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Janson v Janson [1995] FJHC 40; Hbd0005j.94s (23 February 1995)

IN THE HIGH COURT OF FIJI
At Suva
In Divorce

Divorce Action No. 0005 OF 1994

Between:

KENNETH MICHAEL JANSON
Petitioner

- and -

FRANDY JANSON
also known as
CHIU-CHUN LAM
Respondent

Mr. D. Jamnadas for Petitioner
Dr. M.S. Sahu Khan for Respondent

JUDGMENT

The parties in this action, which for the sake of convenience I shall refer to as 'the husband' and 'the wife', were married in Hong Kong on 2nd December 1966. There is no natural child of the marriage other than a daughter Rina who was adopted by the parties a few days after her birth on the 1st March 1972.

Shortly after their marriage the parties settled in Fiji where they lived the substantial part of their married life together until January 1988 when the wife moved to Australia where she has resided since except for a short holiday in Fiji in 1992. In June 1988 the wife acquired 'permanent residency status' in Australia and it is common ground that she has no desire or intention of returning to Fiji and intends to make Australia her permanent home.

On 17 January 1994 the wife filed an application for dissolution of marriage in the Family Court of Australia in Sydney on the ground that the marriage had broken down irretrievably as evidenced by the parties having lived separately and apart since 13th January 1993 for a continuous period of not less than 12 months immediately preceding the date of filing of the application.

I interpose here to observe that the grounds for dissolution of a marriage in Fiji are undoubtedly based upon proof of a 'matrimonial offence' or some "fault" on the part of one or other of the parties to a marriage and does not in terms include a ground of 'irretrievable breakdown' or separation for 12 months with no reasonable likelihood of cohabitation between the parties being resumed.

It is common ground that although the husband was served with the relevant papers submitted in the wife's application which included an Application for Property Settlement, no challenge was ever mounted within the relevant time against the jurisdiction of the Family Court of Australia, nor was the wife's application denied or contested in any way, shape or form.

On 21 March 1994 a Decree Nisi for Dissolution of Marriage was granted on the wife's application, the court being satisfied that the wife was domiciled in Australia and that the marriage between the parties had broken down irretrievably. On the 22nd April 1994 the decree nisi was made absolute (hereafter referred to as the 'Australian Decree').

Almost 2 months later on 21 June 1994 the husband through his Australian solicitors filed an application in the Family Court of Australia seeking a stay of the wife's application for property settlement and several weeks later the husband filed in this Court, a petition for a Decree of Dissolution of Marriage and Property Settlement.

The husband's petition was served on the wife by courier post and the wife filed an 'Answer under Protest' on the 3rd of October 1994 objecting to the jurisdiction of this Court to hear the petition on several grounds which may be broadly summarised as being - that divorce proceedings already existed between the parties in Australia in which a decree absolute had been made dissolving the marriage between the parties; and this Court, could not entertain the husband's application for 'ancillary relief' in the absence of a valid application for 'principal relief'; and, in view of the wife's existing application for property settlement, albeit in Australia, the husband's petition if permissible, ought to be stayed as being frivolous, vexatious and an abuse of the process of this Court.

By a judgment delivered on the 22nd December 1994 (a copy of which was provided to the court by consent) her Honour Justice Maxwell dismissed the husband's application of 21 June 1994 (op.cit) for a stay of the wife's application for property settlement and thereby cleared the way for the Family Court of Australia to deal with the wife's application in that regard.

I note that in these present proceedings neither party has sought directly to invoke the provisions of Section 92 of the Matrimonial Causes Act (Cap. 51) which amongst others, deals specifically with the recognition by this Court of a decree of dissolution of marriage made outside Fiji, nor has relief by way of declaration been sought by either party as to the validity of the foreign decree of dissolution of the wife's marriage to the petitioner, yet such a declaration is quite clearly included in the definition of a "matrimonial cause" by Section 2(b) of the Matrimonial Causes Act (hereafter referred to as 'the Act').

