Henry To-Robert (Petitioner/Cross-Respondent) and Mary To-Robert (Respondent/Cross-Petitioner) and Janet To-Robert (Cross-Co-Respondent) (2010) N4003

• Jurisdiction: Papua New Guinea
• Judge: Gavara-Nanu J
• Judgment Date: 31 March 2010
• Citation: (2010) N4003
• Docket Number: MC No. 06 of 2003
• Court: National Court
• Year: 2010
• Judgement Number: N4003

Full Title: MC No. 06 of 2003; Henry To-Robert (Petitioner/Cross-Respondent) and Mary To-Robert (Respondent/Cross-Petitioner) and Janet To-Robert (Cross-Co-Respondent) (2010) N4003

National Court: Gavara-Nanu, J

Judgment Delivered: 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 (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...