Home | Databases | WorldLII | Search | Feedback Supreme Court of Papua New Guinea

McCaskie v McCaskie [1969] PGSC 26; [1969-70] PNGLR 74 (18 December 1969)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 74 - McCaskie v McCaskie

[1969-70] PNGLR 74

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

MCCASKIE

V

MCCASKIE

Port Moresby

Minogue ACJ

27 November 1969

18 December 1969

MATRIMONIAL CAUSES - Separation - Harsh and oppressive or contrary to public interest - Petitioner and mother of his illegitimate children wishing to marry - No children of marriage - Decree of judicial separation in force - Maintenance order in force against petition partly complied with - Respondent wife of reasonable financial position - Matrimonial Causes Ordinance 1963, s. 30(2).[cxiii]¹

MATRIMONIAL CAUSES - Separation - Maintenance of respondent wife - Arrangements to be made - Whether arrangements include order of the court - Petitioner intending to remarry - Matrimonial Causes Ordinance 1963, ss. 21(m), 30(3).[cxiv]²�

Arrangements to the satisfaction of the Court within the meaning of s. 30(3) of the Matrimonial Causes Ordinance 1963 may include a maintenance order made by the Court itself for the permanent maintenance of the respondent although that order is directed not to take effect so long as a maintenance order made by the Supreme Court of a State of the Commonwealth remains undischarged and the petitioner continues to make payments under the latter order.

Moss v. Moss [1963] VicRp 30; (1962), 4 F.L.R. 252, applied.

The parties to a husband�s petition for a decree of dissolution of marriage on the ground of separation were the parties to a decree of judicial separation and a maintenance order for the wife�s maintenance made by the Supreme Court of New South Wales. The petitioner had not fully complied with the maintenance order. At the hearing of the petition, the petitioner was residing as man and wife with the woman who had borne his four illegitimate children and whom he hoped to marry. The petitioner�s financial position was precarious, whilst the respondent, who had been assisted by what maintenance payments the petitioner had made in compliance with the above order, lived in comparative comfort, was able to earn, and was earning, income. There were no children issue of the marriage.

Held

That it would not be harsh or oppressive to the respondent or contrary to the public interest to grant the decree of dissolution sought.

Petition for Dissolution of Marriage

Robert Henry Wallis McCaskie (the petitioner) presented a petition to the Supreme Court of the Territory of Papua and New Guinea for a decree of dissolution of marriage against Mary Patricia McCaskie (the respondent) on the ground of separation. On 18th April, 1966, on the respondent�s petition, the Supreme Court of New South Wales (Begg J.) made a decree of judicial separation against the petitioner and ordered that the petitioner make specified periodic payments as and for the respondent�s maintenance. All further facts appear in the judgment hereunder.

Counsel

Luke for the petitioner

Train for the respondent

Cur. adv. vult.

18 December 1969

MINOGUE ACJ:� The petitioner seeks a decree of dissolution of marriage against the respondent on the ground of separation. I am satisfied in the first place that he is domiciled in Australia, was resident in the Territory at the date of instituting this petition and had been so resident for the period of six months immediately preceding that date. Accordingly, pursuant to s. 18(6) of the Matrimonial Causes Ordinance 1963 he is deemed to be domiciled in the Territory at that date and this Court has jurisdiction under the section to hear and determine his petition. I am satisfied too that the petitioner and respondent have been separated and thereafter have lived separately and apart for a continuous period of not less than five years immediately preceding the date of the petition and there is no reasonable likelihood of cohabitation being resumed and so the ground set out in s. 21(m) of the Ordinance has been made out. But where a decree of dissolution is sought on this ground the Court has to pay heed to the provisions of s. 30. The parts of that section relevant in this case are:

N2>�(2)��� Where, on the hearing of a petition for a decree of dissolution of marriage on the ground of separation, the Court is satisfied that, by reason of the conduct of the petitioner, whether before or after the separation commenced, or for any other reason, it would in the particular circumstances of the case, be harsh and oppressive to the respondent, or contrary to the public interest, to grant a decree on that ground on the petition of the petitioner, the Court shall refuse to make the decree sought.

N2>(3)����� Where, in proceedings for a decree of dissolution of marriage on the ground of separation, the Court is of opinion that it is just and proper in the circumstances of the case that the petitioner should make provision for the maintenance of the respondent or should make any other provisions for the benefit of the respondent, whether by way of settlement of property or otherwise, the Court shall not make a decree on that ground in favour of the petitioner until the petitioner has made arrangements to the satisfaction of the Court to provide the maintenance or other benefits upon the decree becoming absolute.