Notwithstanding the absence of a claim for such relief I am satisfied that in the present circumstances this Court must first determine whether or not to recognise the 'Australian decree' in order to arrive at a conclusion as to the subsistence of a marriage between the parties.

I am fortified in my view by the trenchant observation of Mr. Commissioner Latey in Manning v. Manning [1958] P.112 when, in rejecting a submission by counsel that it is unnecessary, if a petitioner is entitled to a finding of a matrimonial offence which will entitle him to a decree, first to have investigated the validity or otherwise in England of a foreign decree which purported to dissolve the marriage in another country, he said at p.114:

"How can you say that if the marriage has been dissolved legally? If the dissolution is recognised by the English Court what jurisdiction is there here to dissolve the marriage again? It cannot be done."

In somewhat similar vein Ackner L.J. in Lawrence v. Lawrence (1985) P.106 observed at p.123:

"The essential function of a decree of divorce is to dissolve the marriage hitherto existing between the parties. I consider that it is plainly inconsistent with recognising a divorce to say in the same breath that the marriage which it purported to dissolve still continues in existence. Such a recognition would be a hollow and empty gesture."

Mr. D. Jamnadas whilst acknowledging the provisions of Section 92 of 'the Act' nevertheless asserts that recognition by this Court of the 'Australian Decree' does not preclude the exercise by this Court of its general powers under Section 86 of 'the Act' to make '... in proceedings under this Act ...', an order for settlement of property. In particular, counsel claimed that such a power is envisaged by the terms of Section 89(1) of 'the Act' which specifically empowers this Court "(to) make an order ... in favour of the petitioner where the petition for the principal relief has been dismissed". I cannot agree.

In the first place by subsection 2(a) of Section 89 the petition must have been "dismissed after a hearing on the merits" and secondly, in light of the petitioner's apparent acceptance of the 'Australian Decree', there remains some doubt that "the present proceedings for principal relief (i.e. for dissolution of marriage) were instituted in good faith to obtain that relief". Finally even in the unlikely event that this Court were persuaded to accept the above, subsection (2) expressly excludes "... an order under Section 86".

I am fortified in this view by the definition of 'matrimonial cause' in Section 2(c) of 'the Act' which provides: (so far as relevant)

"(c) proceedings with respect to ... settlements, ... being proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in either of paragraphs (a) or (b), ..."

These latter paragraphs refer to proceedings for dissolution of marriage or for a declaration of the validity of the dissolution of a marriage by a foreign decree. Furthermore the clear terms of Rule 189 of the Matrimonial Causes Rules which defines 'proceedings for ancillary relief' as being:

"proceedings of a kind referred to in paragraph (c) of the definition of 'matrimonial cause' that are in relation to proceedings for principal relief."

envisages the existence of proceedings for principal relief.

In Green v. Green [1976] 1 N.Z.L.R. 415 where the parties were married in England and divorced in Canada and the husband later remarried and settled in New Zealand with the 2 elder children of the marriage. Quilliam J. in rejecting the wife's application for orders for custody and maintenance of the 2 elder children and for a capital sum for herself, said at p.417 (after setting out the relevant statutory provisions):

"There is I think, no doubt that the Court's jurisdiction to make the orders by Parts VI and VII of the Matrimonial Proceedings Act is founded upon and ancillary to the prior existence of divorce proceedings in this Court."

Further in dismissing an argument that the court's jurisdiction to entertain an application for ancillary relief was based upon domicile, the learned judge said:

"Domicile determines the right to issue a divorce petition but it does not authorise the commencement of an ancillary application as though it was an original proceeding."

I turn then to the primary issue before the Court, namely, whether or not this Court ought to recognise the 'Australian Decree' and in this regard I set out below the relevant provisions of Section 92, of 'the Act', namely subsections 1, 2, 4, 5, 6 & 8 which reads:

"(1) A dissolution ... of marriage effected in accordance with the law of a foreign country shall be recognised as valid in Fiji where, at the date of the institution of the proceedings that resulted in the dissolution ... the party at whose instance the dissolution was effected ... was -

(a) ... domiciled in that foreign country.

