Akr v SP HC Auckland CIV 2011-404-002998
[2011] NZHC 1509
•10 October 2011
NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO
11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2011-404-002998
IN THE MATTER OF the Family Proceedings Act 1980
BETWEEN A K R Appellant
AND S P
First Respondent
AND C H L
Second Respondent
Hearing: 28 September 2011
Counsel: J Hunter for the Appellant
DAT Hollings QC for the First Respondent
LM Nicholson for the Second Respondent
Judgment: 10 October 2011 at 4:00 PM
[RESERVED] JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie
On 10 October 2011at 4.00 pm
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
A K R V S P HC AK CIV 2011-404-002998 10 October 2011
[1] The appellant, Ms R, appeals against part of a decision of Judge de Jong delivered in the Family Court at Auckland on 27 April 2011. The part of the decision appealed against is the Judge’s decision to stay an application made by Ms R under s 182 of the Family Proceedings Act 1980 (―the Act‖), until proceedings commenced by the first respondent, Mr P, in Fiji, have been determined.
[2] Mr P cross-appeals Judge de Jong’s decision. He submits that the Family Court
did not have jurisdiction to hear Ms R’s application under s 182.
[3] The second respondent is a corporate trustee. It administers a trust established by the parties with assets in New Zealand. The trust is known as the Kasba Trust.
[4] The appeals raise two issues:
(a) first, is Ms R entitled to apply for relief in New Zealand under s 182 of the Act when the order dissolving the parties’ marriage was made in Fiji; and
(b)secondly, is Fiji the forum conveniens for determining relationship property and trust issues between the parties?
The second issue only arises if the first issue is decided in favour of Ms R.
Background
[5] Ms R was born in New Zealand, but she has spent much of her life in Fiji.
[6] Ms R and Mr P married on 9 July 1981 in Suva, Fiji. They separated in early
2008, and their marriage was dissolved on 26 May 2009 by an order made by the Family Law division of the Magistrates Court of the Fiji Islands at Suva under the Family Law Act 2003 (Fiji).
[7] There were no children of the marriage.
[8] Mr P commenced proceedings in the Family Law division of the Magistrates Court in Suva on 18 November 2008. He sought division of the matrimonial property and orders dealing with their joint and several liabilities. Ms R has actively participated in those proceedings. By way of example, she filed her financial statements on 25 February 2009. Since then, various affidavits and applications have been filed with the Court in Fiji. Some of the applications have been filed by Ms R. Further, Ms R has herself filed proceedings in Fiji. In July 2009, she commenced proceedings seeking maintenance. She subsequently withdrew those proceedings in August 2010.
[9] Ms R has resided in New Zealand since late 2007.
[10] Mr P resides largely in Fiji, but since January 2010 he has been temporarily resident in New Zealand so that he can obtain medical treatment. He needed a liver transplant. Mr P gave evidence before me. He had the transplant in April 2010 and it appears to have been successful. He stated that his ―results are stable‖ and that he does not need to attend a further clinical appointment for some three months. He has recently been back to Fiji, and he intends to return to Fiji permanently as soon as he is able to do so. In his words, ―I have to go back home. I don’t live – never lived here‖.
[11] On 16 August 2001, the parties settled a trust known as the Kasba Trust. Ms R was the settlor, and the second respondent is the corporate trustee. The trust was established because Mr P’s medical condition began to seriously deteriorate in approximately 2000. At much the same time, there was a coup d’état in Fiji. Mr P took steps to establish the trust so that he could transfer funds out of Fiji and use those funds as assets of the trust to purchase a suitable residence for him in Auckland, located conveniently to his doctors and the Auckland Hospital Liver Transplant Unit.
[12] Mr P arranged for his cousin, a solicitor in Auckland, to draft a suitable trust deed. The document was executed at Mr P’s offices in Suva. Mr P caused monies to be transferred from Fiji in the name of Ms R, to the second respondent as trustee of the Kasba Trust. Those monies were derived from the sale of the parties’ former matrimonial home in Suva, which was originally in their joint names.
