Skelton v Betham [2018] WSSC 35 (22 January 2018)

THE SUPREME COURT OF SAMOA
SKELTON v BETHAM [2018] WSSC 35

Case name:	Skelton v Betham
Citation:	[2018] WSSC 35
Judgment date:	22 January 2018
Parties:	LIZABELL SKELTON of Vaitele-uta, lately of Tuanaimato, Faleata, mother v ISSAC DAVID BETHAM of Vailoa, Entrepreneur
Hearing date(s):	15 January 2018
File number(s):
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	JUSTICE TAFAOIMALO LEILANI TUALA-WARREN
Order (s):	- Accordingly, all orders sought and claims brought in the Notice of Motion are struck out and dismissed. - Each party to bear own costs
Representation:	I Sapolu and D Shahtahmasebi for the Petitioner R Drake for the Respondent
Catchwords:
Words and phrases:
Legislation cited:	Divorce and Matrimonial Causes Ordinance 1961, section 22B(1) Family Proceedings Act 1980(New Zealand), section 70
Cases cited:	Reupena v Senara [2015] WSSC 53 (27 May 2015) Chan Tung v Attorney General [2005] WSSC 24 Peter Meredith & Co Ltd v Drake Solicitors Nominee Co Ltd [2001] WSSC 32; Bluesky Communication Ltd v Attorney General [2007] WSSC 58 Apia Quality Meats Ltd v Westfield Holdings Ltd [2009] WSSC 1)
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN

LIZABELL SKELTON formerly of Vaitele-uta and lately of Tuanaimato, Faleata, mother
Petitioner

A N D

ISSAC DAVID BETHAM of Vailoa Faleata, Entrepreneur

Respondent
Counsel:
I Sapolu for Petitioner
R Drake for Respondent

Judgment: 22 January 2018

RESERVED JUDGMENT ON STRIKE OUT MOTION BY RESPONDENT

Background

1. The parties were married on 24 February 2005. Their marriage lasted 12 years and they had two children together. On 26 January 2017, their marriage was dissolved by decree of the Supreme Court.

The Proceedings

2. On 30 May 2017, the Petitioner filed a Notice of Motion for Custody, Maintenance and Division of Matrimonial Properties (“Notice of Motion”).
3. On 4 July 2017, I heard an application by the Respondent for the removal of caveat. I made an oral ruling on same date with my written reasons provided on 18 July 2017.
4. These proceedings involve a Motion by the Respondent filed on 16 August 2017 to strike out the Notice of Motion (“Strike Out Motion”).
   
5. The ground advanced in support of the Strike Out Motion is that the Notice of Motion is not tenable in law and is an abuse of process.
6. Therefore the Respondent seeks orders to strike out and dismiss the Notice of Motion, and costs.
7. The Petitioner opposes the Strike Out Motion on the following grounds;

The strike out motion is not sufficiently particularised;

The Court’s inherent jurisdiction to strike out should be used sparingly and only where it is perfectly clear that the plea cannot succeed;

the Court directed that separate proceeding be conducted in relation to matrimonial property;

the Petitioner’s Notice of Motion discloses maintainable causes of action; and

the Petitioner is entitled to settle the outstanding issues in relation to matrimonial properties, custody and maintenance at law.

Relevant Law

Strike Out Motion

8. The approach of the Samoan Courts to a motion to strike out a statement of claim for disclosing no reasonable cause of action is clear but worth reiterating in this case. This Court’s decision in Reupena v Senara [2015] WSSC 53 (27 May 2015) repeated the approach espoused in Chan Tung v Attorney General [2005] WSSC 24;

“Essentially, the approach that the Samoan Courts have adopted to a motion to strike out a statement of claim as disclosing no reasonable cause of action is that the summary jurisdiction to strike out is to be sparingly exercised. It is to be exercised only in a plain and obvious case where it appears from the material before the Court that the plaintiff’s claim is so clearly untenable that it cannot possibly succeed or is certain to fail”. (see Peter Meredith & Co Ltd v Drake Solicitors Nominee Co Ltd [2001] WSSC 32; Bluesky Communication Ltd v Attorney General [2007] WSSC 58; Apia Quality Meats Ltd v Westfield Holdings Ltd [2009] WSSC 1).

Divorce and Matrimonial Causes Ordinance 1961(“DMCO”)

9. Sections 22B(1) and (2) of the DMCO provide as follows;

22B.Declaration of interest in property – (1) In proceedings between the parties to a marriage with respect to existing title or rights in respect of property, the court may declare the title or rights, if any, that a party has in respect of the property.

