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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
MC No. 25 of 2016
BETWEEN:
KEITH KENNETH KINGSTON
Petitioner
AND:
JUDITH MERILYN KINGSTON
Respondent
AND:
NOEL LIONEL GIRDLER
Co-Respondent
Waigani: David, J
2017: 13 & 25 October
FAMILY LAW – petition for decree of dissolution of marriage – no ancillary relief sought - application to amend petition or alternatively file separate petition to claim ancillary relief – settlement of property - damages in respect of adultery - proceedings for settlement of property instituted by Respondent in Family Court of Australia - forum non conveniens – Matrimonial Causes Act, Sections 1, 3, 14, 56(3)(b) – Matrimonial Causes Rules, 87, 89, 96 and 192.
Cases cited:
Papua New Guinea
Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd [1995]
SC488
Overseas Cases
Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538
Treatise cited:
Reid Mortensen, Comity and Jurisdictional Restraint in Vanuatu (2002) 33 VUWLR at 96
Counsel:
G. J. Sheppard with M. Sumbuk, for the Petitioner
J. G. Renwick with D. R. Carter, for the Respondent
No appearance for the Co-Respondent
JUDGMENT
25 October, 2017
1. DAVID, J: INTRODUCTION: This is a ruling on two applications, one each filed by the Petitioner and the Respondent.
2. By a Notice of Motion and Application for Ancillary Relief dated 24 November 2016 and filed on 5 December 2016 (the Application for Ancillary Relief), the Petitioner, relying on the specific jurisdictional provisions specified in the Application for Ancillary Relief, seeks the following substantive orders:
“1. The requirements for service be dispensed with pursuant to section 94 of the Matrimonial Causes Act, Chapter 282 (“Act”), and all other powers enabling;
to be consolidated with these proceedings and heard and determined by the Court as far as practicable, at the same time as the proceedings for a Decree of Dissolution of Marriage in these proceedings.
3. At the hearing, the Petitioner abandoned relief 1, 2 and 4.1.
4. In support of his application, the Petitioner relies on the affidavits of:
5. The Petitioner states that the purpose of his application is to seek the leave of the Court to pursue a matrimonial cause for dissolution of his marriage with the Respondent and also to pursue proceedings for ancillary relief with respect to settlement of property and or damages in respect of adultery as is defined in Section 1 of the Matrimonial Causes Act, Chapter 282 (Matrimonial Causes Act) and as allowed in this jurisdiction.
6. By an Application to Court dated and filed on 27 September 2017 (the Respondent’s Application), the Respondent seeks the following substantive orders:
“1. Pursuant to section 287 of the Matrimonial Causes Rules (Ch 282), leave be granted to dispense with the requirements for notice and service of this Application and supporting affidavit on the Petitioner.
7. In support of her application, the Respondent relies on the affidavits of:
8. Both applications are contested.
BACKGROUND AND FACTS
9. By a Petition for Decree of Dissolution of Marriage filed here in Waigani on 20 October 2016 (the Petition), the Petitioner seeks a decree of the dissolution of his marriage with the Respondent that was solemnized by an authorized celebrant, Leslie William Turner, a Priest in the Church of England, in accordance with the Marriage Act 1963 of the Commonwealth of Australia (the Marriage Act) on 24 February 1968 at the Church of the Holy Trinity, Fortitude Valley, Brisbane, Queensland, Australia on the ground that, since the marriage, the Respondent has committed adultery. They have two male children from the marriage and they are; Michael Kenneth Kingston born on 13 October 1977; and Dean Anthony Kingston born on 31 October 1979. It is alleged that since their marriage on 24 February 1968, the Respondent and the Co-Respondent had engaged in an adulterous relationship which the Petitioner became aware of in early 2011 and the adulterous relationship continues. Apart from seeking a decree of dissolution of marriage, the Petitioner does not seek any other order.
10. At paragraph 12 of the Petition, it is pleaded that:
“The Petitioner does not intend to make nor propose any arrangements for the provision of maintenance nor benefit referred to in Section 25(5) of the Act for the Respondent on the decree becoming absolute. This is for the following reasons:
(a) All the children are adults and independent; and
(b) The Respondent occupies a multi-million dollar penthouse, has her own car and is independently very well off financially.”
