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PDC v BS [2013] FJMC 342; Family Court Case 300.NAS.2012 (18 July 2013)

IN THE MAGISTRATES COURT AT NASINU

Family Court Case No. 300/NAS/2012
DVRO Case No: 235/2012

BETWEEN:

P D C

[Applicant]

AND:

B S
[Respondent]

Ms. Barbara Malimali for the Applicant (Shekinah Law)
Ms, Sala Kunatuba for the Respondent

Ruling on Property distribution and DVRO

1] The Applicant filed form 9 for property distribution and meantime she filed DVRO case against the Respondent. The Respondent have filed respective response to these application. The main application is property settlement and I now consider both cases.

2] The oral and document evidence of the both parties reveal the facts of the case. This is highly contested matter and I am not going to reiterate the evidence. In the evidence it revealed that the Respondent, B S and the Applicant, P D C were married for 29 years and have 3 children of marriage namely A R S aged 29 years old who suffers from epilepsy and is also asthmatic. He lives with his father at home. S S aged 26 years old and D S aged 14 years old. On or about 12th May 2012, The applicant left he matrimonial house and went and live with her sister. The Respondent claimed the applicant; later P C left the matrimonial home to live with her lover who is also a taxi operator. It was agreed between the parties that the hearing will include all matters pending matters before the Court. Evidence of P C shows that she is unemployed but in 1980s she taught kindergarten for about 3 months. She worked on and off. In 1990s she worked in Alvino Steelworks, the family Company – doing clerical work, payroll banking, making tea especially when visitors or business associates came by.1990s she also did Exam Supervisor job during the external exams for Forms 4 & 6 (FJC and FSLC). She said that the Respondent stopped working and wanted her to stay home. They were in Australia between 2000 – 2002. Then she worked as an Aged Care Giver earning about AU$1600 per week. Those are the all financial contribution of the applicant. But She also helped out Brijwan's business by taking on and doing the office jobs.

3] The respondent is the main earner and he is the sole bread winner of the family. The Respondent in his evidence told his difficult story. He was brought up by his maternal uncle who owned a Trucking business and a vehicle parts shop. He worked for his uncle doing mechanical repairs, street trays fabrication, welding and driving etc. In 1983 he married the applicant and continued to work with his uncle with the experience and skills he got from working for his uncle he opened his own business "Alvino Steetl Works" with the financial assistance from his mother and using his uncle's yard as storage facilities and workshop. Alvino Steel Works was in operation for almost 10 years earnings about $130,000 - $160,000 gross annually. The 4 taxi permits were bought with money from the profits from Alvino Steel Works. However these were left "as is where is" and the family went to Australia as wife the applicant wished to seek Permanent Residence (PR) status. Whilst in Australia Mr. Singh worked and was paid the rate of $18 an hour. However all wages were given to Pauline to manage. The Respondent admitted that the applicant earned in Australia said "these were their joint earnings". Since they were married then we submit that it is matrimonial property. The both during the 29 years of marriage operated a successful taxi business which was the main livelihood of their family. They in total accumulated a total of 5 taxi permits. These are LT2740, LT1378, LT1890, LT3074 and LT3173. Now that the couple have separated the ownership of all these taxi permits and vehicle EV779 are being disputed. Parties were married to 29 years and separated on 12th May 2012. They married on 16th February 1983. The properties acquired by this period are to be divided in this case.

4] The court should decide on following matters;

(a) Distribution of household chattels.
(b) Distribution of taxi permits and vehicle acquired during the 29 years of marriage.
(c) DVRO against Mr. B S
(d) Restraining order against P C
(e) Form 9 and 23 Carpenters Finance Debts TV and Fridge. – Earnings from LT1890.

5] When property distribution is done pool of assets should be ascertained. I this matter evidence show followings can be included for pool of assets.

6] The Applicant seeks;

1. The DVRO is made permanent
2. That EV779 is returned to Ms. C
3. That Ms. C retains LT2740.
4. That the fridge and TV are returned to Ms. C so she can pay off the remaining debts with Carpenters Finance.
5. That B be made to pay all the outstanding arrears of the TV and fridge.
6. That LT1890 remains with the B S so that the income from that taxi can be used to support their child D S (under 18) until the child turns 18.
7. That B retains the car that he is currently driving for his own use. (LT1379).
8. So out of the 3 taxis (and taxi permits) Mr. B S can retain 2 ie. LT1890 and LT1378.
9. The taxi permit that is currently in abeyance because of the arrears to the Nasinu Town Council
10. B S to retain the LH and LM permits that he bought from a Mohammed a few years ago and which he has.
11. Maintenance of $150 per week.
12. Half of Mr. B S's FNPF.
13. For the Respondent B S to pay for the Applicants legal fees.
    

7] The Respondent suggested two options for distribution;

Option 1

1. Transfer LT2074 to Mr. B S so he can operationalize it and earn money.
   
2. Mr. B S to retain LT13787 and to pay off the remaining debt on the vehicle.
3. Mr. S to repair at his own cost EV779 and consider using LT1890 and EV779 so that I could operate as a taxi and earn money. He is responsible for paying off the debt on EV779.
   
