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Gray v Gray [1987] PGNC 32; [1987] PNGLR 141; N592 (5 June 1987)

N592

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

GRAY

V

GRAY AND SHERVEY

Rabaul & Waigani
Bredmeyer J
8-9 May 1987
5 June 1987

MATRIMONIAL CAUSES - Dissolution of marriage - Adultery by wife - Damages against co-respondent - Principles - Quantum - Costs - Matrimonial Causes Act (Ch No 282), s 32.

On the hearing of a petition for dissolution of marriage by a petitioning husband on the ground of his wife’s adultery, the evidence revealed that the real reasons for the breakdown of the marriage were:

(a) the ill health of a child of the marriage;

(b) the wife’s general unhappiness and dissatisfaction with the marriage which had led to an adulterous affair with the co-respondent over a period of two months and which relationship was not then known to the petitioner.

Held

(1) Damages for adultery under the Matrimonial Causes Act (Ch No 282), s 32, are to be assessed having regard, inter alia, to any pecuniary loss suffered by reason of the adultery, injury to pride, prestige and feelings, and the loss of matrimonial and family life.

Mortimore v Mortimore [1978] PNGLR 197 and Tolison v Tolison [1985] PNGLR 125, followed and applied.

(2) In the circumstances, damages for loss of consortium, wounded feelings and pride etc should be assessed at K1,500.

(3) An order for costs in favour of a petitioning husband should not be made against a wife without means.

(4) The general rule that a co-respondent found guilty of adultery should pay the whole of the costs of and incidental to the suit should be applied.

(5) As the petitioning husband did not seek both damages and costs the co-respondent should be ordered to pay the damages or costs whichever was the greater.

Cases Cited

Butterworth v Butterworth and Englefield [1920] P 126.
Mortimore v Mortimore [1978] PNGLR 197.
Pritchard v Pritchard and Sims [1967] P 195; [1967] 2 WLR 264; [1966] 3 All ER 601.
Tolison v Tolison [1985] PNGLR 125.
Woodman v Woodman [1978] PNGLR 197.

Petition

This was the hearing of a petition for dissolution of marriage on the grounds of the wife’s adultery.

Counsel

C T Coady, for the petitioner.
S M Golledge, for the co-respondent.
Cur adv vult

5 June 1987

BREDMEYER J: This was a petition for divorce on the ground of adultery with the co-respondent. I granted the divorce and made a custody order but reserved my decision on the question of damages for adultery and costs. This judgment is confined to those issues.

The petitioner alleged that the wife committed adultery with the co-respondent in April and October 1985 in Rabaul and claimed K20,000 damages against the co-respondent. The petitioner claimed the costs of the divorce application against the wife. The wife did not file an answer to the petition nor defend the divorce. She was unrepresented before me. The co-respondent filed an answer admitting "adultery with the respondent in April and October of 1985 in Rabaul" and setting out some of the circumstances of his relationship with her. He was also given leave to file a second affidavit. The co-respondent who lives in Sydney did not attend the hearing but he was represented at it by Mr Golledge of counsel from Port Moresby.

The evidence before me consisted of affidavit and sworn evidence from the husband who was cross-examined by Mr Golledge, a letter from the wife to the husband dated 23 September 1986 which was tendered by the husband, and two affidavits from the co-respondent.

The co-respondent chose not to come and give evidence, he said it was too expensive for him to come from Sydney, so his affidavit evidence does not have the same weight as oral evidence tested by cross-examination, unless there are other matters, eg, supporting evidence from other witnesses or the strong probabilities of a situation, which indicate that it should be believed.

The petitioner, Mr Gray, gave his evidence in a straightforward, pleasant, unemotional way. He is not a man who wears his emotions on his sleeve. He has been hurt by the adultery but not crushed; he is not filled with spite or malice against his wife or Mr Shervey. I accept him as a truthful witness telling the story of his marriage and its breakdown as he saw it.

Mr Gray and his wife came from New Zealand. They have three children. They came to Papua New Guinea in 1981. He works as a salesman for Ela Motors. At the time of his matrimonial troubles he was based in Rabaul, but in January 1987 he transferred to Mount Hagen.