[13] The amount initially gifted by Ms R to the trust was NZ$503,455. Subsequently, Ms R has gifted a further $202,645.43. The Reserve Bank of Fiji approved the remittance of funds to New Zealand because of Mr P’s medical condition, and because he needs to stay in Auckland from time to time for the ongoing management of his condition.
[14] The trustee has purchased two apartments in Grafton Road, Auckland. One unit, unit 10B, was purchased in May 2002 for $655,501. An additional unit, unit 7C, was purchased in September 2002 for $410,000.
[15] At the time of separation, Ms R was living in apartment 10B. As I understand it, she was not paying any rent to the trust. In November 2008, she vacated the apartment at the trustee’s request. The property is subject to a mortgage in favour of the ASB bank securing $320,000, and the trustee was concerned that the trust was unable to meet the mortgage payments on the property.
[16] Mr P has since taken up residence in the apartment, because he needed to reside in Auckland before and after his liver transplant. He has paid rental through his insurance company at a market rate for the use of the apartment.
[17] Ms R registered a notice of claim against apartment 7C. She was invited by the trustee to remove that notice of claim so that the apartment could be sold. While she did not agree to do so, she took no steps to sustain her claim after notice was given under s 145 of the Land Transfer Act 1952. The trustee is now intending to market apartment 7C for sale.
[18] It is common ground that the trustee has kept the parties informed of all proposed actions to date. Further, the trustee has indicated that it will continue to do so.
[19] Both Ms R and Mr P are beneficiaries under the Kasba Trust’s deed. There is, however, a clause – cl 13.3, which provides as follows:
No part of the capital or income of the Trust Fund may under any circumstances be paid or lent to or applied for the benefit of the Settlor and
none of the provisions of this deed shall operate for the direct or indirect benefit of the Settlor.
Ms R, as settlor, expresses concern about this clause, and considers that it is extremely unfair.
[20] Mr P for his part acknowledges that the parties’ interests under the trust comprise part of their matrimonial property, and that they are the subject of the current matrimonial property application before the Fijian Courts. He has disclosed the existence of the Kasba Trust and the respective interests of himself and Ms R thereunder. He has further deposed that the Court in Fiji has all the necessary powers to make orders as between him and Ms R to effect a division of their matrimonial property. Mr P has stated (and it is not disputed) that the Family Law Act of Fiji is closely based on, although not identical to, the Family Law Act 1975 in force in Australia, and that the Fijian Courts can make similar orders to those which are made by the Family Court of Australia. He states that the courts in Fiji have wide powers to make orders which can go behind trust arrangements and which can operate in personam against the parties to property proceedings in respect of trusts and otherwise.
[21] As noted above, the proceedings in Fiji have been strongly contested, and there have been and still are, a variety of applications before the Court. Ms R was cross-examined about the current state of the proceedings and copies of various orders made by Wati J in the Family Division of the High Court of Fiji on 21 September 2011 were made available to me. Various matters were due to be heard on that date but the hearings were adjourned by consent. A request by one of the parties for access to a property in Sydney owned by Ms R but said to be matrimonial property, and for the sale of that property, is now to be heard on 27 October 2011. If matters cannot be finalised on that day, then they are adjourned for further hearing on 18 November
2011. An application for sale of one of Kasba Trust’s New Zealand assets, presumably apartment 7C, is also to be heard on 27 October 2011. An application by an intervenor, Blue Water Real Estate, is to be heard on the same day, as is an application for sale of a property at Wailoku. This property is also said to be matrimonial property. An application for a property settlement is due to be called for mention on 18 November
2011, as is an application for access to chattels in Auckland. A direction for third-party
disclosure is for hearing on 18 November 2011, along with an application that Mr P’s
counsel be disqualified from, and/or cease acting for him against Ms R in the proceedings.
