Edwards v Edwards [2023] PGSC 96; SC2445 (24 August 2023)

SC2445

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA NO. 173 OF 2022

THOMAS ANDREW EDWARDS

Appellant

-V-

TANIA LOUISE AKINS-SELLAR EDWARDS

Respondent

SCA NO. 22 OF 2023

TANIA LOUISE AKINS-SELLAR EDWARDS

Appellant

-V-

THOMAS ANDREW EDWARDS

Respondent

Waigani: Kariko, Polume-Kiele & Anis, JJ
2023: 26^th July & 24^th August

APPEAL – dissolution of marriage – petition for – objection to jurisdiction - deemed domicile, s 14(3) Matrimonial Causes Act 1963 – requirements of – meaning of “matrimonial cause” – whether ancillary relief available without a petition for dissolution of marriage - ss 1 & 14 Matrimonial Causes Act 1963

Facts:

The parties to a petition filed in the National Court for dissolution of marriage appealed the Court’s decision relating to the question of jurisdiction to hear the petition.

Held:

1. Under the Matrimonial Causes Act 1963 the petitioner for dissolution of marriage must be domiciled (s 14(3)) or deemed domicile in PNG (s14(6)).
   
2. A petitioner for dissolution of marriage is deemed domiciled in PNG if the petitioner is domiciled in Australia; was resident in PNG when instituting the petition; and was so resident in the six months preceding.
   
3. The deemed waiver of an objection to jurisdiction pursuant to Rule 76(6) of the Matrimonial Causes Rules 1963 does not prevent the court from considering the issue of jurisdiction.
   
4. Proceedings for ancillary relief such as maintenance and settlements cannot be determined unless related to filed proceedings which includes a petition for dissolution of marriage.
   

Case Cited:

Amet v Yama (2010) SC1064
Mountain Catering Ltd v Nominees Niugini Limited v Independent Public Business Corporation (2017) SC1646
Kingston v QBE Insurance (PNG) Ltd (2018) SC1698
Freingruber v Freingruber [1993] PNGLR 274

Legislation:

Marriage Act 1963
Matrimonial Cause Act 1963
Matrimonial Causes Rule 1963

Counsel:

Mr I R Molloy & Mr W Frizzell, for the Appellant in SCA No. 22 of 2023 and the Respondent in SCA No. 173 of 2022
Mr D H Katter & Mr W Yep, for the Respondent in SCA No. 22 of 2023 and the Appellant in SCA No. 173 of 2022

APPEALS

These are appeals against orders in respect of a petition for dissolution of marriage.

24^th August 2023

1. BY THE COURT: Thomas Andrew Edwards, who was born in the United States of America (“USA”) held both USA and Australian citizenship when he married Tania Louise Akins, who was born in Papua New Guines (“PNG”) but an Australian citizen, on 24 April 1993 in Lae, PNG pursuant to the Marriage Act 1963.
   
2. Mr Edwards filed proceedings MC No. 15 of 2021 in the National Court on 24 August 2021whereby he petitioned for a decree of dissolution of the marriage (“the Petition”) on the ground of separation under s 17(m) of the Matrimonial Causes Act 1963 (“the MCA”). He further sought ancillary orders relating to settlement of matrimonial property and maintenance pursuant to s 73 of the MCA.
   
3. The marriage bore three children who are now aged 28 years, 26 years and 23 years. Like their father, the children hold citizenship of both USA and Australia.
   
4. According to the Petition, the couple separated in or about 2015 and they have lived apart since then.
   
5. On 21 October 2022, the National Court issued orders which the parties separately appealed against. Mr Edwards filed SCA No. 173 of 2022 while Mrs Edwards filed SCA No. 22 of 2023.
   
6. We heard the appeals together.
   

NATIONAL COURT PROCEEDINGS

7. Following service of the Petition on 7 September 2021, Mrs Edwards filed proceedings in the Federal Circuit and Family Court of Australia in Brisbane on 7 October 2021 for settlement of matrimonial property and maintenance.
   
8. In reply to the Petition, she filed an Answer under Protest pursuant to Rule 76 of the Matrimonial Causes Rules 1963 (“the MCR”), on 11 October 2021 principally pleading that:
   
   • the petitioner was not domiciled in PNG under s 14(3) of the MCA;
   • nor was he deemed domiciled in this country under s 14(6) of the MCA; and
   • the proper forum for the ancillary relief sought is the Federal Circuit and Family Court of Australia.
     
