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Mamata v 'Akolo [2001] TOLawRp 54; [2001] Tonga LR 300 (15 November 2001)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

F 86/2000

Mamata

v

'Akolo

Ford J
18 September, 12 November 2001; 15 November 2001

Family law – divorce application – granted on basis of unreasonable behaviour
Practice and procedure – application to amend petition – not bona fide so application refused

The parties were married at Nuku'alofa on 17 June 1999. On 27 April 2000 the petitioner gave birth to a son. The couple separated on 15 September 2000 and on 26 September 2000 the wife filed for divorce on the grounds that the respondent had behaved in such a way that the petitioner could not reasonably be expected to live with him. On 5 October 2000, the petitioner, without her husband's knowledge, took her young son to New Zealand. She told the court that she went to Auckland to reside with her mother's sister. She thereafter made no attempt to contact her husband. On 11 December 2000 the petitioner telephoned her supervisor at the Tonga Communications Corporation, Hon Luani, and asked for more time off work. He spoke to her about the separation and he went and got her husband and put him on the phone and he then left the room. Over the next few weeks the respondent telephoned her and sent her a total of $400. The petitioner told her husband that she was pregnant when she had left Tonga back in October. The last telephone communication between the couple was in early March 2001. On 8 May 2001 she gave birth to another son and returned to Tonga on 3 July 2001. By this time the respondent was cohabiting with the co-respondent, Popua Moa. On 10 July, the petitioner filed an application in the Magistrates' Court for maintenance. The magistrate ordered the husband to pay $10 per week for the wife's maintenance and $18 per week for each child, making a total maintenance payment of $46 per week. The petitioner told the court that she had applied for maintenance of $250 per week. On 13 August 2001 the wife made ex parte application to amend her petition to allege adultery and claim damages in the sum of $1000 from the intended co-respondent, Popua Moa.

Held:

1. The Court refused the application for leave to amend her petition on two grounds: the application was devoid of merit; and the Court did not accept that it was a bona fide application.

2. When the petitioner failed to secure the maintenance award that she sought from the magistrate, she filed her application for leave to seek damages from the co-respondent. That did not give rise to a bona fide application.

3. As to the merit of the application, damages were not normally awarded for adultery. The remedy was inappropriate because the adultery was merely a symptom, and not the cause, of the breakdown in the marriage.

4. The petitioner was granted a decree nisi on the basis of her petition dated 25 September 2000 on the grounds of the respondent's unreasonable behaviour. Custody of the two children of the family was awarded to the petitioner with reasonable rights of access reserved to the respondent. Each party should bear their own costs.

Cases considered:

'Afa v Tali & Sika [1990] Tonga LR 181

Sugar v Fatafehi & Taholo [1993] Tonga LR 4

Rules considered:

Divorce Rules 1991

Counsel for petitioner : Mr Veikoso
Counsel for respondent : Mr Tu'utafaiva

Judgment

Both the petitioner and the respondent are obviously desirous of a divorce. They have filed separate petitions alleging unreasonable behaviour on the part of the other. The dispute before the court arises out of a recent application by the petitioner for leave to amend the grounds of her petition from unreasonable behaviour to adultery on the part of her husband and she seeks leave to add a co-respondent and claim damages in the sum of $1000 from the named co-respondent. That application was opposed but counsel, very sensibly, agreed that I should reserve my decision on the application to amend until after I had heard the whole of the case and then I should give my decision on the leave application as part of my overall judgment. I propose to follow that approach.

The parties were married at Nuku'alofa on 17 June 1999. The wife was then aged 30 and the husband 22. They both worked at Cable & Wireless — the husband as a telephone operator and the wife as a clerk. On 27 April 2000 the petitioner gave birth to a son, Jason Valentino 'Akolo. The couple separated on 15 September 2000 and on 25 September 2000 the wife filed her petition for divorce on the grounds that the respondent had behaved in such a way that the petitioner could not reasonably be expected to live with him.

