties and his first proposed offer for the division of those matrimonial properties between the parties in property settlement.
19. The petitioner's list of matrimonial properties and his first proposal on how those matrimonial properties should be divided between the parties is contained in the petition. It is as follows:
(i) Petitioner to transfer the property at Lot 4, Section 21, Mavaru Street, Boroko, to the respondent, she will become the sole owner of the property. This property was the matrimonial home for the parties during their marriage;
(ii) Petitioner to transfer his 50% shareholding in Hema to the respondent, thus the respondent will be the sole shareholder and director of the company;
(iii) Respondent to transfer property at Lot 4, Section 440, Hohola (Islander Village), via Hema to the petitioner;
(iv) Respondent to retain titles to three other properties under Hema, i.e. properties at Lot 6, Section 440, Hohola (Islander Village); Lot 12, Section 10, Ororo Crescent, Boroko, and Lot 25, Section 7, Boroko, Drive, Boroko, via Hema;
(v) Respondent to transfer her joint interest in the property at Lot 15, Section 2, Nonu Street, Boroko, to the petitioner for the petitioner to manage on behalf of Henry Jr;
(vi) Petitioner to retain title to the property at Lot 6, Section 11, Kokopo, East New Britain Province; and
(vii) Petitioner to retain title to unit 5, 91-93 Moore Street, Trinity Beach, Cairns, Australia
21. The petitioner would have the following properties:
(i) Unit at Lot 4, Section 440, Hohola, (Islander Village), via Hema;
(ii) Three units at Lot 6, Section 11, Kokopo, East New Britain Province; and
(iii) Unit 5, 91-93 Moore Street, Trinity Beach, Cairns.
22. In addition to the above properties, the petitioner will manage the property at Lot 15, Section 2, Nonu Street, Boroko, for Henry Jr.
23. Under this proposal, the petitioner says the respondent would have an estimated total value of properties at K1,453,000.00. The petitioner on the other hand would have estimated total value of properties at K900,000.00.
24. The petitioner says under this proposal, the respondent would earn total rental income of about K142,400.00 per annum from the properties given to her, except the property at Lot 4, Section 21, Mavaru Street, Boroko.
25. Whereas the total rental income per annum he would earn from the properties given to him, except the property at Lot 4, Section 440, Hohola (Islander Village) would be about K106,236.00.
26. And the total rental income the petitioner would receive and hold in trust for Henry Jr from the property at Lot 15, Section 2, Nonu Street, Boroko would be about K6,600.00 per year. The petitioner says, he would use this money to maintain the property for Henry Jr and pay for Henry Jr's educational expenses while studying in Australia.
27. Under this proposal, the petitioner says the respondent would also have K105,000.00 currently held in the Interest Bearing Deposit ("IBD") account with Credit Corporation together with accrued interests. This account is under Hema.
28. The petitioner also proposes that a Bank of South Pacific ("BSP") Waigani Branch account number 1000185557, with the current balance of about K12,400.00 in Henry Jr's name, be transferred to him and he would become the sole signatory for the account. He says, he would operate the account in trust for Henry Jr, and would use the funds from the account to maintain the property at Lot 15, Section 2, Nonu Street, Boroko for Henry Jr.
29. The petitioner also offers to withdraw as a co-signatory from all bank accounts and IBD investment accounts operated by Hema, leaving the respondent to be the sole signatory for those accounts.
30. Under this proposal, the respondent would be solely responsible for paying all the taxes and other liabilities for Hema and the petitioner is to be released and indemnified by the respondent from all past liabilities of Hema.
31. The parties are to retain all the bank accounts held under their respective names. The parties will also retain all the vehicles that are currently in their respective possession. Each party is also to retain all the household furniture and appliances and other personal assets that are in their respective possession.
32. The respondent is to be responsible for the payment of the balance of a loan owed to BSP in mortgage in respect of the property at Lot 4, Section 21, Mavaru Street, Boroko, which is about K7, 000.00.
(ii) Respondent's cross-petition and response to the petitioner's list of matrimonial properties and his first proposed offer for property settlement between the parties.
33. The respondent has also cross-petitioned in which she makes certain allegations against the petitioner, the nature of which are reflected in the petitioner's response to the cross-petition. The respondent has also made counter proposals to the petitioner's above proposals for property settlement. The respondent also claims that the petitioner has failed to disclose a number of other properties owned by him or in which he has interest, these are as follows:
(i) A vacant piece of land in Kokopo;
(ii) Properties registered under Midal, in which the petitioner has interest:-
(a) Properties at Lots 2 and 5, Section 214, Turuha Street, Gordons, (8 x 3 bedroom units);
(b) Properties at Lot 8, Section 440, Hohola, (Islander Village), (2 x 3 bedroom town houses);
(c) Property at Lot 68, Section 231, Tokarara, (1 dwelling house);
(d) Properties at Lot 16, Section 91, Leke Place Gordons, (1 dwelling house and 2 units);
(e) Properties at Lot 14, Section 91, Leke Place, Gordons, (2 dwelling houses); and
(f) Property at Lot 44, Section 41, Logohu Place, Boroko, (1 dwelling house).
34. The respondent also claims that the petitioner has failed to disclose the substantial finish payout of K348,818.36, he received from IPBC, as well as allowances, commissions and fees he was paid when he served as a board member, or director in a number of entities and organizations mentioned earlier in the judgement.
35. The respondent in her counter proposal agrees to some of the proposals made by the petitioner in his proposed property settlement, but she also makes certain demands. Thus apart from the properties she would have under the petitioner's proposed property settlement, she also demands the following:
(i) Hema's books to be audited up to the date of their divorce;
(ii) Petitioner to be liable for half of any past tax liabilities incurred by Hema, including any penalties up to the date of their divorce;
(i) Petitioner to reimburse her K13,473.88, an amount she says she spent on Henry Jr's education;
(ii) Petitioner to transfer to her his interest in the property at Lot 15, Section 2, Nonu Street, Boroko, so that she be the one to manage the property for Henry Jr;
(iii) She is to manage Henry Jr's bank account numbered 1000185557 with BSP's Waigani Branch; and
(iv) Petitioner to sell unit 5, 91-93, Moore Street, Trinity Beach, Cairns, and proceeds of the sale be divided equally between them.
(iii) Petitioner's response to the respondent's cross-petition and her response to the petitioner's first proposed offer for property settlement.
36. In his response to the respondent's cross-petition and counter-proposals, the petitioner:
(i) Denies respondent's allegation of constructive desertion;
(ii) Denies respondent's allegation that there were previous proceedings connected to these proceedings;
(iii) Denies respondent's allegation that he committed adultery during their marriage. He, however admits committing adultery with a Filipino woman named Jodi Docai between 1999 to 2000;
(iv) Admits cohabiting with Janet, since June, 2002;
(v) Admits receiving a payout from IPBC but says the payout was only equal to his remuneration for 18 months as the Managing Director;
(vi) Admits receiving $32,000.00 per year from Credit Corporation;
(vii) Withdraws his offer to transfer the property at Lot 4, Section 21, Mavaru Street, Boroko, to the respondent; and
(viii) Does not want any of the two properties at Lots 4 and 6, Section 440, Hohola, (Islander Village) to be transferred to the respondent.
37. The petitioner told the Court that, as part of his ongoing expenses, he now has to buy his medicine regularly for his heart and maintain his new wife. He asks the Court to take these into account. He says his change of mind in respect of (vii) and (viii) above are in the circumstances of the case, just and equitable.
Submissions
(i) Petitioner's submissions
38. Mr. Shepherd submitted that the offers made by the petitioner in his proposed property settlement are just and equitable. He argued that under the petitioner's proposal, the respondent would be much better off financially than most Papua New Guineans. Mr. Shepherd also submitted that properties under Midal should not be included in property settlement because they are not matrimonial properties, thus they should not be made subject to the Court's scrutiny and determination for property settlement between the parties.
39. Mr. Shepherd further submitted that the property in Cairns, viz, unit 5, 91-93, Moore Street, Trinity Beach, is outside the jurisdiction of the Court, thus the Court has no power to include it in the property pool for property settlement. It was also argued that the property was acquired by the petitioner before the parties' marriage, thus it cannot be included as a matrimonial property.
40. There is another property which the petitioner acquired at Kewarra Beach, Cairns, Australia. Mr. Shepherd argued that this property was acquired after the parties had divorced, thus it is also not a matrimonial property, besides, the property being situated abroad, the Court has no jurisdiction over it.
41. In regard to the properties under Hema, it was argued that the respondent made no financial contributions during the course of the parties' marriage and her non financial contributions, if any, were minimal. Thus, it would not be just and equitable for the respondent to have a substantial share from them.
42. It was submitted that the respondent will enjoy a high level of income because of the petitioner and that without the petitioner, she would not be where she is now financially. Thus, it was argued that the respondent should be grateful for the petitioner's proposals and should accept them.
43. Mr. Shepherd argued that most of the cases relied upon by the respondent in support of her case are based on the Australian Family Law Act, and have no relevance to this case and should not be relied upon. He argued that the proper test for the Court to apply when dividing the matrimonial properties between the parties is the respective needs of the parties.
44. Finally, in regard to costs, Mr. Shepherd submitted that costs should be awarded to the petitioner on full indemnity basis, because the petitioner was forced to seek redress in Court after the respondent refused to settle out of court.