N2>(4)����� The Court may, in its discretion, refuse to make a decree of dissolution of marriage on the ground of separation if the petitioner has, whether before or after the separation commenced, committed adultery that has not been condoned by the respondent or, having been so condoned, has been revived.�

The petitioner alleges that his marriage with the respondent was reasonably happy from the date of the marriage in June 1947 until about November 1960 when the respondent returned to the matrimonial home after a holiday overseas. According to him she had never been very interested in the home and was unwilling to have children. In fact there was no child of the marriage. On her return her indifference appeared to have increased and she gave the petitioner no companionship. Her main interest was in dogs and horses and she left the petitioner for days at a time to attend horse shows in the country. Whilst in Europe she became friendly with a Dutch woman Antonia Arben by name and the latter in 1961 at the respondent�s suggestion migrated to Australia and for a time lived with the parties in their home and was in fact employed by the petitioner in a business of which he was then the proprietor. After a short absence in 1962 Miss Arben returned to the matrimonial home again at the respondent�s request. In October of that year the respondent entered hospital for a few weeks during which time the petitioner and Miss Arben committed adultery. The former confessed this adultery to the respondent on the day she returned from hospital and Miss Arben left the home on that day. The petitioner did not then leave as the respondent asked him to stay on to see if a reconciliation were possible. However, on 13th February, 1963 he left the matrimonial home and joined Miss Arben who was then in New Caledonia. They remained there for four weeks, then returned to Australia and eventually came to the Territory late in 1967. At the date of the petition there were three children of this adulterous union who are now aged six, four and three years respectively. A further child has been born and was five weeks old at the date of the hearing. The respondent in her answer denied the allegation of lack of interest in the home and of her unwillingness to have children and in effect stated that she had been a good wife to the petitioner and had helped him at all times in his business. However, she did not contest the prayer in the petition for a decree of dissolution nor did she appear before me and I was unable to come to any clear conclusion as to the real reason for the breakup of the marriage. There is no doubt that it was at an end early in 1963. On 19th December of that year the respondent instituted proceedings for judicial separation against the petitioner in the Supreme Court of New South Wales where the parties were then both domiciled and residing. In the circumstances I am not satisfied that it would be harsh and oppressive to the respondent or contrary to the public interest to grant a decree nor does the respondent make any allegation that it would be. On the contrary, it seems to me that it would be in the public interest to dissolve this marriage so as to enable the petitioner to regularize a union which has now lasted for over six years and has resulted in four illegitimate children. The petitioner and Miss Arben I am satisfied wish to marry. They have been living happily together and in my view it is clearly in the interests of the children that they should be enabled to marry. Accordingly, s. 30(2) does not bar the petitioner.

The operation of s. 30(3) in this case however has caused me some difficulty. With respect I agree with the view of Sholl J. in Moss v. Moss[cxv]³�that arrangements to the satisfaction of the Court may include a maintenance order made by the Court itself for the permanent maintenance of the respondent. I am satisfied that the petitioner has no property and I adopt what was said by Sholl J[cxvi]⁴:

�It cannot be right to construe the words �has made arrangements to the satisfaction of the court�, etc. as meaning that there must be arrangements in the nature of security over property or even that there must be a written agreement securing the payment of maintenance to the respondent. The court may desire to act under sub-s. (2) in many cases where there is no property� on which an order for maintenance can be secured and the court may, as in this case, feel that the provision of permanent maintenance for the respondent is much better secured by the terms of an actual court order than by some written agreement which the court might direct the parties to execute.�

Is it then, in my opinion, just and proper that the petitioner should make provision for the maintenance of the respondent? Consideration of this question is further complicated by an order for maintenance made by Begg J. in the decree for judicial separation which he made in 1966 which I will deal with hereunder. On 17th October, 1969 the parties appeared before the Registrar of this Court on the petitioner�s application for a certificate of means. The Registrar found that the petitioner�s income as a temporary employee of the Commonwealth of Australia was $84.72 per week which included an amount of $16.00 per week earned by way of overtime. Being a temporary employee he has no right to any provision for housing and was, and I find still is, paying $30.00 per week rental for his house. His total expenditure was found to be approximately $148.00 per week, an amount which included school fees for two of the children of $30.00 per term each. Apart from a very small credit balance in a current account and a Volkswagen motor vehicle being bought on hire purchase he has no other assets. He is forty-seven years of age, is a leading hand and although he has previously owned a draining and a small earthmoving business I do not think he has any particular financial skills and at his age I doubt whether he would be able to earn more elsewhere than he is at present earning. The Registrar found that if dismissed from his employment he should be able to obtain employment returning a weekly income in the vicinity of $55.00. At the time of the proceeding before the Registrar his household income was being supplemented by that of Miss Arben who was then employed as a temporary clerk at a net salary of $55.00 per week. Her total income was applied to the general living expenses of the household. At the date of the hearing before me, as I have earlier stated, the fourth child had been born and she was no longer able to work. Although she will probably have to resume employment as soon as she is able if this household is to remain afloat financially I cannot see that happening for something like twelve months. The respondent is aged 42 and is in receipt of a net income of $38.30 per week. Her expenditure was found by the Registrar to be $60.80 per week but this included an amount of $11.00 for hire purchase commitments. She appears to live in comparative comfort and has been able to afford a television set valued at $300.00, a refrigerator and a washing machine. She drives a 1962 Citroen motor vehicle for which she claimed before the Registrar an expenditure of $10.00 per week and she has earlier this year contracted to buy a stereo-gram on hire purchase. The Registrar was not satisfied that her evidence given before him disclosed her complete sources of income.

