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Robert v Robert [2010] PGNC 165; N4003 (31 March 2010)

N4003

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MC No. 06 OF 2003

BETWEEN:

HENRY To-ROBERT
Petitioner/Cross-Respondent

AND:

MARY To-ROBERT
Respondent/Cross-Petitioner

AND:

JANET To-ROBERT
Cross-Co-Respondent
 Waigani : Gavara-Nanu, J
2007 : 7, 10, 11 & 18 December
2010 : 31 March

FAMILY LAW -  Property  Settlement - Matrimonial Causes Act, Chapter No. 282,
ss. 73 and 75 - Matrimonial  properties  - Meaning thereof - Husband and wife
domiciled in PNG - Husband owning  properties  abroad - Jurisdiction of the Court
over such  properties  - Husband financially strong - Parties' contributions -
Parties' financial resources and means - Just and equitable apportionment of
matrimonial  properties  between the parties - Husband holding high positions -
Husband a busy person with demanding responsibilities.

FAMILY LAW –  Property  settlement – Matrimonial Causes Act, Chapter No. 282; s.
75(1) – A party acquiring  properties  prior to parties' marriage –– A party
acquiring  property  from funds acquired during the course of the parties'
marriage – Whether such  properties  can be regarded as matrimonial
 properties  and be subject to court's scrutiny and determination for  property 
settlement between the parties.

FAMILY LAW –  Property  settlement – A party not making full and frank
disclosures –Duty to disclose - Party disadvantaged by such non disclosures should
be treated favorably by the Court – In such cases it is fair for the Court to treat the
 property  pool as less than demonstrated by the evidence – Consequences of a
failure by a party to make full and frank disclosures.

Cases cited:

Papua New Guinea Cases

Aundak Kupil v. The State [1983] PNGLR 350

Avia Aihi v. The State (No. 1) [1981] PNGLR 81
Dent v. Thomas Kavali [1981] PNGLR 488
Manikam Nadesalingam v. Alima Nadesalingam & Paul Solien (1998) N1754
S.C.R No. 2 of 1981; Re s. 19 (f) of the Criminal Code [1982] PNGLR 150

Overseas cases cited:

French v. French [1998] I NZLR 62
In Marriage of FERRARO [1992-1993] 111FLR 124
Kewaliw (1981) FLC 91-092
Mallet v. Mallet [1984] HCA 21; (1948) 156 CLR 605
Miller v. Miller [2006] 3 All E.R I
Nation v. Nation [2005] 3 NZLR 46
Re Adoption of M [1992] FLR 111
Richard West & Partners (Inverness) Ltd v. Dick [1969] 2 Ch. 424; [1969] 1 All ER 289.
White v. White [2001] A.C 596, [2000] 3 WLR 1517

Counsel:
J.L. Shepherd, for the petitioner/cross-respondents
S.L. Kassman, with G. Gorua for the respondent/cross-petitioner

31 March, 2010

1. GAVARA-NANU J: The parties are seeking settlement of matrimonial  properties  ,

pursuant to ss. 73 and 75 and of the Matrimonial Causes Act, Chapter No. 282 ("the
Act").

Factual background

2. The petitioner and the respondent are both Papua New Guinea citizens and are
domiciled in Papua New Guinea.

3. The petitioner was born at Ramale village near Kokopo, East New Britain Province on 22
October, 1942. The respondent was born at Dabora village, Cape Vogel, Milne Bay Province
on 12 June, 1948. They were married by a civil ceremony conducted at Korobosea, National
Capital District on 27 June, 1981.

4. This was the petitioner's second marriage, but for the respondent, it was her first
marriage. The petitioner was first married to Iroto ToRobert (nee Eliuda) on 24 June, 1967.
That marriage was dissolved by the National Court by decree absolute granted on 20 June,
1981. Thus the parties were married a week after the dissolution of the petitioner's first
marriage.

5. There is only one child of the marriage, Henry ToRobert Jr, ("Henry Jr") who is now in his
20s. Henry Jr attended Central Queensland University in Australia and obtained his
Bachelors degree in Business Management. He then continued with further studies for his
Masters degree which he attained in 2007. He is currently residing in Brisbane, Australia.

6. The petitioner claims that the parties separated around mid-November, 2000. The
respondent on the other hand claims that the petitioner withdrew from cohabitation with
her around October, 2001. There is therefore disagreement between the parties over when
they separated and cohabitation ceased, which according to the petitioner was during the
period of his recuperation from a quadruple heart by-pass surgery he under-went at
Wesley Hospital in Brisbane, Australia in August, 2000. Either way, it does not appear to be
of any real significance.

7. The decree nisi for dissolution of the parties' marriage was granted by the National Court
on 17 October, 2005. The parties obtained decree absolute for the dissolution of their
marriage on 18 November, 2005, thus marking their divorce. The parties' marriage
therefore lasted for just over 24 years.

8. Although the petitioner remarried six months after the dissolution of the parties'
marriage became absolute to Janet, who is the cross co-respondent in these proceedings, on
27th May, 2006, he and Janet started cohabiting in June, 2002.

9. It is convenient that the respective employment histories of the parties be set out.

10. The petitioner was the Governor of the Bank of Papua New Guinea ("Bank of PNG") from
1973 to 1993, which is a period of 20 years. It was during his term as the Governor of Bank
of PNG that the parties got married (1981).

11. The petitioner left the Bank of PNG in 1993 and joined the Port Moresby office of
Deloitte Touche Tohmatsu Accountants as a partner. In early 2001, the petitioner accepted
an appointment with the Independent Public Business Corporation ("IPBC"), formerly
known as the PNG Privatization Commission, as its Managing Director. The petitioner's post
with IPBC came to an end about mid or late 2002, when he retired.

12. The petitioner also held several other positions in a number of entities, a notable one
being with the Credit Corporation Ltd ("Credit Corporation"), from 1993 to 2007, as the
Chairman of its Board of Directors. He resigned from the directorship of Credit Corporation
on 4 May, 2007.
13. In 1995, the petitioner was appointed as the Chairman of Gazelle Restoration Authority
("GRA"), a position he held until 2003. It is noted that his involvement with GRA started in
1994, when the Rabaul volcano erupted.

14. Other notable positions currently held by the petitioner are the President of the Papua
New Guinea Sports Federation ("PNG Sports Federation") and the President of the Papua
New Guinea Olympic Games Committee ("PNG Olympic Games Committee"). The petitioner
has held these positions since 1991.

15. The petitioner is also a director of two family companies namely Hema Investments Ltd
("Hema") and Midal Enterprises Ltd ('Midal").

16. The petitioner is also a director of a company called Alhambra Investments Ltd.
("Alhambra"). It is noted that the petitioner acquired 10% of the shares issued by Alhambra
in the joint names of the parties. The total number of shares held jointly by the parties is
60,000. According to the petitioner, as at December, 2005, these shares were worth about
K1, 881, 380.91. The principal asset of the company is Cuthbertson House, a prime
commercial office building in down town, Port Moresby.

17. In regard to the employment history of the respondent, it is quite brief, before the
parties' marriage, she was employed by the State through the Department of Foreign
Affairs. She made her way up in the Department to the position of Deputy Secretary. She
held the position from 1981 to July, 1991, when she was retrenched.

18. The question of which of the real estate  properties  and assets owned by Hema,
Midal and the parties, especially by the petitioner between the parties forms the central
issue for the Court.

Offers made by the parties for  property  settlement based on their respective lists
of matrimonial  properties  .

(i) Petitioner's list of matrimonial  properties  and his first proposed offer for the
division of those matrimonial  properties  between the parties in  property 
settlement.

19. The petitioner's list of matrimonial  properties  and his first proposal on how those
matrimonial  properties  should be divided between the parties is contained in the
petition. It is as follows:

(i) Petitioner to transfer the  property  at Lot 4, Section 21, Mavaru Street,
Boroko, to the respondent, she will become the sole owner of the  property  .
This  property  was the matrimonial home for the parties during their
marriage;
(ii) Petitioner to transfer his 50% shareholding in Hema to the respondent, thus
the respondent will be the sole shareholder and director of the company;
(iii) Respondent to transfer  property  at Lot 4, Section 440, Hohola (Islander
Village), via Hema to the petitioner;
(iv) Respondent to retain titles to three other  properties  under Hema, i.e.
 properties  at Lot 6, Section 440, Hohola (Islander Village); Lot 12, Section 10,
Ororo Crescent, Boroko, and Lot 25, Section 7, Boroko, Drive, Boroko, via Hema;
(v) Respondent to transfer her joint interest in the  property  at Lot 15,
Section 2, Nonu Street, Boroko, to the petitioner for the petitioner to manage on
behalf of Henry Jr;
(vi) Petitioner to retain title to the  property  at Lot 6, Section 11, Kokopo,
East New Britain Province; and
(vii) Petitioner to retain title to unit 5, 91-93 Moore Street, Trinity Beach, Cairns,
Australia

20. Thus under this proposal the respondent would have the following  properties  :
(i) Residence at Lot 4, Section 21, Mavaru Street, Boroko, (formerly the parties'
matrimonial home);
(ii) Unit at Lot 6, Section 440, Hohola (Islander Village), via Hema;
(iii) Five units at Lot 12, Section 10, Ororo Crescent, Boroko, via Hema; and
(iv) A dwelling house at Lot 25, Section 7, Boroko Drive, Boroko, via Hema.

21. The petitioner would have the following  properties  :

(i) Unit at Lot 4, Section 440, Hohola, (Islander Village), via Hema;
(ii) Three units at Lot 6, Section 11, Kokopo, East New Britain Province; and
(iii) Unit 5, 91-93 Moore Street, Trinity Beach, Cairns.

22. In addition to the above  properties  , the petitioner will manage the  property 
at Lot 15, Section 2, Nonu Street, Boroko, for Henry Jr.

23. Under this proposal, the petitioner says the respondent would have an estimated total
value of  properties  at K1,453,000.00. The petitioner on the other hand would have
estimated total value of  properties  at K900,000.00.

24. The petitioner says under this proposal, the respondent would earn total rental income
of about K142,400.00 per annum from the  properties  given to her, except the
 property  at Lot 4, Section 21, Mavaru Street, Boroko.
25. Whereas the total rental income per annum he would earn from the  properties 
given to him, except the  property  at Lot 4, Section 440, Hohola (Islander Village)
would be about K106,236.00.

26. And the total rental income the petitioner would receive and hold in trust for Henry Jr
from the  property  at Lot 15, Section 2, Nonu Street, Boroko would be about K6,600.00
per year. The petitioner says, he would use this money to maintain the  property  for
Henry Jr and pay for Henry Jr's educational expenses while studying in Australia.

27. Under this proposal, the petitioner says the respondent would also have K105,000.00
currently held in the Interest Bearing Deposit ("IBD") account with Credit Corporation
together with accrued interests. This account is under Hema.

