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PW v SC [2015] FJMC 160; File No 11-SUV-0475 (5 August 2015)


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


FILE No: 11/SUV/0475

BETWEEN:

PW

Applicant

AND:

SC


Respondent


______________________________________________________________________
APPEARANCES/REPRESENTATIONS

Ms. A. Prakash (Legal Aid Commission) for the Applicant


Ms. S. Vaniqi for the Respondent
2015_16000.png


RULING


INTRODUCTION

  1. The Applicant lady filed Forms 9,12 and 23 on the 19th day of May, 2014 seeking for:

BACKGROUND

  1. On the 27th day of March, 2000, the Court made orders for maintenance and also for the matrimonial property at Lot 00, Tiko Place, Navosai, Nasinu to be registered under the children's name.
  2. There are three daughters of the marriage namely, PL (DOB: 14/06/1985), SN (DOB: 14/05/1987) and AA (DOB: 05/05/1993). When the Order was given in the year 2000, the children were 15, 13 and 7 years old. They are now 30, 28 and 22 years old respectively.
  3. The Respondent Man did not take any steps to transfer the said property under the daughters' names thus, the Applicant Lady filed for Contempt on the 28th day of March, 2012.
  4. The Contempt matter was heard on the 30th day of October, 2013 and the Court in its decision on the 30th day of December, 2013 found the Respondent Man guilty for the offence of Contempt contrary to Section 196 (1) of the Family law Act 2003. He was fined $150.00 to be paid within 30 days, in default 15 days imprisonment.
  5. Till date the Respondent Man has not registered the property under the children's name.
  6. In his Forms 10, 13 and 23, he sought time to liaise with the three daughters about revoking their rights to the property and also sought for an order from court to allow him to keep the property under his name. But until the date of hearing he could not show any out come to the Court.
  7. ISSUES

First Issue


Does the Court have jurisdiction to issue a Restraining Order to prevent the Respondent from selling, transferring or disposing off the matrimonial property located at Lot 00, Tiko Place, Navosai, Nasinu to any other party except the children of the Applicant and the Respondent as per the Family Court Order dated 27th March, 2000?


Second Issue


Does the Court hove jurisdiction to appoint a Senior Court Officer to sign on behalf of the Respondent in the transfer documents or to execute the deed or instrument in the name of the Respondent to whom the direction was given as per the Court order doted 27th March, 2000 and to do all things necessary in giving validity and operation of the deed or instrument (in registering the matrimonial property located at Lot 00, Tiko Place, Navosai, Nasinu to the children of both the Applicant and the Respondent) pursuant to section 164 (I) (e) and 168 (I) (0) (b) of the Family Low Act?


LAW


  1. Section 202 of the Family Law Act 2003 states as follows:

Power to grant injunctions


202. (1) In proceedings of the kind referred to in paragraph (t) of the definition
of matrimonial cause in section 2(1), the court may make such order or grant
such injunction as it considers proper with respect to the matter to which the
proceedings relate, including -

(a) an injunction for the personal protection of a party to the marriage;

(b) an injunction restraining a party to the marriage from entering or
remaining in the matrimonial home or the premises in which the other party to
the marriage resides, or restraining a party to the marriage from entering or
remaining in a specified area, being on area in which the matrimonial home
is, or the premises in which the other party to the marriage resides ore,
situated;

(c) an injunction restraining a party to the marriage from entering the place
of work of the other party to the marriage;

(d) an injunction for the protection of the marital relationship;

(e) an injunction in relation to the properly of a party to the marriage; or

(f) an injunction relating to the use or occupancy of the matrimonial home.


  1. Section 164 of the Family Law Act states as follows:

General powers of court

164.-(1) The court, in exercising its powers under this Part, may do any or all of
the following-


(a) order payment of a lump sum, whether in one amount or by instalments;
(b) order payment of a weekly, monthly, yearly or other periodic sum;

(c) order that a specified transfer or settlement of property be made by way
of maintenance for a party to a marriage;

(d) order that payment of any sum ordered to be paid be wholly or partly
secured in a manner the court directs;

(e) order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

(f) appoint or remove trustees;

(g) order that payment be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;

(h) make a permanent order, an order pending the disposal of proceedings
or an order for a fixed term or for life or during joint lives or until further order;

(i) impose terms and conditions;

(j) make an order by consent;

(k) make any other order (whether or not of the same nature as those mentioned in the proceeding paragraphs) which it thinks it is necessary to make to do justice.