[22] Mr P gave evidence that he is ―pushing for timetables … to get [the proceedings] over and done with‖.
[23] Against this background, Ms R filed an application pursuant to s 182 of the
Family Proceedings Act 1980 in the Auckland Family Court seeking relief on
1 December 2009.
[24] On 19 February 2010, Mr P filed a notice of protest to jurisdiction, and on
22 February 2010, the second respondent indicated that it would abide the decision of the Court.
[25] It was Mr P’s protest to jurisdiction which was heard by Judge de Jong on
11 April 2011.
The Family Court decision
[26] Judge de Jong started by noting that the case involved a novel issue – namely, does the Family Court have jurisdiction to hear Ms R’s s 182 application to deal with the New Zealand family trust where the order for dissolution of the marriage was made outside New Zealand.
[27] The Judge considered s 182(1). He also referred to s 44(1), and to the meaning of the words ―make‖ and ―recognise‖. He also acknowledged the United Kingdom experience where a law change was considered necessary to overcome a similar problem in that country. Judge de Jong went on to consider the purpose of s 182. He considered that the section was enacted to recognise that the end of a marriage can result in a change of circumstances which may have the effect of one party benefiting from the other. He considered that the purpose of s 182 was important to bear in mind when determining the intention and effect of the words ―the making of an order under Part 4 of this Act‖. He noted that orders cannot be made under the section unless an order for dissolution of a marriage has been made. He was of the view that an order
for dissolution made in New Zealand or Fiji is an order under Part 4 of the Act, and that so long as an order for dissolution made outside New Zealand complies with the provisions of s 44, it is an order made under Part 4 of the Act. In the Judge’s view, the order made in Fiji was an order made under Part 4 of the Act in terms of s 44, and the Court therefore had jurisdiction to hear the s 182 application in respect of the Kasba Trust. He noted that to reach a different conclusion would mean that Ms R would not have any right to make a claim under s 182, because the husband had his application to dissolve the marriage heard ahead of the wife’s in Fiji. He considered that that could not possibly have been the intention of Parliament when jurisdiction is established in terms of s 4(a) of the Act, and a claim is made in respect of a family trust set up, operating and being administered in New Zealand.
[28] His Honour then went on to consider which country was the forum conveniens. He considered the competing contentions, and the relevant legal principles, and reached the conclusion that Fiji was the more appropriate forum to determine the proceedings. He noted as follows:
(a) The Fijian legislation afforded to the Courts of that country wide and far-reaching jurisdiction and power to address relationship and trust property issues;
(b)The parties lived together for most of their married life in Fiji, and the interests of justice are best served by allowing the Fijian Courts to determine the parties’ relationship and trust property interests together;
(c) The Fijian proceedings are well advanced;
(d)There was insufficient evidence on which he could conclude that Ms R was unable to obtain justice in Fiji or that she would not otherwise receive a fair hearing;
(e) That a stay was appropriate, because the Family Court would retain jurisdiction to give effect to a Fijian substantive judgment which might affect or relate to the Kasba Trust.
[29] Accordingly, Judge de Jong granted Mr P’s application to stay the s 182
application.
Other matters
[30] For the sake of completeness, I record that on 16 December 2010, Mr P sought in the Fijian High Court an ―anti-suit‖ injunction against Ms R and her agents.
[31] The application for an anti-suit injunction was heard by the High Court in Fiji, and Wati J issued a decision on 1 August 2011. Her Honour records that Judge de Jong’s decision was issued on 27 April 2011. She noted that Judge de Jong considered that he had jurisdiction to deal with Ms R’s application under s 182 of the New Zealand Family Proceedings Act, but that Fiji was the more appropriate forum to deal with the outstanding property issues. She noted that the Judge had stayed Ms R’s application pending the substantive hearing in Fiji. Her Honour noted that the purpose of an anti-suit injunction is to restrain a party from commencing or continuing a suit in a foreign court. She discussed Judge de Jong’s decision, and concluded as follows:
Effectively after the stay of New Zealand proceedings the subject matter to grant the anti-suit injunction is now exterminated. There is therefore no basis for the grant of an injunction that the wife be constrained from continuing action number FAM 2009-004-003169 in the Family Court at Auckland against the husband and Charade Holdings Limited because [the] wife now cannot continue the action anymore until the Fiji Court has decided the substantive proceedings.