9. On 20 October 2021, Mrs Edwards filed for divorce in the Federal Circuit and Family Court of Australia.
   
10. Mr Edwards then filed on 10 November 2021 a Reply under Protest seeking a declaration that he was domiciled in PNG in accordance with s 14(3) of the MCA and the National Court therefore had jurisdiction to hear and determine the Petition.
    
11. At the same time, he filed an application in the National Court for stay of the related proceedings in Brisbane until final determination of proceedings MC No. 15 of 2021 by the National Court.
    
12. Mrs Edwards also filed a similar application on 13 January 2022 but seeking a stay of proceedings until final determination of the proceedings filed in Australia.
    
13. The matter came before the primary Judge on 14 July 2022 when her Honour considered the objection in relation to jurisdiction and the question of the appropriate forum for deciding the divorce and the ancillary relief.
    
14. Her Honour delivered judgment on 21 October 2022 concluding that:
    
    • the Court had jurisdiction to hear the Petition; and
    • the Court would limit its consideration of matrimonial property to those assets and properties that are located within PNG.
      
15. The Court relevantly ordered:
    
    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 the appropriate forum to adjudicate on the parties’ matrimonial assets and 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 Courts on the parties’ matrimonial assets and properties in so far as they are contained within the jurisdiction of Papua New Guinea.

......................................................................................

THE APPEALS

16. Mrs Edwards in her appeal SCA No. 22 of 2023, challenges the whole decision but principally disputes the finding that her husband is deemed domiciled in PNG.
    
17. By his appeal SCA No. 173 of 2022, Mr Edwards is aggrieved by the orders relating to settlement of matrimonial property. In brief, the grounds of his appeal allege that while the primary Judge correctly found the National Court to be the appropriate forum to adjudicate on the dissolution of marriage between the parties and their matrimonial assets and properties, her Honour erred in her Orders iii) and iv) limiting the matrimonial assets and properties to be considered to be those “contained within the jurisdiction of Papua New Guinea”.
    

JURISDICTION

18. We first address the question of jurisdiction which in relation to dissolution of marriage or divorce (as commonly termed) is provided for in s 14 of the MCA, which relevantly provides:
    
    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.

...

(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.

(Emphasis added).

19. The primary Judge’s conclusions regarding the issue are found at [17]:
    

I find 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.

(Emphasis added)

20. Mr Molloy for the appellant submitted that the primary Judge properly found that the respondent is domiciled in USA being the country of his birth, and he therefore could not and cannot be considered domiciled in PNG under s 14(3) of the MCA. Counsel however argued that her Honour erred in law and fact by then deciding the respondent was deemed domiciled in this country by virtue of s14(6), because this provision refers to persons domiciled in Australia which the respondent is not.
    
21. Mr Edwards’ Reply under Protest pleaded that the respondent is domiciled in PNG in accordance with s 14(3).
    
22. In the National Court and before this Court, counsel for the respondent, Mr Katter, relied on the following undisputed facts in support of that pleading:
    
    • The respondent was a resident of PNG and ordinarily resident in the country at the date of instituting the Petition.
    • The respondent had been so resident for the period of six months immediately preceding the date of instituting the Petition.
    • The respondent has had a fixed and permanent home in PNG since 1993, and whenever he has been absent from it, has had the intention of returning to it.
    • The respondent has been resident in this country since 1993.
      
23. Counsel submitted that these were the facts the primary Judge properly had regard to in her declaration as to domicile, and no error was committed by her Honour as claimed in the grounds of appeal.
    
24. We accept that the facts just discussed influenced her Honour but she did not find domicile under s 14(3) of the MCA as pleaded by Mr Edwards in the Petition. Rather, she declared deemed domicile under s 14(6).
    
25. No case authorities were cited to us nor were we able to find any that discuss the meaning and application of s 14(6). In our view, the words in s 14(6) are clear and capable of being accorded their plain or ordinary meaning. On reading the provision, we consider there are three requirements which must all be satisfied for a person to be deemed domiciled in PNG:
    
    • (1) The person must be domiciled in Australia; and
    • (2) The person must have been resident in the country (PNG) when commencing proceedings under the MCA for a decree of dissolution of marriage or for a decree of nullity of a voidable marriage; and
    • (3) The person must have been so resident for the six months preceding the institution of the proceedings.
      
