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BW v GP [2013] FJMC 430; File No 06-SUV-1084 (23 December 2013)

IN THE FAMILY DIVISION OF THE MAGISTRATE’S COURT AT SUVA

FILE NO.: 06/SUV/1084

BETWEEN

BW

APPLICANT

AND

GP
RESPONDENT

______________________________________________________________________
APPEARANCES/REPRESENTATIONS

Ms Lal P (Legal Aid Commission) for the Applicant
Ms Naidu R. (Sherani & Co.) for the Respondent

DECISION

Introduction

1. This is a matter where the Applicant had initially filed Form 12 and 23 as an ex-parte application on the 20^th May 2013 seeking for urgent relief. The matter was then ruled to be called inter-parte by my predecessor. The Applicant sought; “Immediate occupation of the matrimonial home in the two bedrooms flat in Lot 00 Vatusue, Makoi Stage 2 in Nasinu;
   

That the matter be given an early date to appear in Court; and

Any other order the Court deems just and equitable.”

2. The Respondent is opposing this application and has filed a Form 13 and 23 on the 3^rd October 2013. The Respondent disputed the orders sought by the Applicant lady stating that the applications was incorrectly filed as the Applicant needed to seek leave first from the Court as it dealt with matrimonial home. The Respondent further stated that the matter was inter-related with the other applications which were pending for Judgment before the Court.
   

BACKGROUND FACTS

3. There are two applications which have been heard by learned Resident Magistrate Ms. Makereta Mua which includes child maintenance and contempt applications which awaiting a decision. However, Forms 12 and 23 were filed on 20^th May 2013 (Forms 12 and 23) seeking an urgent relief for the Applicant lady to occupy one of the two bedrooms flat at the matrimonial home in Lot 00 Vatusue, Makoi Stage 2 in Nasinu.
   
4. The facts on which the Applicant relies on seeking for the above orders stated in paragraph 7 are contained in Form 23 of her Affidavit. In her Affidavit the Applicant stated that “on Monday, 14^th May 2013 her eldest son, NP slapped her daughter-in-law. The Applicant held on to her son from further slapping her daughter-in-law. Her son then assaulted her by slapping her daughter-in-law. Her son then assaulted her by slapping her on the face.
   
5. Furthermore, the Applicant stated that prior to the incident, ever since she had filed applications in the Family Court seeking for variation of child maintenance for her children AP and KP, the Applicant and NP have been having arguments. This was in fact not the first time; the Applicant’s son NP has assaulted her.
   
6. The Applicant does not wish to lodge a complaint against her own son with the Police as she does not wish to ruin their relationship. Despite all the arguments and assaults, the Applicant still loves her son NP.13. However, due to the assault, the Applicant fears for her own safety and the safety of her two children as what they are going through might escalate and he may end up assaulting the Applicant further and her two children AP and KP. The Applicant fears that this incident is more likely to occur again. Apart from the eldest son’s residential home, the Applicant has no other place to stay.
   
7. Further, the applicant states that the Respondent sold their property on Lease No. 21138 on 25^th October 1996 and they separated on 15^th November, 1996. With the proceeds from the sale of the property, the Respondent bought the matrimonial property on Crown Lease No. 163488 being the property at Lot 00 Vatusue Road, Makoi Stage 2 in Nasinu. Further, the applicant states that, the Applicant has beneficial interest in the property at Lot 00Vatusue Road, Makoi Stage 2 in Nasinu by virtue of marriage.
   
8. It is for the above reasons, the Applicant lady is seeking immediate occupation of the matrimonial property in the two bedrooms flat of the three (3) flats property at Lot 00 Vatusue Road, Makoi Stage 2 in Nasinu and any other orders the Court deems just and equitable.
   
9. Further, the applicant submits that the Forms 12 and 23 was filed on 20^th May 2013 because it is a matter of urgency. However, it has been over 5 months and the matter has not been dealt with by the Court. Moreover, applicant submits that the facts contained in Form 23 of the Affidavit of the Applicant have not been disputed and for that reason, clearly the Respondent is not disputing that the property located in Lot 00 Vatusue Road, Makoi Stage 2 in Nasinu is a matrimonial property.
   