… the verdict of [Judge de Jong] could have, and in fact has, solved the problem. If [Judge de Jong] had refused to grant a stay based on forum conveniens then it would have been proper for me to decide the aspect of anti- suit injunction bearing in mind the need for comity.
… I am of the judgment that an order for stay of foreign proceedings is an alternative remedy to that of an order for anti-suit injunction. The two orders cannot co-exist because the grant of stay extinguishes the existence of the proceeding against which the anti-suit injunction application could be brought. I decline to grant an anti-suit injunction against the wife and her servants or agents from continuing … the Auckland proceedings.
The notices of appeal
[32] Ms R challenged the grant of the stay. She asserted that Judge de Jong failed to adequately take into account a lack of ―complete correspondence‖ when addressing the
forum conveniens issue, and that in granting the stay, the Judge was unduly influenced by the suggestion that the Fijian proceedings would be expeditiously disposed of in that country. It was alleged that the Judge failed to adequately consider the effect of the stay on the proceedings, and that he was under a mistaken belief as to the outcome. It was alleged that the Judge did not adequately weigh the factors that contributed to the determination of the more appropriate forum.
[33] Mr P in his notice of cross-appeal sought to set aside the Judge’s finding that the Family Court had jurisdiction. It was asserted that Judge de Jong erred in holding that the dissolution of marriage order made by the Fiji Court in May 2009 was an order under Part 4 of the Family Proceedings Act 1980. It was also alleged that the Judge erred in finding that the order for dissolution complied with s 44 of the Act, and that it was therefore an order made under Part 4 of the Act.
Submissions
[34] The submissions advanced by the parties followed their respective notices of appeal in large part.
[35] Ms Hollings QC for Mr P submitted that the jurisdictional question is one of statutory interpretation. She submitted that orders under s 182(1) can only be made on the making of an order under Part 4 of the Act, or under the Matrimonial Proceedings Act 1963. She argued that it is common ground that no order had been made under the Matrimonial Proceedings Act 1963 and submitted that no order had been made under Part 4 of the Family Proceedings Act either. She submitted that it followed that Ms R is not entitled to relief under s 182. She referred to s 44 and submitted that that section does no more than require the New Zealand courts to recognise an overseas order for divorce or dissolution, and that such recognition does not equate to the making of an order under Part 4 of the Act. She submitted that Judge de Jong ignored the plain wording in ss 182(1) and 44 of the Act.
[36] Ms Hunter for Ms R referred to the history and purpose of s 182. She acknowledged that s 182 requires that there be an order made under Part 4, but submitted that the interests of justice require that the Court should hold that an order
made dissolving a marriage is an order made in terms of Part 4, irrespective of who made it. She submitted that if the argument advanced on behalf of Mr P was correct, that parties’ rights would be determined by whichever party managed to get a divorce order through first, that such a conclusion is illogical, and that it is not in the interests of justice. She noted that different jurisdictions have different grounds on which marriages can be dissolved, and submitted that jurisdiction should not be determined in absolutist terms, but rather by reference to the purpose of the section. She denied that Ms R is ―cherry picking‖, and went on to discuss the forum conveniens issue. She submitted that Judge de Jong’s consideration of the various issues relevant to that issue was superficial, and that he did not address the requisite matters in any real way. She referred in particular to the following:
(a) place of residence and work;
(b) expense and witness availability;
(c) respective laws and legal systems relevant to relationship property and trusts;
(d) ability to register and enforce orders;
(e) personal juridical advantage to wife in proceeding in New Zealand; and
(f) other connection factors.
