Michell v Michell & Togase [2001] VUSC 71; Matrimonial Case 002 of 2001 (11 July 2001)

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This is a Petition for dissolution of Marriage under the Matrimonial Causes Act [CAP.192]. The Petition is filed on 12 December 2000.

The Petitioner and the Respondent are lawfully married on 29 July 1987 at the Pakaroa Church, Port Vila, Vanuatu. After the said marriage the Petitioner lived and cohabited with the said husband (Respondent) at Port Vila, Vanuatu for 12 years and 7 months. They have two (2) children of the said marriage now living namely:

IAN COLLIN ALEX (now known as IAN NOMPWAT TEVLONGONEI) MICHELL – born 22 August 1985, now aged 15 years.

The marriage between the Petitioner and the Respondent has been dissolved and the decree Nisi has been issued by the Court on 25 May 2001 on the grounds of admitted adultery by the Respondent with the Co-Respondent. At the time of the filing of the Petition, the Respondent lived with the Co-Respondent in a de facto relationship with the Co-Respondent in the matrimonial home.

The Petitioner gave oral evidence in addition to her two sworn affidavits one filed on 29 December 2000 and the other on 10 May 2001. Her evidence is to the effect that she left the matrimonial home on 17 August 2000 after the Respondent assaulted her. She reported the Respondent to the Police about the assault. When she left the two children stayed with the Respondent. She denied that she influenced and took the two children out from the Respondent in their matrimonial home after the assault. They came by themselves to her sister’s house after school. She said that she never refused the Respondent to support the two children and stop them from him. When the two children left the matrimonial home they never return to see the Respondent. She said that although the Magistrate Court ruled that children are at liberty to see the Respondent, they are afraid of him. On 3 January 2001, she pulled Anita out from the Respondent because the Respondent forced to talk to her.

The Petitioner accepted that the responsibility to look after the two children is between both parents. She said that if the Respondent is a responsible father, he should have made some attempts to maintain the children.

At one stage, the Respondent came to see the children. They are afraid and locked the door from him. The Respondent left and contacted the Petitioner and the children by telephone and left a message. The Petitioner did not return the message because of the criminal case she filed against the Respondent.

She used to be a social worker working for various government and non-government organisations. She used to travel a lot to the islands of Vanuatu and around the Pacific and some other parts of the world. When she was away on those travels, the children were in the care of the Respondent. However, she said that when she came back from those travels, the children told her that the Respondent did not spent time with them but spent his time

The Respondent has no paid employment during their marriage. Both of them agree for him to look after the nakamal (Kava bar) and bus service business. She accepted that Respondent has helped to maintain family and pay for loans for the bus and house but refused later to pay for loan for the house. She said she has to struggle to meet the family commitments.

After the parties separated in August 2000, she solely care for their two children with the help of her sister whom they currently residing with. She said that throughout the marriage she had always been at the forefront of care and maintenance of the children. She said that the Respondent hardly assist her to pay their school fees. The Respondent only assisted her to pay school fee after she managed to persuade him.

The children witnessed and were frightened on occasions where the Respondent assaulted and abused her. She said that the Respondent even beat the children. On 20 August 2000 after they were separated, the children left their matrimonial home at Ohlen and went to live with her after the Respondent physically assaulted and verbally abused her. She also said that even though the Magistrate Court ruled on 3 January 2001, that children be at liberty to go and see their father the children are afraid and they had chosen not to go and see their father but remain with her.

The two children of the marriage are in secondary school. Ian Michell is in Year 10 at Vila City College and Anita Michell is in Year 7 at Onesua (Presbyterian) College. Since they separated in August 2000, she paid for the children’s school fees and other needs.

From August to November 2000, she spent 79,000 Vatu for Ian’s school fees, transport fares, clothing, and lunch. From February to May 2001 she spent VT108, 750 for Ian s school fees, school uniforms, shoes, lunches, transport fare, school stationary and other cloths for him (see Annexure “A” of Petitioner’s Affidavit).