10. The applicant emphasis that this is not a section 27 (3) application by the Applicant lady and therefore has not reached the stage yet as leave has not been obtained by the Respondent man as it is the Respondent who has made an application for leave for property distribution. However, on the basis that the leave application for distribution of matrimonial home is still pending before the Court and has not been obtained by the Respondent man, this does not bar the Applicant lady from filing an application to occupy the property and occupying the matrimonial property as an urgent relief.
    
11. Further, the applicant submits that the Applicant lady should not be stopped from occupying the property in which she has beneficial interest/share. The Respondent is been unjust and unfair in refusing to accede to the Applicant’s request since the application before the Court is not about property distribution but occupancy of the matrimonial home which does not in any way prejudice the Respondent.
    
12. Furthermore, the applicant submits that, when the Respondent filed Forms 13 and 23 he did not dispute any of the facts.
    
13. Now, I consider the response. The Respondent filed Forms 13 and 23 on the 3^rd October 2013 seeking that the application by the Applicant be dismissed and that the Respondent submits” that the parties were married on the 28^th July 1978 and they were separated on the 15^th November, 1996. The parties’ marriage was dissolved on the 21^st July 2003.
    
14. The Respond further submits that the he Respondent had filed a Form 12 and 23 on the 22^nd August, 2012 stating that in order for the Court to deal with maintenance property ought to be dealt with together. He had attempted to file a Form 9 in person when it was refused by the Registry on the basis that leave ought to be sought. However, the Applicant lady has conveniently filed a form 12& 23 on an Ex-Parte basis on the 20^th May 2013 for urgent relief to occupy the property owned by the Respondent man.
    
15. The Respondent submits that the Applicant lady cannot rely on matrimonial property rights when leave has not been granted for this application.
    
16. Moreover no Court has determined that this property is being, the Vatusue property be regarded as “matrimonial property”. The said property legally registered to the Respondent man until the Applicant Lady shows the Court and actual order that states that the Vatusue property is “matrimonial property”.
    

Analysis of Evidence/the Law

17. The Applicant stated that she makes the application under rule 10.26 (a)(b)(i) of the Family Law Rules and is well within the ambit of the enabling the statute.
    
18. Subdivision 10.4.3—Applications in relation to registered parenting plans

Form of application—Form 12 provides;

10.26. An application must be—

In accordance with Form 12; and

Accompanied by an affidavit that sets out, briefly and concisely—

The facts sought to be relied on in support of the application;

the facts on the basis of which the court will be asked to find that it is in the best interests of the child in respect of whom the plan was made that the order sought be made; and

Particulars of any relevant consultations with a family and child counsellor attended by any party to the plan.

19. For more clarity, I refer rule 10.27 also which reads as follows under the heading of Applicants”

10.27. An applon mamade made byby—

a party to the relevant parenting plan;

any other person who has parental responsibility in relation to the child ipect om the plan was made; or

a prescribed chil child weld welfare authority.

20. The Applicant relies on Order 10.26 of the Family Law Rules 2005 it is appears that Order 10 generally looks at consent orders and parenting plans. Further Order 10.26 relates to applications in relation to registered parenting plans. There is no parenting plan in this case; so this Order does not apply.
    
21. Orders 8 of the Family Law Rules 2005 [Legal Notice 50] provides on Institution of proceedings which deals with general proceedings which applies to the Form 12 and 23 filed in these proceedings. It is also noted that this application is instituted wrongly as stated in Order 8.02 of the Family Law Rules 2005. any application for interim order (Form 12) unless the person has sought a final order or simultaneously filed a final order (Form 9) seeking the same orders.by just conveniently filed a Form 12 and 23 on the 20^th May 2013 and have not filed a Form 9 seeking the same orders which is in breach of Order 8.01 of the Family Law Rules 2005. Therefore it is prudent to draw the attention to Order 8.02 of the Family Law Rules 2005 states that,
    

“A person may not apply for an interim or procedural order in a cause of action unless that person has sought, or simultaneously seeks, by application, response or reply, a final order in that cause of action.”