(ii) Respondent's submissions
45. Mr. Kassman submitted that the petitioner's argument regarding the Court's lack of jurisdiction over properties in Cairns should not be entertained by the Court because the issue has not been pleaded by the petitioner, nor was it raised at the trial.
46. It was further submitted that ss. 73 and 75 of the Act, grant wide powers to the Court to consider and determine all the matrimonial properties, including properties under Midal in property settlement. It was argued that properties under Midal were acquired by the petitioner who is the sole director of Midal, and the respondent has made significant non-financial contributions to those properties during the course of their marriage. In respect of the properties under Hema, it was submitted that the company was incorporated purposely for the benefit of the respondent, thus it would not be just and equitable to deny the respondent from having the full benefit of the properties under Hema.
47. Mr. Kassman told the Court that the petitioner has changed his position a number of times in regard to how the properties should be divided between the parties, thus the disputes between the parties regarding settlement of matrimonial properties could only be resolved in Court. It was therefore necessary for the respondent to seek relief in Court.
48. It was also argued that the values put on the properties by the petitioner in his proposal are unreliable and they do not reflect the true value of each of those properties. It was therefore submitted that the Court should order the valuation of each property in order to establish their true values.
49. Mr. Kassman also submitted that the establishment of Hema was at the behest of the respondent for her benefit, thus it would not be just and equitable for any of the properties under Hema to be transferred to the petitioner.
50. The Statement of Agreed and Disputed Facts was signed only by Mr. Shepherd, it was therefore submitted that the Statement does not reflect the respondent's views. This contention is reflected in the respondent's Reply to the Statement.
51. Mr. Shepherd in his final submission denied that Hema was incorporated solely for the benefit of the respondent, he submitted that it was established for the benefit of both parties. In regard to Midal, he said it was established for the petitioner, his brother and sister before the parties' marriage, thus s.75 (1) of the Matrimonial Causes Act, does not apply to the properties under Midal. In regard to the values given to the properties in the petitioner's proposal, it was argued that the respondent has not denied them, thus they should be accepted by the Court.
Reasons for decision
52. I perceive that my task here is firstly, to identify the matrimonial properties then determine the value of each property, if possible, these two issues can be addressed together; secondly, to assess and determine the contributions made by each party towards the properties, taking into account the parties' financial resources, means and time; thirdly, to determine the future needs of each party; fourthly, to consider any other circumstances which are relevant to the issues at hand and fifthly, to make orders for property settlement which are just and equitable in the circumstances of the case.
53. However, before proceeding to address these issues, it is convenient to address the jurisdictional issues raised by the petitioner in respect of the properties in Cairns and the properties under Midal.
54. The jurisdiction of the Court is conferred by ss. 73 and 75 of the Act..
55. Section 73 provides as follows:
s. 73 – Powers of Court in maintenance proceedings.
(1) Subject to this section, in proceedings with respect to the maintenance of a party to a marriage or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings the Court may make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.
(2) Subject to this section and to the Rules, in proceedings for an order for the maintenance of a party to a marriage or of children of the marriage pending the disposal of proceedings, the Court may make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.
(3) The Court may make an order for the maintenance of a party notwithstanding that a decree is or has been made against that party in the proceedings to which the proceedings with respect to maintenance are related.
(4) The power of the Court to make an order with respect to the maintenance of children of the marriage shall not be exercised for the benefit of a child who has attained the age of 21 years unless the Court is of opinion that there are special circumstances that justify the making of such an order for his benefit.
s. 75 – Powers of Court with respect to settlement of property.
(1) In proceedings under this Act, the Court may by order require the parties to the marriage, or either of them, to make, for the benefit of all or any of the parties to, and the children of, the marriage, such settlement of property to which the parties are, or either of them is, entitled (whether in possession or in reversion) as the Court thinks just and equitable in the circumstances.
(2) In proceedings under this Act, the Court may make such order as the Court thinks just and equitable with respect to the application, for the benefit of all or any of the parties to, and the children of, the marriage, of the whole or part of property dealt with by ante-nuptial or post-nuptial settlements on the parties to the marriage, or either of them.
(3) The power of the Court to make orders of a kind referred to in this section shall not be exercised for the benefit of a child who has attained the age of 21 years unless the Court is of opinion that there are special circumstances that justify the making of such an order for his benefit.
57. It should be noted that the powers given to the Court by ss. 73 and 75 are wide, which include making orders that the Court may deem just and equitable in the circumstances of a case.
58. I will address the jurisdictional issues in reverse order; thus, I will first address the Court's jurisdiction over the properties under Midal. The petitioner contends that the Court has no jurisdiction to include these properties in property settlement because Midal was established before the parties' marriage and the properties were acquired before the parties' marriage.
59. The relevant provision to consider in addressing this issue is s. 75. I am of the firm opinion that this contention by the petitioner must fail because it goes against the clear legislative intent and purpose behind s. 75 (1). The operative words in this sub-section are "...property to which the parties are, or either of them is entitled..."
60. In my opinion the operative words in s. 75 (1) as underlined define the test to be applied when considering whether a property is a matrimonial property or not. The definition is very broad and in my opinion, it encompasses all the properties which were acquired by the parties either severally or jointly. Thus, if both parties or either of them had acquired properties before or during the course of the parties' marriage, those properties would be caught by s. 75 (1) and be deemed matrimonial properties by reason of the fact that the parties are or one of the parties is entitled to those properties. Thus, by statutory definition, the properties under Midal to which the petitioner is entitled are deemed to be matrimonial properties and are subject to the Court's determination for property settlement. It should also be noted that the properties acquired by a party after the parties' marriage, may also be deemed matrimonial properties if those properties were acquired with finances acquired during the course of the parties' marriage.
61. The petitioner is the sole director and shareholder of Midal and he is the only beneficiary of the properties under Midal. In regard to the issue of whether the respondent had made contributions towards properties under Midal, there is evidence that the respondent made significant non-financial contributions more particularly in their upkeep and maintenance. These factors in my opinion plainly place properties under Midal within the broad scope of s. 75 (1) thus rendering them subject to the Court's scrutiny and determination for property settlement.
62. Secondly, in regard to the Court's jurisdiction over the property situated at 91-93 Moore Street, Trinity Beach, Cairns, Mr. Shepherd relied upon passages found in the Matrimonial Causes and Marriage Law and Practice of Australia and New Zealand by Hon. P. E. Joske, C.M.G., M.A., LL.M. at pp. 298-299 and Halsbury's Laws of England 4th Ed. Vol. 8, para. 639, for his contention that the Court lacks jurisdiction over this property.
63. The passage by Joske is as follows:
"Jurisdiction must exist over subject-matter and parties
[7.48] The court has no jurisdiction over any persons other than those properly before it as parties. There is no jurisdiction to make orders against persons not before the court merely because an order made or to be made may or will otherwise be ineffectual. A court must have jurisdiction over both subject-matter and parties; it must be competent to entertain the particular matter and competent to require the parties to appear before it. All jurisdiction is properly territorial and a person must sue in the court to which the defendant is subject for actor sequitur forum rei. With regard to acts done outside the territory by persons not domiciled therein, the general rule, apart from express statutory provision, is that a court has no jurisdiction to determine the resulting rights growing out of the acts; no State can by its laws bind persons not its subjects. The provisions of a statute relating to matrimonial causes must be interpreted so as to harmonize with the rules of private international law, and jurisdiction does not depend on service but on those rules, otherwise the principle that as between husband and wife domicile is essential to jurisdiction would be displaced by merely proving service and thus establishing jurisdiction. Nevertheless it is expressly provided in Australia that a decree may be made or refused by reason of facts and circumstances taking place outside Australia."
64. The passage by Halsbury's is as follows:
"(2) JURISDICTION REGARDING FOREIGN IMMOVABLES
(i) General Rules relating to Foreign Immovables
Accordingly, the English court cannot entertain any action for a declaration as to title to foreign immovables, or for possession of such immovables, or for injunctions having a similar effect. The same rule applies to other proceedings the primary question in which is one of title to foreign immovables, such as an action for an account of the proceeds of foreign land, title to which is in dispute, for the enforcement of covenants for quiet enjoyment of foreign land, or for the partition of such land.
The same principle has been held to preclude the English court from entertaining an action for the recovery of arrears on a rent charge on foreign land.
It is immaterial that the property in question is situated in a British dependency or in a country without an established system of courts. "
65. The parts of the above two passages which have been underlined indicate that these parts were highlighted by Mr. Shepherd for his submissions and I take it that he relied mainly on these parts for his argument that the Court has no jurisdiction over this property because it is situated abroad.
66. Firstly, in regard to the passage by Joske, it is in my opinion irrelevant, therefore inapplicable to the circumstances of the case before me, because the passage merely states a general proposition that a court must have jurisdiction over a subject matter and the parties, before it can decide the issues affecting the parties. Further, that when interpreting provisions of a statute, the interpretations must harmonize with the rules of private international law.
67. In the case before me, the parties are resident and domiciled in PNG; in my opinion this factor alone is sufficient to meet the criteria for the Court to have jurisdiction over any property owned by the petitioner that is situated abroad including the property in question; see Re Adoption of M [1992] 111 FLR 393.
