Keith Kenneth Kingston v Judith Merilyn Kingston

• Jurisdiction: Papua New Guinea
• Judge: David, J
• Judgment Date: 25 October 2017
• Citation: (2017) N7054
• Court: National Court
• Year: 2017
• Judgement Number: N7054

Full : MC No 25 of 2016; Keith Kenneth Kingston v Judith Merilyn Kingston and Noel Lionel Girdler (2017) N7054

National Court: David, J

Judgment Delivered: 25 October 2017

N7054

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MC No. 25 of 2016

BETWEEN:

KEITH KENNETH KINGSTON

Petitioner

AND:

JUDITH MERILYN KINGSTON

Respondent

AND:

NOEL LIONEL GIRDLER

Co-Respondent

Waigani: David, J

2017: 13 & 25 October

FAMILY LAW – petition for decree of dissolution of marriage – no ancillary relief sought - application to amend petition or alternatively file separate petition to claim ancillary relief – settlement of property - damages in respect of adultery - proceedings for settlement of property instituted by Respondent in Family Court of Australia - forum non conveniens – Matrimonial Causes Act, Sections 1, 3, 14, 56(3)(b) – Matrimonial Causes Rules, 87, 89, 96 and 192.

Cases cited:

Papua New Guinea

Stettin Bay Lumber Company Pty Ltd v Arya Ship Management Ltd [1995]

SC488

Overseas Cases

Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

Treatise cited:

Reid Mortensen, Comity and Jurisdictional Restraint in Vanuatu (2002) 33 VUWLR at 96

Counsel:

G. J. Sheppard with M. Sumbuk, for the Petitioner

J. G. Renwick with D. R. Carter, for the Respondent

No appearance for the Co-Respondent

JUDGMENT

25 October, 2017

1. DAVID, J: INTRODUCTION: This is a ruling on two applications, one each filed by the Petitioner and the Respondent.

2. By a Notice of Motion and Application for Ancillary Relief dated 24 November 2016 and filed on 5 December 2016 (the Application for Ancillary Relief), the Petitioner, relying on the specific jurisdictional provisions specified in the Application for Ancillary Relief, seeks the following substantive orders:

“1. The requirements for service be dispensed with pursuant to section 94 of the Matrimonial Causes Act, Chapter 282 (“Act”), and all other powers enabling;

2. Pursuant to sections 3, 14 and 96 of the Act, Order 6 Rule 19(h) of the National Court Rules and all other powers enabling, the Respondent be restrained and an injunction be granted restraining the Respondent from continuing with the Court action, titled BRC 11392 of 2016: Judith Merilyn Kingston v Keith Kenneth Kingston, in the Family Court of Australia at Brisbane, Australia, until the final determination of MC No.25 of 2016(CC4): Keith Kenneth Kingston v Judith Merilyn Kingston & Anor;

3. Pursuant to sections 3, 14 and 56(3)(b) of the Act and Rules 87 and 89 of the Matrimonial Causes Rules, Chapter No.282, the Petitioner is granted leave to file an Amended Petition for Decree of Dissolution of Marriage;

4. Alternatively to 3 above, pursuant to sections 3, 14 and 56 (3) (b) of the Act and Rules 96 and 192 of the Matrimonial Causes Rules, Chapter 282, the Petitioner is granted leave to file a separate Petition:

a. To institute supplementary grounds for a Decree of Dissolution of Marriage; and

b. To institute proceedings for Ancillary Relief;

to be consolidated with these proceedings and heard and determined by the Court as far as practicable, at the same time as the proceedings for a Decree of Dissolution of Marriage in these proceedings.

5. Pursuant to Rule 74(4) or 94 of the Matrimonial Causes Rules, Chapter 282, the Respondents shall file and serve any Reply or Answer within 14 days of service of the Amended Petition or separate Petition.”

3. At the hearing, the Petitioner abandoned relief 1, 2 and 4.1.

4. In support of his application, the Petitioner relies on the affidavits of:

1. Keith Kenneth Kingston sworn on 23 November 2017 and filed on 25 November 2017; and

2. Alu Konena sworn on 14 August 2017 and filed on 15 August 2017.

5. The Petitioner states that the purpose of his application is to seek the leave of the Court to pursue a matrimonial cause for dissolution of his marriage with the Respondent and also to pursue proceedings for ancillary relief with respect to settlement of property and or damages in respect of adultery as is defined in Section 1 of the Matrimonial Causes Act, Chapter 282 (Matrimonial Causes Act) and as allowed in this jurisdiction.