  1. Section 168 (1) (a) (b) of the Family Law Act states as follows:

Execution of instruments by order of court
168.-(1) If-

(a) an order under this Act has directed a person to execute a deed or instrument; and

(b) the person has refused or neglected to comply with the direction or, for any other reason, the court considers it necessary to exercise the powers of the court under this subsection, the court may appoint an officer of the court or other person to execute the
deed or instrument in the name of the person to whom the direction was
given and to do all acts and things necessary to give validity and operations
to the deed or instrument.


  1. Section (2) (1) (f) of the Family Law Act states as follows:

Interpretation

2.-(1) In this Act, unless the contrary intention appears-
"matrimonial cause" means-

(f) proceedings between the parties to a marriage for an order or injunction
in circumstances arising out of the marital relationship;


  1. Section 42 of FLA provides the interpretation to a "court officer" includes – as follows;

(a) a court counselor;

(b) a welfare officer;

(c) a registrar or deputy registrar;

The court also notes the below mentioned Rule, in the FLA Rules 2005 which reads;

Division 7.3—Enforcement

Enforcement of obligations

7.11.—(1) The Justay may appoinppoint persons (either personally or by reference to offices held by them) as family law enforcement officers, with authority to take proceedand torce orders made under the Act or under a repealepealed Actd Act.

(2) Subject to sle (1), the stae standard rules apply to the enforcement of orders under the Act and the repealed Acts.

EVIDENCE


  1. The Applicant Lady stated that there has been a lapse of 15 years since the Order to register the matrimonial property under the three children was given. The three children who were 15, 13 and 7 years old are now 30, 28 and 22 years old. The elder two are married and the youngest one is studying. She also confirmed that she had filed for Contempt in the year 2012 and the Court had found the Respondent Man guilty for Contempt.
  2. The Applicant Lady admitted that she waited for a number of years to come to Court to get the Orders of 2000 executed. She is now remarried. She denied that she wants the property as she is facing financial difficulties.
  3. The youngest daughter, AA gave evidence that she is studying currently. She wants the property registered under her name as it was the Order of the Court.
  4. The Respondent Man stated that the reason that he refused to register the property under the three daughters' names was because his parents are sickly, he is remarried and retired. He stated that the house needs repairs and no one currently stays in the house as it is in a bad state.
  5. Even though the Respondent Man had sought for time in his Forms 10, 13 and 23 to liaise with his daughters about revoking their rights to the property, he did not speak to them about it. Forms 10, 13 and 23 were filed by the Respondent Man on the 11th day of September, 2014 and the matter was for Hearing on the 9th day of July, 2015, the Respondent Man had ample time within that period to speak to his daughters but he did not. In Court he stated that he did not share good relationship with the daughters and he was forbidden to speak to them. He also stated that “if the daughters' were his sons, he would have registered the property under their names.”
  6. He stated that the reason he did not appeal the Order in 2000 was because he did not have knowledge of appeals.
  7. He explained that at the time the order was made, he was living at the property with his elderly parents. Then he got re-married in 2006 so he lived there with his new wife and elderly parents. He hopes to live there when he will retire from work.
  8. He said he understands the court order, that the property was the only home he had and that he would like to retire and die in that house. He tendered photos that he had taken of the property last month, in May 2015. The photos showed that the house was in a state of disrepair, and he was in the process of fixing up the house but had to halt the repairs because of this pending case.
  9. He testified that the house was almost falling apart, and that he had spent about $40,000 on labour and materials to upgrade and fix the property.
  10. On the issue of if he has contacted his daughters to try and settle this issue; the Respondent explained that he has not spoken to his daughters as he has not spoken to them in years.
  11. It was revealed in the cross examination he has been living elsewhere not in the subjected property for years.
  12. The Respondent Man did not give any valid reason as to why he chose to show utter disrespect to the Orders of the Court given on the 27th day of March, 2000 for 15 years. He still refuses to obey the Order and is adamant that he will not register the property under the daughters' names.

