Kodor v Kodor [2021] PGNC 178; N9024 (10 August 2021)

N9024

PAPUA NEW GUINEA
[IN THE NATION COURT OF JUSTICE]

MC 16 OF 2017

BETWEEN
PAUL KODOR
Petitioner

AND
EDWINA KODOR
Respondent

Waigani: Thompson J
2021: 4^th & 10 August

MATRIMONIAL CAUSES – property settlement – petitioner being sole financial contributor – other relevant factors – need to determine what is just and equitable

Counsel:

Ms L. Ipato, with Mr M. Murray, for the Petitioner
Mr J. Goava, for the Respondent

10^th August, 2021

1. THOMPSON J: This is a petition for dissolution of marriage, on the grounds of separation.

2. The petitioner and respondent were married on 21 April 1980. When they met, the respondent was said to be working as a nurse, but there was no evidence that she had been in employment since the marriage. They had five children of the marriage born in 1981, 1983, 1985, 1990 and 1992, so that those children are now 40, 38, 36, 31 and 29. At the time when the petition was filed in 2017, the petitioner was employed as an airline pilot, but that employment is said to have ended in February 2021.

3. It was not contested that the parties have been living separately and apart for many years, without cohabitation. The date when the separation commenced was variously said to be in 2002 (para 6.8 of petition), 2007 (para 9.1 of petition), 2004 (para 36 (9)) of the petitioners affidavit filed 7 February 2019), and 2004 in the oral evidence of both parties. I accept that the most likely date was 2004. However, no matter which date may be correct, there is no dispute that the parties have been separated and afterwards have lived separately and apart for a continuous period of not less than five years immediately preceding the date of the petition in 2017. The petitioner has moved on since the separation, and now lives with and has two children with, his current partner. There is no reasonable likelihood of cohabitation being resumed between the parties.

4. The Ground for dissolution prescribed in s 17 (m) of the Matrimonial Causes Act, (“MC Act”) has been established.

5. The respondent produced a photocopy of a document purporting to be certificate of marriage of the petitioner and his current partner, in April 2014. The document was not identified by the Registrar of Births, Deaths and Marriages, and was hearsay. The petitioner gave evidence that he had gone through a form of marriage ceremony, but that the person who performed the ceremony was not in fact an authorized celebrant, and the ceremony was of no legal effect. The issue had no legal effect on the petition before the court, and there was no evidence on which the court could make any findings.

6. Having found that the Ground for dissolution of marriage is made out, the next issue is a matrimonial property settlement. Pursuant to s 77 of the MC Act, the court may make such orders as the court thinks just and equitable.

7. I refer first to maintenance. Pursuant to s 75(3), the court shall not exercise its powers to order maintenance for children over 21 years of age, except in special circumstances. No orders have been sought for maintenance of the five children of the marriage, who are well over the age of 21.

8. In relation to the respondent, the evidence showed that the petitioner has been paying K500.00 per fortnight to her, possibly since separation in 2004, but at least since 2008 or 2009, and continues to do so. A Family Court Order on Complaint 73/2009 ordered that this amount continue to be paid “until such time (as) the marriage is dissolved”. This was in addition to the payment of K1,600.00 per fortnight which the petitioner had also been making pursuant to the Family Court Order, for the maintenance of the children, apparently right up to 2013, despite the fact that in 2009, the “children” were aged 28, 26, 24, 19 and 17, so that the last child attained the age of 18 in 2010, and no maintenance orders can be made by the Family Court for children over the age of 18.

9. No maintenance is now payable for the children. However, the amounts which each party has contributed to the upbringing and maintenance of the children throughout the marriage, is a factor which is relevant to the exercise of the court’s discretion in determining what is just and equitable in the circumstances, for a property settlement.

10. I will therefore consider the respective financial and non-financial contributions of the parties, to the care and maintenance of the children, and to the acquisition of property during the marriage.