She submitted that the Fijian proceedings are ―bogged down‖, and that it was wishful thinking by Judge de Jong to conclude that the case would be heard in Fiji at an early juncture. She submitted that the order staying the proceedings did not reflect upon the duties of the New Zealand courts in addressing any orders brought here for enforcement. She argued that s 3B of the Reciprocal Enforcement of Judgments Act
1934 only addresses the reciprocal enforcement of non-monetary judgments.
[37] Ms Hollings in response to the forum conveniens issue submitted that Judge de Jong had not erred, and that his judgment adequately addressed all relevant issues. She noted that the trustee accepts the jurisdiction of the Fijian courts and has stated that if
orders are made, it will abide by them. She submitted that, were the proceedings to continue in New Zealand, there would be parallel proceedings on what are very similar issues involving unwarranted additional time and cost. She argued that the essence of Ms R’s application is that she thinks there is an advantage to her in bringing an application under s 182 in relation to the assets in the Kasba Trust in New Zealand, rather than having those assets dealt with in the proceeding in Fiji. She submitted that that was an irrelevant factor, and that in any event, the proceedings in their totality have a much greater connection with Fiji than with New Zealand. She submitted that it was not appropriate for Ms R to isolate out the trust and say that it had a greater connection with New Zealand. She noted that Mr P’s procedure was commenced considerably earlier than Ms R’s application under s 182, and that her application deals with a much narrower issue.
Analysis
[38] In my view, this matter can be dealt with relatively shortly. [39] Section 182(1) of the Act provides as follows:
182 Court may make orders as to settled property, etc
(1) On, or within a reasonable time after, the making of an order under Part 4 of this Act or a final decree under Part 2 or Part 4 of the Matrimonial Proceedings Act 1963, a Family Court may inquire into the existence of any agreement between the parties to the marriage or civil union for the payment of maintenance or relating to the property of the parties or either of them, or any ante-nuptial or post-nuptial settlement made on the parties, and may make such orders with reference to the application of the whole or any part of any property settled or the variation of the terms of any such agreement or settlement, either for the benefit of the children of the marriage or civil union or of the parties to the marriage or civil union or either of them, as the Court thinks fit.
(Emphasis added.)
[40] As can be seen, orders under the subsection can only be made on the making of an order under Part 4 of the Act, or on a final decree under Part 2 or Part 4 of the Matrimonial Proceedings Act 1963. As Ms Hollings noted, no order has been made
under the Matrimonial Proceedings Act 1963. The issue is whether an order has been made under Part 4 of the Family Proceedings Act.
[41] Part 4 of the Act deals with proceedings relating to the status of marriage or civil union. Relevantly, the Family Court can make a declaration that a marriage or civil union is valid, or that it has been validly dissolved.[1] It can make an order declaring that a marriage or civil union was void ab initio.[2] It can make an order declaring that a party to a marriage or civil union is presumed to be dead and that the marriage or civil union is dissolved.[3] It can make an order for dissolution of a marriage or civil union, on the ground that the marriage or civil union has broken down irreconcilably.[4]
[1] Family Proceedings Act 1980, s 28.
[2] Ibid, s 30.
[3] Ibid, s 34.
[4] Ibid, ss 38, 39 and 42.