68. Secondly, in regard to the passage by Halsbury's, the passage also merely states a general proposition that an English court would have no jurisdiction to decide a title or the right to possession over immovable properties such as land situated abroad because such foreign immovables would not have connection with English courts. This passage in essence states the same general principle stated by Joskes, the only difference between what is stated in this passage and the passage by Joskes is that, this passage specifically relates to immovables such as land situated abroad. As I alluded to earlier, the situation in this case is different because the petitioner is resident and domiciled in PNG and more importantly, there is no issue over the title to the property in question because the petitioner owns the property.
69. It therefore follows that the Court has jurisdiction to consider this property in property settlement. In Richard West & Partners (Inverness) Ltd v. Dick [1969] 2 Ch. 424, Lord Justice Harman when remarking on this very point at 436 said:
"There remains the point upon which Megarry J., learned man that he is, exhibited a very interesting and powerful judgment, whereby he expressed the view that there is no objection to a grant of specific performance of a contract for foreign land by an English court. As far as I am concerned, I am content to adopt the elaborate reasoning by which he reached that conclusion. I have always thought, and I still think, that the Court of Chancery, acting as it does in personam, is well able to grant specific performance of a contract to buy or sell foreign land, provided that the defendant is domiciled within its jurisdiction. I say nothing about a case where the defendant is domiciled outside. But here the purchaser lives at Enfield: the vendors have their registered office in England (if that be relevant, I do not think it is): and I see nothing difficult about a vendors' decree of specific performance in the circumstances. There might be difficulties raised by matters of Scottish title; but here the title was accepted. The decree contains the usual recital that the purchaser has accepted the vendors' title to the property, about which I gather there is no doubt." (my underlining).
70. There is a further reason why the arguments by the petitioner must fail. As argued by Mr. Kassman, the issue of jurisdiction over this property has not been pleaded by the petitioner, nor was it raised at the trial. The parties fought the case on the presumption that the Court had jurisdiction over the property. It is therefore too late for the petitioner to raise the issue now.
71. I am also of the opinion that the respondent could, if she had wanted to, invoke the Court's inherent jurisdiction under s.155 (4) of the Constitution, to include the property by declaration, pursuant to her cross-petition that the property is a matrimonial property and is therefore subject to the Court's determination for purposes of property settlement, so long as the respondent's primary right conferred by s. 75 (1) of the Act, over the property is not extinct and has not been extinguished; see Avia Aihi v. The State (No.1) [1981] PNGLR 81, at 91, where Kearney DCJ (as he then was) in stressing this principle said:
"I agree with the views of Prentice C.J, and Andrew J, in Constitutional Reference No. 1 of 1979; Premdas v. Papua New Guinea [1979] PNGLR 329 at pp.337, 401, that the Constitution, s. 155 (4), involves at least a grant of power to the courts. I consider that the sub-section gives unfettered discretionary power both to this Court and the National Court so to tailor their remedial process to the circumstances of the individual case as to ensure that the primary rights of parties before them are protected. And so, for example, the development of remedial process such as the Mareva injunction need not be as tortuous here as in England. But the Constitution, s. 155 (4) cannot affect the primary right of parties; these are determined by law. In the circumstances of this case, the applicant now has lost the right to have her sentence reviewed. That extinction of her primary right comes about by operation of law; that is, by her failure to comply with s. 27 of the (Supreme Court) Act. The Constitution, s. 155 (4), cannot be used to recreate a primary right, once extinguished.
Accordingly, I respectfully agree with the Chief Justice that the Constitution, s. 155 (4), does not vest in this Court power to waive a failure to comply with s. 27 of the (Supreme Court) Act.
I would reject the first submission."
72. In this case, the respondent's primary right over the property is conferred by s. 75 (1) of the Act, which gives her the right to have a share of the properties to which the parties are either jointly or severally entitled including the property in question. In this case, the petitioner is the one who is entitled to the property, thus the respondent has a right under s 75 (1) to benefit from the property.
73. In regard to the Court's jurisdiction over properties situated abroad, the position is the same as in England viz; if a party buying or selling a property that is situated abroad is domiciled in the jurisdiction that would confer jurisdiction to a court in England to grant specific performance of the contract of sale; see Richard West & Partners (Inverness) Ltd v. Dick (supra). This principle is universal in its application, and it is important to note that in this jurisdiction, at least in my opinion, the party having a primary right over a property can also invoke s. 155 (4) of the Constitution for the Court to enforce such right by declaration; see S.C.R No. 2 of 1981; Re s. 19 (f) of the Criminal Code [1982] PNGLR 150 at 158; Dent v. Thomas Kavali [1981] PNGLR 488 at 490 and 491; Aundak Kupil v The State [1983] PNGLR 350.
74. The observations made regarding the Court's jurisdiction over the property at 91-93 Moore Street, Trinity Beach Cairns, would also apply to the property at Kewara Beach, Cairns.
75. There is one other point to be made regarding the property at 91-93 Moore Street, Trinity Beach, Cairns, viz; I do not think the petitioner is serious in raising the issue regarding the Court's jurisdiction over this property, because this property is one of the properties included by the petitioner in his first proposal to be considered by the Court for property settlement. In my opinion, this puts beyond doubt that this property is a matrimonial property and puts to rest the issue of the Court's jurisdiction over the property. From this, it appears plain that the issue of the Court's jurisdiction over this property is not raised in good faith by the petitioner.
76. I turn now to address the other issues which the Court is required to address for property settlement.
(i) Identification and valuation of matrimonial properties for property settlement
77. The properties identified and established by evidence as matrimonial properties which the Court has to consider in property settlement are as follows:
(a) Property at Lot 4, Section 21, Mavaru Street, Boroko;
(b) Property at Lot 44, Section 41, Logohu Place, Boroko (3 bedroom house), (Midal);
(c) Shares in Hema;
(d) Property at Lot 4, Section 440, Hohola (Islander Village), (Hema);
(e) Property at Lot 6, Section 440, Hohola (Islander Village), (Hema);
(f) Property at Lot 15, Section 2, Nonu Street, Boroko;
(g) Property at Lot 6, Section 11, Kokopo;
(h) Property at Kenabot, Kokopo;
(i) Unit 5, 91 – 93, Moore Street, Trinity Beach, Cairns;
(j) Property at Kewarra Beach, Cairns;
(k) Properties at Lot 12, Section 10, Ororo Crescent, Boroko (5 units), (Hema);
(l) Property at Lot 25, Section 7, Boroko Drive, Boroko, (Hema);
(m) K105,000.00 held in the IBD account with Credit Corporation, (Hema);
(n) BSP, Waigani account no. 1000185557, under Henry Jr's name with the balance of about K12,400.00;
(o) Properties at Lots 2 and 5, Section 214, Turuha Street, Gordons, (8 x 3 bedroom units) (Midal);
(p) Properties at Lot 8, Section 440, Hohola (Islander Village), (2x 3 bedroom town houses), (Midal);
(q) Property at Lot 68, Section 231, Hohola (Tokarara), (1 dwelling house), (Midal);
(r) Properties at Lot 16, Section 91, Leke Place, Gordons, (1 dwelling house and 2 units), (Midal);
(s) Properties at Lot 14, Section 91, Leke Place, Gordons, (2 stand alone dwelling houses), (Midal);
(t) Shares in Alhambra;
(u) Shares in Midal; and
(v) Household furniture and appliances and all other personal properties or assets presently held or are in possession of the parties, including motor vehicles and bank accounts.
78. In regard to the values of each property identified, I do not propose to use the values put to some of the properties by the petitioner because the respondent had no input in how these figures were arrived at, the respondent also does not agree with these figures as reflecting the true values of those properties. It is also to be noted that some of the properties are not included in the petitioner's list of properties for which he has put value. The respondent has for her part asked for valuations to be done on each property.
79. In regard to the request made by the respondent for each property to be valued, I do not consider it convenient for the Court to order such valuation for two reasons, firstly; no application was made by the respondent at the trial for such valuations to be done, secondly, to order valuation of each property at this stage would be cumbersome and onerous and would unnecessarily protract the disposition of the case.
80. In any case, I do not consider valuation of each property necessary because, in my opinion, there are sufficient materials before me which can guide me to arrive at decisions which should be just and equitable to the parties.
81. That said, it should be noted that the Court accepts the amount provided by the petitioner for the IBD account held at the Credit Corporation, the estimated value of shares in Alhambra and the balance of account no. 1000185557, at BSP, Waigani Branch, which is held under Henry Jr's name. It is to be noted also that the respondent has not taken issue on these matters.
82. In my opinion, the proper and convenient approach for the Court to adopt in determining the value of each property given to each party in property settlement is not by taking a property by property approach. In other words, not by valuing each property given to each party, but rather by taking a global approach, thus by determining the global value of the total number of the properties given to each party from the property pool. It should also be stressed that the apportionment of properties to each party should be commensurate with the level of contributions the party made.
(ii) Parties' contributions
83. In her affidavit sworn on 30 July, 2007, the respondent deposes that, in July, 1991, when she was retrenched from the Public Service, she had a 3 bedroom house at Lot 12, Section 10, Ororo Crescent, Boroko. The house was registered under her name. In other words, she was the owner of that property.
