Edwards v Edwards [2022] PGNC 530; N10037 (21 October 2022)

N10037

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MC NO. 15 OF 2021

BETWEEN:

THOMAS ANDREW EDWARDS

- Petitioner-

AND:

TANIA LOUIS AKINS-SELLAR EDWARDS

-Respondent-

Waigani: Tamade AJ

2022: 14^th July; 21^st October

FAMILY LAW – dissolution of marriage – petition for dissolution of marriage and settlement of property – proceedings instituted in both Papua New Guinea and Australia – Australian Family Law Act 1975 – Section 104(A) – dissolution of marriage can be instituted and recognised in both jurisdictions

MATRIMONIAL CAUSES – domicile – domicile of choice – Matrimonial Causes 1963 – Section 14 – Petitioner is resident in PNG – Section 96 – forum non convenience – application to stay proceedings in Australia refused – Matrimonial Causes Rules 2022 – Order 7 Rule 3 (1) –

ENFORCEMENT OF JUDGMENT – enforcement of foreign judgments – dissolution of marriage can be recognised – settlement of property –Constitution – Section 155 (4) –jurisdiction restricted to country property is located

Cases Cited:

Marlow v Marlow [1956] PGSC 9

Rowles v Rowles [1964] PNGLR 142

Douglas v Douglas [1965-66] PNGLR 407

Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd [1995] PGSC 7; SC488

Kingston v Kingston [2017] PGNC 335; N7054

Van Der Kreek v Van Der Kreek [1979] PNGLR 185

Papua New Guinean Legislation:

Matrimonial Causes Act 1963
Matrimonial Causes Rules 2022
Reciprocal Enforcement of Judgements Act 1976 (Chapter 50)

Overseas Legislation:

Australian Foreign Judgements Act 1991
Australian Family Law Act 1975

Counsel:

Dr. James Renwick, Dr. Dominic Katter, Mr. William Yep, and Mr. Prentice Kult, for the Petitioner
Mr. Ian Molloy and Mr. Bill Frizell, for the Respondent

21^st October, 2022

1. TAMADE AJ: These are proceedings by way of a Petition for a Dissolution of Marriage filed on 24 August 2021 by the Petitioner seeking a decree for the dissolution of the marriage between the parties and also seeking settlement of property and maintenance by the Petitioner.

2. The Petitioner arrived in PNG on or about January of 1993 and the Respondent was born in Lae in 1967. Both parties got married in Lae on 24 April 1993. They have three children of the marriage who are now all adults living in Australia. The children were all born in Australia, Jordan Edwards was born on 23 June 1995, Dakota Edwards was born on 13 January 1997, and Savannah Edwards was born on 30 September 2000. All the children currently live in Australia and hold dual citizenship in Australia and USA.

3. The Respondent, an Australian citizen, says that she lived in PNG from 1993 to 2003 or 2004 when she had to attend for medical treatment in Australia and has since been living in Australia. The Petitioner is an Australian citizen and also holds citizenship in USA however he has since been in PNG since 1993 and has lived in PNG and has travelled to and from PNG managing his business and properties in PNG. The parties separated around September 2016 and have since lived apart with no prospect of reconciliation.

4. On 7 September 2021, the Petition of Dissolution of Marriage was served on the Respondent.

5. On 7 October 2021, the Respondent proceeded to file an Application in the Federal Circuit and Family Court of Australia at Brisbane for Financial (property and maintenance) between the parties in proceedings BRC13356/2021 which includes orders seeking an Anti-Suit Injunction.

6. On 11 October 2021, the Respondent took action in PNG and filed an Answer Under Protest as to the Petition objecting to the jurisdiction of the PNG Court to hear the matter and or alternatively seeking a stay of these proceedings in order for the Australian proceedings to take priority.

7. On 20 October 2021, the Respondent filed proceedings in Australia for divorce in proceedings BRC13953/2021.

8. On 10 November 2021, the Petitioner filed a Reply Under Protest objecting to the jurisdiction of the Federal Circuit and Family Court of Australia in this proceeding and seeking a declaration that the Petitioner is domiciled in PNG and a stay or an injunction as to the Respondent continuing the initiating application filed in the Federal Circuit and the Family Court of Australia.

9. On 19 November 2021, the Petitioner filed an application in Australia seeking to stay BRC13356/2021 until the determination of proceedings in PNG.

Is the Petitioner Domiciled in PNG?

10. It is the Respondent’s objection in her Answer Under Protest that the Petitioner is not domiciled in PNG within the meaning of the Matrimonial Causes Act Chapter 282.

11. Section 14 of the Matrimonial Causes Act is in the following term with the relevant parts underlined:

14. JURISDICTION IN MATRIMONIAL CAUSES.

(1) Subject to this Act, a person may institute a matrimonial cause under this Act in the Court.