[42] Section 44 is contained in Part 4. It provides as follows:
44 Recognition of overseas orders
(1) The validity of a decree or order or legislative enactment for divorce or dissolution or nullity of marriage or civil union made (whether before or after the commencement of this Act) by a Court or legislature or public authority of any country outside New Zealand shall, by virtue of this section, be recognised in all the Courts of New Zealand, where—
(a) One or both of the parties were domiciled in that country at the time of the decree, order, or enactment; or
(b) That overseas Court or legislature or public authority has exercised jurisdiction—
(i) In any case, on the basis of the residence of one or both of the parties to the marriage or civil union in that country, if, at the commencement of the proceedings, any such party had in fact been resident in that country for a continuous period of not less than 2 years; or
(ii) In any case, on the basis that one or both of the parties to the marriage or civil union are nationals or citizens of that country or of any sovereign State of which that country forms part; or
(iii) in any case, on the basis that the spouse or civil union partner has been deserted by his or her spouse or civil union partner, or that one spouse or civil union partner
has been deported and the other spouse or partner was, immediately before the desertion or deportation, domiciled in that country; or
(iv) in any case, on the basis that the spouses or civil union partners were legally separated, whether by an order of a competent Court or by agreement, and that one of the spouses or partners was, at the date of the order or agreement, domiciled in that country; or
(v) In a case of nullity of marriage or civil union on any ground existing at the time of the marriage or civil union, on the basis of the celebration of the marriage or civil union in that country; or
(c) The decree or order or enactment is recognised as valid in the Courts of a country in which at least one of the parties to the marriage or civil union is domiciled.
(2) Nothing in this section shall affect the validity of a decree or order or legislative enactment for divorce or dissolution or nullity of marriage or civil union, or of a dissolution of marriage or civil union otherwise than by judicial process, that would be recognised in the Courts of New Zealand otherwise than by virtue of this section.
[43] Here, the parties’ marriage was dissolved pursuant to an order made by the Family Law Division of the Magistrates Court of Fiji in 2009. Providing one or more of the various preconditions set out in s 44(1)(a) to (c) are met, then the section requires that the validity of that order be recognised by the Courts of New Zealand.
[44] The word ―make‖ means to produce, to cause, to exist, to create, or to bring about.[5] In contrast, the word ―recognise‖ means to acknowledge the existence, validity, character or claims of some person or entity, or to accord notice or attention to something.6[6]
[5] L Brown (ed) The New Shorter Oxford English Dictionary (Vol 1) (4th ed, Oxford University Press, New York, 1993) at 1671.
[6] L Brown (ed) The New Shorter Oxford English Dictionary (Vol 2) (4th ed, Oxford University Press, New York, 1993) at 2503.
[45] In my judgment, recognition of an overseas order for divorce or dissolution does not equate to the making of an order under Part 4 of the Act as those words are used in s 182. Section 44 does not deal with the making of an order by a New Zealand court. Rather, it refers to recognition by the New Zealand courts of an order made by a
court or legislature or public authority of any country outside New Zealand.
[46] One of the purposes of s 182 is to prevent one party from benefiting unfairly from a nuptial settlement at the expense of the other in the changed circumstances which apply when a marriage has been dissolved. As noted by the Supreme Court in Ward v Ward,[7] a nuptial settlement, whether it be ante or post nuptial, is premised on the continuation of the marriage. When a court is assessing an application under s 182, it must assess whether an order is necessary, and if so on what terms, to reflect the fact
[7] Ward v Ward [2009] NZSC 125, [2010] 2 NZLR 31.
that that fundamental premise no longer applies, because the expectation of the parties when the settlement was made has been defeated by the dissolution of their marriage.
[47] While I am required to adopt a purposive approach in interpreting s 182, my primary task is to interpret the text of the statute. The meaning of an enactment is to be ascertained from its text and in light of its purpose,[8] and the starting point in interpreting the section remains the language used by the legislature.
[8] Interpretation Act 1999, s 5(1); and see JF Burrows and AI Carter Statute Law in New Zealand (4thed, Lexisnexis, Wellington, 2009) at ch 10.
[48] Further, and in any event, the purpose of s 182 does not compel the conclusion that the Family Court should have jurisdiction over trusts, notwithstanding that they may be administered in New Zealand, or have assets in this country. It may be that the legislation used the words in s 182 to ensure that the New Zealand courts do not assume jurisdiction under the section where the order bringing the marriage to an end was made overseas.