He lived in Rabaul with his wife and three children. He met Mr Shervey through work. Mr Shervey was the manager in Rabaul of PNG Motors. They met through work and socially. They were not close friends. Mr Gray had no idea that his wife was having an affair with Mr Shervey in April and October 1985. Mr Gray thought he had a good relationship with his wife, he thought it was a good normal marriage. He did not think she was unhappy.

In late October or early November 1985 their third daughter, Bridget aged four and a half, fell sick. She was admitted to Vunapope Hospital. She got worse. She was admitted to Nonga Hospital where she had an operation as I understand it to remove fluid around the heart. She went to New Zealand as a medical emergency accompanied by her mother. On 11 December 1985 she underwent a pericardectomy at Green Lane Hospital, Auckland, and had a slow recovery. She was on a flucloxacillin drip for two months.

On 13 December Mr Gray flew to New Zealand with the other two daughters. He and his wife cared for their daughter in hospital. I think in late January she came out of hospital, the family had a two-week holiday in New Zealand and all returned to Rabaul on 5 February 1986 at about the start of the school year.

Two months later, on 6 April 1986, his wife and Bridget returned to New Zealand for a medical check up at Green Lane Hospital which the doctors had requested. It was a thorough check up, the girl had five days in hospital and various tests were done. Mrs Gray had return tickets for herself and Bridget and Brian thought she was going to be away for three weeks only. But Mrs Gray told the doctor that she had no plans to return to New Guinea.

Eventually, about May or June 1986, Mrs Gray told her husband over the phone from Dunedin that she was not returning to Papua New Guinea, she could not live with him anymore and that she was going to Australia.

In late July or early August 1986 she went with Bridget to Adelaide where she had ex-Rabaul friends, a Mr and Mrs Simmons. On 5 August she began proceedings in the Family Court in Adelaide. In about September she told him in a phone conversation from Adelaide that she had committed adultery with Mr Shervey. On 23 September she wrote to him and mentioned her affair with Ken, in the letter to which I have referred. Mr Gray has not seen his wife since she left Rabaul with Bridget on 6 April 1986. In March 1987 she told him in a phone conversation from Adelaide that she has not seen Ken Shervey, that the affair was over and that she will not see him again.

Mr Gray said he could not tell who initiated the affair between Mrs Gray and Mr Shervey. Indeed, as I have said, he did not know there was an affair. Asked in court what he would have done if she had confessed to the adultery in November 1985 he replied, "I think I’d try and make a go of it". He said that friends did not shun him after his wife left. Indeed they had more to do with him.

A word is necessary about Bridget’s health. I have described her illness and two heart operations in November and December 1985. She also got sick in November 1981 when she was seven months old. She caught a virus in Rabaul. Antibiotics were given which gave her an allergy to milk products. She was either seriously ill or thought to be seriously ill. Ela Motors paid for her and Mrs Gray to travel to New Zealand for treatment. Mr Gray said his wife thinks Bridget is prone to pick up viruses. He said his wife blamed Papua New Guinea for her 1985 heart trouble, which he cannot understand because the doctor said her heart problem was not related to Papua New Guinea.

I turn to the wife’s story as contained in the letter of 23 September 1985. I place a lot of weight on this letter as a true statement of her views. It was not intended for use in a court case. It is true when she wrote it she had commenced maintenance proceedings in Australia but Mr Gray had not commenced his divorce suit. The letter was not written to defend herself and Ken Shervey. The aim of the letter was (1) to ask Brian not to contest her custody application for Bridget, (2) to sent her some money urgently, (3) to allow the two older girls to come for a holiday, and (4) to make a property settlement out of court.

I quote from the letter re Bridget’s health:

"Why could you never have contemplated leaving PNG when Bridget got sick. When I left I knew what I was doing. My reason for going back for the 6 weeks was to allow you to decide what was best, instead of making major changes you slotted in as though nothing had ever happened. Bridget deserves this life more than any of us. I left Karina because she chose to stay and I had no one to care for them in NZ while I was tending Bridget. I made attempts to get custody of them in NZ and was told what I was today. Counselling, time and expense and then even if I got custody of them and that you would not turn them over I would have to have kidnapped them. I’m sure if you take the time and speak to your solicitor and get a word for word description of what will happen he will give you the same information. Good money for his pocket for I will disappear if necessary. You know she had to see a Paediatrician in NZ and since being here in Australia she has had chest infections, measles, foot and mouth, chickenpox and at present has an infected sore on her leg. Generally her health is perfect but as Greenlane and the heart specialist here has said, she will get anything going. I know within myself she will never be seriously ill but I also know I will never give her that I in a million chance either. She has grown 4 1/2" in as many months and is thriving in this lifestyle."