She stated that she takes an annual holiday in Noumea for three weeks and spends in excess of $300.00 for each such holiday. I cannot, on the evidence before me, regard the respondent as being to blame for the breakup of the matrimonial relationship and the petitioner must of course take full responsibility for the situation in which he now finds himself and for increasing his financial obligations as he has done by adding from time to time to the size of his household, but the fact remains that he has to support his present household and, as best he can, make provision for the upbringing of his children. Like Sholl J., I regard this as one of those problems which from time to time come before the Court which are in one sense insoluble. It is a problem of making limited funds go further than they really can and I must do the best I can to do justice in this case. The respondent will probably be able to keep on working for another ten years at least. So far she has been able to manage to acquire and surround herself with a number of small comforts although in this she has been assisted by payments of $10.00 per week made by the petitioner and in my view she still requires and is entitled to some assistance from him. It is clear that unless and until Miss Arben is able to resume work and assist the petitioner financially he will somehow have to drastically reduce his expenditure. True it is that he does not now have to pay the $15.00 per week which formerly was expended on a child-minding centre but he will have to somehow economize in other ways. Doing the best I can I would think that at the present time to order more than a payment of $5.00 per week towards the support of the respondent would be a step towards reducing his household to destitution and that is the amount I feel that should be ordered.

But I have not as yet dealt with the difficulty created by the order of Begg J. On 18th April, 1966 the learned Judge decreed that the respondent (in those proceedings the petitioner) be judicially separated from the petitioner (then the respondent). He further ordered that the petitioner pay into Court for payment to the respondent the sum of $20.00 per week as from 18th April, 1966. The petitioner has been paying $10.00 per week only under this order but the respondent has taken no proceedings against him in respect of the balance. Whilst, if I grant a decree on the petition before me, the decree for judicial separation will in fact be superseded, I cannot see that any order for maintenance which I make will of its own force effect a vacation of the order of Begg J. It would seem that by virtue of s. 18 of the State and Territorial Laws and Records Recognition Act, 1901-1964 (Cth) any order I make should have such faith and credit given to it in New South Wales as would be given to it in this Territory but this is a matter which obviously must be considered by the Supreme Court of New South Wales and I can give no direction to that Court. If I make an order for the amount I have indicated the petitioner until he takes some step in New South Wales will find himself subject to two concurrent orders which may well have a cumulative effect. However, thinking as I do that it is just and proper in the circumstances of this case that he should make provision for the maintenance of the respondent by paying to her the weekly sum of $5.00 I propose to so order. The intent of my order is that he should not be under a double liability and any payment he makes to the Supreme Court in New South Wales should be regarded pro tanto in satisfaction of the order of this Court. I think this intent can best be achieved by suspending such order during such time as the petitioner complies with the order of Begg J. and until it is discharged.

I should add that I will exercise my discretion in favour of the petitioner for the reasons which I have already stated in considering the effect of s. 30(2).

ORDER AND DIRECT

N1>(1)����� Decree nisi on ground of separation of the parties within the meaning of s. 28(m) of the Matrimonial Causes Ordinance.

N1>(2)����� Declare that the Court is satisfied that at the time of the institution of the suit the petitioner was domiciled in Australia and was then resident in the Territory and had been so resident for the period of six months immediately preceding and accordingly is deemed to be domiciled in the Territory at that time.

N1>(3)����� Declare that the Court is satisfied that there are no children of the marriage in relation to whom s. 64 of the Matrimonial Causes Ordinance applies.

N1>(4)����� Order that the petitioner pay to the respondent for permanent maintenance the sum of $5.00 per week until further order. This order not to take effect so long as the order of Begg J. made in the Supreme Court of New South Wales on 18th April, 1966 remains undischarged and the petitioner continues to make payments thereunder of not less than $5.00 per week.

N1>(5)����� Declare that the Court is of opinion that it is just and proper in the circumstances of the case that the petitioner should make provision for the maintenance of the respondent to the extent hereinbefore ordered and that the order for the permanent maintenance of the respondent hereinbefore set out is within the meaning of s. 30(3) of the Matrimonial Causes Ordinance an arrangement satisfactory to the Court for the provision of such maintenance.

N1>(6)����� Order that the petitioner pay to the respondent her taxed costs of this suit.

Solicitor for the petitioner: W. A. Lalor, Public Solicitor.

Solicitor for the respondent: Cyril P. McCubbery & Co.