84. The respondent deposes in the affidavit that in December, 1991, after much discussion with the petitioner, she agreed to a proposal made by the petitioner and as a result, her house at Lot 12, Section 10, Ororo Crescent, Boroko, was pulled down and in its place, 5 x 3 bedroom units were built. These units are now subject to the Court's consideration for property settlement. The units were built with a loan from Niugini Lloyds Bank which was guaranteed by the petitioner. The respondent says in the affidavit that she did not know when the loan was repaid because the petitioner controlled all the finances and he did not tell her when the loan was repaid. She however says that she worked tirelessly to manage the five units ensuring among other things that gardens around the units were well maintained. She says in the affidavit that all rents received from the five units were controlled by the petitioner. She says that the loan with Niugini Lloyds Bank was paid off from the rents received from the five units.
85. The respondent also says in the affidavit that Hema was established with the view to acquiring properties, including the five units, with her and the petitioner as directors and shareholders of the company. As a result, the title to Lot 12, Section 10, Ororo Crescent, Boroko which was previously under her name was subsequently transferred to Hema. The respondent says other properties under Hema were also acquired using rents received from the five units. The respondent says the petitioner made no financial contributions towards the properties under Hema; however, he was the one who received and controlled all the rents from the properties under Hema, including the five units.
86. The respondent says the only finances she controlled were those from her personal bank account and Henry Jr's BSP Waigani Branch account. She says, she trusted the petitioner completely to control the rents received from the properties under Hema because he was a banker and was an expert in financial matters.
87. The respondent says although she and the petitioner were joint signatories of Hema's bank account, she did not sign cheques against the account until 2000, when the petitioner was hospitalized in Brisbane for his open heart surgery.
88. She says, even after she started collecting rents from the properties under Hema following the petitioner's heart operation, the petitioner was still controlling Hema's finances because he was the one writing and issuing cheques under Hema's account.
89. The respondent also claims that the property at 91-93 Moore Street, Trinity Beach, Cairns, was acquired by the petitioner using rents received from the properties under Hema, including the five units. In that regard, the respondent says, she contributed financially through Hema towards the purchase of this property.
90. The respondent says, other properties acquired using rents received from the properties under Hema are a house at Lot 25, Section 7, Boroko Drive, Boroko, and two properties at Lots 4 and 6, Section 440, Hohola, (Islander Village). Again the respondent says she contributed financially through rents received from the five units at Lot 12, Section 10, Ororo Crescent, Boroko, towards the purchase of these properties.
91. In respect of the properties under Midal, it should be noted that the petitioner is the sole director and shareholder of the company. The company was incorporated before the parties' marriage in August, 1976, the original directors of the company being the petitioner, his brother Nick Tata and sister, Mary Luaina Horris (now deceased). In December, 2006, Nick Tata is said to have transferred all his shares in the company to the petitioner, thus leaving the petitioner to be the only director and shareholder of the company.
92. Mr. Shepherd told the Court that as part of the arrangement for Nick Tata to transfer his shares in Midal to the petitioner, the properties at Lot 16, Section 91, Leke Place, Gordons, are no longer under Midal, as they are now owned by Nick Tata. According to the evidence before the Court, the properties are a house and two flats. It is noted that according to the respondent's other affidavit sworn on 15 December, 2003, these properties were still registered under Midal as at 15 December, 2003. The petitioner has not said anything in his evidence about these properties being owned by Nick Tata either in the evidence he gave at the trial or in his affidavit. In other words, there is no evidence from the petitioner that these properties are now owned by Nick Tata, the assertion that the property was transferred to Nick Tata was made by Mr. Shepherd in his submissions.
93. Another property at Lot 14, Section 91, Leke Place, Gordons, was a vacant piece of land, but it is not clear whether this property is also owned by Nick Tata. In the absence of clear evidence from the petitioner as to who actually owns the property, I will regard the property as still registered under Midal. In the affidavit sworn by the respondent on 30 July, 2007, the respondent says the vacant piece of land has been improved with two 2 bedroom stand alone houses. The petitioner has not denied these claims and I accept the respondent's evidence. These properties were revealed by the respondent in her cross-petition and the supporting affidavits.
94. The petitioner has claimed that the respondent's financial and non financial contributions towards the properties under Hema and Midal were either nil or minimal. However he has contradicted himself on this point because, he told the Court that the respondent worked hard for the five units at Lot 12, Section 10, Ororo Crescent, Boroko. He also said they both ensured that the gardens around the properties were well looked after. The respondent has told the Court that she worked tirelessly for these properties. The petitioner has therefore by his own admissions corroborated the respondent's evidence regarding her contributions to the five units. The petitioner agreed that the five units were self-funding from the rents they generated. In regard to the properties at Lot 25, Section 7, Boroko Drive, Boroko, and Lots 4 and 6, Section 440, Hohola (Islander Village), there is evidence that they were purchased with the rents received from the five units. This confirms and corroborates the respondent's evidence that the rents received from the five units at Lot 12, Section 10, Ororo Crescent, Boroko were used to acquire other properties for Hema. This evidence is not denied or disputed by the petitioner and I accept it.
95. The respondent has also adduced evidence indicating that a previously vacant land at Kenabot, Kokopo, has been improved with a house built on it, which was being leased to GRA. Again, the petitioner has not denied or disputed this evidence and I accept it.
96. In the affidavit sworn by the respondent on 30 July, 2007, the respondent gives account of how she became aware that the petitioner had purchased the property at Kewara Beach, Cairns. She said, she became aware of the property when by coincidence, she discovered some National Australia Bank statements which the National Australia Bank sent to the petitioner which showed that the petitioner had obtained a home loan from that bank on 28 April, 2005, to purchase the property. This evidence was confirmed by the petitioner who said that in 2004, he purchased the second property for himself and his new wife Janet to use whenever they are in Cairns for his medical reviews. The petitioner provided this evidence for the first time when responding to the claims made by the respondent in her affidavit that he had also purchased a second property in Cairns which he did not include and disclose in his first proposal for property settlement. The petitioner said he purchased the property for $220,000.00 with a loan of $180,000.00 from the National Australia Bank.
97. It is clear that the property was purchased before the parties had obtained the decree absolute for the dissolution of their marriage on 18 November, 2005. The property therefore falls within the broad scope of s. 75 (1), as a matrimonial property, thus it is part of the property pool, which is to be considered by the Court in property settlement between the parties.
98. The respondent has refuted claims made by the petitioner that she either did not contribute at all or that her contributions to the properties under Midal were minimal. She said, she helped with making curtains for the properties under Midal and ensured that maintenance works in those properties were carried out whenever needs arose.
99. Firstly, in regard to the properties under Hema, I have no doubt and indeed there is evidence, that the respondent made significant contributions. I hold this view for two reasons. Firstly, Hema was established to generate more finances, and to increase business for the parties, including acquisition of the five units at Lot 12, Section 10, Ororo Crescent, Boroko. Those units were built on the respondent's property after the house she once owned on that piece of land was pulled down to make way for the construction of the five units. The respondent's evidence in this regard is not disputed. The contributions made by the respondent do not necessarily have to be measured in financial or monetary terms only because her contributions can also be measured by the non-financial contributions she made, including the value of land on which those five units were built. As noted earlier, the land was once owned by the respondent. That was, in my opinion, a very significant contribution by the respondent towards all the properties under Hema, more particularly the five units.
100. Secondly, the petitioner was a very busy person because of the demanding responsibilities he had with the entities and organizations that employed him or in which he was involved. Most, if not, all those responsibilities required him to travel regularly both within PNG and overseas.
101. It is not disputed that the rest of the properties under Hema were acquired using rents received from the five units. This is also conceded by the petitioner, thus it is a common ground. It is therefore reasonable to say that the respondent had that sense of personal ownership and attachment over the five units and therefore, would have felt obligated to ensure that the properties were well maintained, and indeed there is evidence that she did so with total commitment.
102. According to the petitioner's own evidence, as the Governor of Bank of PNG, he used to travel overseas regularly. He said he used to travel overseas for meetings about every three months in a year. Each of those meetings lasted for about two weeks. The meetings were mostly with the International Monetary Fund, the World Bank and other international financial institutions.
103. Also during his term as the Chairman of Credit Corporation, the petitioner regularly attended meetings in Fiji, Solomon Islands and Vanuatu. Other meetings he used to attend were held in Australia. He also used to attend meetings held overseas for the South Pacific Games Council and the PNG Olympic Games Committee. He is the current President of the PNG Sports Federation and PNG Olympic Games Committee. He said, since 1991, he has traveled overseas extensively to attend meetings for these two sporting bodies.
104. Then as the Chairman of GRA, he said he also used to travel to Rabaul once every five weeks in a year, and used to spend about three to four days in Rabaul on each of those trips.
105. Thus, during the course of the parties' marriage, the petitioner was clearly a very busy person with heavy workload and highly demanding responsibilities, all of which required constant traveling both within PNG and abroad.
106. It is therefore reasonable to say that the respondent also attended to the properties under Midal, as she has testified whenever needs arose during the parties' marriage, particularly when the petitioner was away from Port Moresby either on work commitments or for other reasons. I therefore accept the respondent's claim that she also contributed in a significant way towards the properties under Midal during the course of the parties' marriage, which lasted for a period of over 24 years, which adds significance and weight to her contributions towards properties under Midal.
