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Joli v Joli [2004] VUSC 91; Matrimonial Case 008 of 2002 (25 March 2004)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Matrimonial Jurisdiction)

Matrimonial Case No. 08 of 2002.

BETWEEN:

DANIEL GUY JOLI
Petitioner

AND:

PATRICIA MICHELLE JOLI
Respondent

Coram: Mr. Justice P. I. Treston

No appearance by or on behalf of the Petitioner
Mr. Blake for the Respondent

Date of Hearing: 18 March 2004.

RESERVED JUDGMENT

HISTORY

In applications for ancillary relief dated 16 July 2002, the respondent applied for orders for custody of the two children of the marriage, Alexandre Joli, born 15 January 1990 and Alexia Joli, born 23 May 1992 in her favour with reasonable access to the petitioner, together with an order for maintenance until the children reached the age of 18 years or ceased formal schooling whichever should occur later, and for orders requiring full disclosure of all matrimonial property, orders determining the lawful shares of the parties in matrimonial property, orders for the proper division of the matrimonial property, and any other orders and costs.

At the hearing the respondent gave some evidence orally and confirmed the contents of sworn statements which she made on 6 September 2002, 20 September 2002, 4 February 2003, 5 November 2003 and 24 February 2004. She also relied on a further statement by her counsel sworn on 19 November 2003.

The petitioner did not appear at the hearing. During the course of proceedings, he had filed sworn statements of 2 September 2002, 20 September 2002, 28 January 2003 and 14 February 2003.

Various other documents have been produced on subpoena and have been tendered in evidence.

I have taken into account all of the material contained in those sworn statements and documentation produced.

In a ruling of 25 March 2003, Coventry J. ruled, inter alia, that “matrimonial assets” included the following:-

1. Items of furniture from the former matrimonial home
2. Jewellery
3. Interest in two leasehold titles numbered 12/0634/009 and 12/0634/010;
4. Interest in the businesses/companies, Snoopy’s Stationary and Office Supplies Limited, Pactec Ltd., Orchid House Ltd., Multiclean Ltd., and the businesses of Herdan and Salt water Fishing Adventures.
5. Numbered Bank Accounts.
6. Toyota land cruiser.
   

In an appeal against that ruling the Court of Appeal in a decision of 7 November 2003 ruled that the assets over which there was a dispute were assets which the Court could take into account if it was required to make settlement order dividing the matrimonial assets between the parties. The Court therefore ruled that the matrimonial assets of the parties included the interests in the two leasehold titles and in the shares held in the above companies.

As Coventry J. said, the petitioner and the respondent started living together as man and wife in 1980. They had the two children that I have already referred to and were formally married on 3 January 1992. In the early months of 2002, they separated. The history of their relationship is set out in the respondent’s sworn statement of 6 February 2003 about which there is little issue taken by the petitioner.

It seems from the documents produced on subpoena that on or about 31 October 2003, without notice to the respondent and the two children and even without notice to the lawyer who was representing him in the Appeal, the petitioner sold his interest in Win Investment Limited his own international company and divested himself of his interest in the other companies and left for Noumea.

He failed to account to the respondent for any of the proceeds which he obtained as a result of the sales and in fact wrote a letter to his children dated 317 October 2003 in the following terms:-

“Cher Alexandre et Alexia,

C’est avec beaucoup de peine que j’ai du partie d’urgence du Vanuatu, mais vous savez comme moi comment Stéph et moi étions traiés donc cela devenait très dur de vivre dans cette ambiance.

Je vous contacterai d’ici 2 à 3 semaines le temps de trouver un pay et un logement car je ne sais pas encore ou je vais atterir.

Mais je voudrais que vous sachiez une chose c’est que l’on vous dira beaucoup de mal sur nous mais n’oubliez pas que je vous aime et vous aimerais toujours très très fort et que c’est vous qui allies le plus me manquer. Stéphanie a aussi le Coeur très serré de partir de cette façon car on ne peut meme pas vous dire “au revoir”.