22. I agree with the respondent that this application by the Applicant is void in law because it is technically an incomplete application with no originating process.
    
23. Order 8.01 (1) & (2) of the Family Law Rules 2005 states,

“Unless these Rules provide otherwise, an application for a final order must be in accordance with Form 9.”

(2) An application for an interim or procedural order must be in accordance with Form 12, accompanied by such affidavit evidence as is necessary to support the application Accordingly, It is understood that an Application for interim or procedural order to be accompanied by application for final order.

24. I note that the applicant’s submission that this form 12 & 23 is not an application under section 27 (3) of the Family Law Act. Accordingly, I draw my attention to Section 27 (3) of the Family Law Act 2003 which gives a limitation to any application for matrimonial cause after the expiration of two years after the date of dissolution of marriage. Section 27 reads as follows;

27. – (1) Subject to this section, proceedings under this Act must be instituted by application.

(2) A Respondent may, in a response to an application, include an application for any order or declaration under this Act.

(3) Where a final order for dissolution of marriage or of nullity of marriage has been of the definition made, proceedings of a kind referred to in sub-paragraph (c) or (d) of the definition of “matrimonial cause” in section 2 (1) (not being proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) cannot be instituted before the expiration of 2 years after the date of the making of the order or the date of commencement of this Act, whichever is the later, except by leave of the Court in which the proceedings are to be instituted.

(4) The Court must not grant leave under subsection (3) unless it is satisfied that hardship would be caused to a party to a marriage or to a child of the marriage if leave were not granted.

25. I also note that the applicant’s submission reads that “The Respondent sold their property on Lease No. 21138 on 25^th October 1996 and they separated on 15^th November, 1996. With the proceeds from the sale of the property, the Respondent bought the matrimonial property on Crown Lease No. 163488 being the property at Lot 00Vatusue Road, Makoi Stage 2 in Nasinu.( emphasis added ) Moreover, the applicant seek Immediate occupation of the matrimonial home in the two bedrooms flat in Lot 00Vatusue, Makoi Stage 2 in Nasinu;
    
26. It is clear that the applicant use the words matrimonial property and matrimonial home respectively to describe the property at Lot 00Vatusue Road, Makoi Stage 2 in Nasinu. Therefore, in this scenario it is prudent to define the related terms.
    
27. Section 2 (1) of the Family Law Act 2003 defines property as ", in relation to the parties to a marriage or either of them, means property within or outside the to which those parties are, or that party is, entitled, whether in possession or reversion; Again, Section 2 (1) of the Family Law Act 2003 defines matrimonial cause as,

(d) Proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings-

arising out of the marital relationship;

in relation to concurrent, pending or complete proceedings between those parties for principal relief; or

in relation to the dissolution or 'annulment of that marriage or the legal separation of the parties to that marriage, being a dissolution, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that dissolution, annulment or legal separation is recognized as valid in the Fiji Islands under Part XI;

28. In the current matter, the parties marriage was dissolved in 2003 this means that any matrimonial property application has expired by 2012 and 2013. So any application relating to maintenance and property has expired unless leave is sought. It is also noted that the orders sought by the Applicant lady for “immediate occupation of the matrimonial home in the two bedrooms flat at Lot 00VatusueMakoi Stage 2 in Nasinu” relates to matrimonial property (rights). The Applicant is relying on her matrimonial relationship or status to the Respondent for this relief yet because the dissolution of marriage was granted in 2003 she is stopped in law from making this application unless she has sought leave on the basis of hardship in Section 27 (4) of the Family Law Act 2003.Wherefore, I am of the view that this application is premature because property or leave for the property application has not been granted by the Court in this matter.
    
29. In property division (whether under the Family Law Act), as the authorities make clear, the role of the court is to determine:

What is matrimonial property?

What are the contributions of the parties?

What is a fair and equitable distribution of the matrimonial property at tme of separation or disr dissolution of the marriage? Whatever the parties have received during the course of the marriage may assist in determining the parties’ contributions to accumulation of assets; and what assets have been accumulated in the course of the marriage by monies received during the course of the marriage?