(2) Where a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession.

10. Section 22C of the DMCO provides as follows;

22C. Alteration of interest in property – (1) In proceedings with respect to the property of the parties to a marriage, the court may make such order as it considers appropriate altering the interests of the parties in the property, including:

(a) an order for a settlement of property in substitution for any interest in the property; and

(b) an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage, such settlement or transfer of property as the court determines.

(2) In considering what orders may be appropriate with respect to any property of the parties to a marriage the Court may take into account the following matters:

(a) the matters referred to in section 22A(1); and

(b) the financial or other contribution made directly or indirectly by or on behalf of a party to the acquisition or improvement of any of the property of the parties to the marriage; and

(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

(d) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

(3) Subject to subsection (4), for the purposes of subsection (2) the contribution of the parties to a marriage is presumed to be equal, but the presumption may be rebutted if a court considers a finding of equal contribution is on the facts of the case not appropriate.

(4) The presumption in subsection (3) does not apply in the circumstances of a marriage of less than 3 years duration.

(5) For the purposes of subsection (2), the property of each party brought into the marriage is not to be considered property of the marriage unless it would be inequitable not to do so.

(6) The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

11. Section 24 of the DMCO provides in full;

24. Custody of children – In any proceedings for divorce, or nullity of marriage, or judicial separation, the Court may either before or by or after the final decree, make such provision as appears just with respect to the custody, maintenance, and education of the children, the marriage of whose parents is the subject of the proceedings, or, if it thinks fit, direct proper proceedings to be taken for placing the children under the protection of the Court.

The Notice of Motion

12. The Notice of Motion seeks;

To declare the titles, rights that the Petitioner has in respect to matrimonial property pursuant to section 22B(1) Divorce and Matrimonial Causes Ordinance 1961 (DMCO);

Consequential orders to give effect to the declaration, including orders as to the sale partition and interim or permanent orders as to possession (s22B(2) DMCO);

To make such orders as it considers appropriate altering the interests of the parties in the property including;

An order for the settlement of property in substitution of any interest in the property; and

An order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage, such settlement or transfer of property as the Court determines (s22C DMCO);

To restrain the respondent from selling the matrimonial properties and all other properties referred to and mentioned in the affidavit of the Petitioner; and

To make such provision as appears just with respect to the custody, maintenance and education of the children (s24 DMCO).

13. These orders are sought upon the grounds;

The petitioner and the respondent were in a matrimonial relationship for 12 years from 24 February 2005 to 26 January 2017;

During the 12 years of their relationship, the petitioner and the respondent worked jointly for and jointly acquired a matrimonial home and other real estate properties and businesses from monies jointly generated during the marriage. The matrimonial properties include three pieces of land at Vaitele-Uta;

The parties have 2 issues of their marriage;

The parties marriage was dissolved by Decree of the Supreme Court on 26 January 2017;

The properties of the parties have not been divided; and

There has been violence and domination by the respondent of the petitioner and the children of the marriage.

Submissions by Respondent/Applicant

14. In her written submissions presented to the Court, Counsel for the Respondent (Applicant in these proceedings), submits that the relevant provisions of the DMCO, beings sections 22B(1) and (2) and 22C of DMCO, concern proceedings between parties to a marriage.
15. The Applicant relies on the words “parties to a marriage” which appear in sections 22B(1)and (2) and 22B of the DMCO and submits that this means that parties are still husband and wife, whereas the marriage of the parties in this case was dissolved on 26 January 2017 and the application was filed on 30 May 2017. It is submitted that this Court has no jurisdiction to make orders pursuant to sections 22B and 22C as the parties are no longer married.
16. Furthermore it is submitted that the wording of section 24 of the DMCO means that the application for custody, maintenance and education of the children is not tenable in law on the basis that there are no “proceedings for a decree of divorce”.
17. The Applicant cites the case of S v L [2015]WSSC 178(29 October 2015), a case stated from the Family Court to the Supreme Court, in which the Supreme Court determined that there was no jurisdiction in the Family Court to make an order for alimony because the marriage between the parties had been dissolved 5 months prior to the filing of the application for alimony by the Respondent. The Court stated that section 22 by its wording provides that the Court may only make an order for maintenance in terms of that section where there are “proceedings for a decree of divorce”.
    18. It is therefore submitted that similarly, the wording of section 24 means that the Court’s jurisdiction is restricted to situations where there are proceedings for divorce, nullity of marriage or judicial separation.