28. The petitioner also proposes that a Bank of South Pacific ("BSP") Waigani Branch
account number 1000185557, with the current balance of about K12,400.00 in Henry Jr's
name, be transferred to him and he would become the sole signatory for the account. He
says, he would operate the account in trust for Henry Jr, and would use the funds from the
account to maintain the  property  at Lot 15, Section 2, Nonu Street, Boroko for Henry
Jr.

29. The petitioner also offers to withdraw as a co-signatory from all bank accounts and IBD
investment accounts operated by Hema, leaving the respondent to be the sole signatory for
those accounts.

30. Under this proposal, the respondent would be solely responsible for paying all the taxes
and other liabilities for Hema and the petitioner is to be released and indemnified by the
respondent from all past liabilities of Hema.

31. The parties are to retain all the bank accounts held under their respective names. The
parties will also retain all the vehicles that are currently in their respective possession.
Each party is also to retain all the household furniture and appliances and other personal
assets that are in their respective possession.

32. The respondent is to be responsible for the payment of the balance of a loan owed to
BSP in mortgage in respect of the  property  at Lot 4, Section 21, Mavaru Street, Boroko,
which is about K7, 000.00.
(ii) Respondent's cross-petition and response to the petitioner's list of matrimonial
 properties  and his first proposed offer for  property  settlement between the
parties.

33. The respondent has also cross-petitioned in which she makes certain allegations against
the petitioner, the nature of which are reflected in the petitioner's response to the cross-
petition. The respondent has also made counter proposals to the petitioner's above
proposals for  property  settlement. The respondent also claims that the petitioner has
failed to disclose a number of other  properties  owned by him or in which he has
interest, these are as follows:

(i) A vacant piece of land in Kokopo;

(ii)  Properties  registered under Midal, in which the petitioner has interest:-

(a)  Properties  at Lots 2 and 5, Section 214, Turuha Street, Gordons, (8 x 3 bedroom
units);

(b)  Properties  at Lot 8, Section 440, Hohola, (Islander Village), (2 x 3 bedroom town
houses);

(c)  Property  at Lot 68, Section 231, Tokarara, (1 dwelling house);

(d)  Properties  at Lot 16, Section 91, Leke Place Gordons, (1 dwelling house and 2
units);

(e)  Properties  at Lot 14, Section 91, Leke Place, Gordons, (2 dwelling houses); and

(f)  Property  at Lot 44, Section 41, Logohu Place, Boroko, (1 dwelling house).

34. The respondent also claims that the petitioner has failed to disclose the substantial
finish payout of K348,818.36, he received from IPBC, as well as allowances, commissions
and fees he was paid when he served as a board member, or director in a number of
entities and organizations mentioned earlier in the judgement.

35. The respondent in her counter proposal agrees to some of the proposals made by the
petitioner in his proposed  property  settlement, but she also makes certain demands.
Thus apart from the  properties  she would have under the petitioner's proposed
 property  settlement, she also demands the following:

(i) Hema's books to be audited up to the date of their divorce;

(ii) Petitioner to be liable for half of any past tax liabilities incurred by Hema, including any
penalties up to the date of their divorce;

(i) Petitioner to reimburse her K13,473.88, an amount she says she spent on
Henry Jr's education;
(ii) Petitioner to transfer to her his interest in the  property  at Lot 15,
Section 2, Nonu Street, Boroko, so that she be the one to manage the  property 
for Henry Jr;
(iii) She is to manage Henry Jr's bank account numbered 1000185557 with BSP's
Waigani Branch; and
(iv) Petitioner to sell unit 5, 91-93, Moore Street, Trinity Beach, Cairns, and
proceeds of the sale be divided equally between them.

(iii) Petitioner's response to the respondent's cross-petition and her response to the
petitioner's first proposed offer for  property  settlement.

36. In his response to the respondent's cross-petition and counter-proposals, the petitioner:

(i) Denies respondent's allegation of constructive desertion;

(ii) Denies respondent's allegation that there were previous proceedings
connected to these proceedings;
(iii) Denies respondent's allegation that he committed adultery during their
marriage. He, however admits committing adultery with a Filipino woman
named Jodi Docai between 1999 to 2000;
(iv) Admits cohabiting with Janet, since June, 2002;
(v) Admits receiving a payout from IPBC but says the payout was only equal to
his remuneration for 18 months as the Managing Director;
(vi) Admits receiving $32,000.00 per year from Credit Corporation;
(vii) Withdraws his offer to transfer the  property  at Lot 4, Section 21,
Mavaru Street, Boroko, to the respondent; and
(viii) Does not want any of the two  properties  at Lots 4 and 6, Section 440,
Hohola, (Islander Village) to be transferred to the respondent.

37. The petitioner told the Court that, as part of his ongoing expenses, he now has to buy his
medicine regularly for his heart and maintain his new wife. He asks the Court to take these
into account. He says his change of mind in respect of (vii) and (viii) above are in the
circumstances of the case, just and equitable.

Submissions

(i) Petitioner's submissions

38. Mr. Shepherd submitted that the offers made by the petitioner in his proposed
 property  settlement are just and equitable. He argued that under the petitioner's
proposal, the respondent would be much better off financially than most Papua New
Guineans. Mr. Shepherd also submitted that  properties  under Midal should not be
included in  property  settlement because they are not matrimonial  properties  ,
thus they should not be made subject to the Court's scrutiny and determination for
 property  settlement between the parties.

39. Mr. Shepherd further submitted that the  property  in Cairns, viz, unit 5, 91-93,
Moore Street, Trinity Beach, is outside the jurisdiction of the Court, thus the Court has no
power to include it in the  property  pool for  property  settlement. It was also
argued that the  property  was acquired by the petitioner before the parties' marriage,
thus it cannot be included as a matrimonial  property  .

40. There is another  property  which the petitioner acquired at Kewarra Beach,
Cairns, Australia. Mr. Shepherd argued that this  property  was acquired after the
parties had divorced, thus it is also not a matrimonial  property  , besides, the
 property  being situated abroad, the Court has no jurisdiction over it.

41. In regard to the  properties  under Hema, it was argued that the respondent made
no financial contributions during the course of the parties' marriage and her non financial
contributions, if any, were minimal. Thus, it would not be just and equitable for the
respondent to have a substantial share from them.

42. It was submitted that the respondent will enjoy a high level of income because of the
petitioner and that without the petitioner, she would not be where she is now financially.
Thus, it was argued that the respondent should be grateful for the petitioner's proposals
and should accept them.

43. Mr. Shepherd argued that most of the cases relied upon by the respondent in support of
her case are based on the Australian Family Law Act, and have no relevance to this case and
should not be relied upon. He argued that the proper test for the Court to apply when
dividing the matrimonial  properties  between the parties is the respective needs of
the parties.

44. Finally, in regard to costs, Mr. Shepherd submitted that costs should be awarded to the
petitioner on full indemnity basis, because the petitioner was forced to seek redress in
Court after the respondent refused to settle out of court.
(ii) Respondent's submissions

45. Mr. Kassman submitted that the petitioner's argument regarding the Court's lack of
jurisdiction over  properties  in Cairns should not be entertained by the Court because
the issue has not been pleaded by the petitioner, nor was it raised at the trial.

46. It was further submitted that ss. 73 and 75 of the Act, grant wide powers to the Court to
consider and determine all the matrimonial  properties  , including  properties 
under Midal in  property  settlement. It was argued that  properties  under Midal
were acquired by the petitioner who is the sole director of Midal, and the respondent has
made significant non-financial contributions to those  properties  during the course of
their marriage. In respect of the  properties  under Hema, it was submitted that the
company was incorporated purposely for the benefit of the respondent, thus it would not
be just and equitable to deny the respondent from having the full benefit of the
 properties  under Hema.

47. Mr. Kassman told the Court that the petitioner has changed his position a number of
times in regard to how the  properties  should be divided between the parties, thus the
disputes between the parties regarding settlement of matrimonial  properties  could
only be resolved in Court. It was therefore necessary for the respondent to seek relief in
Court.

48. It was also argued that the values put on the  properties  by the petitioner in his
proposal are unreliable and they do not reflect the true value of each of those
 properties  . It was therefore submitted that the Court should order the valuation of each
 property  in order to establish their true values.

49. Mr. Kassman also submitted that the establishment of Hema was at the behest of the
respondent for her benefit, thus it would not be just and equitable for any of the
 properties  under Hema to be transferred to the petitioner.

50. The Statement of Agreed and Disputed Facts was signed only by Mr. Shepherd, it was
therefore submitted that the Statement does not reflect the respondent's views. This
contention is reflected in the respondent's Reply to the Statement.

51. Mr. Shepherd in his final submission denied that Hema was incorporated solely for the
benefit of the respondent, he submitted that it was established for the benefit of both
parties. In regard to Midal, he said it was established for the petitioner, his brother and
sister before the parties' marriage, thus s.75 (1) of the Matrimonial Causes Act, does not
apply to the  properties  under Midal. In regard to the values given to the
 properties  in the petitioner's proposal, it was argued that the respondent has not
denied them, thus they should be accepted by the Court.

Reasons for decision

52. I perceive that my task here is firstly, to identify the matrimonial  properties  then
determine the value of each  property  , if possible, these two issues can be addressed
together; secondly, to assess and determine the contributions made by each party towards
the  properties  , taking into account the parties' financial resources, means and time;
thirdly, to determine the future needs of each party; fourthly, to consider any other
circumstances which are relevant to the issues at hand and fifthly, to make orders for
 property  settlement which are just and equitable in the circumstances of the case.

53. However, before proceeding to address these issues, it is convenient to address the
jurisdictional issues raised by the petitioner in respect of the  properties  in Cairns and
the  properties  under Midal.

54. The jurisdiction of the Court is conferred by ss. 73 and 75 of the Act..

55. Section 73 provides as follows:

s. 73 – Powers of Court in maintenance proceedings.

(1) Subject to this section, in proceedings with respect to the maintenance of a party to a
marriage or of children of the marriage, other than proceedings for an order for maintenance
pending the disposal of proceedings the Court may make such order as it thinks proper,
having regard to the means, earning capacity and conduct of the parties to the marriage and
all other relevant circumstances.

(2) Subject to this section and to the Rules, in proceedings for an order for the maintenance of
a party to a marriage or of children of the marriage pending the disposal of proceedings, the
Court may make such order as it thinks proper, having regard to the means, earning capacity
and conduct of the parties to the marriage and all other relevant circumstances.
(3) The Court may make an order for the maintenance of a party notwithstanding that a
decree is or has been made against that party in the proceedings to which the proceedings
with respect to maintenance are related.

(4) The power of the Court to make an order with respect to the maintenance of children of the
marriage shall not be exercised for the benefit of a child who has attained the age of 21 years
unless the Court is of opinion that there are special circumstances that justify the making of
such an order for his benefit.

56. Section 75 provides as follows:

s. 75 – Powers of Court with respect to settlement of  property  .

(1) In proceedings under this Act, the Court may by order require the parties to the marriage,
or either of them, to make, for the benefit of all or any of the parties to, and the children of, the
marriage, such settlement of  property  to which the parties are, or either of them is,
entitled (whether in possession or in reversion) as the Court thinks just and equitable in the
circumstances.