Alexandre je voudrais que tu viennes vivre avec nous d’ici peu alors si tu veux nous rejoinder demande à ta maman de faire un papier au tribunal qui me donne le droit de garde sur toi et je ferai le nécessaire pour que tu nous rejoints.

Alexia je pense que tu voudras rester avec maman, il n’y a pas de problème car je m’arrangerai pour que tu viennes nous voir de temps en temps en vacances mais par contre sit u veux vivre avec nous et que ta maman te donne l’autorisation demandes aussi un papier du tribunal comme Alexandre. Je suis prêt à vous prendre tous les deux.

Je ne vous abandonne pas les enfants je prend un peu de distance seulement dans un pay ou il y a des lois correct.

Alexandre and Alexia je vous parlerai d’ici très peu de temps au tel pour prendre des nouvelles.

Je vous aime très fort tous les deux. Nanou et Stéphanie se joignent à moi pour vous faire un très gros bisou.

A très bientôt les enfants

Votre papa.

Vila le 21 Octobre 2003.

An English translation of that letter is as follows: -

Dear Alexandre and Alexia,

It is with a lot of pain that I urgently have to leave Vanuatu but you both know how Steph and I have been persecuted and it has become hard for us to live in this environment.

I will contact you both in the near future in about 2 to 3 week for me to find a country and a place to live because I do not know yet where I will end up.

But I want you both to know one thing that they will say a lot of bad things on us but do not forget that I love you both and that I will love you both very much forever and that I will miss you both a lot. Stephanie is also heartbroken to leave in such a way because we cannot even say goodbye.

Alexandre, I would like you to come over and live with us in the near future. So if you want to come over and see us ask your mother to make a paper at the Court which gives me the right to look after you and I will make sure that all the necessary steps are taken for you to come and join us.

Alexia, I believe you want to stay with mummy, there is no problem, I will made arrangements for you to come and see us once in a while during holidays but if you want to live with us and your mother allows you, ask her for paper from the Court like the one for Alexandre. I am ready to take care of both of you.

I am not abandoning you both my children I am only going some distance to a country which has the correct laws.

Alexandre and Alexia I will talk with you both in the near future on the telephone to give you news.

I love both of you very much. Nanou and Stephanie join with me to give you both a very big kiss.

Will see you soon my children.

Your Daddy

Vila the 21 October 2003.

In her most recent sworn statement of 24 February 2004, the respondent, Mrs. Joli, confirmed that her current income remained at VT350, 000 per month but that she had received no maintenance from the petitioner since early October 2003 despite the orders made by Coventry J. on 26 July 2002 for interim maintenance for herself and her daughter Alexia at VT50, 000 per month. Her monthly expenses were summarized as totalling VT399, 788 and she indicated that she had been forced to increase her overdraft to help meet her commitments. She had been in a relationship with a man but that had ended and she was on her own since the beginning of March 2004. She sought permanent maintenance of VT120, 000 per month in total for herself and the two children.

In relation to custody, interim orders were made also on 26 July 2002 whereunder the parties had joint interim custody of the two children with care and control of Alexandre to the petitioner and care and control of Alexia to the respondent with access by agreement between the parties. It was ordered that the petitioner, Mr. Joli would pay all school fees until further order of the Court. That arrangement worked until Mrs. Joli said that Alexandre returned to her three months before the petitioner left and she had had the care of both children since then. No maintenance has been paid since the petitioner left. The Respondent said that she sought permanent custody of both children with reasonable access reserved to the petitioner but to be exercised in Vanuatu only. She said that when the petitioner left Vanuatu both of the children were very hurt as he had gone without any advice to them of his intentions.

LAW

As the Court of Appeal said in the appeal decision in this matter the ownership and division of assets is to be determined according to ordinary principles of law and equity. The Court has additional powers to make an adjustment order applying the relevant provisions of the Matrimonial Causes Act [1973] (UK).

Section 25 of that Act provides as follows:-

“Matters to which court is to have regard in deciding how to exercise its powers under ss23, 24 and 24A

(1) It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24 or 24A above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.