107. As I said earlier, I find it convenient and neater to take a global approach in determining the overall value of the properties given to each party, rather than taking property by property approach; see Manikam Nadesalingam v. Alima Nadesalingam & Paul Solien (1998) N1754. In regard to the properties under Hema, I take into account the fact that Hema was established when the five units were built on the respondent's original piece of land at Lot 12, Section 10, Ororo Crescent, Boroko. Using the rents collected from the five units, other Hema properties were later acquired. In that regard, as I said earlier, the respondent's contribution to all the properties under Hema was quite significant.
108. In regard to the property at Kewarra Beach, Cairns, there is undisputed evidence that it was acquired by the petitioner without the respondent's knowledge. The respondent became aware of the existence of the property and the fact that it had been purchased by the petitioner when she, by coincidence, discovered some bank statements from the National Australia Bank belonging to the petitioner which showed that the petitioner had a home loan with that bank. The petitioner told the Court that he acquired this property with his own funds. However, there is evidence that during the parties' marriage, the petitioner was solely in control of the finances generated by properties under Hema. There is further evidence that the petitioner had issued cheques amounting to substantial amounts and made substantial cash withdrawals from a bank account under Hema which have not been accounted for by the petitioner. Thus, it is reasonable to infer that some of the rents received from the properties under Hema were used to acquire this property. But, even if rents received from properties under Hema were not used to acquire this property, the fact that the petitioner had acquired the property during the course of the parties' marriage, places the property within the broad scope of s.75 (1) of the Act, thus it is a matrimonial property and is part of the property pool, which the Court has power to consider in property settlement.
109. From the foregoing, there is overwhelming evidence that the respondent's contributions to the properties under Hema were significant. Those contributions were non-financial and financial; the latter being in the form of the finances generated by the properties under Hema, more particularly the five units which were used to acquire other properties. The other aspect of the respondent's significant indirect financial contributions was the land which she once owned on which the five units were built, which clearly were major financial generating properties.
110. In regard to the properties under Midal, the respondent's contributions were non-financial, but they were also significant for the reasons already given.
111. Thus, the respondent made significant and quality contributions to properties under Hema and Midal.
112. On the question of how the Court should evaluate the significance and the quality of the contributions made by the parties towards the properties under Hema and Midal, I respectfully adopt the statements made in, In Marriage of FERRARO [1992] FamCA 64; [1992] 111 FLR 124 at 159 – 163 and 170:
"(a) The evaluation of the "quality" of the parties' contributions
Central to the discussion of the valuing of the domestic contributions is a consideration of the judgements of the High Court in Mallet. Although decided under the pre-1983 legislation, Mallet still represents the major point of reference for this issue.
Although the matter was extensively discussed by all the members of the Court, primary reference is usually made to the judgement of Wilson J (at 636). His Honour in that passage referred to s 79 (4) (b), as it then was, and then cited the passage from the judgement of Evatt CJ in Marriage of Rolfe [1979] FLC 78, 271 at 78, 272-78, 273. That passage of the judgement of the former Chief Judge seems to be the origin of the frequently quoted statement in relation to homemaker contributions that they "should be recognised not in a token way but in a substantial way"
As the whole of that passage of the former Chief Judge is important to the remarks of Wilson J immediately following it, it is useful to repeat it:
"The purpose of sec 79 (4) (b), in my opinion, is to ensure just and equitable treatment of a wife who has not earned income during the marriage, but who has contributed as a homemaker and parent to the property. A husband and father is free to earn income, purchase property and pay off the mortgage so long as his wife assumes the responsibility for the home and the children. Because of that responsibility she may earn no income or have only small earning, but provided she makes her contribution to the home and to the family the Act clearly intends that her contribution should be recognized not in a token way but in a substantial way. While the parties reside together, the one earning and the other 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 the contribution of each should be given equal value".
Wilson J then continued in the following, often quoted, passage (at 636):
"With all respect, I agree with her Honour's exposition of the purpose of the paragraph subject to one reservation. The act (sic.) requires that the contribution of a wife as a homemaker and parent be seen as an indirect contribution to the acquisition, conservation or improvement of the property of the parties regardless of where the legal ownership resides. The contribution must be assessed, not in any merely token way, but in terms of its true worth to the building up of the assets. However, equality will be the measure other things being equal, only if the quality of the respective contributions of husband and wife, each judged by reference to their own sphere, are equal. The quality of the contribution made by a wife as homemaker or parent may vary enormously, from the inadequate to the adequate to the exceptionally good. She may be an admirable housewife in every way or she may fulfill little more than the minimum requirements. Similarly, the contribution of the breadwinner may vary enormously and deserves to be evaluated in comparison with that of the other party. It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each. That will be appropriate only to the extent that the respective contributions of the parties are each made to an equivalent degree. What the Act requires is that in considering an order that is just and equitable and the court shall 'take into account' any contribution made by a party in the capacity of homemaker or parent. It is a wide discretion which requires the court to assess the value of that contribution in terms of what is just and equitable in all the circumstances of a particular case. There can be no fixed rule of general application".
There are a number of aspects in that passage relevant to this case. First, the statement by Wilson J that:
"Equality will be the measure, other things being equal, only if the quality of their respective contributions of husband and wife, each judged by reference to their own sphere, are equal".
...One of the few detailed discussions of the implications of that passage is in the judgment of Nygh J at first instance in the matter of In Marriage of Shewring [1987] FamCA 51; (1987) 92 FLR 385 at 387-388, which is the report of the judgment of the Full Court (Evatt CJ, Ellis and Lambert JJ). Pages 387-388 contain the following passage from the judgment of Nygh J at first instance where he discusses the implications of the formulation of Wilson J in Mallet's case in the following terms:
"What was an issue in this case was the question of quality of contribution. I am aware very much of the remarks made by Wilson J in Mallet v. Mallet (at 636), and in fact, on the basis of that remark it has been suggested from time to time that the court must assess in some way or another the quality of contribution made by a party, for instance as breadwinner on the one hand and as homemaker on the other, on a scale which presumably ranks from the perfect to a total failure. ...I take the view based upon the traditional marriage vows that the parties take one another for better and for worse.
...The assessment of the quality of the contribution should be based on the principle that each party should make such contribution as can be reasonably expected having regard to the nature of the parties' capacity, the ability of each of the parties and expectations of the spouses.
...In some of the more recent reported de facto property cases there have been attempts to analyse the issue of evaluating homemaker contributions. For example, see the judgment of Clarke, JA (Kirby P and Handley JA concurring) of the New South Wales Court of Appeal in Black (supra). His Honour said (at 117-118):
"In order to evaluate the particular contribution the Court is, in my opinion, required carefully to examine the role played by the person who claims to have contributed as homemaker and parent. Obviously where a woman has over a long period assumed virtually all the responsibility of maintaining the home and bringing up the children, has done so in a responsible and energetic manner, and has devoted most of her time to doing that and thus freed her partner to earn income to be used in the general betterment of the family, her contribution would had to be regarded as substantial and significant.
Whether her contribution should be regarded as less than, equal to or greater than the financial contribution by the wage earning partner must depend upon the circumstance of the case which undoubtedly include the length of the relationship, the nature of the wage earner's contributions and the care, devotion and services of the homemaker".
(b) Comparison of the parties' contributions
...Gibb CJ in Mallet's case (at 608-609) referred to the "wide discretion" under s79 and the circumstance that:
"The Act does not indicate the relative weight that should be given to different circumstances, or how a conflict between opposing considerations should be resolved – those are left to the court's discretion, which must, of course, be exercised judicially...
It is necessary for the court, in each case, after having regard to the matters which the Act requires it to consider, to do what is just and equitable in all the circumstances of the particular case".
...The case law has established however that there may be special factors, such as the homemaker having performed her responsibilities without the assistance of her absent husband or the breadwinner having applied outstanding entrepreneurial skills to the building up of a business, which justify the Court considering that contribution to be above the normal range or to be considered as an "extra" or "special" contribution". (my underlining).
113. These principles were enunciation to relate specifically to the application of s. 79 of Australian Family Law Act, 1975, (Cth). However, I find that they have a general application and are relevant and applicable to the circumstances of this case, I therefore respectfully adopt them. The principles provide helpful guidance to the Court in assessing the level and quality of the contributions made by the parties to the matrimonial properties and how such properties should be divided between the parties.
114. Thus, having regard to these principles, I find that the petitioner had also made special contributions to the properties under Hema, because it was his expertise in financial matters and his entrepreneurial skills, ideas and endevours that helped to build up the parties' matrimonial properties and assets and their values to the level where they were at the time of the trial. This point deserves a special recognition.
115. That said, in respect of the properties under Hema, the Court takes special note of the overwhelming evidence regarding how the respondent had exclusive control over finances generated by the properties under Hema and how the petitioner enriched himself from those finances, particularly the funds he used from Hema's account without the knowledge of the respondent. There is no dispute that while he was benefiting financially from the properties under Hema, he was also benefiting from the properties under Midal.
116. Thus, although the petitioner had made special contributions in the manner described above, and the fact that he was the main, if not, the breadwinner, the substantial amounts of money he used from Hema's account, which he has not accounted for and his apparent failure to disclose properties he either owned or to which he had direct interest are matters which have the effect of lowering the level of his contributions to below that of the respondent. In regard to the non-disclosure of properties, the fact that he had or may have made disclosures later, makes no or little difference because those disclosures were forced by the respondent. The effect of those forced disclosures is that it provides the basis for the Court to conclude that the property pool is greater than demonstrated by the evidence. It is to be noted that the failure by the petitioner to disclose does not relate only to the real estate properties, it includes the funds he used from Hema's account which he failed to account for, the salaries he received including payout by the IPBC, allowances and fees he was paid as a director or a shareholder of various entities and organizations.