Significantly, in terms of later developments in the case, the wife pleaded in her petition that:

"On the 15 September 2000, the petitioner then left the respondent, and have made up her mind to separated the respondent for the rest of her life" (sic).(emphasis added)

The petitioner gave evidence about the husband's conduct which she alleged forced her to leave the matrimonial home. She said that the first incident related to a motor vehicle. Her parents, who live in the USA, had sent her $1000 as deposit for a motor vehicle. The couple took out a loan to cover the balance of the purchase price. Arguments arose because the husband did not want the wife's family, particularly her brother, using the car. The wife said that she was very disappointed over her husband's stand and she felt pity for her brother. On one occasion the husband threw the key and key ring at her and told her to get out of the house. The key ring hit her on the thigh causing bruising. On that occasion the wife took the child and left the matrimonial home for a week.

The petitioner said that after she returned home she found that her husband had torn up most of her clothing, including pyjamas that her mother had given her. He had also cut up a kiekie which had been a gift from her sister, Ilai'saame. The sister gave evidence and said that after she learned that the respondent had cut up the kiekie she had given the petitioner, she called in the police. Ilai'saame then described a confrontation which had taken place between herself, the respondent and the respondent's mother. The sister's use of what I found to be disgusting and totally offensive language on that occasion was not something that she should be proud of and it no doubt simply added to the acrimony between the parties. The court was totally unimpressed with Ilai'saame's evidence. Her provocative conduct hastened the demise of an obviously fragile marriage.

There was another incident in which the respondent had abused the petitioner's brother in front of the petitioner and the petitioner explained to the court that in terms of Tongan culture, such behaviour was deeply offensive. Following that particular incident, the husband told the petitioner to pack her things and move back to her family and he kicked her on the back causing bruising and pain. The petitioner told the court that not long after that incident she took her young son and moved back to live with her family. That was on 15 September 2000.

On 26 September 2000, the petitioner filed her petition for divorce based on unreasonable behaviour. The petition was served on the husband the following day, 27 September 2000.

The respondent, through his counsel Mr Tu'utafaiva, did not dispute the allegations of unreasonable behaviour and he did not oppose the petition based on those grounds. The matter did not end there, however.

On 5 October 2000, the petitioner, without her husband's knowledge, took her young son to New Zealand. She told the court that she went to Auckland to reside with her mother's sister. She thereafter made no attempt to contact her husband.

On 11 December 2000 the petitioner telephoned her supervisor at the Tonga Communications Corporation, Hon Luani, and asked for more time off work. Hon Luani gave evidence. He said that the petitioner was supposed to have returned to work in December but she telephoned him on 11 December from New Zealand and asked if she could extend her leave until January. Hon Luani told the court that he had heard about the separation and so he asked the petitioner during the telephone call whether it was true. She told him that it was. He then advised her in quite strong terms that she should consider a reconciliation with her husband for the sake of the child. He said that she appeared to "mellow down" and so he went and got her husband and put him on the phone and he then left the room.

Describing this telephone conversation with her husband, the petitioner said that he was angry with her and asked her why she had gone to New Zealand. She said that she told him that she had decided to spend her leave in New Zealand with the child before going back to Tonga. In the course of the telephone conversation, she gave her husband her telephone number and the evidence showed that he then telephoned her on a number of occasions over the following few weeks or so. On 23 December he sent her $200; on 10 January he sent her $100 and on 25 January he sent her another $100.

Although the evidence is not clear, it appears that in one of their telephone conversations, the petitioner told her husband that she was pregnant and that she had, in fact, been pregnant when she had left Tonga back in October. The last telephone communication between the couple appears to have been in early March 2001. The petitioner continued to remain in New Zealand. On 8 May 2001 she gave birth to another son, Theophilus Roger Rhiner 'Akolo. She eventually returned to Tonga on 3 July 2001.

The petitioner told the court that by the time she returned to Tonga, the respondent was cohabiting with the co-respondent, Popua Moa, but had it not been for that, then she would have resumed cohabitation with her husband. She admitted that when she had left the matrimonial home back in September 2000, she then had no intention of resuming cohabitation with her husband but she told the court that following her telephone conversation with Hon Luani on 11 December, she was thinking of resuming cohabitation again. She said that she suspected in about February that her husband was associating with Popua because when she tried to telephone him one day about that time she was told by the operator that he was out at lunch with Popua. When she put the allegation to her husband, however, in what was probably their final telephone conversation in early March, he denied any affair.

The petitioner never contacted her husband after that nor did she try and speak to him after she returned to Tonga on 3 July 2001. On 9 July, she was served with a petition for divorce that had been filed by her husband on 29 June 2001. Part of the unreasonable behaviour relied upon by the husband in that petition was the wife's decision to go to New Zealand without his knowledge. That petition has been put on hold pending the outcome of the present case.