(2) As regards the exercise of the powers of the court under section 23(1) (a), (b) or (c), 24 or 24A above in relation to a party to the marriage, the court shall in particular have regard to the following matters-

• (a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire;
  
• (b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;
  
• (c) the standard of living enjoyed by the family before the breakdown of the marriage;
  
• (d) the age of each party to the marriage and the duration of the marriage;
  
• (e) any physical or mental disability of either of the parties to the marriage;
  
• (f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
  
• (g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it;
  
• (h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit (for example, a pension) which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.
  

(3) As regards the exercise of the powers of the court under section 23 (1) (d), (e) or (f), (2) or (4), 24 or 24A above in relation to a child of the family, the court shall in particular have regard to the following matters-

• (a) the financial needs of the child;
  
• (b) the income, earning capacity (if any), property and other financial resources of the child;
  
• (c) any physical or mental disability of the child;
  
• (d) the manner in which he was being and in which the parties to the marriage expected him to be educated or trained;
  
• (e) the considerations mentioned in relation to the parties to the marriage in paragraphs (a), (b), (c) and (e) of subsection (2) above.
  

4. As regards the exercise of the powers of the court under section 23 (1) (d), (e) or (f), (2) or (4), 24 or 24A above against a party to a marriage in favour of a child of the family who is not the child of that party, the court shall also have regard-
   
   • (a) to whether that party assumed any responsibility for the child’s maintenance, and, if so, to the extent to which, and the basis upon which, that party assumed such responsibility and to the length of time for which that party discharged such responsibility;
     
   • (b) to whether in assuming and discharging such responsibility that party did so knowing that the child was not his or her own;
     
   • (c) to the liability of any other person to maintain the child”
     

The Court of Appeal said this:- “Depending on the length of time the parties that have lived together, and their respective contributions, the Court might reach a conclusion, as a matter of fact in the circumstance of the case, that matrimonial assets should be divided in a roughly equal fashion.”

FINDINGS

This case involves a relationship between the parties as man and wife over a period of twenty two years. The parties were in fact married for the last ten years of that period. It is clear that the parties worked jointly to accumulate their assets. The respondent worked throughout the period involved but she also brought into the relationship the leasehold titles that she owned. While Mrs. Joli continuing to work it was shown in the evidence that during the marriage the petitioner never kept her up to date with the details of the business, but she had a comfortable lifestyle and whenever she asked for money the petitioner gave it to her. She is now in much more straitened conditions as demonstrated by her statement at her age of forty one. The petitioner is forty two years of age and clearly has the ability to earn significant income and has simply left the jurisdiction without accounting to the respondent for any of the capital of the companies which they had acquired. In accordance with the legislation, the respondent continues to have financial needs, obligations and responsibilities for the children of the marriage, for which she is currently receiving no contribution from the petitioner. The standard of living enjoyed by the family before the breakdown of the marriage has been eroded and she still has in the foreseeable future the responsibility for the welfare of the children including looking after her home and caring for them. The conduct of the petitioner has been irresponsible, by secretly divesting himself of his business interests in Vanuatu and leaving without notice to the respondent and his children particularly when he was well aware that the Supreme Court had already ruled that the assets which he absconded with were regarded as matrimonial assets.

The responsibility of the Court as set out in Kokosinski –v- Kokosinski (1980) Fam 72; (1980) All ER 1106 is relevant where it was said that the function of the Court is to reach a financial solution for the problems of the family which is said fair, just and reasonable between the parties.

In Desai –v- Desai (1982) 13 Fam Law 46 the Court held that a husband’s failure to adequately disclose his financial situation and his devious behaviour both in relation to his business and to the Court proceedings, was sufficiently serious conduct to justify the Court in disregarding his evidence and in concluding that he was in a position to maintain his wife.

Clearly in this case the petitioner, in accordance with the investigation carried out on behalf of the respondent, has misrepresented his income to the extent of VT36, 999, 329 (see paragraph 19 of sworn statement of respondent of 24 February 2004) and to that extent his evidence is cast in significant doubt.