11. The Petitioner and the Respondent were born in Australia on 14 January 1946 and 9 October 1946 respectively and both are Australian citizens. In the Petition, the Petitioner claims that he is domiciled in Papua New Guinea within the meaning of the Matrimonial Causes Act 1963 (the Matrimonial Causes Act). He is a permanent resident of Papua New Guinea and has lived in Papua New Guinea most of his life since 28 October 1968. He resides at his house at Allotment 62 Section 93 Eagle Street, Lae, Morobe Province. He is the owner and Managing Director of the company KK Kingston Limited. Before and immediately after their marriage, the Petitioner and the Respondent cohabited at Allotment 62 Section 93 Eagle Street, Lae, Morobe Province. The Respondent returned to Australia in 1997 and has resided there since that time. Cohabitation ceased in or about October 2016. Both parties hold property in Australia and in Papua New Guinea.
12. On 11 November 2016, the Respondent commenced proceedings against the Petitioner in the Family Court of Australia, Brisbane Registry by way of an Initiating Application styled BRC11392 of 2016, seeking orders for settlement of the property of the parties and the following final orders were sought:
“1. That the property interests of the parties be adjusted by way of final property order such that an overall adjustment is effected of 55% to the applicant and 45% to the respondent.
13. In the Initiating Application, the Respondent does not seek any order as to a decree of dissolution of marriage.
14. On 23 November 2016, the Respondent filed an Application in a Case in the Family Court of Australia, Brisbane Registry (the Application in a Case) seeking an anti-suit injunction and the main orders sought were:
“1. That the Respondent Husband be restrained and an injunction shall issue restraining the Respondent Husband from prosecuting or pursuing proceedings in any other court, including with respect to the:
(a) Petition for Decree of Dissolution of Marriage filed 20 October 2016;
(b) Notice of Petition filed 20 October 2016;
(c) Notice of Proceedings filed 20 October 2016 (and filed with Certificate of Marriage on 20 October 2016);
filed in the National Court of Justice at Waigani, Papua New Guinea, pending the decision of the Family Court of Australia with respect to the Wife’s Initiating Application numbered BRC11392/2016, filed in the Brisbane Registry of the Family Court of Australia.
15. The Petitioner cross-applied for an order that the proceedings commenced by the Respondent in the Family Court of Australia be stayed either permanently or until determination of the current proceedings.
16. The Respondent’s Application in a Case and the Petitioner’s cross-application were heard by her Honour Justice Carew at the Family Court of Australia in Brisbane on 16 January 2017 both of which were opposed. On 20 January 2017, her Honour delivered her judgment when she; dismissed the Petitioner’s application for a stay of the proceedings commenced by the Respondent on 11 November 2016; and granted the Respondent’s Application in a Case restraining the Petitioner from commencing or continuing any proceedings, arising out of the marital relationship between the Petitioner and the Respondent, in Papua New Guinea in particular the current proceedings save as required to seek recognition and/or enforcement of orders made by that court.
17. Aggrieved by the refusal by her Honour Justice Carew of his stay application, the Petitioner appealed to the Full Court of the Family Court of Australia in proceedings styled NA 5 of 2017. The appeal was heard by the Full Court of the Family Court of Australia constituted by Thackray, Strickland and Murphy JJ on 18 July 2017. On 10 August 2017, the Full Court of the Family Court of Australia delivered its decision whereby it dismissed the appeal against her Honour Justice Carew’s order in respect of the stay application, but the appeal in respect of the anti-suit injunction was allowed and set aside and in lieu thereof reduced the scope of the wife’s anti-suit injunction when it ordered that:
“The husband is restrained and an injunction hereby issues restraining him from continuing proceedings in Papua New Guinea in so far as those proceedings seek to restrain the wife from pursuing her application for settlement of property in the Family Court of Australia.”
18. I set out the relevant excerpts of the decision of the Full Court of the Family Court of Australia concerning that order below.
“59. As a result of her Honour’s order refusing a stay, there are proceedings for settlement of property on foot in Australia and proceedings for dissolution of marriage alleging adultery in PNG. There are also proceedings seeking leave to amend the petition for dissolution and leave to add ancillary proceedings for settlement of property. There is no reason advanced by her Honour, nor as we can see, validly by the wife, as to why the proceedings for dissolution should not proceed in accordance with PNG law nor why proceedings for leave to amend the petition for same cannot be heard and determined within the jurisdiction properly invoked by the husband.
ISSUES
19. The main issues that I need to decide are:
(a) Whether the Petitioner should be granted leave to file an Amended Petition for Decree of Dissolution of Marriage?
(b) Whether, and in the alternative, the Petitioner should be granted leave to file a separate Petition to institute proceedings for Ancillary Relief to be consolidated with these proceedings and heard and determined by the Court as far as practicable, at the same time as the proceedings for a Decree of Dissolution of Marriage in these proceedings?