(2) Subject to the succeeding provisions of this section, the Court has jurisdiction to hear and determine matrimonial causes instituted under this Act.

(3) Proceedings for a decree of dissolution of marriage or for a decree of nullity of a voidable marriage shall not be instituted under this Act except by a person domiciled in Papua New Guinea.

(4) Proceedings for a decree of nullity of a void marriage or for a decree of judicial separation, restitution of conjugal rights or jactitation of marriage shall not be instituted under this Act except by a person domiciled or resident in Papua New Guinea.

(5) Where, in proceedings for a decree of dissolution or nullity of marriage, the Court finds that the parties to the marriage were, or one of the parties was, at the time when the proceedings were instituted, domiciled according to the principles of the common law in Papua New Guinea, it shall include in the decree a statement to that effect.

(6) For the purposes of this Act, a person domiciled in Australia who is resident in Papua New Guinea at the date of instituting proceedings under this Act and has been so resident for the period of six months immediately preceding that date shall be deemed to be domiciled in the country at that date.

12. Order 7 Rule 3(1) of the Matrimonial Causes Rules 2022 states that a Respondent who desires to have the jurisdiction of the Court determined shall file an Answer under Protest in Form 17 objecting to the jurisdiction of the Court. The Respondent has filed an Answer Under Protest on 11 October 2021. The Respondent, therefore, objects to the jurisdiction of this Court and also seeks that the proceedings be stayed on the reason that the Petitioner is not domiciled in PNG within the meaning of the Act and that the most appropriate and natural forum for ancillary relief is the Federal Circuit and Family Court of Australia. The Respondent also states in her Answer under Protest that both parties are Australian citizens, a majority of their assets are in Australia, and that the Respondent has also instituted proceedings in Australia for the settlement of property belonging to the parties. Subsequently, the Respondent had also filed proceedings for divorce in Australia.

13. Mr. Molloy of the Respondent has argued that domicile and residence are not the same. The Respondent, therefore, argues that at the time of filing the Petition, the Petitioner was not domiciled within the meaning of section 14(3) of the Matrimonial Causes Act because the Petitioner was born in USA and holds a citizenship of the USA, he is originally domiciled in the USA. Where the Act in section 14(6) refers to an extended period of residency that would amount to a “deemed domicile”, Mr. Molloy argues that the Petitioner falls short of this requirement as well as even though he had business in PNG and lives and travels to and from PNG to Australia and elsewhere, he never attained permanent residency in PNG or citizenship in PNG.

14. In Halsbury’s Laws of England, Third Edition, page 15, paragraph 28, it says this in regard to domicile:

“The law attributes to every person at birth a domicile of origin. This domicile may be changed, and a new domicile, which is called domicile of choice acquired; but the two domiciles differ in the following respects; -

1. The domicile of origin is received by operation of law at birth; the domicile of choice is acquired by actual removal of an individual to another country accompanied by his animus manendi [then intention of remaining];
   
2. The domicile of origin is retained until the acquisition of a domicile of choice; it can not be divested by mere abandonment and is never destroyed though it remains in abeyance during the continuance of a domicile of choice; the domicile of choice is lost by abandonment whereupon the domicile of origin will revive unless some other domicile is acquired; the domicile of choice, when it is lost, is destroyed but may be acquired anew by fulfilling the same conditions as are required in the first instance.”
   

15. Mr. Molloy, therefore, states that the Court must find therefore two elements of physical presence and of an intention of remaining indefinitely occurring at the same time. As opposed to the case of Marlow v Marlow^[1], the Petitioner has property here and business here in PNG. In Rowles v Rowles, the Petitioner was a police officer from Australia in the Territory and only intended to live in the Territory until his retirement as a police officer. The Court held that to affirm a domicile of choice, the Petitioner has to adopt the Territory in an affirmative way as a place in which to settle rather than only to remain until retirement. In Douglas v Douglas^[2], the Court found that both the Petitioner and the Respondent were domiciled within the Territory of Papua at that time and that the Respondent had lost his domicile of origin and had taken on his domicile of choice having business in the Territory and bringing his widowed mother and his young brother to the Territory to live. The Court found that the Petitioner had the intention of living in the Territory in addition to his physical presence in the Territory.

16. The Petitioner has expressed in his Petition in paragraph 6 the following:

1. The Petitioner is a resident of Papua New Guinea at the date of instituting this Petition under the Matrimonial Causes Act 1963
2. The Petitioner has been resident in Papua New Guinea for the period of six months immediately preceding the date of instituting this petition under the Matrimonial Causes Act 1963

100. The Petitioner has had a fixed and permanent home in Papua New Guinea since 1993, and to which, whenever the Petitioner is absent, has had the intention of returning, and

4. The Petitioner has been a resident of Papua New Guinea since 1993.
   

17. I find that the Petitioner has not lost his domicile of Origin from USA however he has business in PNG and has been in and out of PNG and has expressed an intention to return to PNG for business and therefore, his domicile is not pursuant to section 14(3) of the Matrimonial Causes Act but I find and am satisfied upon the Affidavit of the Petitioner filed 10 November 2021 that he is deemed domiciled pursuant to section 14(6) of the Act having been resident in PNG at the time of filing the Petition and had been so six months preceding the date of filing the Petition.