117. Based on these factors, my assessment of the ratio of the parties' contributions towards the properties under Hema is 60 per cent to 40 per cent in favour of the respondent. Hema's properties include K105,000.00 held in the IBD account with Credit Corporation. This asset is held in the joint names of the parties, but it should also be noted that the respondent told the Court that K35,000.00 of that money was provided by her.
118. Had it not been for the unexplained expenditures the petitioner incurred against Hema's account, and for his clear lack of candour in regard to the matters mentioned above, the Court would have assessed the parties' contributions towards properties under Hema as equal, more because of the petitioner's special contributions.
119. In regard to the properties under Midal, I have determined that the parties' level of contributions to be at the ratio of 85 percent to 15 percent in favour of the petitioner. In determining this ratio I have taken into account the fact that the properties were acquired by the petitioner using his own financial resources and entrepreneurial expertise and skills. However, because he was regularly absent from Port Moresby, during over 24 years of their marriage, the respondent was left to manage and attend to the properties whenever needs arose. To me the length of period in which the respondent attended to the properties was a significant contribution.
(iii) Future needs of the parties
120. The petitioner was financially stronger than the respondent during their marriage. He also had the wealth, power and influence. He still enjoys that status. He has the ability to create more wealth now and in the future. This observation is relevant to the issue of the parties' means and resources. It is not a consideration that should divert the Court's attention from its obligation to ensure that the division of the matrimonial properties between the parties is just and equitable.
121. The petitioner has a new wife, Janet to care for. He is in his late 60s and is now dependent on medication following his quadruple heart by-pass operation. He has to purchase medicine for his medical condition for the rest of his life. He also has to make regular visits to Australia for medical reviews by his doctors. This is necessary because of the lack of proper medical facilities in PNG. I take all these into account.
122. The respondent on the other hand is in her early 60s. She has no dependent. She is in good health. There is no doubt that, she will henceforth be well off financially and will be self sustaining from her share of the properties that will be apportioned to her by the Court in property settlement. That said, it is important to keep in mind that the proper test to apply when dividing the matrimonial properties between the parties is not whether the respondent's share of the properties will make her wealthy and self sustaining, but whether her share of the matrimonial properties is just and equitable in the circumstances of the case.
123. It seems unlikely that either of the parties will get full time paid employment in the future. The petitioner nonetheless is the current President of the PNG Sports Federation and PNG Olympic Games Committee. Whilst I cannot be sure whether he gains financially from his involvement with these two sporting bodies, such as receiving allowances, commissions or some other forms of remuneration for his services, I have no doubt that his involvement with these two highest sporting bodies would derive some sort of benefits for him.
(iv) The petitioner not making full and frank disclosures of the properties in which he had interest and some of his business dealings
124. There is evidence that the petitioner did not make full and frank disclosures of some of the properties he either owned or in which he had direct interest. In his first proposal for property settlement he left out some of the properties he either owned or in which he had interest. I take this to be deliberate because it was only after the respondent had revealed those properties in her cross-petition that the petitioner had adjusted his first proposal for property settlement, he was therefore forced to disclose those properties. Secondly, there is evidence that the property at Kewarra Beach, Cairns, was also disclosed only after the respondent had by coincidence discovered through bank statements which were sent to the petitioner from National Australia Bank, that petitioner had taken out a home loan with that bank to purchase the property. Again, it was after that discovery of the bank statements by the respondent and after the respondent raised the issue in Court that an explanation was given by the petitioner through Mr. Shepherd who in his submissions acknowledged that the petitioner had acquired the property for him and his new wife Janet to use whenever they are in Cairns for his medical reviews. Thirdly, there is evidence from the respondent in the affidavit she swore on 30 November, 2007, that the petitioner had drawn cheques for various amounts totaling almost K203, 000.00, against Hema's account which he has not accounted for. The petitioner has not given any explanation as to who those cheques were for. There is also evidence from the respondent that the petitioner withdrew K340, 000.00 in cash from Hema's account, which he also has not accounted for. The non-disclosures in regard to the payout by the IPBC and fees and allowances received by the petitioner may not be out of the ordinary, but when viewed in the context of the overall conduct of the petitioner in how he did business without the knowledge of the respondent during the parties' marriage, they become significant as they reflect generally on the petitioner's lack of candour. Thus, they also raise questions regarding his credibility.
125. The non-disclosures by the petitioner in respect of the real estate properties are significant because they have a direct bearing on the property pool for property settlement. The non-disclosures also demonstrate that the petitioner had generally during the parties' marriage did things without the knowledge of the respondent although the respondent had the right to know about those things or activities. As I said earlier, it is a matter which weighs against the credibility of the petitioner.
126. In making this observation it should be stressed that the duty to disclose is absolute. It is not an option. The reason is obvious, a husband and wife are supposed to be partners who are united in marriage as one. Thus, what one party to the marriage does in life, especially those which are likely to impact significantly on them, the other party to the marriage has the right to know. Thus, where there is a clear and undisputed evidence of non-disclosure by a party in property settlement as in this case, the Court is entitled to conclude that the property pool is greater than demonstrated by evidence. In such a case, justice and equity would demand that the disadvantaged party, which in this case is the respondent, should be treated favorably by the Court and the Court should do the best it can, to ensure that the disadvantaged party is fairly and sufficiently compensated. In this case there is clear evidence of the lack of candour by the petitioner not only in respect of property settlement but also in respect of other aspects of the parties marriage. This must also affect the credibility of the petitioner.
127. The overall result of the division of the matrimonial properties between the parties must, in the circumstances of the case be just and equitable to both parties. This should be determined by the overall facts and circumstances of the case. This is a pivotal consideration which underpins the property settlement between the parties. The aim of property settlement in this case should not necessarily be whether the parties have equal share of the matrimonial properties but whether the number of properties given to each party is just and equitable in the circumstances of the case; see White v. White [2000] UKHL 54; [2001] 1 AC 596; [2000] 3 WLR 1517. In that case Lord Nicholls when discussing the principle of equality in the leading judgment at 1578 said:
"... there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. Typically, a husband and wife share the activities of earning the money, running their home and caring for their children.... If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built the assets. There should be no bias in favor of the money-earner and against the home-maker and the child-carer .... Before reaching a firm conclusion ... a Judge would be well advised to check his tentative views against the yardstick of equality division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so." (my underlining).
128. See also Miller v. Miller [2006] UKHL 24; [2006] 3 All ER 1.
(v) Apportionment of matrimonial properties between the parties in property settlement
129. The respondent is now living in the parties' former matrimonial home at Lot 4, Section 21, Mavaru Street, Boroko. I consider that this property should be allocated to the respondent. The petitioner on the other hand is now living in a unit at Lot 4, Section 440, Hohola (Islander Village) with his new wife Janet. He says he has carried out renovations to this unit. I consider that this property should be allocated to the petitioner, thus the respondent's interest in this property should be transferred to the petitioner.
130. The parties have each argued that they should manage the property at Lot 15, Section 2, Nonu Street, Boroko, on behalf of Henry Jr. In deciding this issue, I have noted that the respondent was close to Henry Jr and was also very involved in organizing and paying for his studies in Australia. This is sufficient reason for the respondent to manage the property for Henry Jr. until Henry Jr. decides what to do with the property. The respondent will therefore manage the property for Henry Jr. In line with this decision, the respondent will also manage the BSP, Waigani Branch account no. 1000185557, under Henry Jr's name.
131. The property at Moore Street, Trinity Beach Cairns, which was acquired by the petitioner, is for reasons already given, a matrimonial property. The property at Lot 6, Section 11, Kokopo is also a matrimonial property, because pursuant to s. 75 (1), it is a property to which the petitioner is entitled. It is also noted that the property was acquired by the petitioner in 1996, which was during the period when the parties' were married. Nonetheless, the issue of whether this property is a matrimonial property or not does not really arise because the petitioner had, in his first proposal for property settlement included it to be considered by the Court in property settlement between the parties. I have decided that these two properties should be sold and the proceeds from the sales should be divided equally between the parties. However, before the properties are put on the open market for sale, they should be valued by registered property valuers appointed by both parties; once the valuations are done, respective valuation reports should be made available to both parties through their respective lawyers. The petitioner should then take immediate steps to sell the properties through real estate agents of his choice in Cairns and Port Moresby. The petitioner is to inform the respondent through her lawyers of the identities of the real estate agents once chosen. The petitioner will be obliged to provide and disclose to the respondent through her lawyers all the details of the sales, including all the documents relating to those sales. When the properties are sold, half of the proceeds of the sales shall be paid directly to the respondent through her lawyers. The effect of this order is that the petitioner will only retain or receive half of the proceeds from the sales, the other net half or 50% of the proceeds from those sales are to be paid directly by the respective purchasers to the respondent through her lawyers. However, in the event that this is not possible, the petitioner is to immediately, after selling the properties, transfer the net half or 50% of the proceeds of the two sales to the respondent through her lawyers.