(c) Whether the Respondent should be granted an injunction to restrain the Petitioner from prosecuting or pursuing any ancillary relief in the current proceedings?
WHETHER THE PETITIONER SHOULD BE GRANTED LEAVE TO FILE AN AMENDED PETITION FOR DECREE OF DISSOLUTON OF MARRIAGE?
Petitioner’s submissions
20. The Petitioner submits that sections 3, 14 and 56(3)(b) of the Matrimonial Causes Act and Rules 87 and 89 of the Matrimonial Causes Rules, Chapter No.282 (Matrimonial Causes Rules), give the Court jurisdiction to grant leave to the Petitioner to file an Amended Petition for Decree of Dissolution of Marriage to seek orders for settlement of property and damages in respect of adultery as sought in the Application for Ancillary Relief.
21. In addition, the Petitioner submits that the phrase “matrimonial cause” defined by section 1(1) of the Matrimonial Causes Act not only concerns a dissolution of marriage, but also includes proceedings for ancillary relief that can be commenced in the same petition, eg, for settlement of property or damages in respect of adultery. These are the ancillary relief the Petitioner seeks in the proposed amended Petition.
22. It is also submitted that in the event the Court grants leave meaning two different proceedings in different countries will co-exist to deal with the issue of settlement of property of the parties, the Court, rather than the Family Court of Australia, will be the most appropriate forum to litigate all the competing issues that arise applying the approach taken in Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55; (1990) 171 CLR 538 for the reasons that; first, the majority of the property and business lies within the Papua New Guinea jurisdiction; and second, the Family Court of Australia did not shy away from this fact.
Respondent’s submissions
23. The Respondent submits that the Petitioner’s Application for Ancillary Relief should be dismissed on the basis that:
(a) The Petitioner made a deliberate decision not to include any ancillary relief in the Petition thus prompting the Respondent to commence proceedings for settlement of property in the Family Court of Australia which currently are well advanced and which proceedings the Petitioner failed to stay in Australia, and is injuncted from asking this Court to grant an anti-suit injunction against the Respondent.
(b) Both parties were born in Australia; they remain Australian citizens; the marriage of the parties was solemnized according to the Marriage Act 1963 (Commonwealth); they will shortly both reside in Australia (the Respondent having done so since 1997 and the Petitioner retiring soon and intends residing in the property occupied by the Respondent in Australia); and there is significant property in Australia.
(c) The relief the subject of the Initiating Application in the Family Court of Australia and the proposed amended petition seeking ancillary relief would involve exactly the same property of the marriage.
(d) The Family Court of Australia is the natural or most appropriate forum applying the approach taken by the Supreme Court in Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd [1995] PGSC 7; SC488.
Reasons for decision
24. No issue was taken by the Respondent concerning the Court’s jurisdiction to grant the orders sought in the Application for Ancillary Relief grounded on the specific jurisdictional provisions specified there namely, sections 3, 14 and 56(3)(b) of the Matrimonial Causes Act and Rules 87 and 89 of the Matrimonial Causes Rules. It suffices to say however that Part VIII, Division 1 (Rules 87 to 95) of the Matrimonial Causes Rules regulates how amendments to pleadings can be made.
25. According to Rule 87(1), amendments may be made to a pleading where it is necessary for the purpose of determining the real questions in controversy between the parties and made in accordance with Part VIII, Division 1 of the Matrimonial Causes Rules. Rule 87(2) qualifies that sub-rule to the extent that it prohibits in mandatory terms an amendment to a petition or answer as the case may be if the amendment has the effect of instituting proceedings of a kind referred to in paragraph (c) of the definition of “matrimonial cause” in Section 1(1) of the Matrimonial Causes Act. The proceedings referred to in paragraph (c) are with respect to; (i) the maintenance of a party to any proceedings; or (ii) settlements; or (iii) damage in respect of adultery; (iv) the custody or guardianship of infant children of a marriage; or (v) the maintenance, welfare, advancement or education of children of a marriage.
26. At paragraph 9 of the Petitioner’s affidavit, he deposes:
“Given that the Respondent/Wife is seeking financial or ancillary relief, it is now necessary for me to seek the leave of this Honourable Court to plead the assets and liabilities of the property of the marriage and to claim for ancillary relief, in order for the Court to be able to deal with all issues relevant to the dissolution of marriage.”