(2) In proceedings under this Act, the Court may make such order as the Court
thinks just and equitable with respect to the application, for the benefit of all or any
of the parties to, and the children of, the marriage, of the whole or part of
 property  dealt with by ante-nuptial or post-nuptial settlements on the parties
to the marriage, or either of them.

(3) The power of the Court to make orders of a kind referred to in this section shall
not be exercised for the benefit of a child who has attained the age of 21 years
unless the Court is of opinion that there are special circumstances that justify the
making of such an order for his benefit.

57. It should be noted that the powers given to the Court by ss. 73 and 75 are wide, which
include making orders that the Court may deem just and equitable in the circumstances of
a case.

58. I will address the jurisdictional issues in reverse order; thus, I will first address the
Court's jurisdiction over the  properties  under Midal. The petitioner contends that the
Court has no jurisdiction to include these  properties  in  property  settlement
because Midal was established before the parties' marriage and the  properties  were
acquired before the parties' marriage.
59. The relevant provision to consider in addressing this issue is s. 75. I am of the firm
opinion that this contention by the petitioner must fail because it goes against the clear
legislative intent and purpose behind s. 75 (1). The operative words in this sub-section are
"...  property  to which the parties are, or either of them is entitled..."

60. In my opinion the operative words in s. 75 (1) as underlined define the test to be applied
when considering whether a  property  is a matrimonial  property  or not. The
definition is very broad and in my opinion, it encompasses all the  properties  which
were acquired by the parties either severally or jointly. Thus, if both parties or either of
them had acquired  properties  before or during the course of the parties' marriage,
those  properties  would be caught by s. 75 (1) and be deemed matrimonial
 properties  by reason of the fact that the parties are or one of the parties is entitled to
those  properties  . Thus, by statutory definition, the  properties  under Midal to
which the petitioner is entitled are deemed to be matrimonial  properties  and are
subject to the Court's determination for  property  settlement. It should also be noted
that the  properties  acquired by a party after the parties' marriage, may also be
deemed matrimonial  properties  if those  properties  were acquired with
finances acquired during the course of the parties' marriage.

61. The petitioner is the sole director and shareholder of Midal and he is the only
beneficiary of the  properties  under Midal. In regard to the issue of whether the
respondent had made contributions towards  properties  under Midal, there is
evidence that the respondent made significant non-financial contributions more
particularly in their upkeep and maintenance. These factors in my opinion plainly place
 properties  under Midal within the broad scope of s. 75 (1) thus rendering them subject
to the Court's scrutiny and determination for  property  settlement.

62. Secondly, in regard to the Court's jurisdiction over the  property  situated at 91-93
Moore Street, Trinity Beach, Cairns, Mr. Shepherd relied upon passages found in the
Matrimonial Causes and Marriage Law and Practice of Australia and New Zealand by Hon. P.
E. Joske, C.M.G., M.A., LL.M. at pp. 298-299 and Halsbury's Laws of England 4th Ed. Vol. 8,
para. 639, for his contention that the Court lacks jurisdiction over this  property  .

63. The passage by Joske is as follows:

"Jurisdiction must exist over subject-matter and parties

[7.48] The court has no jurisdiction over any persons other than those properly before it as
parties. There is no jurisdiction to make orders against persons not before the court merely
because an order made or to be made may or will otherwise be ineffectual. A court must have
jurisdiction over both subject-matter and parties; it must be competent to entertain the
particular matter and competent to require the parties to appear before it. All jurisdiction is
properly territorial and a person must sue in the court to which the defendant is subject for
actor sequitur forum rei. With regard to acts done outside the territory by persons not
domiciled therein, the general rule, apart from express statutory provision, is that a court has
no jurisdiction to determine the resulting rights growing out of the acts; no State can by its
laws bind persons not its subjects. The provisions of a statute relating to matrimonial causes
must be interpreted so as to harmonize with the rules of private international law, and
jurisdiction does not depend on service but on those rules, otherwise the principle that as
between husband and wife domicile is essential to jurisdiction would be displaced by merely
proving service and thus establishing jurisdiction. Nevertheless it is expressly provided in
Australia that a decree may be made or refused by reason of facts and circumstances taking
place outside Australia."

64. The passage by Halsbury's is as follows:

"(2) JURISDICTION REGARDING FOREIGN IMMOVABLES

(i) General Rules relating to Foreign Immovables

639. Jurisdiction with respect to foreign immovables. In general, the English court has
no jurisdiction to determine title to, or the right to the possession of, immovable
 property  situated outside England. The origin of this rule lies in the distinction
between local actions, in which there is a necessary connection between the facts and a
particular locality, and transitory actions, where there is no such necessary connection.
The English court has no jurisdiction in respect of local actions where the relevant
locality is outside England.

Accordingly, the English court cannot entertain any action for a declaration as to title to
foreign immovables, or for possession of such immovables, or for injunctions having a similar
effect. The same rule applies to other proceedings the primary question in which is one of title
to foreign immovables, such as an action for an account of the proceeds of foreign land, title
to which is in dispute, for the enforcement of covenants for quiet enjoyment of foreign land, or
for the partition of such land.

The same principle has been held to preclude the English court from entertaining an action for
the recovery of arrears on a rent charge on foreign land.

It is immaterial that the  property  in question is situated in a British dependency or in a

country without an established system of courts. "

65. The parts of the above two passages which have been underlined indicate that these
parts were highlighted by Mr. Shepherd for his submissions and I take it that he relied
mainly on these parts for his argument that the Court has no jurisdiction over this
 property  because it is situated abroad.
66. Firstly, in regard to the passage by Joske, it is in my opinion irrelevant, therefore
inapplicable to the circumstances of the case before me, because the passage merely states
a general proposition that a court must have jurisdiction over a subject matter and the
parties, before it can decide the issues affecting the parties. Further, that when interpreting
provisions of a statute, the interpretations must harmonize with the rules of private
international law.

67. In the case before me, the parties are resident and domiciled in PNG; in my opinion this
factor alone is sufficient to meet the criteria for the Court to have jurisdiction over any
 property  owned by the petitioner that is situated abroad including the  property  in
question; see Re Adoption of M [1992] 111 FLR 393.

68. Secondly, in regard to the passage by Halsbury's, the passage also merely states a
general proposition that an English court would have no jurisdiction to decide a title or the
right to possession over immovable  properties  such as land situated abroad because
such foreign immovables would not have connection with English courts. This passage in
essence states the same general principle stated by Joskes, the only difference between
what is stated in this passage and the passage by Joskes is that, this passage specifically
relates to immovables such as land situated abroad. As I alluded to earlier, the situation in
this case is different because the petitioner is resident and domiciled in PNG and more
importantly, there is no issue over the title to the  property  in question because the
petitioner owns the  property  .

69. It therefore follows that the Court has jurisdiction to consider this  property  in
 property  settlement. In Richard West & Partners (Inverness) Ltd v. Dick [1969] 2 Ch. 424,
Lord Justice Harman when remarking on this very point at 436 said:

"There remains the point upon which Megarry J., learned man that he is, exhibited a very
interesting and powerful judgment, whereby he expressed the view that there is no objection
to a grant of specific performance of a contract for foreign land by an English court. As far as
I am concerned, I am content to adopt the elaborate reasoning by which he reached that
conclusion. I have always thought, and I still think, that the Court of Chancery, acting as it
does in personam, is well able to grant specific performance of a contract to buy or sell foreign
land, provided that the defendant is domiciled within its jurisdiction. I say nothing about a
case where the defendant is domiciled outside. But here the purchaser lives at Enfield: the
vendors have their registered office in England (if that be relevant, I do not think it is): and I
see nothing difficult about a vendors' decree of specific performance in the circumstances.
There might be difficulties raised by matters of Scottish title; but here the title was accepted.
The decree contains the usual recital that the purchaser has accepted the vendors' title to the
 property  , about which I gather there is no doubt." (my underlining).
70. There is a further reason why the arguments by the petitioner must fail. As argued by
Mr. Kassman, the issue of jurisdiction over this  property  has not been pleaded by the
petitioner, nor was it raised at the trial. The parties fought the case on the presumption that
the Court had jurisdiction over the  property  . It is therefore too late for the petitioner
to raise the issue now.

71. I am also of the opinion that the respondent could, if she had wanted to, invoke the
Court's inherent jurisdiction under s.155 (4) of the Constitution, to include the  property 
by declaration, pursuant to her cross-petition that the  property  is a matrimonial
 property  and is therefore subject to the Court's determination for purposes of
 property  settlement, so long as the respondent's primary right conferred by s. 75 (1) of
the Act, over the  property  is not extinct and has not been extinguished; see Avia Aihi
v. The State (No.1) [1981] PNGLR 81, at 91, where Kearney DCJ (as he then was) in stressing
this principle said:

"I agree with the views of Prentice C.J, and Andrew J, in Constitutional Reference No. 1 of
1979; Premdas v. Papua New Guinea [1979] PNGLR 329 at pp.337, 401, that the Constitution,
s. 155 (4), involves at least a grant of power to the courts. I consider that the sub-section gives
unfettered discretionary power both to this Court and the National Court so to tailor their
remedial process to the circumstances of the individual case as to ensure that the primary
rights of parties before them are protected. And so, for example, the development of remedial
process such as the Mareva injunction need not be as tortuous here as in England. But the
Constitution, s. 155 (4) cannot affect the primary right of parties; these are determined by law.
In the circumstances of this case, the applicant now has lost the right to have her sentence
reviewed. That extinction of her primary right comes about by operation of law; that is, by her
failure to comply with s. 27 of the (Supreme Court) Act. The Constitution, s. 155 (4), cannot be
used to recreate a primary right, once extinguished.

Accordingly, I respectfully agree with the Chief Justice that the Constitution, s. 155 (4), does
not vest in this Court power to waive a failure to comply with s. 27 of the (Supreme Court) Act.

I would reject the first submission."

72. In this case, the respondent's primary right over the  property  is conferred by s. 75
(1) of the Act, which gives her the right to have a share of the  properties  to which the
parties are either jointly or severally entitled including the  property  in question. In
this case, the petitioner is the one who is entitled to the  property  , thus the respondent
has a right under s 75 (1) to benefit from the  property  .
73. In regard to the Court's jurisdiction over  properties  situated abroad, the position
is the same as in England viz; if a party buying or selling a  property  that is situated
abroad is domiciled in the jurisdiction that would confer jurisdiction to a court in England
to grant specific performance of the contract of sale; see Richard West & Partners
(Inverness) Ltd v. Dick (supra). This principle is universal in its application, and it is
important to note that in this jurisdiction, at least in my opinion, the party having a
primary right over a  property  can also invoke s. 155 (4) of the Constitution for the
Court to enforce such right by declaration; see S.C.R No. 2 of 1981; Re s. 19 (f) of the Criminal
Code [1982] PNGLR 150 at 158; Dent v. Thomas Kavali [1981] PNGLR 488 at 490 and 491;
Aundak Kupil v The State [1983] PNGLR 350.