The second quotation mentions the affair with Ken Shervey but is her view of what went wrong with the marriage:

"I remember a few years ago when you and I used to communicate on a good level, the best, then for some reason we lost that. Too involved in a false community I guess. Developing our own careers without supporting each other. I can admit that somewhere amongst it all I got lost and spent my time pleasing others and never myself in a material world. Now I am without material things, without money and much happier. The affair with Ken started and ended amongst it all somewhere. I needed someone to listen and he did and that’s about it as far as that was concerned. I didn’t expect anything to come of it and do not now. But he did what you once did Brian — listened. I remember a night in Rabaul where I poured out the lot to you when we got back from NZ. I thought you had heard all I was saying and yet the next morning you got up and trotted off to work as though nothing had happened. That night was my final attempt at getting through to you and I failed so here I am.

Can we both not face facts — what has been done is done and let’s just clean up the mess and get on with our lives.

This is my last attempt at asking and would like to hear from you by letter as both our communication skills by phone are a waste of time".

Ken Shervey in his two affidavits says he committed adultery with the wife in April and October 1985. He said he saw the Grays socially and he sensed that they were not terribly happy and that there was an underlying tension there. He says that since the wife has come to Australia his only contact with Mrs Gray has been a phone call advising him that he would be named as co-respondent in the divorce papers. Mr Shervey asserts some other matters against the husband, which are strongly contested, and not supported by any other evidence and which I reject as untrue.

He admitted adultery "in April and October of 1985". I think that means on several occasions in April and October 1985. As the affidavit was drafted by a lawyer I consider the choice of words was deliberate; otherwise it would have read "on one occasion in April 1985 and on one occasion in October 1985".

I now propose to weigh up the evidence and make some findings of fact. I consider that there were three causes for the breakdown of this marriage: (1) Mrs Gray’s belief that Papua New Guinea was a bad place for Bridget’s health, (2) Mrs Gray’s general dissatisfaction with the marriage independently of Mr Shervey, and (3) the adultery with Ken Shervey.

I consider Mrs Gray believes that Bridget will get sick again if she returns to Papua New Guinea. It may be a million-to-one chance, as she says, but she does not want to take it. The two periods of serious illness which resulted in trips to New Zealand for treatment, are evidence of this. It can be said, as Mr Gray told me, that there is no objective proof that Papua New Guinea is bad for her health. Neither illness was a tropical illness, and she has been sick a lot in Australia. That is true enough but we are not considering objective facts here. Many major decisions on life and major beliefs and fears are not objectively based. I believe the wife passionately believes that Papua New Guinea is bad for Bridget’s health and that is one powerful reason why she separated from her husband. Of course it is not the only reason for the separation. If it was, she would have stayed in New Zealand or Australia and pleaded with the husband to quit his job here in Papua New Guinea and come and join them.

The second reason was a genuine dissatisfaction by the wife with the marriage. This is shown strongly in the second quotation from the wife’s letter — that they were not communicating, that he didn’t listen, in effect that the companionship from their marriage had gone. I accept Shervey’s statement on this as true. He sensed it, and, I infer, was able to exploit it by having an affair with the wife. The husband was not conscious of anything wrong with the marriage then and, looking back in retrospect, he does not see it now.