132. I am also of the opinion that the property at Lot 44, Section 41, Logohu Place, Boroko, which is a property under Midal and to which the petitioner has interest be transferred to the respondent as her compensation for her contributions to the properties under Midal during the course of over 24 years of the parties' marriage; see French v. French [1987] NZCA 141; [1988] NZLR 62 and Nation v. Nation [2004] NZCA 288; [2005] 3 NZLR 46. The petitioner will therefore cause Midal to transfer this property to the respondent and the respondent shall become the sole beneficial owner and registered proprietor of the property.
133. I have also for reasons already given determined that the property at Kewarra Beach, Cairns, is a matrimonial property. I have decided that this property should be retained by the petitioner.
134. Thus, under these orders, the petitioner will have the following properties:
(i) Properties at Lots 2 and 5, Section 214, Turuha, Street, Gordons (8 x 3 bedroom units), via Midal;
(ii) Properties at Lot 8, Section 440, Hohola, (Islander Village), (2 x 3 bedroom town houses), via Midal;
(iii) Property at Lot 68, Section 231, Tokarara (a house), via Midal;
(iv) Properties at Lot 16, Section 91, Leke Place, Gordons (1 house and 2units), via Midal;
(v) Properties at Lot 14, Section 19, Leke Place, Gordons (2 houses), via Midal;
(vi) Property at Lot 4, Section 440. Hohola (Islander Village), via Hema;
(vii) Property at Kenabot, Kokopo; and
(viii) Property at Kewarra Beach, Cairns, Australia.
135. The respondent will have the following properties:
(i) Property at Lot 4, Section 21, Mavaru Street, Boroko;
(ii) Property at Lot 6, Section 440, Hohola, (Islander Village), via Hema;
(iii) Property at Lot 12, Section 10, Ororo Crescent, Boroko; (5 units), via Hema;
(iv) Property at Lot 25, Section 7, Boroko Drive, Boroko, via Hema; and
(v) Property at Lot 44, Section 41, Logohu Place, Boroko, via Midal.
136. Apart from the properties apportioned to the petitioner, he will also have the following assets:
(i) 30,000 shares in Alhambra, which is 50% of the total number of shares the parties hold in the company;
(ii) All the shares in Midal;
(iii) Half or 50% of the proceeds from the sale of the property at 91 - 93, Moore Street, Trinity Beach, Cairns, Australia;
(iv) Half or 50% of the proceeds form the sale of the properties at Lot 6, Section 11, Kokopo; and
(v) All the household furniture and appliances and all other personal assets he currently owns or which are currently in his possession, including bank accounts and motor vehicles.
137. Apart from the properties apportioned to the respondent, she will also have the following assets:
(i) All the shares in Hema; which include the petitioner's 50% share of the total number of shares held jointly by the parties in the company, which the petitioner will transfer to the respondent;
(ii) 30,000.00 shares in Alhambra, which is 50% of all the shares currently held jointly by the parties in the company;
(iii) Half or 50% of the proceeds from the sale of the properties at Lot 6, Section 11, Kokopo;
(iv) Half or 50% of the proceeds from the sale of unit 5, 91 - 93, Moore Street, Trinity Beach, Cairns, Australia;
(v) K105, 000.00 held in IBD account with Credit Corporation; and
(vi) All the household furniture and appliances and all other personal assets she currently owns or which are currently in her procession, including bank accounts and motor vehicles.
138. The respondent will manage the property at Lot 15, Section 2, Nonu Street, Boroko, for and on behalf of Henry Jr.
(vi) Settlement of tax and other liabilities
139. It is ordered that Hema's books be audited by a company auditor appointed by both parties. The audit shall cover the period from the company's establishment or incorporation to the date of the decree absolute for the dissolution of the parties' marriage. Any tax liabilities and other debts owed by Hema up to the date of the decree absolute, which is 18 November, 2005, except for any tax liabilities in respect of the K105,000.00 held in the IBD account under the joint names of the parties with Credit Corporation, are to be paid by the Petitioner. Further, in the event that Hema has incurred liabilities between the date of the decree absolute and 31 March, 2010, which is the date of this judgement and that those liabilities have been incurred solely by the petitioner, without the knowledge of the respondent, such liabilities are also to be paid by the Petitioner.
140. The respondent is to pay for and settle the outstanding mortgage with the BSP for the property at Lot 4, Section 21, Mavaru Street, Boroko.
(vii) Are the orders made regarding the division of matrimonial properties and assets in property settlement between the parties just and equitable in the circumstances of the case?
141. The respondent was living in the property at Lot 4, Section 21, Mavaru Street, Boroko, with the respondent well before the break down of the parties' marriage. She has no doubt devoted a lot of time and energy caring for the property and since the parties' separation she has been living in this house and has regarded it as hers. This is not only after the petitioner left her following their separation but even before that. There is also evidence from the respondent that she contributed financially towards the maintenance of the property. Furthermore, the petitioner had left the house by choice, leaving the respondent to reside in it.
142. The petitioner had in his first proposal for property settlement, agreed to transfer this property to the respondent, he however had a change of heart in his second proposal, and decided against transferring the property to the respondent. No reasonable explanation was given by the petitioner for this change of heart. In the circumstances, it is only fair that the respondent should have this property. Needless to say, that the property is registered under the joint names of the parties.
143. The petitioner has given evidence that he has done renovations to the property he is currently living in, viz; property at Lot 4, Section 440, Hohola (Islander Village). The respondent has asked that this property remain under Hema's ownership and it should not be given to the petitioner. She justified this stand by arguing that the property was acquired with rents received from properties under Hema, more particularly the five units at Lot 12, Section 10, Ororo Crescent. I have however decided that this property should be given to the petitioner. The reasons for this decision are in my view sound and well founded. Firstly, the petitioner has done renovations to the property and he has been living in the property with his new wife for quite some time now. It would in those circumstances cause unnecessary inconvenience to the petitioner if this property was given and transferred to the respondent because, the petitioner would have to vacate the property and move elsewhere. The property comes under Hema and the petitioner being one of the shareholders of Hema, is equally entitled to the property. Secondly, there is no dispute that the petitioner has made contributions to the properties under Hema, including this property. Similar considerations have been taken into account by the Court in regard to the property at Lot 4, Section 21, Mavaru Street, Boroko, when allocating that property to the respondent. That property was purchased under a mortgage by the parties in their joint names and was the matrimonial home for the parties during the course of their marriage. The respondent continues to live in that property. In those circumstances I have exercised my discretion in favour of the respondent by allocating the property to her. Applying much the same considerations, it is in my firm opinion just and equitable that the property at Lot 4, Section 440, Hohola, (Islander Village) be given to the petitioner.
144. In regard to the property at Lot 15, Section 2, Nonu Street, Boroko, the respondent as the mother had without a doubt been fully involved in the care and support of Henry Jr, when he was studying in Australia; which includes organizing and arranging payment of Henry Jr's education and other related expenses. I also have no doubt that the respondent as the mother has uninhibited love and affection for Henry Jr and vise versa by Henry Jr to her as a son. There is no evidence before me upon which I can find to the contrary. These factors strongly favour the respondent as the most suited party to manage the property for Henry Jr.
145. As to the petitioner, the fact that he is now married to another woman is a factor which in my view weighs against him in managing the property for Henry Jr, bearing in mind that the issue here is not just about which of the parties is better able to manage the property for Henry Jr, rather and more importantly, the issue is also about what is in the best interest of Henry Jr and who would Henry Jr feel free and comfortable to deal with in managing his property. It has to be born in mind that who ever manages the property will just be a caretaker of the property until Henry Jr decides what to do with the property. Taking all theses factors into account I am of the firm opinion that the respondent as the natural mother is best suited to manage the property. For the same reasons, the respondent will also manage the BSP, Waigani Branch account no. 1000185554 for Henry Jr.
146. In regard to the property at 91-93 Moore Street, Trinity Beach, Cairns, it was purchased by the petitioner in 1993, thus, the property was purchased during the course of the parties' marriage. This was also when the petitioner's term as the Governor of Bank of PNG came to an end and marked the beginning of his term as the Chairman of the Board of Directors for Credit Corporation, a position he held until 2007. He says, he purchased the property with his own money. To me this is another example of how the petitioner did business without the knowledge of the respondent. The respondent has for that reason queried a number of other benefits which the petitioner received or acquired during their marriage which the petitioner never disclosed to her like the payout by the IPBC and fees and allowances paid to him as a director of various entities, including Credit Corporation. The fact remains that as a matter of law (s. 75 (1), any property the petitioner purchased or acquired during the course of the parties' marriage was and is a matrimonial property or asset. In that regard, it should be noted that at the time he received those payouts, allowances and fees and some years before he purchased this property, the petitioner was at the prime of his career as a high profile executive. At the material time, he also joined the Deloite Touche Tohmatsu Accountants as a partner and was the President of PNG Sports Federation and PNG Olympic Games Committee. He still holds the latter two positions. He was also the Chairman of the Board of Directors for Credit Corporation. Thus, he was a very busy person with very demanding responsibilities, all of which, as I alluded to earlier, required constant traveling both within PNG and abroad.