74. The observations made regarding the Court's jurisdiction over the  property  at 91-
93 Moore Street, Trinity Beach Cairns, would also apply to the  property  at Kewara
Beach, Cairns.

75. There is one other point to be made regarding the  property  at 91-93 Moore Street,
Trinity Beach, Cairns, viz; I do not think the petitioner is serious in raising the issue
regarding the Court's jurisdiction over this  property  , because this  property  is
one of the  properties  included by the petitioner in his first proposal to be considered
by the Court for  property  settlement. In my opinion, this puts beyond doubt that this
 property  is a matrimonial  property  and puts to rest the issue of the Court's
jurisdiction over the  property  . From this, it appears plain that the issue of the Court's
jurisdiction over this  property  is not raised in good faith by the petitioner.

76. I turn now to address the other issues which the Court is required to address for
 property  settlement.

(i) Identification and valuation of matrimonial  properties  for  property 

settlement

77. The  properties  identified and established by evidence as matrimonial

 properties  which the Court has to consider in  property  settlement are as follows:

(a)  Property  at Lot 4, Section 21, Mavaru Street, Boroko;

(b)  Property  at Lot 44, Section 41, Logohu Place, Boroko (3 bedroom house),
(Midal);
(c) Shares in Hema;
(d)  Property  at Lot 4, Section 440, Hohola (Islander Village), (Hema);
(e)  Property  at Lot 6, Section 440, Hohola (Islander Village), (Hema);
(f)  Property  at Lot 15, Section 2, Nonu Street, Boroko;
 (g)  Property  at Lot 6, Section 11, Kokopo;
(h)  Property  at Kenabot, Kokopo;
(i) Unit 5, 91 – 93, Moore Street, Trinity Beach, Cairns;
(j)  Property  at Kewarra Beach, Cairns;
(k)  Properties  at Lot 12, Section 10, Ororo Crescent, Boroko (5 units),
(Hema);
(l)  Property  at Lot 25, Section 7, Boroko Drive, Boroko, (Hema);
(m) K105,000.00 held in the IBD account with Credit Corporation, (Hema);
(n) BSP, Waigani account no. 1000185557, under Henry Jr's name with the
balance of about K12,400.00;
(o)  Properties  at Lots 2 and 5, Section 214, Turuha Street, Gordons, (8 x 3
bedroom units) (Midal);
(p)  Properties  at Lot 8, Section 440, Hohola (Islander Village), (2x 3
bedroom town houses), (Midal);
(q)  Property  at Lot 68, Section 231, Hohola (Tokarara), (1 dwelling house),
(Midal);
(r)  Properties  at Lot 16, Section 91, Leke Place, Gordons, (1 dwelling house
and 2 units), (Midal);
(s)  Properties  at Lot 14, Section 91, Leke Place, Gordons, (2 stand alone
dwelling houses), (Midal);
(t) Shares in Alhambra;
(u) Shares in Midal; and
(v) Household furniture and appliances and all other personal  properties 
or assets presently held or are in possession of the parties, including motor
vehicles and bank accounts.

78. In regard to the values of each  property  identified, I do not propose to use the
values put to some of the  properties  by the petitioner because the respondent had no
input in how these figures were arrived at, the respondent also does not agree with these
figures as reflecting the true values of those  properties  . It is also to be noted that
some of the  properties  are not included in the petitioner's list of  properties  for
which he has put value. The respondent has for her part asked for valuations to be done on
each  property  .

79. In regard to the request made by the respondent for each  property  to be valued, I
do not consider it convenient for the Court to order such valuation for two reasons, firstly;
no application was made by the respondent at the trial for such valuations to be done,
secondly, to order valuation of each  property  at this stage would be cumbersome and
onerous and would unnecessarily protract the disposition of the case.

80. In any case, I do not consider valuation of each  property  necessary because, in my
opinion, there are sufficient materials before me which can guide me to arrive at decisions
which should be just and equitable to the parties.
81. That said, it should be noted that the Court accepts the amount provided by the
petitioner for the IBD account held at the Credit Corporation, the estimated value of shares
in Alhambra and the balance of account no. 1000185557, at BSP, Waigani Branch, which is
held under Henry Jr's name. It is to be noted also that the respondent has not taken issue on
these matters.

82. In my opinion, the proper and convenient approach for the Court to adopt in
determining the value of each  property  given to each party in  property 
settlement is not by taking a  property  by  property  approach. In other words,
not by valuing each  property  given to each party, but rather by taking a global
approach, thus by determining the global value of the total number of the  properties 
given to each party from the  property  pool. It should also be stressed that the
apportionment of  properties  to each party should be commensurate with the level of
contributions the party made.

(ii) Parties' contributions

83. In her affidavit sworn on 30 July, 2007, the respondent deposes that, in July, 1991, when
she was retrenched from the Public Service, she had a 3 bedroom house at Lot 12, Section
10, Ororo Crescent, Boroko. The house was registered under her name. In other words, she
was the owner of that  property  .

84. The respondent deposes in the affidavit that in December, 1991, after much discussion
with the petitioner, she agreed to a proposal made by the petitioner and as a result, her
house at Lot 12, Section 10, Ororo Crescent, Boroko, was pulled down and in its place, 5 x 3
bedroom units were built. These units are now subject to the Court's consideration for
 property  settlement. The units were built with a loan from Niugini Lloyds Bank which
was guaranteed by the petitioner. The respondent says in the affidavit that she did not
know when the loan was repaid because the petitioner controlled all the finances and he
did not tell her when the loan was repaid. She however says that she worked tirelessly to
manage the five units ensuring among other things that gardens around the units were well
maintained. She says in the affidavit that all rents received from the five units were
controlled by the petitioner. She says that the loan with Niugini Lloyds Bank was paid off
from the rents received from the five units.

85. The respondent also says in the affidavit that Hema was established with the view to
acquiring  properties  , including the five units, with her and the petitioner as directors
and shareholders of the company. As a result, the title to Lot 12, Section 10, Ororo Crescent,
Boroko which was previously under her name was subsequently transferred to Hema. The
respondent says other  properties  under Hema were also acquired using rents
received from the five units. The respondent says the petitioner made no financial
contributions towards the  properties  under Hema; however, he was the one who
received and controlled all the rents from the  properties  under Hema, including the
five units.

86. The respondent says the only finances she controlled were those from her personal
bank account and Henry Jr's BSP Waigani Branch account. She says, she trusted the
petitioner completely to control the rents received from the  properties  under Hema
because he was a banker and was an expert in financial matters.

87. The respondent says although she and the petitioner were joint signatories of Hema's
bank account, she did not sign cheques against the account until 2000, when the petitioner
was hospitalized in Brisbane for his open heart surgery.

88. She says, even after she started collecting rents from the  properties  under Hema
following the petitioner's heart operation, the petitioner was still controlling Hema's
finances because he was the one writing and issuing cheques under Hema's account.

89. The respondent also claims that the  property  at 91-93 Moore Street, Trinity Beach,
Cairns, was acquired by the petitioner using rents received from the  properties  under
Hema, including the five units. In that regard, the respondent says, she contributed
financially through Hema towards the purchase of this  property  .

90. The respondent says, other  properties  acquired using rents received from the
 properties  under Hema are a house at Lot 25, Section 7, Boroko Drive, Boroko, and two
 properties  at Lots 4 and 6, Section 440, Hohola, (Islander Village). Again the
respondent says she contributed financially through rents received from the five units at
Lot 12, Section 10, Ororo Crescent, Boroko, towards the purchase of these  properties  .

91. In respect of the  properties  under Midal, it should be noted that the petitioner is
the sole director and shareholder of the company. The company was incorporated before
the parties' marriage in August, 1976, the original directors of the company being the
petitioner, his brother Nick Tata and sister, Mary Luaina Horris (now deceased). In
December, 2006, Nick Tata is said to have transferred all his shares in the company to the
petitioner, thus leaving the petitioner to be the only director and shareholder of the
company.

92. Mr. Shepherd told the Court that as part of the arrangement for Nick Tata to transfer his
shares in Midal to the petitioner, the  properties  at Lot 16, Section 91, Leke Place,
Gordons, are no longer under Midal, as they are now owned by Nick Tata. According to the
evidence before the Court, the  properties  are a house and two flats. It is noted that
according to the respondent's other affidavit sworn on 15 December, 2003, these
 properties  were still registered under Midal as at 15 December, 2003. The petitioner has
not said anything in his evidence about these  properties  being owned by Nick Tata
either in the evidence he gave at the trial or in his affidavit. In other words, there is no
evidence from the petitioner that these  properties  are now owned by Nick Tata, the
assertion that the  property  was transferred to Nick Tata was made by Mr. Shepherd
in his submissions.

93. Another  property  at Lot 14, Section 91, Leke Place, Gordons, was a vacant piece of
land, but it is not clear whether this  property  is also owned by Nick Tata. In the
absence of clear evidence from the petitioner as to who actually owns the  property  , I
will regard the  property  as still registered under Midal. In the affidavit sworn by the
respondent on 30 July, 2007, the respondent says the vacant piece of land has been
improved with two 2 bedroom stand alone houses. The petitioner has not denied these
claims and I accept the respondent's evidence. These  properties  were revealed by the
respondent in her cross-petition and the supporting affidavits.

94. The petitioner has claimed that the respondent's financial and non financial
contributions towards the  properties  under Hema and Midal were either nil or
minimal. However he has contradicted himself on this point because, he told the Court that
the respondent worked hard for the five units at Lot 12, Section 10, Ororo Crescent, Boroko.
He also said they both ensured that the gardens around the  properties  were well
looked after. The respondent has told the Court that she worked tirelessly for these
 properties  . The petitioner has therefore by his own admissions corroborated the
respondent's evidence regarding her contributions to the five units. The petitioner agreed
that the five units were self-funding from the rents they generated. In regard to the
 properties  at Lot 25, Section 7, Boroko Drive, Boroko, and Lots 4 and 6, Section 440,
Hohola (Islander Village), there is evidence that they were purchased with the rents
received from the five units. This confirms and corroborates the respondent's evidence that
the rents received from the five units at Lot 12, Section 10, Ororo Crescent, Boroko were
used to acquire other  properties  for Hema. This evidence is not denied or disputed by
the petitioner and I accept it.

95. The respondent has also adduced evidence indicating that a previously vacant land at
Kenabot, Kokopo, has been improved with a house built on it, which was being leased to
GRA. Again, the petitioner has not denied or disputed this evidence and I accept it.

96. In the affidavit sworn by the respondent on 30 July, 2007, the respondent gives account
of how she became aware that the petitioner had purchased the  property  at Kewara
Beach, Cairns. She said, she became aware of the  property  when by coincidence, she
discovered some National Australia Bank statements which the National Australia Bank
sent to the petitioner which showed that the petitioner had obtained a home loan from that
bank on 28 April, 2005, to purchase the  property  . This evidence was confirmed by the
petitioner who said that in 2004, he purchased the second  property  for himself and
his new wife Janet to use whenever they are in Cairns for his medical reviews. The
petitioner provided this evidence for the first time when responding to the claims made by
the respondent in her affidavit that he had also purchased a second  property  in
Cairns which he did not include and disclose in his first proposal for  property 
settlement. The petitioner said he purchased the  property  for $220,000.00 with a loan
of $180,000.00 from the National Australia Bank.