Submissions by Petitioner/Respondent

19. Counsel for the Petitioner submit that this is a developing area of law and cite Pune v Drake [2016] WSCA (14 March 2016) in which the Court of Appeal stated that “where a cause of action is relevantly in a developing area of law this may weigh further against the strike out”. Instead the Court of Appeal stated that it may be appropriate in some cases in order to cure defects, to extend to a plaintiff the opportunity to amend or replead their case if an unpleaded cause of action appears to be available. It is submitted that the law of matrimonial property is a developing area of law in Samoa. Therefore the Respondent would have to demonstrate a significantly high threshold of proof that the Notice of Motion should be struck out entirely as opposed to being amended or repleaded.
20. It is further submitted that the Strike Out Motion merely alleges that the application is not tenable at law and is an abuse of process and at not stage is it advanced why the Respondent believes that the Notice of Motion should be struck out.
21. The third submission is on the basis of a decision made by this Court in proceedings for the removal of caveat over the three pieces of land in question. This is specifically in relation to comments I made in that decision, that the question of matrimonial property division is yet to be decided and will be decided in separate proceedings, the Petitioner holds at the very least a future interest in the property, and the interests of the Petitioner were not prejudiced by the caveat decision.
22. A supplementary submission is that S v L does not apply to current proceedings because it was decided strictly on a jurisdictional issue. Instead the Petitioner relies on a statement made by His Honour Chief Justice Sapolu that where there is ambiguity, he would be inclined to adopt the interpretation that is in line with the provisions of section 70 Family Proceedings Act 1980(NZ) which empower the Court to make a maintenance order after an order dissolving a marriage.
23. S v L is distinguished by the Petitioner on the basis that there is no application for alimony in this case, the wording of sections 22B and 22C is different from the wording of section 22 which is “in any proceedings for a decree of divorce or nullity of marriage” whereas sections 22B and 22C use the words “proceedings between parties to a marriage”. It is therefore submitted that there is ambiguity in the wording of sections 22B and 22C which should weigh in favour of the petitioner.
    24. In terms of section 24 of the DMCO, it is submitted that the Court can make orders for custody, maintenance and education of children after the final decree of divorce.
    25. Therefore the Petitioner prays to dismiss the Strike Out Motion and proceed to substantive hearing and for costs.

Preliminary Remarks

26. Before moving to address the issue before me, I note that my decision on the removal of caveat dated 18 July 2017 was quoted to support the opposition to the Strike out Motion. With respect, those comments were made at a time when the Petitioner had filed substantive proceedings in relation to matrimonial property on 30 May 2017, and that matter had been mentioned. My comments were directed at the proceedings for the removal of caveat before me at the time, whilst reserving the question of a claim for matrimonial property which was the subject of those other proceedings. I made no comment in relation to the merits or otherwise of that claim.
27. This Strike Out motion was filed on 16 August 2017, after my decision on the removal of caveat.

Issue

28. The facts which are undisputed by both parties are that the decree of divorce was granted on 26 January 2017 (Annexure ‘B’ affidavit of Lizabell Skelton dated 2 May 2017) and the Notice of Motion was filed on 30 May 2017.
29. The question before the Court is whether this is a plain and obvious case where it appears from the material before the Court that the plaintiff’s claim is so clearly untenable that it cannot possibly succeed or is certain to fail.
30. In approaching this question, the primary issue in these proceedings is whether the Court has jurisdiction to make orders under the DMCO on an application for custody and maintenance of children, and division of matrimonial properties brought in proceedings after a decree of divorce has been granted. If the Court does not have jurisdiction under the DMCO then the claim is untenable and cannot possibly succeed.
31. The Court is guided by the legislation under which these claims are brought, namely the DMCO.
32. I will deal with the division of matrimonial property first.

Sections 22B and 22C of the DMCO-property

33. These sections deal with property of the parties to a marriage.

22B.Declaration of interest in property – (1) In proceedings between the parties to a marriage with respect to existing title or rights in respect of property, the court may declare the title or rights, if any, that a party has in respect of the property.

(2) Where a court makes a declaration under subsection (1), it may make consequential orders to give effect to the declaration, including orders as to sale or partition and interim or permanent orders as to possession.