18. The Petitioner has also submitted that the Respondent after filing the Answer Under Protest should have within 14 days after filing the Answer Under Protest filed an application to the Court for directions as to the time and place at which the Objection is to be determined by the Court. By not doing so, the Respondent shall be deemed to have waived the objection^[3]. Having heard the argument from counsels and having found that the Petitioner is deemed domicile in PNG, the Court, therefore, has jurisdiction over the matter and the Respondent’s non-compliance with the Rules only goes to support this finding.

Is the PNG Court the appropriate forum to hear this Petition (forum non conveniens)?

19. This is the Respondent’s application that if the PNG Court finds that it has jurisdiction, the Respondent applies to the Court that these proceedings should be stayed as the PNG Court is not the appropriate Court to decide on this Petition and the matter should be tried in the Federal Circuit and the Family Court in Australia.

20. Section 96 of the Matrimonial Causes Act is in the following term:

96. INJUNCTIONS.

The Court may grant an injunction, by interlocutory order or otherwise (including an injunction in aid of the enforcement of a decree), where it appears to the Court to be just or convenient, and either unconditionally or on such terms and conditions as the Court thinks just.

21. The Respondent has relied on section 96 of the Act and section 155(4) of the Constitution to seek that the PNG proceedings be stayed and that the appropriate forum to decide on the matters between the parties is in Australia.

22. The principle of forum non-conveniens is decided in the Supreme Court case of Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd^[4] as:

“The authors of HALSBURYS LAWS OF ENGLAND 4TH EDITION VOL 1 at PARA 353 set out the principles which apply in ascertaining the most appropriate forum, especially where a stay is sought. Thus:

“353. Forum non-conveniens
The court may stay an action if there is another forum in which the case can be more conveniently tried. Account is taken not only of convenience and expense but also of other factors, such as the law governing the transaction, which point to the most appropriate or natural forum. In ascertaining the most appropriate forum the court searches for the country with which the case has its most real and substantial connection.
If a foreign court is found to be a more appropriate forum, a stay may still be refused if its effect would be to deprive the plaintiff of some real legitimate personal or juridical advantage available to him by suing in England. A common instance of this in Admiralty proceedings is the opportunity for the plaintiff to secure his claim by the arrest of the vessel as an action in rem. Other examples from the decided cases are the availability in England of a more generous limitation period, a speedier or cheaper trial, a more generous measure of damages, or a more favorable rule of substantive law. Particular weight may be attached to juridical advantages which do not involve a corresponding disadvantage to the defendant. Normally however the court will not compare the quality of justice available in England with that dispensed elsewhere, and allegations that a fair trial would not be obtainable in the foreign jurisdiction must be supported by cogent evidence. Ultimately the court’s task is to weigh in the balance the factors both for and against a stay so that even if the plaintiff can point to a legitimate advantage in suing in England, this will not be decisive if another jurisdiction is clearly the more appropriate forum.”

23. The test in PNG is for an Applicant to show where can a dispute be more appropriately tried. In the Kingston v Kingston^[5] case, Justice David said this:

“The approach in Voth v Manildra Flour Mills Pty Ltd is that a court will decline jurisdiction only if it considers itself a clearly inappropriate forum for dealing with litigation: see Reid Mortensen, Comity and Jurisdictional Restraint in Vanuatu (2002) 33 VUWLR at 96. That is usually referred to as the clearly inappropriate forum test.”

24. Mr. Molloy argues for the Respondent that Australia is the appropriate forum whilst Mr. Renwick for the Petitioner argues that PNG Court is the appropriate forum. Mr. Molloy submits that both the Petitioner and the Respondent are Australian citizens, all their children are Australian citizens and live in Australia, the Respondent lives in Australia and the Respondent submits that the bulk of the parties’ matrimonial assets is in Australia. The Respondent also submits that the Federal Circuit Court and the Family Court in Australia have specialist family law practitioners and also judges who deal predominantly with family law disputes. It is also the Respondent’s submissions that in Australia, summons can be issued to banks and other persons or entities to produce records and documents outside the jurisdiction whereas it is not the same here in PNG. The Respondent concedes that there is no issue as to dissolution as that can be decided in either jurisdiction.