26. The primary Judge made no reference to the first consideration in her judgment. As noted earlier, she concluded that Mr Edwards is domiciled in the USA.
    
27. We think it safe to state that Australia is the only country of domicile referred to in s 14(6) because it was the colonial administration of then territories of Papua and New Guinea when the MCA was enacted in 1963, and of course many of the expatriates living in the country at the time were Australians.
    
28. In our opinion, her Honour erred in finding that a person who is domiciled in the USA could be deemed domiciled in PNG pursuant to s 14(6) of the MCA. Accordingly, we find the grounds of appeal in SCA No. 22 of 2023 have been successfully made out.
    

DEEMED WAIVER

29. There is a point of argument raised in submissions that we think is important to address, and this relates to Rule 76 of the MCR.
    
30. It was claimed that because the appellant failed to apply for hearing of her objection to jurisdiction within the time prescribed under Rule 76(3), she waived any objection to jurisdiction, and domicile was deemed pursuant to Rule 76(6).
    
31. Rule 76 relevantly reads:
    
    76. ANSWER UNDER PROTEST.

(1) A respondent or co-respondent to a petition 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.

(2) An answer under protest shall state the grounds on which the respondent or co-respondent objects to the jurisdiction of the Court.

(3) Where an answer under protest has been duly served, the party filing the answer may, within 14 days after the day on which the answer is filed, file an application to the Court for directions as to the time and place at which the objection is to be determined by the Court.

.............................................................................................

(6) Where the party filing an answer under protest does not file the application referred to in Subsection (3) within the time limited by that subsection, he shall be deemed to have waived the objection.

[Emphasis added]

32. The primary Judge noted at [18] that the deemed waiver of the objection supported her finding that Mr Edwards was deemed domiciled in PNG but her Honour did not elaborate further on this statement.
    
33. We accept that the effect of Rule 76(3) and Rule 76(6) is that while Mrs Edwards was not obliged to file an application within the prescribed 14 days for the hearing of her objection to jurisdiction, she was deemed to have waived the objection when she failed to do so.
    
34. However, it is trite law that proceedings which the court does not have jurisdiction to entertain, are incompetent. The issue of competency may be raised at any time, and the Court may of its own volition raise any issue as to jurisdiction: Amet v Yama (2010) SC1064, Mountain Catering Ltd v Nominees Niugini Limited v Independent Public Business Corporation (2017) SC1646, Kingston v QBE Insurance (PNG) Ltd (2018) SC1698.
    
35. Notwithstanding the failure of the appellant to file the application under Rule 76(3), the issue of jurisdiction and therefore competency of proceedings MC No. 15 of 2021 remained a matter for the National Court’s consideration.
    

MATRIMONIAL CAUSE

36. In an exchange with the Court in relation to his client’s appeal, Mr Katter of counsel for Mr Edwards submitted that the MCA allows the National Court to hear and determine the ancillary relief sought by his client even if the Court lacks jurisdiction to hear the Petition.
    
37. The proposition is apparently based on the interpretation counsel accorded to the definition of “matrimonial cause” in s 1 of the MCA and its relationship with s 14.
    
38. Pursuant to s 1, the interpretation provision, “matrimonial cause” means–
    

(a) proceedings for a decree of–

(i) dissolution of marriage; or

(ii) nullity of marriage; or

(iii) judicial separation; or

(iv) restitution of conjugal rights; or

(v) jactitation of marriage; or

(b) proceedings for–

(i) a declaration of the validity of–

(A) the dissolution or annulment of a marriage, by decree or otherwise; or

(B) a decree of judicial separation; or

(ii) a declaration of the continued operation of a decree of judicial separation; or

(iii) an order discharging a decree of judicial separation; or

(c) proceedings with respect to–

(i) the maintenance of a party to any proceedings; or

(ii) settlements; or

(iii) damages in respect of adultery; or

(iv) the custody or guardianship of infant children of a marriage; or

(v) the maintenance, welfare, advancement or education of children of a marriage,

being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in Paragraph (a) or (b) (including proceedings of such a kind pending at, or completed before, the commencement date); or

(d) any other proceedings (including proceedings with respect to the enforcement of a decree, the service of process or costs) in relation to concurrent, pending or completed proceedings of a kind referred to in Paragraph (a), (b) or (c) (including proceedings of such a kind pending at, or completed before, the commencement date); or