The Petitioner said that for Anita Michell, she had spent a total of VT171, 400 for her to attend Onesua Presbyterian College. The expenses are for school fee (1^st term), clothing and other items, transport fare, pocket money, food and other items. While she attended Vila East Primary School last year she spent between August to December 2000 VT108, 800 for school fees, fundraising and entertainment, sport clothes and shoes, clothing and school uniform, school lunch, transport fares.

The Petitioner said that beside that, she also paid VT900 for copies of their marriage and birth certificate from Civil Status Office (requirement for Anita by Onesua Presbyterian College), VT12, 000 (her contribution to her sister to pay water and power bills) and VT135, 000 (VT15, 000 per month from August 2000 to April 2001) for food.

The grand total the Petitioner said that she spent to maintain the children since they were separated in August 2000 to May 2001 is VT615, 850.

The Petitioner said that on 26 February 2001, she was convicted by the Magistrate Court for assault and was given a suspended sentence. She that on the following month (March 2001) she was dismissed from he job with Vanuatu Rural Development and Training Centre Association. She said that she is now without a job but is applying for a job. She also said that she do fundraising to maintain the children.

The Petitioner claimed the both of them owned and contributed to the matrimonial properties of the family. She said she and the Respondent jointly own the nakamal (Kava bar), two service buses and a house. She said that house (which is their matrimonial home)[1] at Ohlen area was under mortgage with the VNPF (now transferred to AMU). The mortgage agreement was entered into between VNPF and herself and the Respondent. She said that she has guaranteed her VNPF contribution (in excess of VT100,000) to secure the loan from VNPF. She also said that they verbally agreed that their jointly owned bus and kava nakamal business would also pay for the loan on the property. She said that the Respondent acknowledge the arrangement and agreed to run the bus and kava business while she continue to work. The loan repayment went well until the house was burnt down sometime in 1996 when they stopped loan repayment (see Annexure “C). She also said that at the time when the house burnt down, the Respondent was in Tongoa. She said that she has struggled by herself for two years to get the insurance company to agree to rebuild the house. After the house was rebuilt, they opened a joint account with Westpac bank from bus and kava business proceeds and continued to repay the loan.

The Petitioner said that since 1998 the Respondent was telling her that he would no longer assist in repayment of the loan. She also said that in 1998, she made a repayment of VT400,000 towards the loan repayment. The amount was money paid to her by the Vanuatu Government as compensation for the civil servant strike in 1993 (see Annexure “X”). In early 2000 the Respondent stopped depositing funds from the bus and kava nakamal businesses into the joint account with Westpac Bank. She said that the Respondent opened an account in his personal name at National Bank of Vanuatu and up to date deposited money from the bus and nakamal kava businesses into this account.

The Petitioner said that since they were separated in August 2000, and despite the Respondent having control and manage the bus and nakamal kava businesses there has been no payment towards the repayment of loan for the matrimonial home (see Annexure “E”)[2].

The Petitioner also said that herself and the Respondent entered into an agreement with Westpac Bank to loan for bus registration number 3636 (see Annexure “F”)[3]. She also said that profit from the bus was agreed by herself and the Respondent would be used to pay of its loan with AGC Finance at Westpac and the outstanding of the loan for the matrimonial home (see Annexure “G”)[4]. She also said that they also owned another bus registration number 8885, which was to be used as service bus, and is no longer used for this purpose but for the Respondent personal purposes.

The Petitioner said that in March 2001, the Respondent purchased a new bus registration number 4296 and is registered in his personal name. She said that she believe the funds used to purchase the bus are from their matrimonial businesses being the bus and kava nakamal. She said the bus was purchased after various letters from her lawyer advising the commercial banks and Asco Motors against lending and purchase of the bus because of the pending matrimonial case before the Supreme Court.

The Respondent gave oral evidence beside his four affidavits filed on the 5 October 2000, 21 May 2001, 28 May 2001, and 29 May 2001.

The Respondent said that the Petitioner left their matrimonial home on the 3 of August 2000 after a dispute over pornographic photos not on the 17 August 2000 as Petitioner stated. He said the Petitioner reported him to the Police about those photos and he went to the Police Station and at the police station the police told them that they had those photos too. At the end of that day, the Respondent said that the Petitioner did not return and had not told him reason why she did not come back to their matrimonial home.