(2) For the purpose of subsection (1) -

(b) a wife who, at the date of the institution of the proceedings that resulted in a dissolution ... of her marriage in accordance with the law of a foreign country, was resident in that foreign country, and had been so resident for a period of 3 years immediately preceding that date shall be deemed to have been domiciled in that foreign country at that date.

(4) Any dissolution ... of a marriage effected in accordance with the law of a foreign country that would be recognised under the common law rules of private international law but to which none of the preceding provisions of this section applies shall be recognised as valid in Fiji and the operation of this subsection shall not be limited by any implication from those provisions.

(5) For the purposes of this section, the Court, in considering the validity of a dissolution ... effected under the law of a foreign country may treat as proved any facts found by a court of the foreign country or otherwise established for the purposes of the law of the foreign country.

(6) A dissolution ... of a marriage shall not be recognised as valid by virtue of subsection (1) ... where, under the common law rules of private international law, recognition of its validity would be refused on the ground that a party to the marriage had been denied natural justice.

(8) In this section 'foreign country' means a country, or part of a country, outside Fiji."

From the foregoing it is clear that subsection (1) reaffirms the common law principle enunciated in Le Mesurier v. Le Mesurier [1895] UKLawRpAC 34; [1895] A.C. 517, 540:

"That, according to international law, the domicile for the time being of the married pair affords the only true test of jurisdiction to dissolve their marriage."

The subsection also implicitly recognises that a wife may acquire a separate 'domicile of choice' from that of her husband and in particular, having regards to our own Section 12(2) which enables a wife who is resident in Fiji for 3 years to issue a petition for divorce, subsection 2(b) (above) may be said to provide statutory recognition for the decision of the House of Lords in Indyka v. Indyka [1967] 1 A.C. 33 and the numerous cases discussed in the judgment including Travers v. Holley [1953] P. 246 and the judgment of Karminski J. in Robinson-Scott v. Robinson-Scott [1958] P. 71 where the learned judge said at p.88:

"Where, in fact, there has been three years residence by a wife in the territory of the foreign court assuming jurisdiction in a suit for dissolution the English Court should accept that as a ground for exercising jurisdiction, because it would itself accept jurisdiction on proof of similar residence in England. It is not essential for recognition that the foreign court should assume jurisdiction on the grounds laid down by Section 18 of the Matrimonial Causes Act 1950 (cf. our Section 12(2)). It is sufficient that facts exist which would enable the English Courts to assume jurisdiction."

This last citation is of particular relevance in the present case insofar as it appears that the jurisdiction of the Family Court of Australia may be invoked by a wife after a somewhat shorter period of residence in Australia than would be the case in Fiji, however that is of no moment as in fact the wife had been resident in Australia since January 1988 which is 6 years immediately preceding the date of her application for dissolution of her marriage.

Needless to say given a similar length of bona fide and continuous residence in this country, this Court too would accept jurisdiction in a suit by a wife for dissolution of her marriage irrespective of the husband's domicile. (See: Welsby v. Welsby (1970) 1 W.L.R. 877)

In his Reply to the wife's Answer under Protest the husband complains at being 'greatly disadvantaged' by the non availability in this country of an identical ground for dissolution of marriage as that put forward by the wife in her application namely, 'irretrievable breakdown' on the basis of 12 months separation.

In this regard I am mindful of the observations of Lord Pearce in Indyka's case (op.cit) when he said at p.88:

"I think, however, that our courts should reserve to themselves the right to refuse a recognition of those decrees which offend our notions of genuine divorce. They have done so when decrees offend against substantial justice (see: our Section 92(6) above) and this, of course includes a decree obtained by fraud. But I think it also includes or should include decrees where a wife has gone abroad in order to obtain a divorce and where a divorce can be said not to be genuine according to our notions of divorce. On this point (though not otherwise) I think the grounds of divorce and questions of collusion can also be considered as throwing light on the matter ... Where jurisdiction is taken on one day's residence and divorce is granted on incompatibility of temperament ..., it is clear that a court is simply purveying divorce to foreigners who wish to buy it; and that does not accord with our notions of genuine divorce."

