IN THE HIGH COURT OF FIJI AT SUVA
Appeal no: 0001 of 2012

BETWEEN:

Naleen Kanti
Appellant

AND:

Vincent Vinod Ram
Respondent

Appearances: Mr SunilSharma with Ms M.Tarai for the appellant
Mr Raman Singh for the respondent
Date of hearing: 11th February, 2013
Anonymised case citation: NK v VVR 

JUDGMENT

1.	Naleen Kanti had filed an application for property settlement and child maintenance, in the Magistrates' Court. On 8th July, 2009,the following orders were made by the Learned Magistrate AnjalaWati(as she then was):

a)	That the residential property being the Methodist Church Lease be sold.

b)	The sale of the property shall be by of tender advertised in one of the local dailies.

c)	The solicitors for the applicant and the respondent to mutually work out as to which solicitor shall be responsible for the conveyance transactions.

d)	The solicitor appointed to conduct the sale is authorised to accept an offer to purchase by a suitable lawyer.

e)	The proceeds of the sale shall first be used to pay the FNPF charge on the property.

f)	After the payment of the FNPF charge the parties shall be entitled to their share in the following manner:-

•	60 per cent of the balance proceeds to the applicant.

•	40 per cent of the balance proceeds to the respondent.

g)	The costs of the conveyance transaction shall be paid by the respondent.

h)	The applicant shall be responsible and liable to pay for all outstanding rates, rents and bills.

i)	There shall be no child maintenance.

2.	The grounds of appeal 
Naleen Kanti files this appeal on the following grounds of appeal:

 " The Learned Trial Magistrate erred in law and in fact:

i.	in proceeding to hear the matter despite accepting the fact that the threshold for trial had not been met. In the alternative the Learned Trial Magistrate ought to have adjourned the matter before making the orders for the parties to provide a valuation of the matrimonial home, amount of FNPF charge on the property and the amount of the respondent's FNPF balance.

ii.	in failing to put a reserve price on the sale of the Matrimonial Home before ordering the sale of this property by calling of tender.

iii.	 by distributing the matrimonial property even through the four stage test for alteration of property interest had not been satisfied.

iv.	by not holding the Respondent liable and/or accountable for the non disclosure of his FNPF balance, FNPF charge and the valuation of the matrimonial home. 

v.	when she set off the child maintenance for a mere 10% adjustment in favour the Appellant without having regard to and/or acting contrary to sections 26 c) and 86 (1) of the Family Law Act 2003.

vi.	when she did not incorporate the FNPF of the Respondent as part of property distribution.

vii.	when the Appellant's payment of debts and charges in the matrimonial home was not recognised as a contribution towards the property contrary to section 162(1) (b) of the Family Law Act. This Contribution should have been allowed as an adjustment or a deduction in favour of the appellant.

viii.	when she ordered the reimbursement of the FNPF charge to the Respondent from the proceeds of sale in contrast to the order where the Appellant was ordered to pay all the outstanding rates, rents, bills etc in absence of any appropriate adjustment factors.

ix.	when she failed to set out the steps and procedures including the safeguards which must be followed before the acceptance of the tender for the sale of the property.

3.	 The determination 

3.1 The first ground

 The first ground of appeal takes issue with the Learned Magistrate proceeding to hear the matter, despite accepting the fact that the threshold for trial had not been met, in that the parties had not provided a valuation of the matrimonial home, the Fiji National Provident Fund charge on the property and the balance in Vincent Vinod Ram's Fiji National Provident Fund. It is argued that the Learned Magistrate ought to have adjourned the matter and requested the parties to provide this information, prior to making final orders.

3.1.2 The answer to this contention is contained in the judgment of the Learned Magistrate which states that the "parties will have no one but them and their counsels to blame for requesting for matter to be heard when it was not ready for the same". The proceedings of the lower court of 21st May, 2009, provides that both counsel for Naleen Kanti and Vincent Vinod Ram had stated they were ready; the evidence of Naleen Kanti was led. Moreover, I fail to understand why Naleen Kanti failed to provide a valuation of the matrimonial property, she was in occupation of.

 3.1.3 I have dealt with the matter regarding the balance in Vincent Vinod Ram's Fiji National Provident Fund in paragraph 3.4 below. 

 3.1.4 In my judgment, the Learned Magistrate was entitled to proceed to determine the matter on the evidence before her. Order 5.02 of the Family Law Rules,2005, empowers the lower court to make an order it thinks fit "if a party does not do all things required by the Rules". 