34. Section 22C of the DMCO provides as follows;

22C. Alteration of interest in property – (1) In proceedings with respect to the property of the parties to a marriage, the court may make such order as it considers appropriate altering the interests of the parties in the property, including:

(a) an order for a settlement of property in substitution for any interest in the property; and

(b) an order requiring either or both of the parties to make, for the benefit of either or both of the parties or a child of the marriage, such settlement or transfer of property as the court determines.

(2) In considering what orders may be appropriate with respect to any property of the parties to a marriage the Court may take into account the following matters:

(a) the matters referred to in section 22A(1); and

(b) the financial or other contribution made directly or indirectly by or on behalf of a party to the acquisition or improvement of any of the property of the parties to the marriage; and

(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

(d) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

(3) Subject to subsection (4), for the purposes of subsection (2) the contribution of the parties to a marriage is presumed to be equal, but the presumption may be rebutted if a court considers a finding of equal contribution is on the facts of the case not appropriate.

(4) The presumption in subsection (3) does not apply in the circumstances of a marriage of less than 3 years duration.

(5) For the purposes of subsection (2), the property of each party brought into the marriage is not to be considered property of the marriage unless it would be inequitable not to do so.

(6) The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

35. The key words which Counsel disagree on are the words “In proceedings between the parties to a marriage...” in section 22B and the words “In proceedings with respect to the property of the parties to a marriage...” in section 22C of the DMCO. Whilst Counsel for the Respondent argues that these words are clear and unequivocal and means that parties are in a marriage, Counsel for the Petitioner submits that these words are ambiguous.
36. Section 2 of the Births, Deaths and Marriages Registration Act 2002 defines marriage as; “marriage means a marriage solemnised under the Marriage Ordinance 1961 or a former Ordinance or Act”.
37. The Marriage Ordinance 1961 provides for the solemnisation of marriage before a marriage officer.
38. The DMCO is an Ordinance to make provision for Divorce and other matrimonial causes. Given that the marriage of the parties in this case has been dissolved pursuant to the DMCO, they are no longer parties to a “marriage” as defined under the law and these proceedings are not proceedings between parties to a marriage, nor are they proceedings with respect to the property of the parties to a marriage. Therefore the Court has no jurisdiction to make the orders as sought, as these proceedings fall outside of the proceedings contemplated under the DMCO.
39. Whilst it is extremely unfortunate for the Petitioner that she has lost her opportunity to bring a claim for division of matrimonial property pursuant to the DMCO, the Court is restricted to and by the provisions of DMCO which are clear in this regard.
40. This is an area of law in need of review. The Samoa Law Reform Commission is well placed to review the law relating to the division of matrimonial property so that parties are not seized of the opportunity to bring such claims after divorce proceedings have been finalised. Until that is done, the Court has no jurisdiction to overlook the clear wording of the DMCO in favour of a more liberal approach.
41. There is an agreement which may provide some redress to the Petitioner but that is not the subject of these proceedings and the Court makes no further comment in that regard.
    
42. The orders sought for the division of matrimonial property pursuant to DMCO are not tenable and are struck out and dismissed.

Section 24 of the DMCO-Custody, Maintenance and Education of Children

43. Section 24 deals with the custody, maintenance and education of the children in any proceedings for divorce, nullity of marriage or separation.
44. Section 24 provides;

24. Custody of children – In any proceedings for divorce, or nullity of marriage, or judicial separation, the Court may either before or by or after the final decree, make such provision as appears just with respect to the custody, maintenance, and education of the children, the marriage of whose parents is the subject of the proceedings, or, if it thinks fit, direct proper proceedings to be taken for placing the children under the protection of the Court.

45. The wording in section 24 is very clear that it is in any proceedings for divorce, or nullity of marriage, or judicial separation, the Court may make provision for custody, maintenance and education of the children, either before, by or after the final decree. There are no proceedings of such a nature before the Court as the decree of divorce was duly granted on 26 January 2017. That these provisions are made in proceedings for divorce, nullity of marriage or judicial separation, is further reinforced by the words in section 24“...the marriage of whose parents is the subject of the proceedings...”. There is no ambiguity in this wording and it is in all respects, the same as the wording in section 22 of the DMCO which was the subject of S v L and in which His Honour Chief Justice Sapolu found that the Court may only make an order for maintenance in terms of that section “in proceedings for a decree of divorce”.
46. The relevant section considered in S v L provides;

22. Alimony and maintenance – (1) In any proceedings for a decree of divorce or nullity of marriage, the Court may make such orders as it considers appropriate for the provision of alimony and maintenance and the Court may for that purpose order that it shall be referred to the Registrar to settle and approve a proper deed or instrument, to be executed by all the necessary parties, and may, if it thinks fit, suspend the pronouncing of the decree until the deed or instrument has been duly executed.