The situation described by the wife in her letter and as evidenced by her conduct — that she was dissatisfied with the marriage, that she was hurting inside, that she felt her husband was not really listening to her, and was not satisfying her deepest needs — and yet the husband knew nothing about it, is very common in marriages. Any book on marriage counselling or marriage guidance describes this as a very common problem in marriages. For example, Dr James Dobson — "What Every Wife Wishes Her Husband Knew", and Dr Cecil Osborne — "The Art of Understanding Your Mate." The husband knows nothing about it. The woman’s needs are deep and emotional. Normally she cannot express them in words to her husband. She may cry occasionally for no good reason. She may do something impulsive and out of character on another occasion. The husband does not realise that anything is wrong in the relationship. He thinks that, because he is a good provider, supplies a nice home, takes her out now and again and is a good father and is not unfaithful, his wife has no cause for complaint. I believe that is the situation here. The wife’s letter refers to this real problem — as she saw it, yet sadly the husband was unaware of it. It is a deepseated feeling of unhappiness in a marriage, a feeling of needs not being met, which leads to adultery more often than simple sexual attraction. There is a lot of truth in the phrase, "It takes three to commit adultery". The two factors I have mentioned are interwoven. One of the reasons why she was dissatisfied with the marriage was that her husband would not accept, and could not act upon, her fear that Papua New Guinea was a bad place for Bridget’s health.

The third factor, the adultery with Ken Shervey, I regard as lesser significance in the breakdown of the marriage. Her reference to it in the letter, a one sentence reference, in the midst of other complaints, reflects I think its true significance. There are other factors which point in the same direction. For instance the affair occurred in April and October 1985. It did not persist in the months in between. It did not revive when she returned to Rabaul between February and April 1986. If it had been an all-consuming passion it would have continued over these periods. Mr Shervey was not absent from Rabaul in those periods. Then Mr Shervey never left his de facto wife. She was at all times living with him. The affair did not continue in Australia. I am not willing to infer that because she left her husband in April 1986 and then went to New Zealand and Adelaide probably via Sydney, and because Mr Shervey left Rabaul in May 1986 to live in Sydney, that they met up in Sydney and continued their affair. Mr Shervey remains with his de facto wife with whom he has been living for six years. That relationship did not break up because of his adultery with Mrs Gray. I consider that Mrs Gray had an affair with Ken Shervey because she was unhappy and dissatisfied with her marriage. To be found attractive and desirable by another man probably gave her confidence or increased her confidence, in her ability to survive alone and may have increased her resolve to leave her husband, but the major reasons for leaving her husband had nothing to do with Mr Shervey.

DAMAGES FOR ADULTERY

Section 32 of the Matrimonial Causes Act (Ch No 282) reads:

"(1) A party to a marriage may, in a petition for a decree of dissolution of the marriage on the ground that the other party to the marriage has committed adultery with a person, or on grounds including that ground, claim damages from that person on the ground that that person has committed adultery with the other party to the marriage, and subject to this section the Court may award damages.

(2) The Court shall not award damages against that person:

(a) where the adultery of the respondent with that person has been condoned, whether subsequently revived or not; or

(b) if a decree of dissolution of the marriage on the ground of adultery of the respondent with that person, or on grounds including that ground, is not made.

(3) Damages shall not be awarded under this Act in respect of an act of adultery committed more than three years before the date of the petition.

(4) The Court may direct in what manner the damages awarded shall be paid or applied and, if it thinks fit, may direct that they be settled for the benefit of the respondent or the children of the marriage.

(5) No action for criminal conversation lies, whether under this Act or otherwise."

The operative part of that section for the purposes of this case is subs (1). The principles under which damages for adultery will be awarded are found in the common law. The leading local case is Mortimore v Mortimore [1978] PNGLR 197. In that case the marriage had not broken down, the co-respondent became infatuated with the wife with no encouragement from her. He went to great lengths to keep her from returning to her husband and children. Pritchard J awarded K3,000 damages against the co-respondent and ordered him to pay the petitioner’s costs.

That case cited with approval a passage from an Australian textbook and from a number of Australian cases. I can understand that as our section on damages for adultery, indeed our whole Matrimonial Causes Act, is an exact copy of the Matrimonial Causes Act 1959 (Cth) of Australia. The quotation from the textbook, P Toose, R Watson and D Benjafield, Australian Divorce Law and Practice (1968) par 529, is as follows:

"As the object of damages is not to punish the adulterer but to compensate the petitioner for the loss he has suffered, the heads of damage include the pecuniary loss he has suffered by reason of the adultery, the injury to his pride, prestige and feelings, and the loss of his matrimonial and family life."