 3.2 The second ground

 I find fanciful the contention in the second ground that the Learned Magistrate should have put a reserve price on the sale of the matrimonial home, before ordering a sale by tender.

3.3 The third, fifth, sixth, seventh and eighth grounds

Section162 of the Family Law Act forms the basis of the third, fifth, sixth, seventh and eighth grounds of appeal. 

3.3.1 Section 162(1) sets out in sub-sections (a),(b),(c) and (d) the fourfold contributions the court must take into account, in making an order with respect to "any property of the parties to a marriage". Sub-section (a) provides that a financial contribution made directly or indirectly to the acquisition, conservation or improvement of the property is to be taken in into account. Sub-section (b), the non-financial contribution to the improvement of the property. The contribution made to the welfare of the family has to be considered by sub-section (c). This is an elusive concept with wide import. Finally, sub-sections (d) requires the eligibility of either party for a pension, allowance or benefit under any superannuation fund to be considered.

3.3.2 Justice Wati's elucidation on section 162(1) is instructive. In KN v MYH, (08/BA 0043), she stated that it "is not suggest(ed) that one of these types of contributions is any more important than any other contribution. It is up to the Court to assess the respective value of each type of contribution." 

3.3.3 Sub-section 162 (2) enunciates the rebuttable presumption that the contribution of the parties to a marriage is presumed to be equal.

3.3.4 In SB v MIK,(06/BA/0185) it was held that a contribution made by a home-maker wife is considered to be equivalent to a direct or indirect financial contribution. Since the marriage was of short duration of 4 years, the wife was awarded a one-third share.

3.3.5 The final stage under section 162(3) is to take into account the factors enumerated therein, which has been aptly termed "future needs" by Justice Wati in KN v MYH (supra). As so far as relevant to the present case, these are as follows: 

(a)	the age and state of health of the parties; 

(b)	the income, property and financial resources, including any interest in capacity of each of them for appropriate gainful employment; 

(c)	whether either party has the care and control of a child of the marriage who has not attained the age of 18 years.

(d)	the commitments of each of the parties that are necessary to enable the party to support –

(i) himself or herself;

(e)	.

(f)	 .

(g)	the duration of the marriage, and 

(h)	.

(i)	any other fact or circumstances which, in the opinion of the court, the justice of the case requires to be considered.(emphasis added)

3.3.6 The third ground

The third ground contends that the matrimonial property was distributed, contrary to the four stage tests for alteration of property interests laid down in section 162(1).

3.3.7 The criteria set out in section 162(a) and (b) has been considered by the lower court. Naleen Kanti was quite correctly found to have contributed to the matrimonial property, as a homemaker parent. The Learned Magistrate held that during the 11 years of marriage, she brought up two children and continues to take care of them, without any support and assistance from Vincent Vinod Ram. 

3.3.8 Next, the Learned Magistrate found that Vincent Vinod Ram had made financial contributions to the property with his monies held in the Fiji National Provident Fund Account. He had paid the Housing Authority debt and purchased materials to build the house with his wages. It was also found that he contributed to the general welfare of the family by supporting them financially during the 11 years of the marriage. 

3.3.9 At the first stage of assessment, the Learned Magistrate held that the parties were each entitled to 50% of the matrimonial property.

3.3.10 The fifth ground

3.3.11 The contention in the fifth ground of appeal argues that the Learned Magistrate acted contrary to sections 26 c) and 86 (1) of the Family Law Act, 2003, when she set off the child maintenance for a 10% adjustment in favour of Naleen Kanti. 

3.3.12 Section 26 c) enshrines the need to protect the rights of children and promote their welfare. Section 86(1) states the primary duty of parents is to maintain their offspring.

3.3.13 The lower court, on a consideration of Vincent Vinod Ram's "age and state of health" as laid down in section 162(3)(a), found that he could not perform hard work since he had contracted heart disease. His earnings by engaging in light duties was insufficient for his survival. In my view, it was quite correctly concluded that he could not pay maintenance. 

3.3.14 Naleen Kanti had not worked for 20 years and was supporting the child, while Vincent Vinod Ram was not. Accordingly, Naleen Kanti was granted a 10 % increase in the share from the matrimonial property for the future maintenance of the child. In my judgment, this increase, adequately covers child maintenance.

3.3.15 The sixth ground 

3.3.16 The sixth ground of appeal provides that the Learned Magistrate failed to incorporate Vincent Vinod Ram's Fiji National Provident Fund, as part of property distribution.