On 10 July, the petitioner filed an application in the Magistrates' Court for maintenance and a hearing was held on 20 July. The magistrate delivered his decision on 3 August 2001. He ordered the husband to pay $10 per week for the wife's maintenance and $18 per week for each child, making a total maintenance payment of $46 per week. The petitioner told the court that she had applied for maintenance of $250 per week.

The hearing date for the wife's petition had been fixed by the court back in February. On 13 August 2001 the wife made ex parte application to amend her petition to allege adultery and claim damages in the sum of $1000 from the intended co-respondent, Popua Moa. The divorce rules provided that after a petition has been served it can only be amended with the leave of the court. No guidelines are laid down in the rules as to how the court should exercise its discretion when considering an application to amend but I would grant leave if I was satisfied that it was in the interests of justice to do so.

In this case, I propose to turn down the application for leave to amend for two main reasons. First, I am in no doubt at all that the application is totally devoid of merit. Secondly, I do not accept that it is a bona fide application.

As to the bona fides of the application, it is significant in my view that the petitioner did not seek leave to amend back in February or March when she says that she first suspected an affair. Nor did she seek leave after she returned to Tonga even though she wasted no time at that stage in instructing a lawyer to initiate maintenance proceedings in the Magistrates' Court. After listening to her evidence, I had no difficulty in concluding that her real reason for seeking leave to amend the petition to include the damages claim was her bitter disappointment over the maintenance award made by the magistrate. When the petitioner failed to secure the maintenance award that she was seeking from the magistrate, she filed her application for leave to seek damages from the co-respondent. To my mind that scenario does not give rise to a bona fide application.

Turning now to the merits, the law in Tonga on claims for damages for adultery is clear. The principles were stated by Webster J in 'Afa v Tali & Sika [1990] Tonga LR 181. Damages are not normally awarded unless there is clear evidence that the co-respondent's conduct brought about the separation. Webster J said:

"Although permitted by law, such claims for damages are most uncommon and very infrequent in Tonga."

Eleven years later that proposition continues to hold true. If anything, the pendulum has moved even further against the granting of such relief. As Webster J recognised, so often the remedy is inappropriate because the adultery is merely a symptom, and not the cause, of the breakdown in the marriage.

In this case, although the application does not mention a date when the adultery is alleged to have commenced, it was clearly many months after the parties had, in fact, separated. The petitioner's conduct in leaving Tonga on 5 October 2000 and taking the child with her to New Zealand without any consultation with her husband shows clearly that, so far as she was concerned, the marriage was over — finished. I do not accept that following her telephone conversation with Hon Luani she entertained any serious prospects of a reconciliation with her husband. She may have considered the notion for a short time but her behaviour in continuing to stay in New Zealand while taking no action to withdraw the divorce petition belies any notion of a serious change of heart on her part. There was no need for her to stay in New Zealand. She conceded that much in cross-examination. Her conduct in remaining in that country until July 2001 is consistent with her resolve, as expressed in the final paragraph of her original petition filed back into September 2000, to remain separated from the respondent, "for the rest of her life".

I, therefore, decline the application for leave to amend the petition and add that even had I been persuaded to allow the same, I would not have awarded any damages against the co-respondent. On the evidence before me, this marriage was over long before the co-respondent ever arrived on the scene.

I will grant the petitioner a decree nisi on the basis of her petition dated 25 September 2000 on the grounds of the respondent's unreasonable behaviour. I award custody of the two children of the family to the petitioner with reasonable rights of access reserved to the respondent.

As I indicated to counsel during the hearing, I am not prepared to entertain the petitioner's application for an increase in maintenance. In Sugar v Fatafehi & Taholo [1993] Tonga LR 4, this Court warned counsel that the Divorce Rules 1991 must be complied with to the letter if maintenance orders are going to be sought in conjunction with a divorce petition. That procedure has not been followed in the present case and I do not propose to treat it as an exception to the rule. In any event, as counsel is aware, there are other options open to his client should she wish to pursue the matter.

As I have found the application to be without merit, it would normally follow that I would award costs to the respondent. In this case, however, taking the couple's relevant circumstances into account, I order that each party shall bear their own costs.