25. Mr. Renwick of the Petitioner however argues that the PNG proceedings were filed first in time. The Petitioner is a resident here in PNG and manages their properties and business here in PNG and that for the most part, the parties have cohabitated the marriage in PNG.

26. He also argues that the Federal Circuit and the Family Court of Australia have not been gazetted as a reciprocating Court in accordance with the Reciprocal Enforcement of Judgements Act 1976 (Chapter 50) and therefore any judgments arrived at in the Federal Circuit and the Family Court of Australia cannot be enforced here in PNG. In Van Der Kreek v Van Der Kreek^[6], the Supreme Court held that:

“It has long been understood in English law that a divorce or nullity decree stands on the same footing as a judgment in rem. See Bater v. Bater[ccxxii]¹⁶ and the well-known case of Salvesen v. Administrator of Austrian Property[ccxxiii]¹⁷ where Viscount Dunedin said:

“A metaphysical idea, which is what the status of marriage is, is not strictly a res, but it, to borrow a phrase, savours of a res, and has all along been treated as such.”

The problem posed by this concept is whether a judgment such as the instant one, for settlement of property, is a judgment in rem because it is ancillary to a divorce decree? As I have already said that no movable property was the subject matter of the action it is perhaps unnecessary to decide. However, I am of the opinion that such a judgment is not a judgment in rem, but in personam”.

27. The Australian Foreign Judgements Act 1991 however in regard to the definition of “action in personam” precludes matrimonial matters and therefore if the PNG Court were to make a finding on the parties’ matrimonial properties, it would not be enforced in Australia concerning the matrimonial assets in Australia.

28. A divorce granted here in PNG however would therefore be recognized in Australia pursuant to section 104(A) of the Family Law Act 1975 of Australia and a dissolution of marriage granted in PNG is also recognized in Australia^[7].

29. I am therefore of the view that considering all the matters as to which forum is the appropriate forum for the matters to be tried, in regard to the issue of dissolution of the marriage, there is no contest by the Respondent that it can be tried here in PNG or in Australia and I, therefore, rule that this be tried here in PNG as the parties were married here in PNG and cohabitated for the most part of the marriage here in PNG.

30. As to settlement of the matrimonial assets, I find that this Court is the appropriate forum to determine all the assets of the marriage in so far as they are within the jurisdiction of PNG and with respect to all matrimonial property in Australia, the Australian Courts in my respectful view should be the appropriate forum and I make this decision on the basis that it will be difficult for either party to enforce a decision reached in Australia or PNG on the matrimonial property in either reciprocating jurisdiction.

31. It, therefore, follows that as to the Application seeking a stay of proceedings in Australia by the Petitioner, having regard to the principles of comity and that this Court does not have jurisdiction in Australia, I would refuse to make an order as sought by the Petitioner for an injunction or stay of proceedings in Australia however in so far as matters in Australia seek a decision on the matrimonial assets in PNG, the Respondent is restrained from seeking any such orders in Australia pursuant to section 155(4) of the Constitution and Section 96 of the Matrimonial Causes Act as this Court has jurisdiction and will deal only with the parties matrimonial assets or properties that are within PNG’s jurisdiction.

32. The Orders of the Court therefore are:

1. This Court declares that the Petitioner is domiciled in Papua New Guinea in accordance with section 14(6) of the Matrimonial Causes Act 1963(Chapter 282).
2. This Court is the appropriate forum to adjudicate on the dissolution of the marriage between the parties.
3. This Court is also the appropriate forum to adjudicate on the parties’ matrimonial assets or properties in so far as they are contained within the Papua New Guinea jurisdiction.
4. The Respondent is restrained pursuant to section 155(4) of the Constitution and Section 96 of the Matrimonial Causes Act to pursue adjudication in the Australian Court’s on the parties’ matrimonial assets or properties that are within the jurisdiction of Papua New Guinea.
5. The Respondent shall within twenty-one (21) days from the date of these Orders file and serve her Answer to the Petition.
6. The Petitioner shall file and serve his Reply fourteen (14) days thereafter.
7. Each party will meet their own costs of these applications.
8. Time is abridged to the date of these Orders to take effect forthwith.
   

Orders accordingly.

________________________________________________________________

Leahy PNG Lawyers: Lawyers for the Petitioner

Warnershand Lawyers: Lawyers for the Respondent

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^[1] [1956] PGSC 9 (27 September 1956)

^[2] [1965] PGSC 12; [1965-66] PNGLR 407 (2 December 1966)

^[3] Order 7 Rule 3(3), (4) (5) and (6) of the Matrimonial Causes Rules 2022
^[4] [1995] PGSC 7; SC488 (29 September 1995)
^[5] [2017] PGNC 335; N7054 (25 October 2017)

[6] [1979] PGSC 28; [1979] PNGLR 185 (6 July 1979)

^[7] Section 79 of the Matrimonial Causes Act.