Pritchard J said that this passage was appropriate for Papua New Guinea, a country where adultery is regarded very seriously indeed because it damages family and clan relationships and brings frequent demands for punishment. He said the loss of face a man suffers in Papua New Guinean traditional society when his wife commits adultery is very great indeed. Adultery is still a criminal offence in Papua New Guinea for Nationals.

Despite the importance placed on adultery in Papua New Guinea, claims for damages for adultery in the National Court are rare probably because divorce itself under the Matrimonial Causes Act is rare. Thirty-eight petitions for divorce were filed in the National Court in 1986.

Tolison v Tolison [1985] PNGLR 125 was a divorce case which included a claim for damages. In that case the petitioner wife lost the security and comfort of a high-covenant married house provided by her husband’s employer. As a result of the marriage break-up and the adultery she had to live in a single women’s hostel in Port Moresby, where she was employed, and send the children back to the Gulf Province to live with her family. For this loss of security, home life and injury to her pride, prestige and feelings Woods J awarded K300 damages. The judge said he awarded an amount which would not be impossible for the co-respondent to pay, she being a National girl in employment.

Damages for adultery was abolished in England in 1970 but since England is the source of our residual common law and not Australia, I refer to the English cases. The leading cases which establish the principles applicable to an award of damages for adultery are Butterworth v Butterworth and Englefield [1920] P 126 and Pritchard v Pritchard and Sims [1966] 3 All ER 601. The principles established by these two cases are as follows: The damages are compensatory only, not exemplary or punitive. The grounds on which damages are given are: (1) the actual value of the wife lost, and (2) compensation to the husband for injury to his feelings, the blow to his honour, and hurt to his family life. The value of the wife has two aspects (1) the pecuniary and (2) the consortium aspect. The former depends on her fortune and her ability to assist in the home or business; and the latter depends on her character and abilities as wife or mother. The conduct of the adulterer has little bearing on the former but may be very relevant to the latter, as an aid to estimating the value of the wife, eg, the ease with which he effected his purpose may show that the wife was of small value. His conduct may also be relevant in estimating the injury to the husband’s feelings. The husband’s own character and conduct are, on a claim for damages, as fully in issue as that of his wife. The loss of a wife’s consortium is really impossible to assess — but the damages for it should be modest. The quantum of damages for injury to the husband’s feelings should also be modest. The wealth or status of a co-respondent was not of itself a factor aggravating damages for his adultery. On the latter point Diplock LJ in Pritchard’s case (at 610) said:

"I find it impossible to accept that in these egalitarian and materialistic days the feelings and pride of a reasonable man are more affronted if his wife commits adultery with an opulent baronet rather than with an impoverished dustman ... The lower the material and physical attractions of his supplanter, the more wounding the comparison and the greater the blow to his own self-esteem."

In the case of Pritchard, the co-respondent was a much wealthier man than the husband and he used his money to secure the wife for himself and broke up the marriage by "clear, calculating and cold deception of the husband". The damages of £7,500 awarded were reduced to £2,000 on appeal. In that case the wife left the husband to live with the co-respondent. In the case before me she did not.

Mr Golledge, for the co-respondent, cited me Pritchard v Pritchard and Sims. He also cited me Woodman v Woodman [1972] 2 NSWLR 451. In that case Jenkyn J (at 460) said that changes in our society over the past 50 years gave reason to refuse awards rather than just to reduce the amount. There is now greater equality between the sexes. The injury, if any, which flows from adultery of one spouse flows from the acts of two people, the respondent and the co-respondent, people equal before the law. Our law permits the award of damages against the co-respondent only, when it is the respondent’s adultery which causes the injury. He said damages punished only one of the two persons involved and that was repugnant to many people. He said claims for damages were rare in the United Kingdom and in Australia.

On the facts of the case Jenkyn J refused damages. He accepted the wife’s evidence that the marriage was not a good one before the act of adultery. She said the husband was not interested in her and that sexual relations with him had ceased four or five months before her adultery with the co-respondent. Only one act of adultery with the co-respondent was proved. There was no evidence to say who seduced whom. They appeared to be equally responsible for the adultery. In his discretion statement, the petitioner stated that some seven months after the adultery and separation, which occurred at the same time, he entered into an intimate relationship with a woman he did not intend to marry, and the relationship was continuing.