(e) proceedings seeking leave to institute proceedings for a decree of dissolution of marriage or of judicial separation, or proceedings in relation to proceedings seeking such leave;

(Emphasis added)

39. We understood Mr Katter’s argument to be as follows. By virtue of s 14(1) a person may institute a matrimonial cause under the Act. If the matrimonial cause is for a decree of dissolution of marriage or for a decree of nullity of a voidable marriage, the person instituting the proceedings must be domiciled or deemed domicile in PNG; s 14(3) & s 14(6). Domicile is therefore not a consideration if the matrimonial cause is some other proceeding. Categories of matrimonial causes are listed in s 1 and the categories are found in sub-paragraphs (a) to (e). The proceedings described in sub-paragraph (c) includes proceedings for maintenance and settlements. These relief can therefore be sought without the need to first file, relevant in this case, a petition for a dissolution of marriage.
    
40. But as promptly pointed out by Mr Molloy, with whom we agree, the relief prescribed in sub-paragraph (c), including maintenance and settlements, must be “in relation to concurrent, pending or completed proceedings of a kind referred to in Paragraph (a) or (b)”. A petition for dissolution of marriage is a proceeding of a kind mentioned in sub-paragraph (a).
    
41. Section 56 of the MCA is also relevant in this discussion. It states:
    
    56. INSTITUTION OF PROCEEDINGS.
        

(1) Subject to Subsection (2), a matrimonial cause of a kind referred to in Paragraph (a) or (b) of the definition “matrimonial cause” in Section 1(1) shall be instituted by petition.

(2) In the answer to the petition, a respondent may seek any decree or declaration that the respondent could have sought in a petition.

(3) Proceedings of a kind referred to in Paragraph (c) of the definition “matrimonial cause” in Section 1(1) that are in relation to proceedings under this Act for a decree or declaration of a kind referred to in Paragraph (a) or (b) of that definition–

(a) may be instituted by the same petition as that by which the proceedings for the decree or declaration are instituted; and

(b) except as permitted by the Rules, or by leave of the Court, shall not be instituted in any other manner.

(4) As far as practicable the Court shall hear and determine at the same time all proceedings instituted by the one petition.

(Emphasis added)

57. It is clear that a person petitioning for divorce who also seeks maintenance and settlement may file those claims together with the petition. For such claims to be heard by the court, the petition must be filed under the MCA. In this regard, we refer to the observations by Woods J in Freingruber v Freingruber [1993] PNGLR 274, a case that involved an application for settlement of property after a divorce was obtained overseas. The application was refused because the divorce was not pursuant to the MCA. His Honour remarked:
    

Proceedings under s. 56(3) appear from the wording to have to be related to a proceeding under the Act which falls under (a) or (b) of the definition of "matrimonial cause". "Under this Act" would appear to qualify what proceedings of a kind referred to in par. c) of the definition can be instituted. Therefore a divorce or matrimonial cause of a kind referred to in the definition in (a) or (b) but taken outside Papua New Guinea does not seem to provide the basis for any proceeding under s. 56(3).

58. With due respect, we find Mr Katter’s submission misconceived.
    
59. Having concluded that the National Court does not have jurisdiction to hear the Petition, it follows that the Court also lacks jurisdiction to consider the ancillary relief sought by Mr Edwards.
    
60. Consequently, the appeal referenced SCA No 173 of 2022 filed by Mr Edwards must be dismissed.
    

ORDERS

1. Appeal SCA No. 22 of 2023 is upheld.
2. Appeal SCA No. 173 of 2022 is dismissed.
3. The orders of the National Court given on 21 October 2022 in proceedings MC No. 15 of 2021 are hereby set aside.
4. The said proceedings MC No. 15 of 2021 is dismissed for want of jurisdiction,
5. Thomas Andrew Edwards shall pay Tania Louise Akins-Sellar Edwards’ costs of and incidental to these appeals and the proceedings in the National Court, to be taxed if not agreed.
6. Time for entry of the order be abridged to the time of settlement which shall take place forthwith.

________________________________________________________________
Warner Shand Lawyers: Lawyers for the Appellant in SCA No. 22 of 2023 and the Respondent in SCA No. 173 of 2022
Leahy PNG Law: Lawyers for the Respondent in SCA No. 22 of 2023 and the Appellant in SCA No. 173 of 2022