11. The petitioner’s evidence was that while the children were young, he was first working in the Defence Force, and later with Air Niugini. By reason of his employment, he obtained a loan from his employer to purchase the house they were living in at Six Mile, and he solely made all the payments of the purchase price from his salary.

12. During the marriage, the parties purchased a piece of land in Kenabot in East New Britain, where the respondent came from, in joint names. There was no evidence of how the purchase price may have been apportioned between the parties.

13. The petitioner also bought a piece of land in Madang, and a motor vehicle, for which he obtained a bank loan and made all the payments. The petitioner had intended to develop that land, but as he had no funds, he sold it.

14. The petitioner paid for each of the five children to attend private schools, with no contribution from the respondent. He said that this was a financial struggle for him, causing much stress, but he persevered. He also paid for one daughter to attend University in Australia, which was very expensive, with no contribution from the respondent.

15. As a result of their educational attainments, all children became employed, and four of the children still hold responsible positions with major businesses in PNG. They are successful and independent, and the eldest is married with his own children. These are outcomes which must give justifiable pride to the parties, and which made the petitioner’s financial sacrifices, worthwhile.

16. From the birth of the first child in 1981, to the separation in 2004, the petitioner was the sole financial contributor to the education and maintenance of the children, and to the purchase of property and a vehicle. By the time of the separation, the children were aged from 12 to 23.

17. The petitioner gave evidence that in the years leading up to the separation, the respondent was frequently absent from the home, and that after arguments, she would leave and often not return for up to two months, and only in response to the petitioner searching for her and requiring her to return. Throughout these years, the petitioner’s relatives helped him look after the children. He said that although the parties did not have a joint bank account, he had given a bank card linked to his account, to the respondent, so that she could purchase food and household goods for the family. He said that in fact, the respondent did not buy food or household goods, but just emptied his bank account and spent the money on gambling and other activities. He said that the respondent was addicted to gambling, including poker machines. He said that the respondent had travelled to Cairns and Townsville in Australia without him, using the airline travel concession provided to her as his spouse, and he assumed that she had been gambling in the casinos there. On four occasions, he found that the day after pay-day, his account had been emptied by the respondent. He was then forced to borrow from friends on these occasions, in order to be able to buy food for the children. He became extremely stressed at his financial position, as he was paying off the house and car, and paying for the school fees and all other expenses. Eventually, he stopped the respondent’s use of the bank card. He said that this resulted in her obtaining loans from money lenders, who would appear at the home and demand money from him, causing him further stress. The petitioner said that on separation in 2004, the respondent left and went to ENB, leaving the children with the petitioner. The respondent did not rebut any of this in her evidence.

18. Following the separation, the petitioner met his current partner, who he said was very good at financial matters and who helped him to get his financial affairs in order. They had children in 2007 and 2008.

19. The respondent returned from ENB to Port Moresby in 2008, and resumed living in the house at Six Mile, with the children, who were then aged from 16 to 27. She obtained some orders from the District or Family Court in 2008 or 2009, ordering the petitioner to pay into a bank account, K1,600.00 per fortnight for the five children, and K500.00 for the respondent, even though the court had no power to order payments for children aged over 18, and there was only one child under 18. The petitioner said that these orders were obtained without his knowledge, and while he was away in Australia. He was able to have the orders varied in 2013, when the maintenance for the five “children” aged from 21-32, was stopped.

20. At one point, in a year which was not stated, the petitioner said that he stopped making the payments of K1,600.00 into the bank account, for the children, because the respondent was taking it, and so he instead paid that amount directly to the children in cash. When the respondent became aware of this, she flew down from Vanimo to Port Moresby and obtained an order from the District or Family Court that he pay K32,000.00 to her, in default 12 months hard labor, presumably for the unpaid maintenance. Again, the petitioner said that he had not been served and was unaware of the court hearing, as he was away in Sydney, Australia. He said that he was unable to pay this lump sum, and so his current partner raised that amount from herself and her family, which he then had to pay to the Public Solicitor who was acting for the respondent.