The petitioner also wrote to the Court by letter of 26 January 2004 as follows: -

“Dear Judge Treston,

MAT. CASE NO. 08 of 2002

It is with deep respect that I’m approaching you with this letter of explanation because I received in a anonymous letter delivered in the mail box the enclosed copy (A). the same type of advise were published in the local newspaper in New Caledonia for my brother Philippe Joli. After investigation it appears that this sort of publication is totally illegal following the French law of 1881 and I dough that the Supreme Court of Vanuatu did such a request. Anyhow this is to show how vicious they are and I will take this opportunity to express myself at least.

I apologize for my English but hope it will be understood

MATRIMONIAL PROPERTIES

First of all in my case I was the only party being evaluated and my ex wife well defended was never evaluated. Why??

After more than 20 years together I left home with my son and our cloths only. All the jewelleries, furniture and all the expensive dishes acquired during that time was left to her but never evaluated. I estimated all of that worth more than 12 million vatu. List enclosed (B).

Because Vanuatu has no laws regarding the division of matrimonial properties Judge Coventry wanted to use my case as a guideline for future divorce case.

Educated under the French system this of course was not acceptable to me. I had expressed the desire to use the French laws for my divorce but this was rejected by my ex wife and lawyer.

Therefore Judge Coventry ruled that all properties should be divided 50/50 without taking into consideration that I had shareholders in all my assets and they were very concern about that situation. Also taking into consideration that we had some cash flow problems and the bank was not prepared to make me a loan to pay the 60 million they were after. There was no laws and therefore no guideline of what would happened next. This situation puts a lot of pressure on my partners and myself because I could not be hear and everything was going to protect the women only.

Therefore I took the decision to sell all my assets at less than 60% of its value and to leave Vanuatu. I had no more trust in the rulings regarding that matter.

When I knew that I won my appeal case it was unfortunately not possible for my to come back.

KIDS MAINTENANCE

I had the care and control of my son Alexandre Joli. I did not take him with me because I did not want to be accused of kidnapping.

Judge Coventry ruled that I had to pay the bellow for her maintenance and my daughter:

- 50 000Vt maintenance / month
- School fees
- Sporting activities
- Clothing
- Medical insurance

On top of that I was also repaying our matrimonial loan that she refuses to pay. All of that was totalling more than 400 000Vt per month of expenses (Details enclosed C) and I had to negotiate an overdraft with my bank in order to match those heavy expenses. She had nothing to pay despite the fact that she was earning more than 400 000Vt per month.

On 3 different occasions I’ve tried before Judge Coventry to appeal because all of that was too heavy but he did not want to understand my financial situation. And the reason is very simple.

It is because Mr. Gary Blake has shown him a false bank statement with a fixed deposit of about 800, 000.00AUD in one of my company account. This document was presented before Judge Coventry in a irregular way direct to him and I was totally unaware of it. Therefore it is understandable why Judge Coventry ruled hard on me because he was sure that I was hidden some funds. ANZ has confirmed to Garry Blake that this was not true but he never pass on that to the Court.

All of that make me feel totally unconfident about all the proceedings.

Today I’m not paying any maintenance and I’m looking for a job. I take my ex wife and Gary Blake responsible for pushing me to the extreme situation were I had no choice but to sold all my assets at lost.

KIDS CUSTODY

A Court order dated on 26^th July 2002 gave me the care and control of my son (Document D).

When I left Vanuatu I did not take him with me because did not want to be accused of Kidnapping.

When I left Vanuatu my ex wife was telling the kids that I had abandoned them without knowing that I was in touch with them through their mobiles. But after a while the kids were fed up of earring such defamation and told the mother that they were in contact with me. The reaction was immediate. Confiscation of the 2 mobiles to cut the contact. I could still get in contact with him by email via the French school.

After that I was calling them at home to keep contract with my daughter but today the mother change the home phone number and therefore no more contact and she is now claiming that I definitely abandoned them.

This is totally false and this is a make up situation.