 3.3.17 The lower court declined to make an order for division of Vincent Vinod Ram's Fiji National Provident Fund for several reasons. Firstly, Vincent Vinod Ram would not be able to uplift this money, in the next ten years . Secondly, in view of his state of health, it was held that he may require the monies, in the evening of his life. Thirdly, Naleen Kanti' s entitlement to this asset was set off against her enjoyment of the matrimonial property for the past ten years, with Vincent Vinod Ram having to find alternative accommodation. Finally, as a further adjustment in favour of Naleen Kanti, Vincent Vinod Ram was held responsible for all costs incurred in the realisation of the entitlements of the parties to the matrimonial home. The reasoning of the Learned Magistrate appeals to me. 
 
3.3.18 The seventh ground

3.3.19 The seventh ground argues that the payment of the debts and charges in the matrimonial home by Naleen Kanti was not recognised as a contribution, contrary to section 162(1) (b) of the Family Law Act. I do not accede to this argument.

3.3.20 In my view, the Learned Magistrate rightly came to a conclusion that the payment of rents and town rates was not an exclusive contribution made by Naleen Kanti to the matrimonial home, since she was in occupation of same . 

3.3.21 The eighth ground

I find this ground of appeal deeply unattractive. The complaint is that the Learned Magistrate ordered the reimbursement of the Fiji National Provident Fund charge to Vincent Vinod Ram from the proceeds of sale, whereas Naleen Kanti was ordered to pay all the outstanding rates, rents and bills.

3.3.22 Vincent Vinod Ram purchased the matrimonial property with his wages and a charge on his monies in his Fiji National Provident Fund. The proceeds of the sale must necessarily first, be used to pay that charge. 

3.3.23 The third, fifth, sixth, seventh and eighth grounds of appeal cannot, in my view, be sustained.

3.4 The fourth ground 

3.4.1 It is argued under the fourth ground, that Vincent Vinod Ram should have been held liable or accountable for failure to disclose his Fiji National Provident Fund balance, the Fiji National Provident Fund charge on the property and the valuation of the matrimonial home.

3.4.2 In SLB VNW,(09/SUV/005) it was contended that Form 9 application for property distribution was not filed. Justice Wati held that failure to file this form did not invalidate the proceedings. She stated that there was "no miscarriage of justice or prejudice that was caused to the appellant. She had access to justice and she also did not take objection to the issue when she appeared in court as a party to the proceedings". Her Ladyship relied on Regulation 7(1) and (2) of the Family Law Rules. Regulation 7(1) provides that non- compliance "with these Regulations, or with a rule of practice or procedure in a court exercising jurisdiction under the Act, does not render proceedings in that court void unless the court so directs". Regulation 7(2) reads as follows: "in exercising discretion under this regulation, the court shall have regard to the real merits of the case, the minimizing of expense, and whether any party to the proceedings, has suffered injustice or has been prejudicially affected by non-compliance with these Regulations".(emphasis added)

3.4.3 Mr Sharma, counsel for Naleen Kanti has submitted copies of several authorities of the Australian courts on the issue of non-disclosure in property settlement proceedings. I would refer to one relevant case, namely In the marriage of SW an WH Weir,(1992)16 Farm LR 154.This case held that there must be clear and sufficient evidence of non-disclosure, for a court to make an order in relation to unidentified and undisclosed property. 

3.4.4 In the present case, Vincent Vinod Ram had testified that his balance in his Fiji National Provident Fund Account was $ 3000. Naleen Kanti had not challenged this evidence.

3.4.5 I dismiss the fourth ground of appeal. 

3.5 The ninth ground 

 The remaining ground of appeal contends that the lower court should have laid down the procedures and the safeguards to be followed, prior to the acceptance of the tender. In my judgment, adequate safeguards were made by the Learned Magistrate when she ordered the solicitor for the Naleen Kanti or Vincent Vinod Ram appointed to conduct the sale, " to accept an offer to purchase by a suitable buyer".

3.6 I conclude there are no merits in any of the grounds of appeal. 

4 Naleen Kanti had sought leave to appeal out of time, the judgment I have reviewed. The Resident Magistrate Mr Sumudu Premachandra had granted leave and a stay of the judgment, until final determination of this appeal. The stay is uplifted.

5.	 Costs

Naleen Kanti is represented by the Legal Aid Commission. Accordingly, I make no order as to costs.

6.	 Orders

a)	I dismiss the appeal and affirm the judgment of the Learned Magistrate.

b)	The stay granted on 12th January, 2012, of the judgment of the Learned Magistrate, is uplifted. 

9th July, 2013

A.L.B. Brito-Mutunayagam
Judge