97. It is clear that the  property  was purchased before the parties had obtained the
decree absolute for the dissolution of their marriage on 18 November, 2005. The
 property  therefore falls within the broad scope of s. 75 (1), as a matrimonial
 property  , thus it is part of the  property  pool, which is to be considered by the
Court in  property  settlement between the parties.

98. The respondent has refuted claims made by the petitioner that she either did not
contribute at all or that her contributions to the  properties  under Midal were
minimal. She said, she helped with making curtains for the  properties  under Midal
and ensured that maintenance works in those  properties  were carried out whenever
needs arose.

99. Firstly, in regard to the  properties  under Hema, I have no doubt and indeed there
is evidence, that the respondent made significant contributions. I hold this view for two
reasons. Firstly, Hema was established to generate more finances, and to increase business
for the parties, including acquisition of the five units at Lot 12, Section 10, Ororo Crescent,
Boroko. Those units were built on the respondent's  property  after the house she once
owned on that piece of land was pulled down to make way for the construction of the five
units. The respondent's evidence in this regard is not disputed. The contributions made by
the respondent do not necessarily have to be measured in financial or monetary terms only
because her contributions can also be measured by the non-financial contributions she
made, including the value of land on which those five units were built. As noted earlier, the
land was once owned by the respondent. That was, in my opinion, a very significant
contribution by the respondent towards all the  properties  under Hema, more
particularly the five units.

100. Secondly, the petitioner was a very busy person because of the demanding
responsibilities he had with the entities and organizations that employed him or in which
he was involved. Most, if not, all those responsibilities required him to travel regularly both
within PNG and overseas.

101. It is not disputed that the rest of the  properties  under Hema were acquired using
rents received from the five units. This is also conceded by the petitioner, thus it is a
common ground. It is therefore reasonable to say that the respondent had that sense of
personal ownership and attachment over the five units and therefore, would have felt
obligated to ensure that the  properties  were well maintained, and indeed there is
evidence that she did so with total commitment.

102. According to the petitioner's own evidence, as the Governor of Bank of PNG, he used to
travel overseas regularly. He said he used to travel overseas for meetings about every three
months in a year. Each of those meetings lasted for about two weeks. The meetings were
mostly with the International Monetary Fund, the World Bank and other international
financial institutions.

103. Also during his term as the Chairman of Credit Corporation, the petitioner regularly
attended meetings in Fiji, Solomon Islands and Vanuatu. Other meetings he used to attend
were held in Australia. He also used to attend meetings held overseas for the South Pacific
Games Council and the PNG Olympic Games Committee. He is the current President of the
PNG Sports Federation and PNG Olympic Games Committee. He said, since 1991, he has
traveled overseas extensively to attend meetings for these two sporting bodies.

104. Then as the Chairman of GRA, he said he also used to travel to Rabaul once every five
weeks in a year, and used to spend about three to four days in Rabaul on each of those
trips.

105. Thus, during the course of the parties' marriage, the petitioner was clearly a very busy
person with heavy workload and highly demanding responsibilities, all of which required
constant traveling both within PNG and abroad.

106. It is therefore reasonable to say that the respondent also attended to the  properties 
under Midal, as she has testified whenever needs arose during the parties' marriage,
particularly when the petitioner was away from Port Moresby either on work commitments
or for other reasons. I therefore accept the respondent's claim that she also contributed in a
significant way towards the  properties  under Midal during the course of the parties'
marriage, which lasted for a period of over 24 years, which adds significance and weight to
her contributions towards  properties  under Midal.

107. As I said earlier, I find it convenient and neater to take a global approach in
determining the overall value of the  properties  given to each party, rather than
taking  property  by  property  approach; see Manikam Nadesalingam v. Alima
Nadesalingam & Paul Solien (1998) N1754. In regard to the  properties  under Hema, I
take into account the fact that Hema was established when the five units were built on the
respondent's original piece of land at Lot 12, Section 10, Ororo Crescent, Boroko. Using the
rents collected from the five units, other Hema  properties  were later acquired. In that
regard, as I said earlier, the respondent's contribution to all the  properties  under
Hema was quite significant.

108. In regard to the  property  at Kewarra Beach, Cairns, there is undisputed evidence
that it was acquired by the petitioner without the respondent's knowledge. The respondent
became aware of the existence of the  property  and the fact that it had been
purchased by the petitioner when she, by coincidence, discovered some bank statements
from the National Australia Bank belonging to the petitioner which showed that the
petitioner had a home loan with that bank. The petitioner told the Court that he acquired
this  property  with his own funds. However, there is evidence that during the parties'
marriage, the petitioner was solely in control of the finances generated by  properties 
under Hema. There is further evidence that the petitioner had issued cheques amounting to
substantial amounts and made substantial cash withdrawals from a bank account under
Hema which have not been accounted for by the petitioner. Thus, it is reasonable to infer
that some of the rents received from the  properties  under Hema were used to acquire
this  property  . But, even if rents received from  properties  under Hema were not
used to acquire this  property  , the fact that the petitioner had acquired the
 property  during the course of the parties' marriage, places the  property  within
the broad scope of s.75 (1) of the Act, thus it is a matrimonial  property  and is part of
the  property  pool, which the Court has power to consider in  property 
settlement.

109. From the foregoing, there is overwhelming evidence that the respondent's
contributions to the  properties  under Hema were significant. Those contributions
were non-financial and financial; the latter being in the form of the finances generated by
the  properties  under Hema, more particularly the five units which were used to
acquire other  properties  . The other aspect of the respondent's significant indirect
financial contributions was the land which she once owned on which the five units were
built, which clearly were major financial generating  properties  .

110. In regard to the  properties  under Midal, the respondent's contributions were
non-financial, but they were also significant for the reasons already given.

111. Thus, the respondent made significant and quality contributions to  properties 
under Hema and Midal.

112. On the question of how the Court should evaluate the significance and the quality of
the contributions made by the parties towards the  properties  under Hema and Midal,
I respectfully adopt the statements made in, In Marriage of FERRARO [1992] 111 FLR 124 at
159 – 163 and 170:
"(a) The evaluation of the "quality" of the parties' contributions

Central to the discussion of the valuing of the domestic contributions is a consideration of the
judgements of the High Court in Mallet. Although decided under the pre-1983 legislation,
Mallet still represents the major point of reference for this issue.

Although the matter was extensively discussed by all the members of the Court, primary
reference is usually made to the judgement of Wilson J (at 636). His Honour in that passage
referred to s 79 (4) (b), as it then was, and then cited the passage from the judgement of Evatt
CJ in Marriage of Rolfe [1979] FLC 78, 271 at 78, 272-78, 273. That passage of the judgement of
the former Chief Judge seems to be the origin of the frequently quoted statement in relation to
homemaker contributions that they "should be recognised not in a token way but in a
substantial way"

As the whole of that passage of the former Chief Judge is important to the remarks of Wilson J
immediately following it, it is useful to repeat it:

"The purpose of sec 79 (4) (b), in my opinion, is to ensure just and equitable treatment of a wife
who has not earned income during the marriage, but who has contributed as a homemaker
and parent to the  property  . A husband and father is free to earn income, purchase
 property  and pay off the mortgage so long as his wife assumes the responsibility for the
home and the children. Because of that responsibility she may earn no income or have only
small earning, but provided she makes her contribution to the home and to the family the Act
clearly intends that her contribution should be recognized not in a token way but in a
substantial way. While the parties reside together, the one earning and the other fulfilling
responsibilities in the home, there is no reason to attach greater value to the contribution of
one than to that of the other. This is the way they arrange their affairs and the contribution of
each should be given equal value".

Wilson J then continued in the following, often quoted, passage (at 636):

"With all respect, I agree with her Honour's exposition of the purpose of the paragraph
subject to one reservation. The act (sic.) requires that the contribution of a wife as a
homemaker and parent be seen as an indirect contribution to the acquisition, conservation or
improvement of the  property  of the parties regardless of where the legal ownership
resides. The contribution must be assessed, not in any merely token way, but in terms of its
true worth to the building up of the assets. However, equality will be the measure other things
being equal, only if the quality of the respective contributions of husband and wife, each
judged by reference to their own sphere, are equal. The quality of the contribution made by a
wife as homemaker or parent may vary enormously, from the inadequate to the adequate to
the exceptionally good. She may be an admirable housewife in every way or she may fulfill
little more than the minimum requirements. Similarly, the contribution of the breadwinner
may vary enormously and deserves to be evaluated in comparison with that of the other party.
It follows that it cannot be said of every case where the parties reside together that equal
value must be attributed to the contribution of each. That will be appropriate only to the
extent that the respective contributions of the parties are each made to an equivalent degree.
What the Act requires is that in considering an order that is just and equitable and the court
shall 'take into account' any contribution made by a party in the capacity of homemaker or
parent. It is a wide discretion which requires the court to assess the value of that contribution
in terms of what is just and equitable in all the circumstances of a particular case. There can
be no fixed rule of general application".

There are a number of aspects in that passage relevant to this case. First, the statement by
Wilson J that:

"Equality will be the measure, other things being equal, only if the quality of their respective
contributions of husband and wife, each judged by reference to their own sphere, are equal".

...One of the few detailed discussions of the implications of that passage is in the judgment of
Nygh J at first instance in the matter of In Marriage of Shewring (1987) 92 FLR 385 at 387-388,
which is the report of the judgment of the Full Court (Evatt CJ, Ellis and Lambert JJ). Pages
387-388 contain the following passage from the judgment of Nygh J at first instance where he
discusses the implications of the formulation of Wilson J in Mallet's case in the following
terms:

"What was an issue in this case was the question of quality of contribution. I am aware very
much of the remarks made by Wilson J in Mallet v. Mallet (at 636), and in fact, on the basis of
that remark it has been suggested from time to time that the court must assess in some way
or another the quality of contribution made by a party, for instance as breadwinner on the one
hand and as homemaker on the other, on a scale which presumably ranks from the perfect to
a total failure. ...I take the view based upon the traditional marriage vows that the parties
take one another for better and for worse.

...The assessment of the quality of the contribution should be based on the principle that each
party should make such contribution as can be reasonably expected having regard to the
nature of the parties' capacity, the ability of each of the parties and expectations of the
spouses.

...In some of the more recent reported de facto  property  cases there have been attempts
to analyse the issue of evaluating homemaker contributions. For example, see the judgment of
Clarke, JA (Kirby P and Handley JA concurring) of the New South Wales Court of Appeal in
Black (supra). His Honour said (at 117-118):

"In order to evaluate the particular contribution the Court is, in my opinion, required
carefully to examine the role played by the person who claims to have contributed as
homemaker and parent. Obviously where a woman has over a long period assumed virtually
all the responsibility of maintaining the home and bringing up the children, has done so in a
responsible and energetic manner, and has devoted most of her time to doing that and thus
freed her partner to earn income to be used in the general betterment of the family, her
contribution would had to be regarded as substantial and significant.