I propose to follow the general principles approved by Pritchard J in Mortimore v Mortimore. I believe that the changing attitude towards damages for adultery since the 1920s in the United Kingdom and Australia does not prevail here in Papua New Guinea. I have quoted Jenkyn J in Woodman v Woodman on that changing attitude. The same view in relation to English society is strongly held by Lord Diplock in Pritchard v Pritchard and Sims, cited above. At 609, he considered damages for a cuckolded husband’s wounded feelings and pride was repugnant to modern and sensible ideas. At 610, he castigated the view of McCardie J in Butterworth v Butterworth and Englefield that the wealth or station of the adulterer could aggravate damages as "reflecting psychology taken from the Victorian novelette and not from life in the 1920s". He added that social norms had not stood still then.

Turning now to the quantum of damages, the co-respondent knew that Mrs Gray was married. He committed adultery with her on several occasions in my view in April and October 1985, but not in the in-between months, nor subsequently. They were equally to blame. It has not been proved that he seduced her. He did not persist in the affair, and the affair did not — as I have discussed above — lead to the separation of husband and wife. Although Mr Gray’s feelings were hurt when he learnt of the adultery after it was long over, he was not devastated. He said if he had found out about it at the time he would probably "have tried to make a go of it", ie, he would have forgiven his wife if the adultery ceased. He has suffered no pecuniary loss, eg, he has not employed a housekeeper to cook the meals and care for the children. He has of course suffered the costs of this divorce action. Although the marriage did not break down because of the adultery, the adultery is the sole legal basis of the divorce. But I have not found any case which equates the costs of a divorce as a head of damages. I consider that for loss of consortium, wounded feelings and pride etc the sum of K1,500 would be fair damages.

The petitioner has asked that the damages be awarded equal to the party-party costs of this action. I cannot do that. I know of no authority for it. The application is too open ended. I do not know what the costs will be. Will they be K2,000, K3,000 or whatever? My task is to assess what is I think fair and proper damages for the adultery.

COSTS

Although costs against the co-respondent were not sought in the petition they have been sought before me; counter argument was addressed by Mr Golledge for the co-respondent and I would amend the petition and propose to decide the issue.

Here the petitioner is on strong legal grounds. The general rule in litigation is that the party who wins a case recovers his costs against the loser or losers, in this case, the wife and the co-respondent. As I have said above, our Matrimonial Causes Act (Ch No 282), is an exact copy of the Australian Act of the same name which was enacted in 1959 and I propose to follow the law as it has been developed in Australia and, for that matter, New Zealand. I take the law from P E Joske, Matrimonial Causes and Marriage Law and Practice of Australia and New Zealand (5th ed, 1969). At par 11.189 he says, the practice is not to make an order for costs in favour of a husband with means against a wife without means. That is the situation here. The respondent wife is unemployed in Adelaide living on maintenance payments from the husband and social service benefits. At par 11.201 Joske says the general rule is that a co-respondent found guilty of adultery pays the whole of the costs of and incidental to the suit and this rule applies even if he is an infant and does not appear. He pays the whole of the costs with the exception of costs of interlocutory proceedings solely between the husband and wife. At par 11.202 Joske says that this rule can be displaced in very special circumstances.

Mr Golledge opposed costs completely, but said if they were granted they should be granted on the basis of an undefended divorce as was awarded in Woodman v Woodman (supra). The issue of damages occupied one day in court, Friday 8 May. At the outset Mr Coady reduced the claim in the petition from K20,000 to the amount of the petitioner’s costs in this action. Mr Coady said he notified Mr Golledge of that proposed amendment on 6 May. The co-respondent chose to contest the matter and has ultimately lost. I think the normal rule should apply. I order the co-respondent to pay the petitioner’s costs of this action. The order includes the day in court in Rabaul on 8 May and the one hour in court on 9 May when the decree nisi was granted. It excludes an appearance before Wilson J on 10 October 1986 when an interim custody order was made.

As the petitioner is not seeking both damages and costs, I order the corespondent to pay the costs or damages which ever is the greater.

Liberty to apply is reserved.

Orders accordingly

_______________

Lawyer for the petitioner: Elliot Stubbs & Bonutto.
Lawyer for the co-respondent: Kirkes.