4. P C to retain the other two permits which do not have vehicles.
   
5. Distribution of household chattels. It should be noted that most of the items have already been taken by Ms. P.
   
6. Return of all the children's jewelry and souvenirs to Mr. S as they live with him.
   
7. Refund of all money earnings from LT1890 which applicant lady had agreed in Court should have given to Mr. B S to cater for their 14 year old son D S.
   
8. All household chattels that are used for D S's needs should not be removed by P C from the house at 15 Vere Road.
   

Option 2

1. Transfer of all taxi permits to Mr. B S as he is an experience taxi operator so as to maximize taxi earnings. He is to pay spousal maintenance to Pauline of $300 per month or an appropriate amount determined by the Court.
   
2. EV779 to be held by Mr. B S who will be responsible for its repairs and repayment of debt owed on the vehicle.
   
3. Mr. B S to clear all outstanding debts on the TV and Fridge account with Carpenters Finance.
   
4. DVRO and Restraining Orders not be lifted till after 6 months.
   
5. Distribution of household chattels as per our comments. It should be noted by the Court that most of the items wanted by Pauline has already been taken by her.
   
6. Return of all the children's jewelry and souvenirs to Mr. S as they live with him.
   
7. Refund of all money earnings from LT1890 which applicant lady had agreed in Court should have given to Mr. B S to cater for their 14 year old son D S.
   
8. All household chattels that are used for D S's needs should not be removed by P C from the house at 15 Vere Road.
   

8] Section 161, 162 and 163 of the Family Law Act elaborates the procedure and matters to be concerned in property distribution. It says;

"161 – (1) In proceedings with respect to the property of the parties to a marriage or either of them, 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) An order made under Subsection (1) in proceedings with respect to the property of the parties to the marriage or either of them may, after the death of a party to the proceedings, be enforced on behalf of, or against as the case may be, the estate of the deceased party.

(3) The Court may adjourn proceedings with respect to the property of the parties to a marriage or either of them, except where the parties to the proceedings are-

(a) parties to concurrent, pending or completed proceedings for principal relief:

(b) parties to a marriage that has been dissolved or annulled under the law of an overseas country, where that dissolution or annulment is recognized as valid in the Fiji Islands under Section 193; or

(c) parties to a marriage who have been granted a legal separation under the law of an overseas country, where that legal separation is recognized as valid in the Fiji Islands under Section 193.

On such terms and conditions as it considers appropriate, and of such period as it considers necessary to enable the parties to the proceedings to consider the likely effects (if any) of an order under this section on the marriage or the children of the marriage.

(4) Nothing in subsection (3) limits any other power of the Court to adjourn proceedings with respect to the property of the parties to a marriage.

(5) Where the period for which a Court had adjourned proceedings with respect to the property of the parties to a marriage or either of them as provided by subsection (3) has expired and-

(a) proceedings for principal relief are instituted by one or both of those parties;

(b) the marriage is dissolved or annulled under the law of an overseas country and the dissolution or annulment is recognized as valid in the Fiji Islands under Section 193; or

(c) The parties are granted a legal separation under the law of an overseas country and the legal separation is recognized as valid in the Fiji Islands under Section 193.

Either party to the first mentioned proceedings may apply to the Court for the hearing of those proceedings to be continued.

(1) 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."

9] Section 162 says factors to be taken into account are as follows;

"162. (1). In considering what order (if any) should be made under Section 161 in proceedings with respect to any property of the parties to a marriage or either of them, the Court must take into account-

(a) The financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of the last mentioned property, whether or not the last mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;

(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last mentioned property, whether or not that last mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;

(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.

(d) the eligibility of either party for a pension, allowance or benefit under-

(i) any law of the Fiji Islands or of another country; or

(ii) any superannuation funds or scheme, whether the funds or scheme was established, or operates, within or outside the Fiji Islands.

(2) For the purposes of subsection (1) 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 repugnant to justice, (for example as a marriage of short duration).

(3) The Court must also take into account-

(a) the age and stage of health of the parties;

(b) the income, property and financial resources, including any interest in capacity of each of them for appropriate gainful employment.

(c) whether either party has the care and control of a child of the marriage who has not attained the age of 18 years;

(d) the commitments of each of the parties that are necessary to enable the party to support-

(i) himself or herself; and

(ii) a child to another person that the party has a legal or customary duty to support.

(e) a standard of living that in all circumstances is reasonable;

(f) the financial resources available to a person if cohabitating with another person;

(g) the duration of the marriage;

(h) the terms of any order for spousal or child maintenance made in favor of or against a party;

(i) any other fact or circumstances which, in the opinion of the Court, the justice of the case requires to be taken into account.