Whether her contribution should be regarded as less than, equal to or greater than the
financial contribution by the wage earning partner must depend upon the circumstance of the
case which undoubtedly include the length of the relationship, the nature of the wage earner's
contributions and the care, devotion and services of the homemaker".

(b) Comparison of the parties' contributions

...Gibb CJ in Mallet's case (at 608-609) referred to the "wide discretion" under s79 and the
circumstance that:

"The Act does not indicate the relative weight that should be given to different circumstances,
or how a conflict between opposing considerations should be resolved – those are left to the
court's discretion, which must, of course, be exercised judicially...

It is necessary for the court, in each case, after having regard to the matters which the Act
requires it to consider, to do what is just and equitable in all the circumstances of the
particular case".

...The case law has established however that there may be special factors, such as the
homemaker having performed her responsibilities without the assistance of her absent
husband or the breadwinner having applied outstanding entrepreneurial skills to the building
up of a business, which justify the Court considering that contribution to be above the normal
range or to be considered as an "extra" or "special" contribution". (my underlining).

113. These principles were enunciation to relate specifically to the application of s. 79 of

Australian Family Law Act, 1975, (Cth). However, I find that they have a general application
and are relevant and applicable to the circumstances of this case, I therefore respectfully
adopt them. The principles provide helpful guidance to the Court in assessing the level and
quality of the contributions made by the parties to the matrimonial  properties  and
how such  properties  should be divided between the parties.

114. Thus, having regard to these principles, I find that the petitioner had also made special
contributions to the  properties  under Hema, because it was his expertise in financial
matters and his entrepreneurial skills, ideas and endevours that helped to build up the
parties' matrimonial  properties  and assets and their values to the level where they
were at the time of the trial. This point deserves a special recognition.
115. That said, in respect of the  properties  under Hema, the Court takes special note
of the overwhelming evidence regarding how the respondent had exclusive control over
finances generated by the  properties  under Hema and how the petitioner enriched
himself from those finances, particularly the funds he used from Hema's account without
the knowledge of the respondent. There is no dispute that while he was benefiting
financially from the  properties  under Hema, he was also benefiting from the
 properties  under Midal.

116. Thus, although the petitioner had made special contributions in the manner described
above, and the fact that he was the main, if not, the breadwinner, the substantial amounts
of money he used from Hema's account, which he has not accounted for and his apparent
failure to disclose  properties  he either owned or to which he had direct interest are
matters which have the effect of lowering the level of his contributions to below that of the
respondent. In regard to the non-disclosure of  properties  , the fact that he had or may
have made disclosures later, makes no or little difference because those disclosures were
forced by the respondent. The effect of those forced disclosures is that it provides the basis
for the Court to conclude that the  property  pool is greater than demonstrated by the
evidence. It is to be noted that the failure by the petitioner to disclose does not relate only to
the real estate  properties  , it includes the funds he used from Hema's account which
he failed to account for, the salaries he received including payout by the IPBC, allowances
and fees he was paid as a director or a shareholder of various entities and organizations.

117. Based on these factors, my assessment of the ratio of the parties' contributions towards
the  properties  under Hema is 60 per cent to 40 per cent in favour of the respondent.
Hema's  properties  include K105,000.00 held in the IBD account with Credit
Corporation. This asset is held in the joint names of the parties, but it should also be noted
that the respondent told the Court that K35,000.00 of that money was provided by her.

118. Had it not been for the unexplained expenditures the petitioner incurred against
Hema's account, and for his clear lack of candour in regard to the matters mentioned
above, the Court would have assessed the parties' contributions towards  properties 
under Hema as equal, more because of the petitioner's special contributions.

119. In regard to the  properties  under Midal, I have determined that the parties' level
of contributions to be at the ratio of 85 percent to 15 percent in favour of the petitioner. In
determining this ratio I have taken into account the fact that the  properties  were
acquired by the petitioner using his own financial resources and entrepreneurial expertise
and skills. However, because he was regularly absent from Port Moresby, during over 24
years of their marriage, the respondent was left to manage and attend to the  properties 
whenever needs arose. To me the length of period in which the respondent attended to
the  properties  was a significant contribution.
(iii) Future needs of the parties

120. The petitioner was financially stronger than the respondent during their marriage. He
also had the wealth, power and influence. He still enjoys that status. He has the ability to
create more wealth now and in the future. This observation is relevant to the issue of the
parties' means and resources. It is not a consideration that should divert the Court's
attention from its obligation to ensure that the division of the matrimonial  properties 
between the parties is just and equitable.

121. The petitioner has a new wife, Janet to care for. He is in his late 60s and is now
dependent on medication following his quadruple heart by-pass operation. He has to
purchase medicine for his medical condition for the rest of his life. He also has to make
regular visits to Australia for medical reviews by his doctors. This is necessary because of
the lack of proper medical facilities in PNG. I take all these into account.

122. The respondent on the other hand is in her early 60s. She has no dependent. She is in
good health. There is no doubt that, she will henceforth be well off financially and will be
self sustaining from her share of the  properties  that will be apportioned to her by the
Court in  property  settlement. That said, it is important to keep in mind that the
proper test to apply when dividing the matrimonial  properties  between the parties is
not whether the respondent's share of the  properties  will make her wealthy and self
sustaining, but whether her share of the matrimonial  properties  is just and equitable
in the circumstances of the case.

123. It seems unlikely that either of the parties will get full time paid employment in the
future. The petitioner nonetheless is the current President of the PNG Sports Federation and
PNG Olympic Games Committee. Whilst I cannot be sure whether he gains financially from
his involvement with these two sporting bodies, such as receiving allowances, commissions
or some other forms of remuneration for his services, I have no doubt that his involvement
with these two highest sporting bodies would derive some sort of benefits for him.

(iv) The petitioner not making full and frank disclosures of the  properties  in
which he had interest and some of his business dealings

124. There is evidence that the petitioner did not make full and frank disclosures of some of
the  properties  he either owned or in which he had direct interest. In his first proposal
for  property  settlement he left out some of the  properties  he either owned or in
which he had interest. I take this to be deliberate because it was only after the respondent
had revealed those  properties  in her cross-petition that the petitioner had adjusted
his first proposal for  property  settlement, he was therefore forced to disclose those
 properties  . Secondly, there is evidence that the  property  at Kewarra Beach,
Cairns, was also disclosed only after the respondent had by coincidence discovered through
bank statements which were sent to the petitioner from National Australia Bank, that
petitioner had taken out a home loan with that bank to purchase the  property  . Again,
it was after that discovery of the bank statements by the respondent and after the
respondent raised the issue in Court that an explanation was given by the petitioner
through Mr. Shepherd who in his submissions acknowledged that the petitioner had
acquired the  property  for him and his new wife Janet to use whenever they are in
Cairns for his medical reviews. Thirdly, there is evidence from the respondent in the
affidavit she swore on 30 November, 2007, that the petitioner had drawn cheques for
various amounts totaling almost K203, 000.00, against Hema's account which he has not
accounted for. The petitioner has not given any explanation as to who those cheques were
for. There is also evidence from the respondent that the petitioner withdrew K340, 000.00
in cash from Hema's account, which he also has not accounted for. The non-disclosures in
regard to the payout by the IPBC and fees and allowances received by the petitioner may
not be out of the ordinary, but when viewed in the context of the overall conduct of the
petitioner in how he did business without the knowledge of the respondent during the
parties' marriage, they become significant as they reflect generally on the petitioner's lack
of candour. Thus, they also raise questions regarding his credibility.

125. The non-disclosures by the petitioner in respect of the real estate  properties  are
significant because they have a direct bearing on the  property  pool for  property 
settlement. The non-disclosures also demonstrate that the petitioner had generally during
the parties' marriage did things without the knowledge of the respondent although the
respondent had the right to know about those things or activities. As I said earlier, it is a
matter which weighs against the credibility of the petitioner.

126. In making this observation it should be stressed that the duty to disclose is absolute. It
is not an option. The reason is obvious, a husband and wife are supposed to be partners
who are united in marriage as one. Thus, what one party to the marriage does in life,
especially those which are likely to impact significantly on them, the other party to the
marriage has the right to know. Thus, where there is a clear and undisputed evidence of
non-disclosure by a party in  property  settlement as in this case, the Court is entitled
to conclude that the  property  pool is greater than demonstrated by evidence. In such
a case, justice and equity would demand that the disadvantaged party, which in this case is
the respondent, should be treated favorably by the Court and the Court should do the best it
can, to ensure that the disadvantaged party is fairly and sufficiently compensated. In this
case there is clear evidence of the lack of candour by the petitioner not only in respect of
 property  settlement but also in respect of other aspects of the parties marriage. This
must also affect the credibility of the petitioner.

127. The overall result of the division of the matrimonial  properties  between the
parties must, in the circumstances of the case be just and equitable to both parties. This
should be determined by the overall facts and circumstances of the case. This is a pivotal
consideration which underpins the  property  settlement between the parties. The aim
of  property  settlement in this case should not necessarily be whether the parties have
equal share of the matrimonial  properties  but whether the number of  properties 
given to each party is just and equitable in the circumstances of the case; see White v.
White [2001] 1 AC 596; [2000] 3 WLR 1517. In that case Lord Nicholls when discussing the
principle of equality in the leading judgment at 1578 said:

"... there is one principle of universal application which can be stated with confidence. In
seeking to achieve a fair outcome, there is no place for discrimination between husband and
wife and their respective roles. Typically, a husband and wife share the activities of earning
the money, running their home and caring for their children.... If, in their different spheres,
each contributed equally to the family, then in principle it matters not which of them earned
the money and built the assets. There should be no bias in favor of the money-earner and
against the home-maker and the child-carer .... Before reaching a firm conclusion ... a Judge
would be well advised to check his tentative views against the yardstick of equality division.
As a general guide, equality should be departed from only if, and to the extent that, there is
good reason for doing so." (my underlining).

128. See also Miller v. Miller [2006] 3 All ER 1.

(v) Apportionment of matrimonial  properties  between the parties in  property 

settlement

129. The respondent is now living in the parties' former matrimonial home at Lot 4, Section
21, Mavaru Street, Boroko. I consider that this  property  should be allocated to the
respondent. The petitioner on the other hand is now living in a unit at Lot 4, Section 440,
Hohola (Islander Village) with his new wife Janet. He says he has carried out renovations to
this unit. I consider that this  property  should be allocated to the petitioner, thus the
respondent's interest in this  property  should be transferred to the petitioner.