30. Section 161 of the Act gives the court general powers to make any orders it considers appropriate in altering the interest of parties to a marriage in their property. S. 162 outline the matters to be taken into account in deciding upon the order Sections 161 reads as follows under the heading of “Alteration of property interests”.

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...

(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.

162.-(1) provides Factors to be taken into account “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-

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 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 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- any law of the Fiji Islands or of another country; or any superannuation funds or scheme, whether the fund 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 state of health of the parties;

(b) the income, property and financial resources, including any interest in inalienable property, of each of the parties and the physical and mental 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 is necessary to enable the party to support-

(i) himself or herself; and

(ii) a child or 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 cohabiting with another person;

(g) the duration of the marriage;

(h) the terms of any order for spousal or child maintenance made in favour 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.

31. In light of above paragraphs, it is clear that there are many factors to be take in to account prior to determining any matrimonial property relief.Therefore, I am of the view that the Court cannot grant matrimonial relief which is what they are seeking and not comply with the law on leave. This would be wrong in law and in principle. The Applicant’s application for urgent matrimonial relief is again premature because no-where in the Form 12 and 23 application is an order stating that the Vatusue property is “matrimonial property” which is not determined by this court. I also note that there is iota of evidence by the Applicant of the right to the Vatusue property and thus this application is premature and ought to be dismissed with costs.
    
32. This court would like to highlight that a similar application was filed by the Applicant lady on the 06^th December 2012. Seeking “Immediate occupation of the matrimonial home in the two bedrooms flat Lot 14, Vatusue, Makoi stage 2 in Nasinu.
    
33. I draw my attention to the Applicant’s submission which states “that the Family Court is designed to deal with each application separately. It has procedures for each application. For property distribution, Forms 9 and 19 ought to be filed and if leave is to be obtained prior to property distribution being filed then such a procedure will be complied with. In this situation, it is the Respondent who has made an application for leave for property distribution.”
34. From above paragraph it is clear that the applicant aware about the procedure in the family court. But it is not clear as to why the applicant again filed another form 12 and 23 seeking the same relief sought in the F12 filed on the 20^th May 2012 without seeking the court to deal with the pending matter should the matter is very urgent as indicated by the applicant. I wish to remind that in matrimonial matters the court is not there merely to rubber stamp the wishes of the parties. But, the court must comply with the requirements of the FLA, Rules and regulations and facts must be proved to the reasonable satisfaction of the court. In this same token I wish to appreciate and thank learned counsellors who represented both parties for their well comprehended submissions.
    
35. Nevertheless, the applicant says that this application is not an application under section 27 (3) of the Family Law Act, But seeks inter alia “Immediate occupation of the matrimonial home in the two bedrooms flat in Lot 00 Vatusue, Makoi Stage 2 in Nasinu;” Accordingly, it is appears that Instead the applicant has attempted to achieve by a side wind that which she must have known she could not hope to achieve otherwise by making an application for property distribution.( form 9 and 19) In view of that I quote the maxim vigilantibus, non dormien tibus jurasu bveniunt.
    

NOW THEREFORE BE IT ORDERED BY THE COURT THAT:

36. In the light of the above discussed, I dismiss the applicants form 12 and 23 which was filed on 20^th May 2013 and form 12 and 23 which was filed on 17^th February 2012 and ordered accordingly.
    
37. I wish to conclude the decision with the below mentioned paragraph from White v. White (2000) 1 ALL ER 1.which was quoted in Koroiwaca v Bakoso [2004] FJHC 207; HBA0003.2004 (26 May 2004)
    

“Divorce creates many problems. One question always arises. It concerns how the property of the husband and wife should be divided and whether one of them should continue to support the others. Stated in the most general terms the answer is obvious. Everyone would accept that the outcome on these matters, whether by agreement or court order, should be fair, more realistically, the outcome ought to be as fair as it possible in the circumstances. But every one’s life is different. Features which are important when discussing fairness differ in each case. And sometimes different minds can reach different conclusions on what fairness requires. Then fairness like beauty lies in the eyes of the beholder.”

30 days to appeal.

LAKSHIKA FERNANDO

RESIDENT MAGISTRATE

On this 23^rd day of December 2013