27. In the draft amended petition, a copy of which is annexed to the Petitioner’s affidavit as annexure “E”, the Petitioner seeks to amend the Petition, inter alia, in order to add:
(a) additional grounds for dissolution of marriage namely, wilful desertion and ceasing to cohabitate;
(b) additional matters required to be stated in an application for ancillary relief by virtue of section 193 of the Matrimonial Causes Rules;
(c) add additional orders with respect to settlement of property and damages in respect of adultery.
28. Clearly, the proposed amendment to the Petition to include additional orders with respect to settlement of property and damages in respect of adultery will be contrary to Rule 87(2) of the Matrimonial Causes Rules.
29. It is for these reasons that the Petitioner’s application for leave to file an Amended Petition for Decree of Dissolution of Marriage is refused.
WHETHER, AND IN THE ALTERNATIVE, THE PETITIONER SHOULD BE GRANTED LEAVE TO FILE A SEPARATE PETITION TO INSTITUTE PROCEEDINGS FOR ANCILLARY RELIEF TO BE CONSOLIDATED WITH THESE PROCEEDINGS AND HEARD AND DETERMINED BY THE COURT AS FAR AS PRACTICABLE, AT THE SAME TIME AS THE PROCEEDINGS FOR A DECREE OF DISSOLUTION OF MARRIAGE IN THESE PROCEEDINGS?
Petitioner’s submissions
30. The parties’ submissions with regard to the first issue also encompass this issue. Others not specifically mentioned already including those set out in the parties’ written submissions and amplified by oral submissions of counsel have been considered and reflected in my ruling.
Reasons for decision
31. The pleadings in the draft separate Petition, a copy of which is annexed to the Petitioner’s affidavit as annexure “F”, is in similar or identical terms as the draft amended Petition. It contains improvements on the pleadings contained in the Petition and the additional matters sought in the draft amended Petition.
32. In Papua New Guinea, a person may institute a matrimonial cause under the Matrimonial Causes Act in the National Court: section 14(1) and (2). The phrase “matrimonial cause” is defined under section 1(1) of the Matrimonial Causes Act and expounded by section 190 of the Matrimonial Causes Rules. The definition of “matrimonial cause” encompasses proceedings for “principal relief” and for “ancillary relief”. Proceedings for “principal relief” refer to proceedings of a kind referred to in paragraph (a) of the definition of “matrimonial cause” in section 1(1) of the Matrimonial Causes Act. Proceedings for “ancillary relief” refer to proceedings of a kind referred to in paragraph (c) of the definition of “matrimonial cause” in section 1(1) of the Matrimonial Causes Act.
33. Proceedings for a decree of dissolution of marriage can only be instituted by a person who is domiciled in Papua New Guinea: section 14(3).
34. A matrimonial cause of a kind referred to in paragraph (a) or (b) of the definition “matrimonial cause” in section 1(1) of the Matrimonial Causes Act must be instituted by petition: section 56(1) of the Matrimonial Causes Act. However, in an answer to a petition, a respondent may seek any decree or declaration that the respondent could have sought in a petition: section 56(1) of the Matrimonial Causes Act.
35. The death of a spouse aside, a statutory marriage can only be dissolved by a decree of dissolution of marriage granted by the National Court founded upon one or more of the grounds for dissolution of marriage specified in section 17 of the Matrimonial Causes Act.
36. I concur with the Petitioner that proceedings for ancillary relief can be commenced in the same petition, eg, for settlement of property or damages in respect of adultery being ‘proceedings in relation to concurrent, pending or completed proceedings of a kind referred to in Paragraph (a) and (b) (including proceedings of such a kind pending at or completed before, the commencement date)’: see definition of “matrimonial cause” and section 56(3)(a) of the Matrimonial Causes Act. Except as permitted by the Matrimonial Causes Rules or by leave of the Court, proceedings for ancillary relief cannot be instituted in any other manner: section 56(3)(b) of the Matrimonial Causes Act. The Petitioner seeks leave of the Court to file a separate petition to pursue the ancillary relief he seeks. Subject to my further remarks below, the application for leave to file a separate petition to include the ancillary relief the Petitioner seeks in the proposed separate Petition annexed as annexure “F” to the Petitioner’s affidavit is allowed by section 56(3)(b) of the Matrimonial Causes Act.
37. Should the Petitioner be granted leave to file a separate Petition? The grant of leave in my view involves the exercise of discretion as it involves a balancing process so peculiar circumstances of a particular case must be considered and weighed when deciding how to exercise the discretion.