130. The parties have each argued that they should manage the  property  at Lot 15,
Section 2, Nonu Street, Boroko, on behalf of Henry Jr. In deciding this issue, I have noted
that the respondent was close to Henry Jr and was also very involved in organizing and
paying for his studies in Australia. This is sufficient reason for the respondent to manage
the  property  for Henry Jr. until Henry Jr. decides what to do with the  property  .
The respondent will therefore manage the  property  for Henry Jr. In line with this
decision, the respondent will also manage the BSP, Waigani Branch account no. 1000185557,
under Henry Jr's name.

131. The  property  at Moore Street, Trinity Beach Cairns, which was acquired by the
petitioner, is for reasons already given, a matrimonial  property  . The  property 
at Lot 6, Section 11, Kokopo is also a matrimonial  property  , because pursuant to s. 75
(1), it is a  property  to which the petitioner is entitled. It is also noted that the
 property  was acquired by the petitioner in 1996, which was during the period when the
parties' were married. Nonetheless, the issue of whether this  property  is a
matrimonial  property  or not does not really arise because the petitioner had, in his
first proposal for  property  settlement included it to be considered by the Court in
 property  settlement between the parties. I have decided that these two  properties 
should be sold and the proceeds from the sales should be divided equally between the
parties. However, before the  properties  are put on the open market for sale, they
should be valued by registered  property  valuers appointed by both parties; once the
valuations are done, respective valuation reports should be made available to both parties
through their respective lawyers. The petitioner should then take immediate steps to sell
the  properties  through real estate agents of his choice in Cairns and Port Moresby.
The petitioner is to inform the respondent through her lawyers of the identities of the real
estate agents once chosen. The petitioner will be obliged to provide and disclose to the
respondent through her lawyers all the details of the sales, including all the documents
relating to those sales. When the  properties  are sold, half of the proceeds of the sales
shall be paid directly to the respondent through her lawyers. The effect of this order is that
the petitioner will only retain or receive half of the proceeds from the sales, the other net
half or 50% of the proceeds from those sales are to be paid directly by the respective
purchasers to the respondent through her lawyers. However, in the event that this is not
possible, the petitioner is to immediately, after selling the  properties  , transfer the net
half or 50% of the proceeds of the two sales to the respondent through her lawyers.

132. I am also of the opinion that the  property  at Lot 44, Section 41, Logohu Place,
Boroko, which is a  property  under Midal and to which the petitioner has interest be
transferred to the respondent as her compensation for her contributions to the
 properties  under Midal during the course of over 24 years of the parties' marriage; see
French v. French [1988] NZLR 62 and Nation v. Nation [2005] 3 NZLR 46. The petitioner will
therefore cause Midal to transfer this  property  to the respondent and the respondent
shall become the sole beneficial owner and registered proprietor of the  property  .

133. I have also for reasons already given determined that the  property  at Kewarra
Beach, Cairns, is a matrimonial  property  . I have decided that this  property 
should be retained by the petitioner.

134. Thus, under these orders, the petitioner will have the following  properties  :

(i)  Properties  at Lots 2 and 5, Section 214, Turuha, Street, Gordons (8 x 3 bedroom
units), via Midal;

(ii)  Properties  at Lot 8, Section 440, Hohola, (Islander Village), (2 x 3 bedroom town
houses), via Midal;
(iii)  Property  at Lot 68, Section 231, Tokarara (a house), via Midal;

(iv)  Properties  at Lot 16, Section 91, Leke Place, Gordons (1 house and 2units), via
Midal;

(v)  Properties  at Lot 14, Section 19, Leke Place, Gordons (2 houses), via Midal;

(vi)  Property  at Lot 4, Section 440. Hohola (Islander Village), via Hema;

(vii)  Property  at Kenabot, Kokopo; and

(viii)  Property  at Kewarra Beach, Cairns, Australia.

135. The respondent will have the following  properties  :

(i)  Property  at Lot 4, Section 21, Mavaru Street, Boroko;

(ii)  Property  at Lot 6, Section 440, Hohola, (Islander Village), via Hema;

(iii)  Property  at Lot 12, Section 10, Ororo Crescent, Boroko; (5 units), via Hema;

(iv)  Property  at Lot 25, Section 7, Boroko Drive, Boroko, via Hema; and

(v)  Property  at Lot 44, Section 41, Logohu Place, Boroko, via Midal.

136. Apart from the  properties  apportioned to the petitioner, he will also have the
following assets:

(i) 30,000 shares in Alhambra, which is 50% of the total number of shares the parties hold
in the company;

(ii) All the shares in Midal;

(iii) Half or 50% of the proceeds from the sale of the  property  at 91 - 93, Moore Street,
Trinity Beach, Cairns, Australia;

(iv) Half or 50% of the proceeds form the sale of the  properties  at Lot 6, Section 11,
Kokopo; and

(v) All the household furniture and appliances and all other personal assets he currently
owns or which are currently in his possession, including bank accounts and motor vehicles.

137. Apart from the  properties  apportioned to the respondent, she will also have the
following assets:
(i) All the shares in Hema; which include the petitioner's 50% share of the total number of
shares held jointly by the parties in the company, which the petitioner will transfer to the
respondent;

(ii) 30,000.00 shares in Alhambra, which is 50% of all the shares currently held jointly by
the parties in the company;

(iii) Half or 50% of the proceeds from the sale of the  properties  at Lot 6, Section 11,
Kokopo;

(iv) Half or 50% of the proceeds from the sale of unit 5, 91 - 93, Moore Street,
Trinity Beach, Cairns, Australia;
(v) K105, 000.00 held in IBD account with Credit Corporation; and

(vi) All the household furniture and appliances and all other personal assets she currently
owns or which are currently in her procession, including bank accounts and motor
vehicles.

138. The respondent will manage the  property  at Lot 15, Section 2, Nonu Street,
Boroko, for and on behalf of Henry Jr.

(vi) Settlement of tax and other liabilities

139. It is ordered that Hema's books be audited by a company auditor appointed by both
parties. The audit shall cover the period from the company's establishment or
incorporation to the date of the decree absolute for the dissolution of the parties' marriage.
Any tax liabilities and other debts owed by Hema up to the date of the decree absolute,
which is 18 November, 2005, except for any tax liabilities in respect of the K105,000.00 held
in the IBD account under the joint names of the parties with Credit Corporation, are to be
paid by the Petitioner. Further, in the event that Hema has incurred liabilities between the
date of the decree absolute and 31 March, 2010, which is the date of this judgement and
that those liabilities have been incurred solely by the petitioner, without the knowledge of
the respondent, such liabilities are also to be paid by the Petitioner.

140. The respondent is to pay for and settle the outstanding mortgage with the BSP for the
 property  at Lot 4, Section 21, Mavaru Street, Boroko.

(vii) Are the orders made regarding the division of matrimonial  properties  and
assets in  property  settlement between the parties just and equitable in the
circumstances of the case?
141. The respondent was living in the  property  at Lot 4, Section 21, Mavaru Street,
Boroko, with the respondent well before the break down of the parties' marriage. She has
no doubt devoted a lot of time and energy caring for the  property  and since the
parties' separation she has been living in this house and has regarded it as hers. This is not
only after the petitioner left her following their separation but even before that. There is
also evidence from the respondent that she contributed financially towards the
maintenance of the  property  . Furthermore, the petitioner had left the house by
choice, leaving the respondent to reside in it.

142. The petitioner had in his first proposal for  property  settlement, agreed to
transfer this  property  to the respondent, he however had a change of heart in his
second proposal, and decided against transferring the  property  to the respondent. No
reasonable explanation was given by the petitioner for this change of heart. In the
circumstances, it is only fair that the respondent should have this  property  . Needless
to say, that the  property  is registered under the joint names of the parties.

143. The petitioner has given evidence that he has done renovations to the  property 
he is currently living in, viz;  property  at Lot 4, Section 440, Hohola (Islander Village).
The respondent has asked that this  property  remain under Hema's ownership and it
should not be given to the petitioner. She justified this stand by arguing that the
 property  was acquired with rents received from  properties  under Hema, more
particularly the five units at Lot 12, Section 10, Ororo Crescent. I have however decided that
this  property  should be given to the petitioner. The reasons for this decision are in my
view sound and well founded. Firstly, the petitioner has done renovations to the
 property  and he has been living in the  property  with his new wife for quite some
time now. It would in those circumstances cause unnecessary inconvenience to the
petitioner if this  property  was given and transferred to the respondent because, the
petitioner would have to vacate the  property  and move elsewhere. The  property 
comes under Hema and the petitioner being one of the shareholders of Hema, is equally
entitled to the  property  . Secondly, there is no dispute that the petitioner has made
contributions to the  properties  under Hema, including this  property  . Similar
considerations have been taken into account by the Court in regard to the  property  at
Lot 4, Section 21, Mavaru Street, Boroko, when allocating that  property  to the
respondent. That  property  was purchased under a mortgage by the parties in their
joint names and was the matrimonial home for the parties during the course of their
marriage. The respondent continues to live in that  property  . In those circumstances I
have exercised my discretion in favour of the respondent by allocating the  property 
to her. Applying much the same considerations, it is in my firm opinion just and equitable
that the  property  at Lot 4, Section 440, Hohola, (Islander Village) be given to the
petitioner.

144. In regard to the  property  at Lot 15, Section 2, Nonu Street, Boroko, the
respondent as the mother had without a doubt been fully involved in the care and support
of Henry Jr, when he was studying in Australia; which includes organizing and arranging
payment of Henry Jr's education and other related expenses. I also have no doubt that the
respondent as the mother has uninhibited love and affection for Henry Jr and vise versa by
Henry Jr to her as a son. There is no evidence before me upon which I can find to the
contrary. These factors strongly favour the respondent as the most suited party to manage
the  property  for Henry Jr.

145. As to the petitioner, the fact that he is now married to another woman is a factor which
in my view weighs against him in managing the  property  for Henry Jr, bearing in
mind that the issue here is not just about which of the parties is better able to manage the
 property  for Henry Jr, rather and more importantly, the issue is also about what is in
the best interest of Henry Jr and who would Henry Jr feel free and comfortable to deal with
in managing his  property  . It has to be born in mind that who ever manages the
 property  will just be a caretaker of the  property  until Henry Jr decides what to do
with the  property  . Taking all theses factors into account I am of the firm opinion that
the respondent as the natural mother is best suited to manage the  property  . For the
same reasons, the respondent will also manage the BSP, Waigani Branch account no.
1000185554 for Henry Jr.

146. In regard to the  property  at 91-93 Moore Street, Trinity Beach, Cairns, it was
purchased by the petitioner in 1993, thus, the  property  was purchased during the
course of the parties' marriage. This was also when the petitioner's term as the Governor of
Bank of PNG came to an end and marked the beginning of his term as the Chairman of the
Board of Directors for Credit Corporation, a position he held until 2007. He says, he
purchased the  property  with his own money. To me this is another example of how
the petitioner did business without the knowledge of the respondent. The respondent has
for that reason queried a number of other benefits which the petitioner received or
acquired during their marriage which the petitioner never disclosed to her like the payout
by the IPBC and fees and allowances paid to him as a director of various entities, including
Credit Corporation. The fact remains that as a matter of law (s. 75 (1), any  property 
the petitioner purchased or acquired during the course of the parties' marriage was and is
a matrimonial  property  or asset. In that regard, it should be noted that at the time he
received those payouts, allowances and fees and some years before he purchased this
 property  , the petitioner was at the prime of his career as a high profile executive. At the
material time, he also joined the Deloite Touche Tohmatsu Accountants as a partner and
was the President of PNG Sports Federation and PNG Olympic Games Committee. He still
holds the latter two positions. He was also the Chairman of the Board of Directors for Credit
Corporation. Thus, he was a very busy person with very demanding responsibilities, all of
which, as I alluded to earlier, required constant traveling both within PNG and abroad.