The Respondent said that he did not aware that he had assaulted the Petitioner on 17 August 2000 or had threatened to kill her.

He denied that the two children feared of him and had ran away from their home as alleged by the Petitioner. He said that he dropped off the two children at school on the morning of 4 August 2000. He said that went to pick them up in the afternoon and found out that the Petitioner went to school and had pick up the two children and took them with her to stay with her at her sister’s home until now. He also said that since he took the two children stay with her she never allowed them to see or even visit him as their father.

The Respondent said that during the marriage, the Petitioner travelled within Vanuatu and overseas to attend workshops and conferences as part of her work. During those time the left two children have been cared and looked after by the Respondent their father for about two to three months.

He denied that the Petitioner had made two attempts to come to their matrimonial home. He said that he remembered two occasions only, one when the she passed him at their nakamal while he was drinking kava with some other women, which at that time she swore at them. The second time she brought a relative with him to pick up her cloths. At that time he was at his home in his island, Tongoa. He also denied that he had ever assaulted, threatened, forced or denied access to the Petitioner from their matrimonial home.

The Respondent said that since the Petitioner left, he continues to run and manage the bus and nakamal business and use proceeds from those businesses to repay the loan for their matrimonial home and maintain the house.

The Respondent said that the previous court order of 1996 had ordered that Petitioner to manage the nakamal business and she had caused a big loss to the business, which he had to start it again.

He said that in respect of land title 11/OH24/040, he had paid it from the money from the bus and kava businesses, which he started. He said that the nakamal business he started it with kava supplied to him from by his relative from his home island. He said that he has operated and managed the kava nakamal business and earned VT700,000 within six months. He then used the VT700,000 to loan the first new bus registration number 8885. It was from there that they later purchased a second bus registration 3636 still through a loan.

He included the name of the Petitioner during registration of the land because the Petitioner’s family had forced him to include her name in the registration. He also said that after he purchased the land, himself and the Petitioner had managed to obtain a loan in the name of the Petitioner to build a house on the ground. He said that he had guaranteed the loan with the bus and nakamal kava businesses and the land itself. He also said that although the Petitioner has agreed to repay the loan as she had permanent job at that time, she never did. He said that he has been paying the loan up to the time the house was burnt down. After the house was rebuilt, he said the Petitioner should have repaid the loan, which she never did until she moved out from the house in August 2000. He denied that he never help to repay the loan as alleged by the Petitioner. As the person who guaranteed the loan, he said he would be liable if the Petitioner fails to repay the loan.

The Respondent said that Anita Michell their daughter has just passed to Onesua Presbyterian College this year 2001. He said that he had given one month for the Petitioner to come back home but she decided not to and waited for the divorce case, which she filed with the Court.

He denied the some items and the total expenses that Petitioner claimed she had spent on the education and maintenance of the two children from period August 2000 to December 2000. He said that they are not justifiable and had no proof.

The Respondent denied that he never makes any attempt to maintain the two children since August 2000 up until now. He said he made attempts but the Petitioner refused or influenced the children from getting any assistance from the Respondent.

The two witnesses of the Respondent Mr. Joelly Seresere and Mr. Albert Kalo said that on 3 January when the Magistrate Court ordered that the 2 children be at liberty to see both father and mother, the Respondent after the court order outside the courtroom talked to Anita. Anita was happy to talk to his father. They said that Petitioner when saw Anita talking to his father came and pulled Anita from him and said that he had no right and that he does not force. Mr. Kalo said that after the Petitioner pulled out Anita from the Respondent, the Respondent told the Petitioner’s counsel to see what her client did.

I find as matter of fact that Petitioner has custody of and maintain the two children since August 2000 up to date. I find also that Respondent has not assisted the Petitioner with the maintenance of the children during the period. The expenses incurred by the Petitioner are mainly school fees and related expenses for the education of the two children. Ian and Anita Michell told the Court that they wanted to stay with their mother (the Petitioner), but however, Ian said that he wanted access to his father (the Respondent).

I find also that as matter of fact, the matrimonial businesses and properties are have been started and purchased after the parties got married and lived together as husband and wife. It also clear from the fact that those matrimonial businesses and properties are jointly owned by the parties and that both their names appeared in the legal documents in respect of those businesses and the matrimonial home.