[49] In my view, the text of both ss 182(1) and 44 is clear. Section 182 applies only where the New Zealand courts make an order under Part 4 of the Act or a final decree under Part 2 or Part 4 of the Matrimonial Proceedings Act 1963. There are a number of sections in Part 4 of the Act which give the Court jurisdiction to make orders, but s 44 is not one of them. The making of an order requires a positive act of a New Zealand court, having considered the matters before it. The recognition of an order made by an overseas court requires an acknowledgement by the New Zealand courts of steps taken by the overseas court. It would have been open to Parliament to provide that s 182 was to apply on or within a reasonable time after the making of an order under Part 4, or recognition of an order under s 44. Parliament did not do so, and
if I were to stretch the meaning of the section, I would, in my view, be seeking to fill a
presumed gap in the legislation. That is not interpretation of the text of s 182 and it is not the function of the Court.
[50] I agree with Ms Hollings that this interpretation is reinforced if reference is made to s 44 itself. It refers to decrees or orders or legislative enactments made by a court or legislature or public authority of any country outside New Zealand. Clearly, orders made outside New Zealand cannot be orders made under the Family Proceedings Act 1980.
[51] I am further reinforced in my view by the experience in the United Kingdom. Section 24 of the Matrimonial Causes Act 1973 in that country gave the courts power to make various property adjustment orders ―[o]n granting a decree of divorce, a decree of nullity of marriage or a decree of judicial separation‖. No jurisdiction was conferred where the decree was granted by a foreign court. This caused hardship to wives and children,[9] and the law was amended by Part III of the Matrimonial Proceedings Act 1984. Under the amendment, the Court was given power to make an order for financial relief where a marriage had been dissolved or annulled, or where the
[9] Sir Lawrence Collins (ed) Dicey, Morris and Collins on the Conflict of Laws (14th ed, Sweet & Maxwell, London, 2006) at [18-136] and [18-173].
divorce, annulment, or legal separation was entitled to be recognised as valid in England and Wales.[10] The purpose of the 1984 Act was to remit hardships which had been experienced in the past, and to empower the courts in the United Kingdom to step in and fill the gap where the marriage had been dissolved in a foreign jurisdiction according to foreign laws.[11]
[10] Matrimonial and Family Proceedings Act 1984 (UK), s 12(1).
[11] Holmes v Holmes [1989] 2 FLR 364 (CA) at 373; Jordan v Jordan [2000] 1 WLR 210 (CA); Agbaje v Agbaje [2009] EWCA Civ 1, [2009] 3 WLR 835.
[52] I am alive to the submissions made by Ms Hunter, but the position may not be quite as bleak as she forecast. I note the provisions of ss 27 and 28 of the Act. It may be that a declaration made under these provisions is an order made under Part 4 which could give the Family Court jurisdiction under s 182. This issue however was not fully argued before me and I do not therefore take it any further. It will have to wait for
another day.
[53] From what I have said, it follows that, in my view, Judge de Jong erred in his interpretation of s 182(1) of the Act. No order has been made under Part 4 of the Act, and as a result, the Family Court did not have jurisdiction to consider Ms R’s application under s 182(1). The cross-appeal is allowed.
[54] It is not necessary for me to go on and consider whether or not Fiji is the appropriate forum for the proceedings. Given that there are still live issues between the parties, I will not make any comment on that issue. Mr R’s appeal is dismissed.
[55] Mr P is entitled to costs. Costs have already been classified as category 2, and it seems to me that an award on a 2B basis is appropriate. I would invite the parties to resolve costs between themselves. If they are unable to do so, then any dispute is to be referred to me within 10 working days of the date of release of this judgment. I will
then deal with costs on the papers unless I require the assistance of counsel.
Wylie J
Distribution:
J Hunter: [email protected]
D A T Hollings QC: [email protected]
L M Nicholson: [email protected]
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