21. With the continuing support of his current partner, the petitioner said that in 2010, he and his partner bought a house in Waigani, in which they live. He used the Six Mile house as security for the loan, but has now paid that loan off, and both the Waigani and Six Mile houses are unencumbered. In 2011, he bought three vehicles, with loans from his employer. In 2013, he bought a house in Cairns, in Australia.

22. The respondent did not rebut any of the petitioner’s evidence. She agreed that they had separated in 2004, she had gone to ENB, leaving the children in Port Moresby, and had returned to Port Moresby in 2008, when she resumed living in the Six Mile home, with the “children”. She said that the house needs maintenance work, and the land rates are unpaid. She said that the land rates for the Kenabot land have also been outstanding since 2004. She said that the petitioner had given her a vehicle, but it was old, and she needed another one. She did not say that she had been employed, or had ever contributed financially to the maintenance or education of the children, or to the purchase or maintenance of the property or of the motor vehicles. She said she was still receiving K500.00 per fortnight from the petitioner. She said that the petitioner retired in February 2021, so he would have received entitlements, of which she should be paid half. She did not give any evidence of the extent of her non-financial contribution to the upbringing of the children.

23. The petitioner acquired land in Kenabot and Madang, a house in Six Mile, and a vehicle, during the marriage. The petitioner had already informed the respondent prior to these 2017 proceedings, that the Kenabot land, the Six Mile house and the vehicle would be transferred to her. However, the respondent said that she did not want to take them until the petitioner has carried out work on the Six Mile house, paid the outstanding land rates of the Kenabot and Six Mile properties, and given her another vehicle.

24. The petitioner has not lived in the Six Mile house since some time between 2004 -2007. It has been occupied only by the adult children, and the respondent. There was no evidence of whether the adult children have been paying rent to the respondent, to live there. At the least, as they are employed, they could be expected to keep the house in good repair and carry out any necessary maintenance work. The respondent has had the sole use of the vehicle which was given to her, and could be expected to maintain it.

25. When the parties separated in 2004, the respondent returned to ENB. There was no evidence that she commenced making preparations for how she was going to live without the petitioner’s financial support. She and her family have had the opportunity in the past seventeen years to build a house or investment property on the Kenabot land. As the owner of property both in Kenabot and Six Mile, the respondent needs to make a decision as to where she can best afford to live, and how to support herself. Port Moresby is an expensive city in which to live, but no matter where you live, any house owner has to pay land rates, maintenance and other charges incidental to home ownership.

26. In the case of Henry ToRobert v Mary ToRobert (2012) PGSC 31, the Supreme Court considered the position of a husband who had substantially created the wealth during the marriage, due to his financial expertise and entrepreneurial skills. However, the wife had made significant contributions to the property which had been purchased with that wealth. She had contributed her own land, on which a block of units had been constructed, which generated income which was then used for the purchase of more property. As the husband was a busy man, the wife attended to the properties by way of maintenance and management, and the court found that she had made a significant non-financial contribution.

27. The court found that it was just and equitable to award some of the properties on a 50/50 basis, and others on an 85/15 basis ie. 85% to the husband and 15% to the wife. The court rejected the trial judge’s finding that the husband had a significantly greater ability to create more wealth after the divorce, than the wife.

28. The facts are somewhat different in the present case. Here, the respondent did not contribute any land, and did not attend to the Six Mile property by way of maintenance or management. She did not actively involve herself in any activity which contributed to the property. There was no evidence of any financial or non-financial contribution by her, to the property acquired during the marriage. The petitioner is no longer employed, and as he is now aged 65, that is unlikely to change.