I find that there is hatred between the parties. It is clear that both of them want to have custody of the two children.

It is common ground that the Petitioner was dismissed from her paid job but is applying for one. It is also common ground that the Respondent since August 2000 up to date, operate and manage the matrimonial businesses solely and reside in the matrimonial home.

The Petitioner said that their matrimonial is a jointly owned property. The counsel for the Petitioner submitted that Petitioner contributed more than the Respondent did towards payment of the loan on the matrimonial home. The evidence to support this contention is that in 1999 the Petitioner had paid VT400,000 towards the loan (see Annexure “X”) to the Petitioner’s affidavit tendered as “P3” under paragraph 8). The Petitioner accepted that leasehold title 11/OH24/024 is registered in both the names of herself and the Respondent (see Annexure “C” to the Petitioner’s Affidavit tendered as exhibit “P1”). The Petitioner also submitted that Vanuatu National Provident Fund (VNPF) allowed to advance to the Petitioner and the Respondent initially because the Petitioner’s contribution at VNPF was greater than VT100,000. To support this, counsel for the Petitioner submitted that at that time VNPF put out a scheme that anyone member whose contribution was greater than VT100,000 would be eligible to a housing loan and it was on that basis that the Petitioner and the Respondent were able to obtain a loan for the matrimonial home at VNPF.

In respect of the loan repayment, the counsel for the submitted that it is evidence from both the Petitioner and Respondent’s evidence that money from matrimonial business (being the kava nakamal and bus businesses) would be used to repay the loan. The counsel for the Petitioner referred to Annexure “A” of the Respondent’s affidavit tendered as exhibit “R1” on page 1 under heading “Business” to support his submission. He said that he Respondent admitted that the service bus and kava nakamal business were a source of revenue to assist them with school fees and payment of the loan on the matrimonial home where they lived.

The Petitioner’s counsel submitted that the Petitioner and the children should be allowed back into the matrimonial home on the basis that they have been restricted access to the matrimonial home for some 8 months and in addition on the basis that on the balance of evidence, the Court should be satisfied that she contributed more towards repayment of the loan than the Respondent.

In respect of the Kava Nakamal Business, the counsel for the Petitioner submitted that contrary to the Respondent’s assertions, the kava nakamal business is a jointly owned matrimonial business. The counsel submitted that on cross-examination, the Respondent admitted that the Petitioner did help with the kava nakamal in terms of selling kava and depositing money into the Bank. The Petitioner’s evidence also show that when she went on tour on Epi and Tongoa during her work, she bought kava for nakamal. Beside that, the Petitioner provided VT100,000 to the Respondent’s brother on Tongoa for him to provide kava for the nakamal business. Further, the counsel for the Petitioner submitted that, letter from the Minister of Home Affairs (tendered as “P3”)[5] supports the Petitioner’s contention that the kava nakamal business is jointly owned between the Petitioner and the Respondent.

The counsel for the Petitioner submitted that three (3) buses registration numbers 8885, 3636 and the new one 4296 are matrimonial properties. To support this contention, the counsel for the Petitioner referred the Court to Annexure “A” of the Respondent’s affidavit tendered as “R1”, where in the Respondent admits that they have a bus service and nakamal business which is a source of income to them in assisting them to pay for the loan and the house. This is also confirmed in Respondent’s evidence in chief, which he stated that the first bus was bought from a joint account in the names of the Petitioner and the Respondent at Westpac. The Respondent also admitted that the Petitioner went together with him to withdraw the VT700,000 to purchase the first bus. The counsel for the Petitioner submitted that the incomes from the bus and nakamal business were used to purchase the other buses including the new one. The Petitioner’s counsel also submitted that the Asset Purchase Agreement, which was executed by the Petitioner and the Respondent, is evidence supporting the contention of the Petitioner that the buses are matrimonial properties[6].

The Petitioner’s counsel submitted that the Respondent opened an account in his personal name at National Bank of Vanuatu and deposited all proceeds from the bus and nakamal businesses. It was from those funds that the Respondent purchased the new bus registration number 4296[7].

The counsel for the Petitioner submitted that contents of matrimonial home as set out in affidavit tendered as “P4” are personal properties purchased by the Petitioner by her own money. The Petitioner agreed for the items to be shared equally.

In respect of the custody of the children, the counsel for the Petitioner submitted that the Petitioner is the natural mother of the children and naturally the children should be with their mother. To add to this submission, the children have been with their mother since separation in August 2000. They are happy with their mother and that there is no evidence that the mother has mistreated the children.

The counsel for the Petitioner submitted that since August 2000, the Petitioner has cared and maintained the children to date without and assistance from the Respondent. The expenses incurred by the Petitioner to maintain the children are set in affidavit tendered as “P3”. The counsel for the Petitioner submitted that the Respondent knows the schools Ian and Anita goes to but did not approach those schools to enquire about payment of their school fees. This confirms the Petitioner’s evidence that the Respondent failed to assist her to maintain the children.

The Petitioner’s counsel also submitted that Petitioner gave evidence that since she was dismissed from her job, she has conducted fundraising to maintain the children and her family also assist her in maintaining the children. She said she would continue to do fundraising to assist her to maintain the children. She also gave evidence that she is seeking job and hopeful to get a job in the near future.

In respect of the Respondent’s allegation that Petitioner broke and stole money in a locked suitcase in the bedroom of the matrimonial home, the Petitioner denied it. The counsel for the Respondent submitted that there is no proof of this allegation and that the Respondent on cross-examination admitted that he did not see the Petitioner taking the money from the suitcase.

In respect of the incident at the Court on 3/1/01, the counsel for the Petitioner submitted that she denied version of the events as deposed by the Respondent and his two witnesses. She said that she accepts the Court ruling but children should not be forced against the liberty as ruled by the Court.

The counsel for the Respondent submitted that the Respondent has never wanted to divorce the Petitioner. He said that the Petitioner made a choice to divorce him, which the Court ruled accordingly. The counsel for the Respondent submitted that it was the fault of the Petitioner, which caused the Respondent to commit adultery. The Respondent’s counsel submitted that this fault was the lack of respect, love and affection by the Petitioner to the Respondent and the unreasonably walked out of the matrimonial home by the Petitioner and lived out for a period over one (1) months.

The counsel for the Respondent submitted that the Respondent seek custody of the children Ian and Anita despite that fact that the children have not lived with him as their father since August 2000 up to date.

The counsel for the Respondent submitted the Respondent gave evidence that when they still live together, he cared and maintained the children as much as the Petitioner and when the Petitioner travelled out because of her job in the past, he cared and looked after the children alone. The Respondent denied any form of cruelty on the children by the Respondent as alleged by the Petitioner. In cross-examination of the Petitioner, it was shown that the allegations are not true. It also shows that the Respondent’s treatment in form of discipline by way of whipping the children is less strict and often than the Petitioner’s and her treatments on the children.

The counsel for the Respondent submitted that it was not true that the children ran away to the Petitioner from their matrimonial home. The Petitioner went to their school and picked them up after they were dropped off at school by the Respondent and took them with her to her sister’s home. Since the Respondent took the two children and stayed with her at her sister’s house she directly and indirectly allow and refuse the children to visit and see the Respondent. To support this contention, the counsel for the Respondent submitted last year 2000 in September, the Petitioner travelled to South Africa and his Chief had asked the two children to stay and care for by the Respondent but the Petitioner has refused this. The counsel for the Respondent also submitted that on another occasion on 3 January 2001 at the Courthouse, the Petitioner pulled Anita out from the Respondent while the Respondent was talking to her as her father. The evidences of Mr. Seresere and Mr. Kalo in the witness box have confirmed this.

The counsel for the Respondent submitted that the Petitioner is cruel by influencing the children from their father the Respondent and not wanting any form of assistance from the Respondent to the children.

The counsel for the Respondent submitted that Court aware from the statements of the two children that both children want to stay with the Petitioner however, Ian indicated that he wanted accesses to his father the Respondent. In view of this, the counsel for the Respondent it would only be proper for the Court to grant custody of Ian Michell to the Respondent. In addition, the counsel for the Respondent submitted that Ian is the heir to his father’s rights whether in custom or the businesses or properties. The Petitioner’s counsel said that at the end of the day, the family business is operated for the benefit of the children especially Ian as the eldest son of the family. The counsel for the Petitioner submitted the children were under the pressure of the Petitioner to say that they prefer to stay with her (Petitioner). The Respondent’s counsel submitted that Ian Mitchell would be happy to stay with his father the Respondent as his natural father if the Court grant custody of him to his father.

In respect of the bus service business, the counsel for the Respondent submitted that it is under the control and management of the Respondent. The Respondent said he started the business in 1988 and opposes the Petitioner’s claim that she also owns and manages the business. The counsel submitted that the Petitioner have agreed that the first bus was purchased from funds from the kava nakamal business. There was no evidence before the Court, which opposes that it was the Respondent who started and managed the bus service business when it first started to this day. The Respondent’s counsel submitted that it would be unfair and unjust to grant the Petitioner ownership or management of the bus business because it is the Respondent who had worked hard to start and make the bus business grow while the Petitioner at that time spent her wages at her own disposal as she was then earned a monthly wages. Further, the Respondent said that the bus service is the only form of employment and source of living for him in town.

It has been a well-established principle of law in cases where custody is in dispute; the welfare of the children is a paramount consideration when Court decide who should have custody of the children (referred to as “Welfare Principle”). In doing so, the always have regard to the fact that children need access to both parents as both have equal right to custody of the children.

This Court has adopted this principle and must determine custody of the two children base on the principle. It is fundamental that Court, although do not ignore what the parents wants, where practicable it must not ignore what is good for the children. There are general questions of consideration, which the Court must consider when determining custody of the children base on the welfare principle. They are as follows:

(ii) Which parent will best be able to make the child happy in a difficult situation?

In divorce case such as this one, I must say that the Court aware that the children have been through a painful and difficult time in their life.

In this case the two (2) children namely Ian about 15 years of age and Anita who is about 12 years of age. The two (2) children are beyond tender age. They are able to decide and know what is best for them.

It is a general rule that both parents are equally responsible for the maintenance of the children of the marriage. Maintenance usually granted by way of discretion of the Court. In granting maintenance there are general consideration to be considered by the Court.

In this case, the issue of maintenance is subject to the ruling on the issue of matrimonial properties.

Matrimonial properties is defined as all property acquired, bought, accumulated, won or gained after marriage by both husband and wife together, or either the husband or the wife[11]. Separate property is all property other than the matrimonial property and includes most property that a spouse owned before marriage; gifts that one spouse received during marriage, and inherited property generally acknowledged to be the inheritance of one spouse.

In this case, the Respondent said that although the Petitioner has her name appeared in the documents in respect of the kava nakamal and bus service businesses and the leasehold matrimonial property title 11/OH24/040, she has not contributed financially to the purchase of those businesses and property.

In the case of Pettit .v. Petti [1969] UKHL 5; (1970) AC 777, wife had purchased a cottage (matrimonial home), and certificate of title was in her name only. The husband significantly improved the property, using his own labour and money. The parties divorced. Husband claimed an equitable interest in the house arguing that it was matrimonial property ad should be shared even though his name was not on the title. The House of Lords did not give husband a share. However, later case of Gissing .v. Gissing [1970] UKHL 3; (1971) AC 886, accepted and developed the new common law principle of constructive trust enabling a party to a share of matrimonial property in the following circumstances:

(ii) There has been a common intention to acquire the property on behalf of both and this common intention has been expressed or implied by words or behaviour.

In this case, it has been shown in evidence that both parties’ names appeared in the documents relating to the matrimonial businesses (kava nakamal and bus service businesses) and the matrimonial home. Although the Petitioner may have contributed less or may have not involved initially in the starting of those businesses, it is no doubt that she has some interest in the shares of those properties.

The Petitioner have applied and successfully granted divorce to her marriage with the Respondent. The Petitioner since separated from the Respondent in August 2000 kept the two children with her until today.

A - Custody, care and control of the child IAN COLLIN ALEX (now known as IAN NOMPWAT TEVLONGONEI) MICHELL (15 years).

(1) That a joint custody is granted to both the Petitioner/mother and the Respondent/father in respect t to the child Ian Collin Alex Michell.

(2) That the child Ian Collin Alex Michell be under the care and control of her mother/Petitioner.

(3) That the Respondent/father will have reasonable access to his son Ian Collin Alex Michell during weekends, public holidays or school holidays or any time as arranged by both the Petitioner/mother and the Respondent/father.

(1) That a joint custody is granted to both the Petitioner/mother and the Respondent/father in respect to the child Anita Michell.

(2) That the child Anita Michell will be under the care and control of mother/Petitioner.

(3) That the Respondent/father will have reasonable access to her daughter Anita Michell during weekends, public holidays, school holidays or any time as arranged between the Petitioner and the Respondent.

(1) That the Respondent/father is ordered to pay to the Petitioner a lump sum of 100,000 Vatu x 2 = 200,000 Vatu per year for the maintenance of the 2 children: Ian Michell and Anita Michell until they both reach 18 years of age.

(3) That the Order of maintenance of the children may be amended/varied/extended by agreement of both parties or by order of the Court in the event that after each of the children reaches 18 years and he/she attends an educational institute or university or otherwise, or still needs to be maintained.

(4) Both the Petitioner/mother and Respondent/father are jointly and equally responsible for the payment of the schools fees of the children: Ian Michell and Anita Michell. The payments are in equal parts (50:50) for the 2 children.

A. Land Leasehold Title 11/OH24/040 upon which the dwelling house (Matrimonial House) is built

(1) That the Respondent/Father, Alick Michell, shall vacate the matrimonial home with his personal belongings with immediate effect.

(2) That the Petitioner/mother, Mrs. Hellen Michell and the two (2) children of the marriage: Ian Michell and Anita Michell shall have the right to enter into and occupy the dwelling house (Matrimonial Home) with immediate effect.

(3) That the Land Leasehold Title 11/OH24/040 be registered in the names of the Petitioner, Mrs. Hellen Michell and be held in trust for the 2 children of the marriage.

(1) That the Nakamal business being operated on the Land Title 11/OH24/040 at Ohlen Area, Port-Vila, Efate, is part of the dwelling house (Matrimonial Home); and

(3) That the proceeds of the Kava Nakamal until the judgment be shared between the Petitioner and the Respondent: 1/3 and 2/3 respectively.

(1) That the Respondent will have the control and management of the three (3) buses Registration Nos.8885, 3636 and 4296.

(2) That the buses Registration Nos.8885, 3636 and 4296 be registered in the sole name of the Respondent.

(1) That the Petitioner will keep for her own use her personal items as identified in her affidavit (Exhibit P4).

(2) That other property items be shared equally between the Petitioner and Respondent.

(1) That Order I, II, III be stayed pending the final Decree Nisi to dissolve the marriage between the Petitioner and the Respondent which is to be issued on 26 July 2001.

(2) That pending the issuance of a Decree Nisi absolute, the Interim Orders issued on 31 May 2001 will still operate until 26 July 2001.

[1] The property leasehold title is 11/OH24/040 Matrimonial home

[2] Statement from Asset Management Unit (AMU) shows the outstanding of the loan as at 24 April 2001.

[3] The Asset Purchase Agreement with Westpac Bank.

[4] Copy of the statement showing amount owing for the loan for the bus as at 24 April 2001.

[5] This is a letter from the Minister of Home Affairs giving permission for the Petitioner and the Respondent to operate kava nakamal within a residential area. It is a ministerial decision.

[6] See Annexure “F” to the Petitioner’s affidavit tendered as “P3”.

[7] Refer to paragraph 9 of the Petitioner’s affidavit tendered as “P3”.

[8] Cap 42

[9] Ibid

[10] Cap 46

[11] See Law for Pacific Women – A Legal Rights Handbook by Patricia Imaran Jalal, 1998 at page. 404.

Supreme Court of Vanuatu

Michell v Michell & Togase [2001] VUSC 71; Matrimonial Case 002 of 2001 (11 July 2001)