(4) If, before proceedings with respect to the property of the parties to a marriage or either of them are completed, either party to the proceedings dies-

(a) the proceedings may be continued by or against, as the case may be, the legal personal representatives of the deceased party and the Rules of the respective Division may make provision in relation to the substitution of the legal personal representative as a party to the proceedings;

(b) if the Court is of the opinion-

(i) that it would have made an order with respect to property if the deceased party had not died: and

(ii) that it is still appropriate to make an order with respect to property, the Court may make such order as it considers appropriate with respect to any of the property of the parties to the marriage or either of them; and

(c) an order made by the Court Pursuant to Paragraph (b) may be enforced on behalf of or as the case may be, against the estate of the deceased party.

(5) A Court must not make an order under this Section in proceedings with respect to the property of the parties to a marriage or either of them (other than an interim order or an order made with the consent of all parties to the proceedings) unless-

(a) the parties to the proceedings have attended a conference in relation to the matter to which the proceedings relate with a Registrar or of the respective Family Division.

(b) the Court is satisfied that, having regard to the need to make an order urgently, or to any other special circumstances, it is appropriate to make the order notwithstanding that the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or

(c) the Court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a).

(6) Evidence of anything said or of any admission made at a conference referred to in subsection (5) or at any conference with a registrar in proceedings under this Part is not admissible in any Court or in proceedings before a person authorized by law, or by consent of parties, to hear evidence.

(7) A person who files an application seeking an order under Section 163 (1) in relation to land is deemed to have a beneficial interest in the land within the meaning of Section 106 of the Land Transfer Act. Such beneficial interest will cease on the proceedings being finalized by order or the withdrawal of the application."

10] In practice there are three basic steps to be taken by courts for alteration of property interests under s. 161 of the Family Law Act 2003. Under the Family Law Act the property distribution is based on 3 steps. That is;

1. The First Step: Ascertainment of the Property of the Parties. First, it must ascertain what property is owned by each of the parties to the marriage at the time of hearing. It is now firmly established that upon hearing of an application by a party to a marriage for an alteration of property interests under s. 161, the court is required to take into account all the property of both of the parties to the marriage.
   
2. The Second Step: Valuation of Property: After ascertainment of the property of the parties, the court must then determine the value the property of the parties to the marriage. In doing so the court normally also takes into account the liabilities of the parties. In determining the value of the property of the parties to a marriage, the court must deduct from the gross value of the property the value of any encumbrances secured upon it. The Family Court must take the property of a party to the marriage as it finds it. The Family court must accordingly take the property of a party to a marriage subject to any mortgage, charge, restrictive covenant or other encumbrance that has been placed upon it.
   

100. The Third Step: Exercise of the Court' Discretion- The third and the final step is the exercise of the courts discretion concerning what order to make under section 161 of the Act. In considering what order to make under section 161, the court must take into account certain matters. These certain matter are outlined in section 162(1) and s. 162(3).
     

11] In this case there are taxi permits, house hold chattels and FNPF funds are to be divided. Both are not contesting the pool of assets. The Respondent told the some of chattels have been removed by the applicant. At this moment some vehicles are in both's hands. That EV779 is with the Respondent, but garaged. That LT2740 is with the applicant. The fridge and TV are with the Respondent but installments for Carpenters Finance are paid by the applicant. The Respondent accumulated arrears on TV and Fridge and it is to be settled. LT1890 is with the B S. LT1379 is with B and he is currently driving for his own use.

12] The parties have mentioned heap of movable properties and the some of liabilities on that and asked that they be divided. It is hard task to divide properties acquired within 29 years of marriage as they suggested. The court orders to divide matrimonial properties on valuation and proportionate basis considering financial and non financial contribution of the each party.

13] I consider the applicant financial and non financial contribution. Though she has left the marriage after 29 years, she cannot be punished for that and she is entitled to get her share. On the other hand I should see the best interest of the children. There are schooling child Master D S and, sickly adult child. Their future is also to be protected. I therefore hold, it is reasonable to give 70% of the matrimonial properties to the Respondent man and remaining 30% should be given to the applicant lady.

14] Division to be done following manner;

1. That all matrimonial properties are to be valued separately and get the valuation report by the DR.
   
2. That all liabilities and debts are to be settled before distribution. That all the debts and encumbrances of the matrimonial property be fully paid from the proceeds of the sale of one property or one party can advance the money and it will be added to his or her share at the final calculation;
   

100. The remaining properties should be divided amongst 70% to the Respondent, 30% to the Applicant.
     

4. According to the valuation, movable properties could be opted by a party and divided accordingly, if there is no consent by the parties, all property can be sold and divided amongst other as ordered by DR.
   
5. FNPF funds are to be divided in above percentages.
   
6. In respect of spousal maintenance, the Applicant can earn and has capacity to earn; therefore she is not qualified to have spousal maintenance under 155 and 157 of the Family Law Act 2003.
   
7. Matter is referred to DR to get the Valuation Report and divide the property as ordered within three months.
   
8. With regard to DVRO non molestation order is made permanent against the Respondent and the applicant is also placed on non molestation order against the Respondent. Parties should live peacefully and matters to be solved lawfully.
   
9. No cost in this application
   
10. 30 days to appeal
    

On 18th July 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu