Frame v Frame [2023] PGNC 162; N10221 (1 May 2023)

N10221

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MC NO. 07 OF 2020

MATRIMONIAL CAUSES ACT, CHAPTER NO. 282

BETWEEN:
VELDA MAVE FRAME
Petitioner

AND:
PAUL BRYAN FRAME
Respondent

Goroka: Mugugia, AJ
2023: 30^th March, 1^st May

MATRIMONIAL CAUSES - Petition for dissolution of marriage – Ground of separation - No challenge to the ground – Order for decree nisi for dissolution of marriage granted
MATRIMONIAL CAUSES - Ancillary relief sought – Apportionment and award of 50% of all the Respondent’s properties and businesses - Whether the Petitioner is entitled to the ancillary relief sought - Based on fairness and equity, the Petitioner is awarded 10% of the Respondent’s shareholdings.

Case Cited:

ToRobert v. ToRobert (2012) SC1198

Counsel:
Karen Lafanama, for the Petitioner
Soa Gor, for the Respondent

JUDGMENT

1^st May, 2023

1. MUGUGIA, AJ: The Petitioner, a Papua New Guinean national and the Respondent, an Australian, got married in accordance with the Papua New Guinea Marriage Act on 30^th December 1990 in Goroka, Eastern Highlands Province. They have two children of the marriage, who are now adults. By Petition filed on 18^th May 2020 in the National Court in Goroka, the Petitioner sought dissolution of marriage based on the ground of separation. The Petitioner sought ancillary relief for an apportionment and award of 50% of all of the Respondent’s properties and businesses. An Answer to the Petition was filed by the Respondent.

2. The hearing of the Petition was conducted on 30^th March 2023. I reserved my decision to a date to be advised. I now deliver the judgment of the Court.

EVIDENCE
3. The hearing of the Petition was by way of affidavits which were tendered in Court by consent, and marked as exhibits. The parties’ affidavits were as follows:

For the Petitioner

• Affidavit of Velda Mave Frame filed on 18^th May 2020 - Exhibit “P1”.
  
• Affidavit of Velda Mave Frame filed on 10^th November 2021 - Exhibit “P2”.
  
• Further Affidavit of Velda Mave Frame filed on 13^th May 2022 - Exhibit “P3”.
  
• Affidavit of Discovery of Velda Mave Frame filed on 16^th May 2022 - Exhibit “P4”.
  

For the Respondent

• Affidavit of Paul Bryan Frame filed on 10^th July 2020 - Exhibit “R1”.
  
• Affidavit of Discovery of Paul Bryan Frame filed on 6^th April 2022 - Exhibit “R2”.
  
• Affidavit of Paul Bryan Frame filed on 1^st February 2023 - Exhibit “R3”.
  

GROUND FOR DISSOLUTION OF MARRIAGE
4. Part V of the Matrimonial Causes Act (Act) provides for “Matrimonial Relief”. Section 17(a) to (n) set out the grounds for dissolution of marriage. The ground relied on by the Petitioner is separation. The ground of separation is Section 17(m) which reads:

“17. GROUNDS FOR DISSOLUTION OF MARRIAGE

Subject to this Division, a petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be based on one or more of the following grounds:–

(a)...

...

(m) that the parties to the marriage 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, and there is no reasonable likelihood of cohabitation being resumed.”

5. Sufficient evidence was placed before the Court to show the existence of the ground relied on by the Petitioner for dissolution of marriage. The Respondent voluntarily walked out of the marriage.
6. The Respondent agrees that there was separation. In his evidence, he confirmed that he had separated from the Petitioner for almost twenty years, and have no issue with her request for the dissolution of marriage. An order for dissolution of marriage should be granted.

7. The evidence in the proceedings show that there is no possibility of reconciliation.
8. I find that the ground of separation has been established. A Decree Nisi for the dissolution of marriage of the parties shall be granted.

ANCILLARY RELIEF SOUGHT BY THE PETITIONER

9. The Plaintiff claims apportionment and award of 50% of all the Respondent’s properties and businesses. The issue to determine here is whether or not the Petitioner is entitled to 50% of all the Respondent’s businesses and properties.

PARTIES’ POSITIONS ON THE ANCILLARY RELIEF SOUGHT

Petitioner’s Case As Presented

10. In the Petitioner’s Admission of Facts filed on 1^st July 2022, she admitted that there was no financial or capital contributions from her to the various companies and businesses operated by the Respondent during the period of cohabitation and thereafter.

11. The Petitioner also admitted that during cohabitation and thereafter, she did not make any financial or capital contributions to the Respondent to set up and operate the Respondent’s companies namely Frameworks Architects Limited, Kiloparoka Estate Limited and Frameworks Limited.

12. The Petitioner further admitted in her Admission of Facts that during cohabitation and thereafter, she did not make any financial or capital contributions to the Respondent to set up or operate and acquire shares in the Respondent’s four companies listed on the Australian Stock Exchange (ASX). The companies are Newcrest Mining Limited (NCM AX), Oil Search Limited (OSH AX) now Santos Limited, Kingsgate Consolidated Limited (KCL AX), and Crater Gold Limited (CGN AX).

13. The Petitioner says that she may not have contributed financially but contributed physically, mentally, spiritually and socially to the needs of the two children of the marriage, and she may not have made financial or capital contribution to the Respondent to set up and/or operate the companies and acquisition of shares in the Respondent’s companies listed on the Australian Stock Exchange but contributed physically by ensuring the matrimonial home was taken care of during cohabitation and thereafter so the Respondent could concentrate with the business operations.

14. The Petitioner’s submission is that she was a homemaker. She says that she is part-owner of the Respondent’s businesses and properties, and she is entitled to the relief sought in her Petition as she is entitled by law as the wife of the Respondent.

15. In addressing the issue on the ancillary relief sought, reference was made by Counsel to the case of ToRobert v. ToRobert (2012) SC1198.

Respondent’s Case As Presented

16. The Respondent opposes the ancillary relief claimed by the Petitioner for an apportionment and award of 50%. The submission is that there is no evidence of contribution by the Petitioner.

17. As per his evidence, the Respondent partly owns shares in and operates two companies namely Frameworks Architects Limited and Kiloparoka Estate Limited. He says that the Petitioner is not entitled to any portion of his shares in these companies.

18. Counsel for the Respondent referred to Section 75 of the Matrimonial Causes Act and the cases of ToRobert v. ToRobert (2010) N4003 and ToRobert v. ToRobert (2012) SC1198.

19. The Respondent’s submission is that in ToRobert v. ToRobert (2012) SC1198, the Supreme Court made it clear that the shares of a company are part of matrimonial property for apportionment whereas the properties owned by a company are not. At paragraph 42 of its judgment, the Supreme Court elaborated on the exercise of discretion vested in the Court by Section 75 of the Matrimonial Causes Act.
20. The Respondent’s concluding submissions were that it is just and equitable that the Petitioner is not entitled to anything, in particular any of the Respondent’s shares in the companies. Alternatively, if the Court find that the Petitioner is entitled to a certain percentage of the Respondent’s shareholdings, then it is just and equitable that the Petitioner be awarded a very small percentage, and not the 50% she claims. And, the Court should also order that the maintenance paid by the Respondent to date cease on the day the decree nisi is made.

CONSIDERATION

The Law on Settlement of Property

21. Section 75 of the Matrimonial Causes Act, Ch. 282 empowers the court to sanction property settlement upon dissolution of a marriage. Section 75(1) provides:

“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, of 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.”

22. The Supreme Court in ToRobert v. ToRobert (2012) SC1198 further explained at [42]:

“The apportionment of property is inherently a matter of discretion and the Court is obliged to take into account principles of equity. The Court must always consider the conduct of the parties.”

Whether or not the Petitioner in the present case is entitled to 50% of all the Respondent’s businesses and properties.

23. With regard to quality contribution, I am convinced by the Petitioner’s evidence and submissions presented to Court. I find that she did not provide financially but contributed immensely to the home and to the family. She fulfilled her duty as a mother, wife and homemaker, allowing the Respondent to concentrate on his professional career as an architect and businessman. The affidavit materials before the Court confirm this. I give recognition to her immense contribution.

24. I remind myself that the paramount consideration is the justice and equity of the case. In the circumstances of this case, I consider it just and equitable to make an order for the Petitioner to be entitled to at least a percentage of the Respondent’s shareholdings. Based on fairness and equity, I shall order that the Petitioner be awarded 10% of the Respondent’s shareholding.

FORMAL ORDERS:
25. I make the following Orders:

1. A Decree Nisi for the dissolution of marriage of Velda Mave Frame and Paul Bryan Frame is granted.
2. The Petitioner shall be awarded 10% of the Respondent’s shareholdings.

3. The maintenance paid by the Respondent shall cease once a decree nisi for dissolution of marriage is made.
4. Parties shall pay their own costs.

5. Time for entry of these orders is abridged to the date and time of settlement of these orders by the Registrar which shall take place forthwith.

Orders accordingly.
________________________________________________________________
Office of Public Solicitors: Lawyers for the Petitioner
Fiocco Nutley Lawyers: Lawyers for the Respondent