38. In the present case, if the Petitioner is granted leave, it will create a situation where two proceedings with respect to settlement of property will co-exist in the Family Court of Australia and in Papua New Guinea in the current proceedings. Having regard to the notion of international comity, that situation should be avoided.
39. So in order to avoid the probability of conflict and applying the notion of international comity, I will have regard to the doctrine of forum non conveniens.
40. Both parties have referred me to two decisions for assistance. The Petitioner cited Voth v Manildra Flour Mills Pty Ltd and the Respondent cited Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd. I have considered them.
41. The approach in Voth v Manildra Flour Mills Pty Ltd is that a court will decline jurisdiction only if it considers itself a clearly inappropriate forum for dealing with litigation: see Reid Mortensen, Comity and Jurisdictional Restraint in Vanuatu (2002) 33 VUWLR at 96. That is usually referred to as the clearly inappropriate forum test.
42. The decision of the full Court of Australia in Kingston & Kinsgton Appeal Number NA 5 of 2017, copies of which are annexed to the affidavits of Alu Konena as annexure “A” and Shauna Marie Folie as annexure “B” considered the approach in Voth v Manildra Flour Mills Pty Ltd and adopted the principle that a person acting bona fide is perfectly entitled to invoke the jurisdiction of a court to which they and their property are amenable.
43. In Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd, the Supreme Court adopted a passage addressing forum non conveniens in Halsbury’s Laws of England, 4th Edition, Volume 1 at paragraph 353 especially where a stay was sought.
“The Court may stay an action if there is another forum in which the case can be more conveniently tried. Account is taken not only of convenience and expense, but also of other factors, such as the law governing the transaction, which point to the most appropriate or natural forum. In ascertaining the most appropriate forum, the Court searches for the country with which the case has its most real and substantial connection.
If a foreign Court is found to be a more appropriate forum, a stay may still be refused if its effect would be to deprive the plaintiff of some real legitimate personal or juridical advantage available to him by suing in England. A common instance of this in Admiralty proceedings is the opportunity for the plaintiff to secure his claim by the arrest of the vessel as an action in rem. Other examples from the decided cases are the availability in England of a more generous limitation period, a speedier or cheaper trial, a more generous measure of damages, or a more favourable rule of substantive law. Particular weight may be attached to juridical advantages which do not involve a corresponding disadvantage to the defendant. Normally however the Court will not compare the quality of justice available in England with that dispensed elsewhere, and allegations that a fair trial would not be obtainable in the foreign jurisdiction must be supported by cogent evidence. Ultimately the Courts task is to weigh in the balance the factors both for and against a stay, so that even if the plaintiff can point to a legitimate advantage in suing in England, this will not be decisive if another jurisdiction is clearly the more appropriate forum.”
44. In my limited research, I have found no other decided case in Papua New Guinea on the subject. For this reason, although the issue under consideration is not about a stay or that case was not about a matrimonial cause involving a decree for dissolution of marriage and settlement of property or damages in respect of adultery, in the absence of any other binding decision, I will follow the Supreme Court decision as good law and binding.
45. Applying the approach adopted in Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd, I am satisfied that the Family Court of Australia is a forum in which the issue of settlement of property can be more conveniently tried. That court is the most appropriate and natural forum for litigating the issue of settlement of property for the reasons that; the parties are Australian citizens, they were married in Australia according to the Marriage Act 1963 (Commonwealth), the Respondent has lived in Australia since 1997; the parties have property in Australia and Papua New Guinea; the Petitioner intends returning and residing in Australia and by his own conduct, the Petitioner has already submitted to the jurisdiction of the Family Court of Australia and his attempt to divest that court of jurisdiction has failed.
46. In the circumstances, I will grant the Petitioner’s application in part only with regard to the ancillary relief for damages in respect of adultery. For the avoidance of doubt, the proceedings for settlement of property shall continue in the Family Court of Australia.
REMAINING ISSUE
47. Given the outcomes in relation to the first two main issues, I am of the view that it is now not necessary to address the remaining issue which arises from the Respondent’s Application which was mainly directed towards the ancillary relief concerning settlement of property of the parties. The ancillary relief for damages in respect of adultery are sought against the Co-Respondent. Effectively, there is nothing to injunct concerning settlement of the property of the parties as I have ruled that proceedings for settlement of property shall continue in the Family Court of Australia.
ORDERS:
48. The formal orders of the Court are:
________________________________________________________________
Young & Williams : Lawyers for the Petitioner
Leahy Lewin Lowing Sullivan: Lawyers for the First Respondent
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