29. In relation to the upbringing of the children, the respondent did not rebut the petitioner’s evidence of her frequent absences, often for long periods, leaving the children in the petitioner’s sole care, including the four years she spent in ENB while the youngest child was aged 12-16. It is reasonable to infer from the nature of his job, that the petitioner did not keep regular hours at home with the children. It seems that his sister and other family members played an important role in caring for the children. The respondent did not challenge the petitioner’s statements that she was not a loving mother or wife, and that he had effectively been both father and mother to the children. The respondent’s evidence was limited to her claims to be entitled to the properties and vehicle, and a claim that the petitioner should pay her K500,000.00 for “supporting him to where he is now”. She gave no evidence of the type of support she had given, and she did not challenge the petitioner’s evidence that he had received no support, either by love or in any other way, from her.

30. The respondent’s conduct during the marriage and after the separation, showed a pattern of a lack of financial and familial responsibility, which the petitioner had said was caused substantially by her gambling habit. In her Cross-Petition, the respondent admitted that she had a gambling habit which she said had started in about 1999. She did not contradict the petitioner’s evidence about clearing out his bank account or her frequent absences from the petitioner and the children. After the separation in 2004, this pattern appears to have continued, as she gave no evidence of taking steps to become financially independent. She did not pay the land rates and gave no evidence of using or developing the Kenabot land. On her return to Port Moresby, she gave no evidence of being employed, and she seems to have continued to live off the K2,100.00 per fortnight paid by the petitioner, and continued living in the house, without paying the rates or doing any maintenance.

31. The respondent made no financial contribution to the property acquired during the marriage, and there is no evidence of any non-financial contribution, apart from a presumption that she has played a role in bringing up the children, even if the extent of that role is not clearly known.

32. No evidence was given by either party, of the value of any of the properties or vehicles. The petitioner has offered both the Kenabot land and the Six Mile house to the respondent, to be solely owned by her, while he would retain the Waigani house and the Cairns house, which were both acquired by him long after the marriage relationship had irretrievably broken down and the parties separated in 2004. He had also given a vehicle to the respondent, when they separated. This proposal represents almost 100% of the property acquired during the marriage, or approximately 40 − 50% of all the property, before and after the separation, for the respondent.

33. In ToRobert’s case, the apportionment to the wife of property purchased by the husband, was from 15% - 50%, in recognition of her contributions to the property. Here, there has been no evidence of any contribution from the respondent. When taken in conjunction with the fact that all the properties were paid for solely by the petitioner, I find that it is just and equitable in the circumstances, that the property be apportioned between the parties, in the way proposed by the petitioner.

34. Having regard to the further facts that the petitioner solely paid for the children’s upbringing and education, including to tertiary level, and continued to pay maintenance for the “children” until they were aged from 21 to 32, and that he has continued to pay maintenance to the respondent, including a lump sum payment of K32,000.00, I find that the respondent has not established any entitlement to share whatever termination payments may have been made to the petitioner in 2021, seventeen years after the separation.

35. I therefore make the following orders:

(a) A decree nisi of dissolution of the marriage between the petitioner and respondent on the Ground that they have been separated and afterwards have lived separately and apart for a continuous period of not less than five years immediately preceding the date of this petition, is granted.

(b) The petitioner is to transfer his interest in the property referred to as the land at Kenabot, Rabaul, East New Britain Province, to the respondent.

(c) The petitioner is to transfer the property at Section 126 Lot 31 Kanage Street Six Mile, Port Moresby, NCD, to the respondent.

(d) The petitioner is to retain the properties at Section 489 Lot 45 Waigani, and at Redlynch in Cairns, Australia.

(e) The petitioner is to retain the vehicles registrations numbers BEA 065, BFD 308 and BEO 385, while the respondent is to retain the vehicle registration number BAZ 669.

(f)The petitioner’s obligations pursuant to the District and Family Court Orders of 6 August 2009, 18 May 2011 and 13 May 2013, are discharged.

(g) Each party is to pay its own costs.

_________________________________________________________________

Murray & Associates Lawyers: Lawyers for the Petitioner

Sannel Lawyers: Lawyers for the Respondent