147. In that regard, it is to be noted that about two years before this  property  viz; the
 property  at 91-93 Moore Street, Cairns, was purchased, the respondent also left her
employment with the Department of Foreign Affairs, following her retrenchment from the
Public Service; so she was the one who was attending to, caring for and keeping their
matrimonial home everyday. This form of contribution has long been recognized as a
significant form of contribution by a housewife, hence the respondent, because in this case,
as in other marriages, it freed the petitioner to find time to do business, including acquiring
this  property  and other  properties  , including the  property  at Lot 6,
Section 11, Kokopo; see In Re Marriage of FERRARO (supra) at 159, where the court in citing
with approval the principle stated in Mallet v. Mallet (supra), emphasized the significance of
the contributions made by a wife as the home-maker. "...A husband and father is free to earn
income, purchase  property  and pay off the mortgage so long as his wife assumes the
responsibility for the home and the children". The court also said the home maker's (wife)
contribution – "should be recognized not in a token way but in a substantial way". In the
circumstances of this case I do not consider it just and equitable for the respondent to
receive less than the petitioner from the proceeds of the sale of this  property  . The test
is not which of the parties made financial contributions to acquire the  property  , but
what is a just and equitable share for the respondent i.e a share that is commensurate with
her contributions, whether financial or non-financial or both.

148. The  property  was acquired under the petitioner's own name; but as I alluded to
earlier, what is of significance here is that the  property  was acquired during the
course of the parties' marriage; thus it is a matrimonial  property  which makes it
subject to the Court's determination for  property  settlement. It is on this basis that I
have decided that it be sold and both parties should benefit equally from the proceeds of
the sale.

149. I have decided that the  property  at Lot 44, Section 41, Logohu Place, Boroko,
which is a 3 bedroom house under Midal be transferred to the petitioner. I consider that
this will provide a just and equitable compensation for the respondent for her non-
financial contributions towards the  properties  under Midal, in overseeing their
maintenance and upkeep, especially when the petitioner was busy attending to his highly
demanding responsibilities both in PNG and overseas during over 24 years of the parties'
marriage; see French v. French (supra) and Nation v. Nation (supra).

150. An important factor to note here is that the petitioner had control over all the finances
generated by the  properties  under Hema. The respondent had no control over those
finances. The reason for this according to the respondent was that the petitioner was the
expert in financial matters and not her. Therefore the respondent trusted the petitioner to
manage and control those finances. However, there is overwhelming evidence before the
Court that the petitioner betrayed that trust by the respondent.

151. There is no issue that the petitioner had control over the finances generated by the
 properties  under Hema and Midal.

152. The affidavit sworn by the respondent on 30 November, 2007, shows that from 4
October, 1995, to 31 December, 1996, which is a period of more than twelve months, the
petitioner raised cheques totaling K202,918.89 which is almost K203,000.00, against Hema's
account. This amount was paid in eight cheques with the lowest amount of K8,500.00 and
the highest amount of K50,000.00. There were two cheques for K50,000.00 each. The
respondent had no knowledge about these payments or transactions. The petitioner has not
accounted for these payments. The payments are shown in a document prepared by an
accountant named Silan Nadarajah. The document is headed: "Hema Investments –
Payments for years from 1994 to 1996." According to the respondent's affidavit, Silan
Nadarajah was an accountant who was known to the petitioner during his term as the
Governor of Bank of PNG.

153. The respondent in her affidavit says, the petitioner may have used the finances
generated by the  properties  under Hema, especially the five units at Lot 12, Section
10, Ororo Crescent, Boroko, to acquire the  properties  in Cairns as well as other
 properties  , without the respondent's knowledge. The respondent has for this reason
asked that she be fully indemnified for any past liabilities for Hema.\

154. The respondent obviously was not a party to these unexplained transactions totaling
almost K203,000.00.

155. It is noted that the petitioner has not challenged or denied these claims.

156. One thing that has been clearly established by evidence is that the petitioner had
during the parties' marriage betrayed the respondent's trust by having extra-marital affairs.
Evidence of this also comes from the petitioner's own admission that he committed
adultery with a Filipino woman named Jodi Docai between 1999 and 2000, meaning the
affair went on for a period of time. The respondent has also claimed that he had extra-
marital affairs with other women. These claims have not been challenged by the petitioner.
The petitioner also withdrew K340, 000.00 in cash from Hema's account. The petitioner has
not accounted for this amount. So the total amount of unexplained expenditure incurred by
the petitioner from Hema's account amounted to over a half a million kina. The respondent
also told the Court that K70, 000.00 was already used to renovate the  property  at Lot
4, Section 440, Hohola (Islander Village). Therefore, other additional renovations made by
the petitioner on this  property  were made without the respondent's knowledge. Being
a part owner of the  property  , the respondent had the right to know about these
expenses. The respondent told the Court that the petitioner deliberately concealed these
deals from her.

157. I have taken overall account of all these matters when deciding on how the
matrimonial  properties  should be divided between the parties, which includes the
 property  at Section 41, Lot 44, Logohu Place, Boroko, which I have apportioned to the
respondent. As I alluded to earlier, the unexplained transactions made by the petitioner
without the knowledge of the respondent raise serious questions about the petitioner's
credibility.

158. There is also no evidence of any liabilities either for Hema or for the parties before the
Court except for about K7,000.00 owed by the parties to BSP in mortgage for the
 property  at Section 21 Lot 4, Mavaru Place, Boroko. The petitioner was the one
controlling the finances for Hema so he should know if Hema has liabilities. He should have
produced evidence not only in regard to Hema's liabilities but how those liabilities were
incurred, before asking this Court to order the respondent to indemnify him fully of Hema's
liabilities. The Court has to have a basis to make such orders, it cannot make orders in
respect of liabilities which do not exist. This failure by the petitioner to produce evidence
regarding Hema's liabilities, if any, is a significant factor which the Court cannot ignore
because as I said, he was the one controlling Hema's financial affairs. This, together with his
failure to make full and frank disclosures of his  properties  or of  properties  in
which he had interest, upfront and his failure to account for over half a million kina from
Hema's account, in my opinion justifies this Court to grant the petitioner's request and
order the petitioner to fully indemnify the respondent for any past liabilities of Hema up to
the date of the decree absolute and any other liabilities for Hema which have been incurred
solely by the petitioner since the date of decree absolute to the date of the judgment
without the knowledge and approval of the respondent. I consider that this approach is just
and equitable in the circumstances of the case.

159. In this regard I cannot do any better than to quote and adopt a passage from the
judgment given by Baker J in Kewaliw (1981) FLC 91-092 at 76, 643-4.

"...Marriage is for most couples an economic partnership. Married couples live together and
work together with ultimate object of purchasing a home, paying it off, acquiring other assets
with the overall object of attaining a higher standard of living. The reported decisions in
respect of applications for settlement of  property  under sec. 79 of the Act are
unanimous that both parties should share the economic fruits of a marriage, having regard to
the provisions of sec. 79 (4) and sec. 75 (2), although not necessarily equally.

Is not, however, the converse equally sustainable? In other words, should not financial losses
incurred by parties to a marriage or either of them, whether incurred jointly or severally, be
shared by them in the same manner as the financial gains?

As a statement of general principle, I am firmly of the view that financial losses incurred by
parties or either of them in the course of a marriage whether such loses result from a joint or
several liability, should be shared by them (although not necessarily equally) except in the
following circumstances:
(a) where one of the parties has embarked upon a course of conduct

designed to reduce or minimise the effective value or worth of matrimonial assets, or

(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial
assets, the overall effect of which has reduced or minimised their value.

In Browne v. Green [1999] FamCA 1483; (1999) FLC 92-873, the Full Court said:

"While care should probably be taken...not to elevate Baker J's statement(in Kowaliw) to "a
principle", we are nonetheless satisfied that it is certainly a well-accepted guideline within the
jurisdiction which has received the endorsement of successive Full Courts..." (my
underlining).

160. The sentiments expressed in this passage are relevant and applicable to the
circumstances of this case and I have respectfully adopted them as helpful guides for me in
deciding the overriding issue of what is just and equitable in the apportionment of
matrimonial  properties  between the parties and any responsibilities that arise from
the orders made by the Court regarding  property  settlement.

161. It is clear that the petitioner has by his failure to account for over half a million kina
effectively minimized or reduced the value of matrimonial  properties  ; thus there is a
firm basis for the Court to infer that the  property  pool is greater than demonstrated
by evidence. This in my view more than justifies the Court to order the petitioner to fully
indemnify the respondent for all the past liabilities, if any, including tax liabilities for Hema
up to the date of the decree absolute, which is 17 November, 2005. However, as I said, if the
petitioner had, without the knowledge and approval of the respondent incurred liabilities
for Hema between the date of the decree absolute and the date of these Orders which is
31st March, 2010, then such liabilities are also to be paid or settled by the petitioner.

162. In this case, the petitioner was controlling all the financial affairs of the parties,
including funds generated by the  properties  under Hema. Therefore, if there are
liabilities for Hema, he should know. He has only suggested that the respondent fully
indemnify him for any liabilities incurred by Hema, he should have provided evidence of
Hema's liabilities which can then justify him to seek the relief he is seeking, so that the
Court can have the basis to decide whether the respondent should be solely responsible for
such liabilities. Without the petitioner producing evidence regarding Hema's liabilities, the
Court has no basis to order the respondent to pay or settle Hema's liabilities, let alone to
indemnify the petitioner for such liabilities. In the circumstances, I do not consider it just
and equitable for the Court to order the respondent to indemnify the petitioner for Hema's
liabilities. The respondent does not know of any liabilities for Hema. Given the overall
circumstances of the case, it would also be unjust for the respondent to meet Hema's
liabilities out of her share of the matrimonial  properties  and assets which the Court
has apportioned to her in  property  settlement.

163. The respondent has in her cross – petition sought spousal maintenance orders against
the petitioner, however, I am of the opinion that the orders made in her favour are more
than sufficient to sustain her in the future. I therefore make no orders as to spousal
maintenance for the respondent.

164. The consequential Orders of the Court are:-

(i) The petition is dismissed.

(ii) The petitioner shall pay the respondent's costs of and incidentals to these proceedings.

165. Orders accordingly.

_________________________________

Blake Dawson and Waldron Lawyers: Lawyers for the Petitioner

Kassman Lawyers: Lawyers for the Respondent

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