Having carefully considered the matter however and bearing in mind that this was an uncontested divorce in which the papers had been properly served on the husband, I am satisfied that this ground of complaint cannot be sustained. I cannot accept that it is any part of this Court's function in a recognition case under Section 92 of the Act, to voice its approval or disapproval of the grounds on which a foreign Court would grant a divorce decree. Certainly Parliament has not seen fit to impose any limitations in that regard other than the denial of "natural justice".

Sir Gorell Barnes in Bater v. Bater (1906) P.209 in rejecting a similar argument in that case referred to the headnote in Harvey v. Farnie (1882) 8 A.C. 43 and said at p.217:

"... it is based upon the simple proposition that if this country recognises the right of a foreign tribunal to dissolve a marriage of two persons who were at the time domiciled in that foreign country, it must also recognise that their marriage may be dissolved according to the law of that foreign country, even though that law would dissolve a marriage for a lesser cause than would dissolve it in this country. Absurd results would follow if that were not so, because by the law of the domicile they would cease to be husband and wife, and yet if they returned to this country they would be husband and wife. That is not convenient, nor is it logic and I think if they were bona fide and properly domiciled in the country where it takes place it is a good divorce."

Half a century later in Indyka's case (op.cit) Lord Morris of Borth-y-Gest observed at p.73:

"In this field (of recognition of foreign decrees) there have been some statutory provisions and many judicial decisions. It is too late, in my view, to urge that recognition should be limited to cases where by statute provision is made for it. So also, it is, in my view, too late to urge that recognition of a foreign decree should in any event and a part from other considerations be limited to cases where such decrees have been based on grounds which are grounds for a decree of dissolution in this country. Recognition should, however, always be subject to the proviso that the foreign decree is not vitiated by fraud or is contrary to natural justice."

Finally counsel urges the Court to consider the potential prejudice to the husband that may arise from the unspecified 'material differences' in the law of New South Wales and this country relating to the rights and entitlement of a wife to matrimonial property and also the absence of any provision in the laws of Fiji for recognising or enforcing orders of the Australian Courts relating to property situated in Fiji.

I note that somewhat similar arguments were unsuccessfully raised before her Honour Judge Maxwell in the husband's application for a stay of the wife's application for property settlement. In this respect her honour accepted a submission from the wife's counsel that: "... whilst enforcement was a factor, it was not of any great significance in this case ..."

In this regard I accept that the provisions of the Reciprocal Enforcement of Judgments Act (Cap. 39), which has been extended to New South Wales since 1925, and the Foreign Judgments (Reciprocal Enforcement) Act (Cap. 40) both refer to what might be conveniently called 'money judgments' and therefore some of the orders sought by the wife in her application for property settlement in so far as they refer to real estate in Fiji may not be enforceable, nevertheless, that is a factor which more relevantly concerns the wife and has little (if any) bearing on the question earlier posed by this Court.

In all the circumstances I am satisfied from the evidence that the wife is more than a 'mere sojourner' in Australia and that this is NOT a case of a person who has gone to a country where divorce is easier than in Fiji for the sole reason of obtaining a divorce. Further I find that the husband was not 'denied natural justice' and that this Court would have had jurisdiction in similar circumstances.

There is in my view no impediment to this Court recognising the jurisdiction of the Family Court of Australia, and I therefore declare that the marriage of the parties was validly dissolved on the 22nd of April 1994 by order of the Family Court of Australia at Sydney.

Accordingly this Court has no jurisdiction to entertain the husband's petition which is hereby dismissed with costs to the wife to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
23rd February, 1995.

HBD0005J.94S