My son has always expressed the desire to come and live with me (I hope he could be listen before the Court) and my daughter with her mother.

They both were supposed to come and see me around the 26^th December 03 but at the last moment the mother did not allowed them.

My concern is my son because he is dying to stay with me and if this is his wish the mother should let him come for his welfare and future.

CONCLUSION

I felt totally unfairly treated and unsecured with all those rulings but now that I’m away of all of this my only concern is the welfare of my 2 kids and especially my son Alexandre who wants to stay with me.

I have no idea what ruling will come out on February the 10^th 2004 but if your require more information please contract me via email et xxxxxxxxxxxx [edited out]

Yours faithfully,

Daniel Joli Noumea 21^st January 2004

(Signed)”

Of course that is not a sworn statement and as to the list of matrimonial home contents, I accept the evidence of the respondent as to the value to be placed on furniture and jewellery which she retained as, in the absence of the petitioner, there is no acceptable evidence to the contrary. In fairness to the respondent in the way that she approached the property division she had accepted those figures which were given by the petitioner as to the assets and liabilities of the marriage in particular his valuation of the fishing business at VT8, 500, 000, the two Bellevue properties at VT10 million and the matrimonial debts of VT17, 231, 278.

As to the petitioner’s activity in relation to his businesses it is clear from the documents produced on subpoena, which I have examined carefully, that the net process of the various entities was VT54, 900,000.

The excess “income” received or the undeclared income amounted to VT36, 999, 329 since separation and I agree with the respondent that that should be treated as capital for the purposes of assessing the value of the assets.

As was covered in submissions on behalf of the respondent, some of the dividends paid to Mr. Joli may in fact have been used by him to pay one B. Gibson in Australia a total of VT24, 679, 400 in respect of his acquisition of Mr. Gibson’s shares in Snoopys. It had been confirmed in the petitioner’s statement of assets and liabilities in his December 2002 statement that there was a 30% interest of Gibson in Snoopy’s. Recognition of the Gibson interest is a safer approach for the Court to take and alters the amount due and available to the respondent by way of matrimonial property division.

In addition, it seems the petitioner and the respondent are parties to proceedings in relation to the National Bank of Vanuatu concerning a caution lodged by that bank on what was their matrimonial home. It appears that a payment of a lump sum to the petitioner and the respondent of VT8, 500, 000 will shortly be made and that can be taken into account in the assessment of matrimonial property. The disposition of those funds is a matter which can be dealt in the future once payment has been made and the position as to the amount clarified.

I agree with the submission made by counsel for the respondent that, bearing in mind the principles of the Matrimonial Causes Act 1973 (UK), this is a case where, in the words of the Court of Appeal, ”matrimonial assets should be divided in a roughly equal fashion”. After all, the parties have lived together as man and wife for 22 years. The respondent had assets and income from her employment at the time that the relationship started although she seeks no particular special allowance to her in that regard. Apart from the time that the two children of the relationship were born the respondent has continued to work and has invested all her capital and income into the marriage, in addition to providing financial and emotional support allowing the petitioner to develop and grow substantial business interests and assets. The respondent has now been left with a lower standard of living because of the conduct of the petitioner and I agree that the appropriate way of recognizing the respondent’s entitlement and an appropriate way to divide the matrimonial assets is as follows: -

ASSETS (Petitioner = DJ; Respondent = PJ)

Snoopy’s/Pactec/Orchid

Excess “income” received Vatu 36, 999, 329
LESS payment to Gibson Vatu (24,679,400)
Net proceeds of sale Vatu 54,900, 000

Vatu 67,219,929
Fishing business (DJ valuation) Vatu 8,500,000
Two Belleview properties (DJ valuation) Vatu10,000,000
Toyota land cruiser (proceeds of sale to PJ) Vatu 2,300,000
NBV claim (settled) Vatu 8,500,000
Furniture/Jewellery (held by PJ valued by her) Vatu 1,000,000
____________
Vatu 97,519,929

LIABILITIES

Matrimonial debts (per DJ’s Affidavit) Vatu17,231,278
Legal fees re. NBV proceedings Vatu 2,500,000
-____________ Vatu19,731,278

NET ASSETS Vatu77,788,651

============

One half share to PJ Vatu38, 894, 325
LESS (proceeds received/assets held being
Toyota and furniture and jewellery by PJ) Vatu 3, 300, 000

Balance due to PJ Vatu 35, 594, 325

=============

CUSTODY

I have already referred to the interim orders made by Coventry J. on 26 July 2002.