6. By an Application to Court dated and filed on 27 September 2017 (the Respondent’s Application), the Respondent seeks the following substantive orders:

“1. Pursuant to section 287 of the Matrimonial Causes Rules (Ch 282), leave be granted to dispense with the requirements for notice and service of this Application and supporting affidavit on the Petitioner.

2. Pursuant to Order 12 Rule 1 of the National Court Rules, sections 3, 14, 16 and/or 96 of the Matrimonial Causes Act 1963 (Ch 282) and/or sections 155(3)(b) and/or (4) of the Constitution there be an injunction and/or stay as to any application for ancillary relief in this proceeding.

3. The Petitioner pays the Respondent’s costs of and incidental to this application on a solicitor client basis.

4. That the time of entry of these orders be abridged to the date of settlement by the Registrar, which shall take place forthwith.”

7. In support of her application, the Respondent relies on the affidavits of:

1. Judith Merilyn Kingston sworn on 27 January 2017 and filed on 31 January 2017; and

2. Shauna Marie Foley sworn on 26 September 2017 and filed on 27 September 2017.

8. Both applications are contested.

BACKGROUND AND FACTS

9. By a Petition for Decree of Dissolution of Marriage filed here in Waigani on 20 October 2016 (the Petition), the Petitioner seeks a decree of the dissolution of his marriage with the Respondent that was solemnized by an authorized celebrant, Leslie William Turner, a Priest in the Church of England, in accordance with the Marriage Act 1963 of the Commonwealth of Australia (the Marriage Act) on 24 February 1968 at the Church of the Holy Trinity, Fortitude Valley, Brisbane, Queensland, Australia on the ground that, since the marriage, the Respondent has committed adultery. They have two male children from the marriage and they are; Michael Kenneth Kingston born on 13 October 1977; and Dean Anthony Kingston born on 31 October 1979. It is alleged that since their marriage on 24 February 1968, the Respondent and the Co-Respondent had engaged in an adulterous relationship which the Petitioner became aware of in early 2011 and the adulterous relationship continues. Apart from seeking a decree of dissolution of marriage, the Petitioner does not seek any other order.

10. At paragraph 12 of the Petition, it is pleaded that:

“The Petitioner does not intend to make nor propose any arrangements for the provision of maintenance nor benefit referred to in Section 25(5) of the Act for the Respondent on the decree becoming absolute. This is for the following reasons:

(a) All the children are adults and independent; and

(b) The Respondent occupies a multi-million dollar penthouse, has her own car and is independently very well off financially.”

11. The Petitioner and the Respondent were born in Australia on 14 January 1946 and 9 October 1946 respectively and both are Australian citizens. In the Petition, the Petitioner claims that he is domiciled in Papua New Guinea within the meaning of the Matrimonial Causes Act 1963 (the Matrimonial Causes Act). He is a permanent resident of Papua New Guinea and has lived in Papua New Guinea most of his life since 28 October 1968. He resides at his house at Allotment 62 Section 93 Eagle Street, Lae, Morobe Province. He is the owner and Managing Director of the company KK Kingston Limited. Before and immediately after their marriage, the Petitioner and the Respondent cohabited at Allotment 62 Section 93 Eagle Street, Lae, Morobe Province. The Respondent returned to Australia in 1997 and has resided there since that time. Cohabitation ceased in or about October 2016. Both parties hold property in Australia and in Papua New Guinea.

12. On 11 November 2016, the Respondent commenced proceedings against the Petitioner in the Family Court of Australia, Brisbane Registry by way of an Initiating Application styled BRC11392 of 2016, seeking orders for settlement of the property of the parties and the following final orders were sought:

“1. That the property interests of the parties be adjusted by way of final property order such that an overall adjustment is effected of 55% to the applicant and 45% to the respondent.

2. That the applicant be granted leave to fully particularise the final orders sought by her upon the completion of disclosure and valuations in accordance with rules.

3. That the respondent pay the applicant’s costs of and incidental to this application.”

13. In the Initiating Application, the Respondent does not seek any order as to a decree of dissolution of marriage.

14. On 23 November 2016, the Respondent filed an Application in a Case in the Family Court of Australia, Brisbane Registry (the Application in a Case) seeking an anti-suit injunction and the main orders sought were:

“1. That the Respondent Husband be restrained and an injunction shall issue restraining the Respondent Husband from prosecuting or pursuing proceedings in any other court, including with respect to the:

(a) Petition for Decree of Dissolution...