47. Whilst the maintenance in S v L was spousal maintenance, the clear and unequivocal wording of section 24 of the DMCO, means that for the Petitioner in this case, as in S v L, no order can be made under section 24 of the DMCO for the custody, maintenance and education of the children.
    
48. The point stressed by the Petitioner about the ability of the Court to make such orders before, by or after the final decree is not a contradiction and does not create any ambiguity. It merely means that the Court can make orders after the final decree is granted, but in proceedings for a decree of divorce, nullity of marriage or judicial separation.
49. This section being as restrictive as it is, means that the Petitioner cannot seek these orders under the DMCO.
50. The suggestion by His Honour Chief Justice Sapolu in S v L that “Perhaps it is time for our executive and legislative branches to consider whether our law on the maintenance of spouses in divorce proceedings should be reformed” is the exact sentiment that I express today in respect of custody, maintenance and education of children. I would go further and add that perhaps a reconsideration of section 24 would include allowing such a claim to be brought in any proceedings before, during or after the final decree is granted.
51. Given my finding on the meaning of this section, the Court has no jurisdiction to make any orders for the custody, maintenance and education of the children under the DMCO and this claim in the Notice of Motion is struck out and dismissed.
52. However, I find that applications for custody and upbringing of children can be brought pursuant to section 4(1) of the Infants Ordinance 1961(“IO”). Section 4(1) provides as follows;

4. Application regarding custody, etc. – (1) Either parent of a child may apply to the Court for an order regarding the custody and upbringing of a child and the right of access thereto of either parent and the Court may make such order in the premises as to it seems just.

53. I mention this because although the Petitioner did not rely on this section, it allows the parent of a child to apply to the Court for an order regarding custody, upbringing and access and there is no restriction on when this can be done, as long as the child is under the age of 16 years as defined by section 2 of the IO. The liberal allowance contained in this provision is seen in section 2 of the IO whereby a ‘parent includes the mother of a child born out of wedlock’. The emphasis on marriage and proceedings for divorce, nullity of marriage or judicial separation is absent.
54. Although this part of the Notice of Motion is struck out and dismissed for lack of the Court’s jurisdiction to make such orders under the DMCO, the Petitioner is able to bring a fresh application in the Family Court pursuant to section 4 of the IO. The option of amending the Notice of Motion in the Supreme Court is not practical as the Family Court deals with matters of custody and upbringing of children as is its jurisdiction under section 8 of the Family Court Act 2014(“FCA”) whereby it has jurisdiction to hear and determine a matter or proceedings under the IO. The Family Court is better placed to deal with this matter given its principles found in sections 6 and 7 of the FCA;

6. Conciliation - (1) In any proceedings commenced in the Family Court, the Court must, so far as possible, promote conciliation.

(2) A lawyer acting for a party in a proceeding in the Family Court must, so far as possible, promote conciliation.

7. Alternative dispute resolution - Prior to a substantive hearing in the Family Court the parties must engage in some form of alternative dispute resolution to the satisfaction of the Court, unless the Court is satisfied that there is no reasonable prospect of agreement being reached, or the circumstances of the case are such that Alternative dispute resolution is inappropriate.

Decision

55. For the foregoing reasons, the Strike Out Motion is successful in striking out the orders sought under sections 22B and 22C of the DMCO for division of matrimonial property. Specifically these are orders A to D in the Notice of Motion.
56. The Strike Out Motion in relation to the custody, maintenance and education of the children is also successful as these were sought under section 24 of the DMCO. The Court is limited to make such orders during proceedings for divorce, nullity of marriage or judicial separation. Specifically this is order E in the Notice of Motion.
57. If the parties have not come to their own agreement in relation to the children as encouraged by the Court after the hearing on 15 January 2018, the Petitioner is able to file a fresh application to the Family Court for custody and upbringing of the children, and the right of access thereto pursuant to section 4 of the IO, if she so wishes.
58. Accordingly, all orders sought and claims brought in the Notice of Motion are struck out and dismissed.
59. Each party to bear own costs.

JUSTICE TAFAOIMALO LEILANI TUALA-WARREN