It is clear that since the separation Alexia has resided with the respondent and since about August 2003 Alexandra has been with her as well. In the letter above, it is clear that the petitioner has left without notice and has indicated his intention never to return to Vanuatu and in those circumstances I agree with the submission that while custody orders for each of the children should now be made in favour of the respondent Mrs. Joli with reasonable access reserved to the petitioner Mr. Joli, such access must be restricted to Vanuatu. That restriction is for the protection of the respondent and her custody rights because it is clear that, bearing in mind the conduct of the petitioner in leaving with a bulk of the matrimonial assets without notice, there is a significant and real risk that the petitioner would endeavour to defeat the custody orders made in favour of the respondent by removing the children from her care and control, should access be exercised outside this jurisdiction.

MAINTENANCE

The interim maintenance orders made by Coventry J on 26 July 2002 were on the basis of provision for the respondent and Alexia at VT50, 000 per month. The respondent is now responsible for the support of both children, together with school fee for each of them. Her figures justify the increase she seeks and I order that the petitioner is to pay the respondent VT120, 000 per month on the first of each month for maintenance of the respondent and the two children commencing on 1 April 2004.

As to the back maintenance, although the respondent has been in a relationship with a person who she agrees contributed towards her expenses, that relationship is now over and she has had to take care of both of the children since the petitioner left the jurisdiction. I award arrears of maintenance for five months at the new rate in the sum of VT600, 000.

SUMMARY

As to matrimonial property, I award the respondent Mrs. Joli the sum of VT35, 594, 325 as her share.

As to custody, I award custody of each of the children of the relationship Alexandre Joli born on 15 January 1990 and Alexia Joli born on 23 May 1992 to the respondent Mrs. Joli with reasonable access reserved to the petitioner Mr. Joli which access is to be exercised within the Republic of Vanuatu only.

As to maintenance, I order that the petitioner Mr. Joli pay the respondent Mrs. Joli the sum of VT120, 000 per month for the maintenance of the respondent and the children of the marriage until such children reach the age of eighteen years or cease formal schooling whichever shall occurred later. The First payment of that maintenance is to be made on 1 April 2004. I award arrears of maintenance to be paid by the petitioner to the respondent forthwith in the sum of VT600, 000.

In conclusion I note that these orders have not been made by way of default. The resolution of matrimonial property matters has been on foot since July 2002 when a notice of motion for ancillary relief was filed. During that period the petitioner has employed three different lawyers. He was a party to a ruling by Coventry J on 25 March 2003. He appealed that ruling to the Court of Appeal who dealt with his appeal on 3 November 2003 and delivered a judgment on 7 November 2003. While that appeal was being prepared and argued the petitioner, without the knowledge of his then solicitor or the respondent or his children, divested himself of his commercial interests in Vanuatu and sent funds overseas and himself left the jurisdiction without endeavouring to account to the respondent for any of the assets which at the time of his sale of them and his departure had been declared by Supreme Court of Vanuatu to be matrimonial assets. The petitioner has been forwarded a copy of the respondent’s last sworn statement of 24 February 2004 and was given notice of the hearing date of 18 March 2004 by the Acting Registrar of this Court to his email address which he himself provided in New Caledonia. This notice was given to him on 4 February 2004. Despite that, the petitioner obviously decided that he would not come back to Vanuatu for the hearing and did not make any submissions to the Court other than his letter received on 26 January 2004.

DATED AT PORT VILA, this 25^th day of March 2004

BY THE COURT

P. I. TRESTON
Judge.