ANAYLSIS


First Issue


  1. The property in question located at Lot 00, Tiko Place, Navosai, Nasinu was the matrimonial property of the parties. The Order to register the property under the children's names was made on the 27th day of March, 2000 during the dissolution of the Parties marriage. Thus, there is no dispute that the property was not matrimonial in nature.
  2. Thus, as per section 202 of the Family Law Act 2003, since the property located at Lot 00, Tiko Place, Navosai, Nasinu is a matrimonial property, the Court is in a position to grant an injunction to prevent the Respondent from selling, transferring or disposing it to any other party except the children of the Applicant and the Respondent as per the Family Court Order dated 27th March, 2000.
  3. As the Respondent Man till date has not followed the Orders given in the year 2000, the Applicant Lady is fearful that he may sell, transfer or dispose off the matrimonial property located at Lot 00, Tiko Place, Navosai, Nasinu to any other party and not the children.
  4. The Respondent submits that Decree Nisi orders dated 27th March, 2000 made by the learned Resident Magistrate Eroni Sauvakacolo comes under section 27(3) of the FLA, which states that parties cannot take out proceedings in regards to property after a 2 years period has passed, being proceedings "in relation to concurrent, pending or complete proceedings between those parties for principal relief ..” (See definition of matrimonial causes at s.2 – sub paragraphs (d) (ii). But, I am of the view that the above order is already granted. The learned Resident Magistrate did not grant the matrimonial property to the wife but ordered to transfer to the children. She also not seeking o “institute” any proceedings but seeks to “execute” the Court order. I would like to repeat that she is not seeking to pursue the distribution of matrimonial property now.
  5. The respondent raised an issue about the injunction matter and about the leave of the Court. This issue was neither raised in the argued before me but just mentioned in the submission, hence I would not venture on that, but it seemed that this phrase ‘party to the marriage’ is used in wider context in Section 27(4) of Family Law Act, to include even parties to a dissolved marriage, and for this judgment I will consider the wider interpretation used in the Section 27 of Family Law Act.

Second Issue

  1. As per section 164 (1) (e) of the Family Law Act 2003, the Court has powers to order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order.
  2. Thus, the Court has powers to order that the registration of the property under the children's names be carried out and order for necessities to be done to enable the registration to be carried out.
  3. Also as per section 168 (1) (a) (b) of the Family Law Act 2003, the Court has powers to execute instruments by an order of the Court. The Respondent Man as per the Orders made on the 27th day of March, 2000 had to register the matrimonial property at Lot 00, Tiko Place, Navosai, Nasinu under the children's name. He has not done it till date showing total contravention of the orders thus, the Court has powers to appoint an officer of the Court or any other person to actually execute the orders by registering the property under the children's names on behalf of the Respondent Man and do all acts and things necessary to give validity and operations to the deed or instrument.

CONCLUSION


  1. In light of the above paragraphs, the Court conclude that the Respondent Man has failed to show any reasonable reasons for him to disobey the Court Orders made on the 27th day of March, 2000. It is also apparent that he has no respect for Court Orders thus, 15 long years have passed. Even though he was found guilty of Contempt in 2013, he still did not take any actions to follow the Order of 2000.
  2. The only way the Orders given by the Court on the 27th day of March, 2000 can be executed is if Court appoints the acting Family Court Registrar/ Family Court Registrar instead of a Senior Court Officer to sign on behalf of the Respondent Man in the transfer documents or to execute the dead or instrument as per the Court Order 27th day of March, 2000.
  3. I refrain from granting a Restraining Order in this juncture and I would like to invite the parties to file submissions to address this issue without further delay.
  4. Parties to bear their own costs.

30 days to appeal.


LAKSHIKA FERNANDO
RESIDENT MAGISTRATE

On this 05th day of August 2015

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