147. In that regard, it is to be noted that about two years before this property viz; the property at 91-93 Moore Street, Cairns, was purchased, the respondent also left her employment with the Department of Foreign Affairs, following her retrenchment from the Public Service; so she was the one who was attending to, caring for and keeping their matrimonial home everyday. This form of contribution has long been recognized as a significant form of contribution by a housewife, hence the respondent, because in this case, as in other marriages, it freed the petitioner to find time to do business, including acquiring this property and other properties, including the property at Lot 6, Section 11, Kokopo; see In Re Marriage of FERRARO (supra) at 159, where the court in citing with approval the principle stated in Mallet v. Mallet (supra), emphasized the significance of the contributions made by a wife as the home-maker. "...A husband and father is free to earn income, purchase property and pay off the mortgage so long as his wife assumes the responsibility for the home and the children". The court also said the home maker's (wife) contribution – "should be recognized not in a token way but in a substantial way". In the circumstances of this case I do not consider it just and equitable for the respondent to receive less than the petitioner from the proceeds of the sale of this property. The test is not which of the parties made financial contributions to acquire the property, but what is a just and equitable share for the respondent i.e a share that is commensurate with her contributions, whether financial or non-financial or both.
148. The property was acquired under the petitioner's own name; but as I alluded to earlier, what is of significance here is that the property was acquired during the course of the parties' marriage; thus it is a matrimonial property which makes it subject to the Court's determination for property settlement. It is on this basis that I have decided that it be sold and both parties should benefit equally from the proceeds of the sale.
149. I have decided that the property at Lot 44, Section 41, Logohu Place, Boroko, which is a 3 bedroom house under Midal be transferred to the petitioner. I consider that this will provide a just and equitable compensation for the respondent for her non- financial contributions towards the properties under Midal, in overseeing their maintenance and upkeep, especially when the petitioner was busy attending to his highly demanding responsibilities both in PNG and overseas during over 24 years of the parties' marriage; see French v. French (supra) and Nation v. Nation (supra).
150. An important factor to note here is that the petitioner had control over all the finances generated by the properties under Hema. The respondent had no control over those finances. The reason for this according to the respondent was that the petitioner was the expert in financial matters and not her. Therefore the respondent trusted the petitioner to manage and control those finances. However, there is overwhelming evidence before the Court that the petitioner betrayed that trust by the respondent.
151. There is no issue that the petitioner had control over the finances generated by the properties under Hema and Midal.
152. The affidavit sworn by the respondent on 30 November, 2007, shows that from 4 October, 1995, to 31 December, 1996, which is a period of more than twelve months, the petitioner raised cheques totaling K202,918.89 which is almost K203,000.00, against Hema's account. This amount was paid in eight cheques with the lowest amount of K8,500.00 and the highest amount of K50,000.00. There were two cheques for K50,000.00 each. The respondent had no knowledge about these payments or transactions. The petitioner has not accounted for these payments. The payments are shown in a document prepared by an accountant named Silan Nadarajah. The document is headed: "Hema Investments – Payments for years from 1994 to 1996." According to the respondent's affidavit, Silan Nadarajah was an accountant who was known to the petitioner during his term as the Governor of Bank of PNG.
153. The respondent in her affidavit says, the petitioner may have used the finances generated by the properties under Hema, especially the five units at Lot 12, Section 10, Ororo Crescent, Boroko, to acquire the properties in Cairns as well as other properties, without the respondent's knowledge. The respondent has for this reason asked that she be fully indemnified for any past liabilities for Hema.\
154. The respondent obviously was not a party to these unexplained transactions totaling almost K203,000.00.
155. It is noted that the petitioner has not challenged or denied these claims.
156. One thing that has been clearly established by evidence is that the petitioner had during the parties' marriage betrayed the respondent's trust by having extra-marital affairs. Evidence of this also comes from the petitioner's own admission that he committed adultery with a Filipino woman named Jodi Docai between 1999 and 2000, meaning the affair went on for a period of time. The respondent has also claimed that he had extra-marital affairs with other women. These claims have not been challenged by the petitioner. The petitioner also withdrew K340, 000.00 in cash from Hema's account. The petitioner has not accounted for this amount. So the total amount of unexplained expenditure incurred by the petitioner from Hema's account amounted to over a half a million kina. The respondent also told the Court that K70, 000.00 was already used to renovate the property at Lot 4, Section 440, Hohola (Islander Village). Therefore, other additional renovations made by the petitioner on this property were made without the respondent's knowledge. Being a part owner of the property, the respondent had the right to know about these expenses. The respondent told the Court that the petitioner deliberately concealed these deals from her.
157. I have taken overall account of all these matters when deciding on how the matrimonial properties should be divided between the parties, which includes the property at Section 41, Lot 44, Logohu Place, Boroko, which I have apportioned to the respondent. As I alluded to earlier, the unexplained transactions made by the petitioner without the knowledge of the respondent raise serious questions about the petitioner's credibility.
158. There is also no evidence of any liabilities either for Hema or for the parties before the Court except for about K7,000.00 owed by the parties to BSP in mortgage for the property at Section 21 Lot 4, Mavaru Place, Boroko. The petitioner was the one controlling the finances for Hema so he should know if Hema has liabilities. He should have produced evidence not only in regard to Hema's liabilities but how those liabilities were incurred, before asking this Court to order the respondent to indemnify him fully of Hema's liabilities. The Court has to have a basis to make such orders, it cannot make orders in respect of liabilities which do not exist. This failure by the petitioner to produce evidence regarding Hema's liabilities, if any, is a significant factor which the Court cannot ignore because as I said, he was the one controlling Hema's financial affairs. This, together with his failure to make full and frank disclosures of his properties or of properties in which he had interest, upfront and his failure to account for over half a million kina from Hema's account, in my opinion justifies this Court to grant the petitioner's request and order the petitioner to fully indemnify the respondent for any past liabilities of Hema up to the date of the decree absolute and any other liabilities for Hema which have been incurred solely by the petitioner since the date of decree absolute to the date of the judgment without the knowledge and approval of the respondent. I consider that this approach is just and equitable in the circumstances of the case.
159. In this regard I cannot do any better than to quote and adopt a passage from the judgment given by Baker J in Kewaliw [1981] FamCA 70; (1981) FLC 91-092 at 76, 643-4.
"...Marriage is for most couples an economic partnership. Married couples live together and work together with ultimate object of purchasing a home, paying it off, acquiring other assets with the overall object of attaining a higher standard of living. The reported decisions in respect of applications for settlement of property under sec. 79 of the Act are unanimous that both parties should share the economic fruits of a marriage, having regard to the provisions of sec. 79 (4) and sec. 75 (2), although not necessarily equally.
Is not, however, the converse equally sustainable? In other words, should not financial losses incurred by parties to a marriage or either of them, whether incurred jointly or severally, be shared by them in the same manner as the financial gains?
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such loses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct
designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
In Browne v. Green [1999] FamCA 1483; (1999) FLC 92-873, the Full Court said:
"While care should probably be taken...not to elevate Baker J's statement(in Kowaliw) to "a principle", we are nonetheless satisfied that it is certainly a well-accepted guideline within the jurisdiction which has received the endorsement of successive Full Courts..." (my underlining).
160. The sentiments expressed in this passage are relevant and applicable to the circumstances of this case and I have respectfully adopted them as helpful guides for me in deciding the overriding issue of what is just and equitable in the apportionment of matrimonial properties between the parties and any responsibilities that arise from the orders made by the Court regarding property settlement.
161. It is clear that the petitioner has by his failure to account for over half a million kina effectively minimized or reduced the value of matrimonial properties; thus there is a firm basis for the Court to infer that the property pool is greater than demonstrated by evidence. This in my view more than justifies the Court to order the petitioner to fully indemnify the respondent for all the past liabilities, if any, including tax liabilities for Hema up to the date of the decree absolute, which is 17 November, 2005. However, as I said, if the petitioner had, without the knowledge and approval of the respondent incurred liabilities for Hema between the date of the decree absolute and the date of these Orders which is 31st March, 2010, then such liabilities are also to be paid or settled by the petitioner.
162. In this case, the petitioner was controlling all the financial affairs of the parties, including funds generated by the properties under Hema. Therefore, if there are liabilities for Hema, he should know. He has only suggested that the respondent fully indemnify him for any liabilities incurred by Hema, he should have provided evidence of Hema's liabilities which can then justify him to seek the relief he is seeking, so that the Court can have the basis to decide whether the respondent should be solely responsible for such liabilities. Without the petitioner producing evidence regarding Hema's liabilities, the Court has no basis to order the respondent to pay or settle Hema's liabilities, let alone to indemnify the petitioner for such liabilities. In the circumstances, I do not consider it just and equitable for the Court to order the respondent to indemnify the petitioner for Hema's liabilities. The respondent does not know of any liabilities for Hema. Given the overall circumstances of the case, it would also be unjust for the respondent to meet Hema's liabilities out of her share of the matrimonial properties and assets which the Court has apportioned to her in property settlement.
163. The respondent has in her cross – petition sought spousal maintenance orders against the petitioner, however, I am of the opinion that the orders made in her favour are more than sufficient to sustain her in the future. I therefore make no orders as to spousal maintenance for the respondent.
164. The consequential Orders of the Court are:-
(i) The petition is dismissed.
(ii) The petitioner shall pay the respondent's costs of and incidentals to these proceedings.
165. Orders accordingly.
_________________________________
Blake Dawson and Waldron Lawyers: Lawyers for the Petitioner
Kassman Lawyers: Lawyers for the Respondent
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