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Tolison v Tolison [1985] PGNC 31; [1985] PNGLR 125; N507 (27 May 1985)

N507

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

TALASANGA TOLISON

V

THOMAS SAMUEL TOLISON AND PHILLISITY DUKADUKA

Waigani
Woods J

21 May 1985
27 May 1985

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

Under the Matrimonial Causes Act (Ch No 282), s 32, on a petition for dissolution of marriage on the ground of adultery, damages may be awarded against the co-respondent for that adultery provided it has not been condoned and is not older than three years prior to the petition.

On the hearing of a petition for dissolution of marriage on the ground of adultery by a petitioner wife where the respondent was a career army officer, where there were three children of the marriage and where the co-respondent was working:

Held

(1) To justify an award of damages under the Matrimonial Causes Act (Ch No 282), s 32, there must be proof of some loss suffered by the petitioner, including pecuniary loss suffered by reason of the adultery, injury to pride, prestige and feelings and the loss of matrimonial security and family life.

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

(2) In the circumstances, the petitioner had suffered loss and damage, in the change from a married life in the security of the defence force establishment to a life of living in single women hostels with her children having to live in her family village.
(3) Damages of K 300 should be awarded.

Cases Cited

Mortimore v Mortimore [1978] PNGLR 197.

Petition for Dissolution of Marriage

This was the hearing of a petition for dissolution of marriage on the ground of adultery.

Counsel

J L Shepherd, for the petitioner.
The respondent in person.
Cur adv vult

27 May 1985

WOODS J: This is a petition under the Matrimonial Causes Act (Ch No 282) for dissolution of marriage on the ground of adultery and wilful desertion. The hearing of the petition was undefended although the respondent did appear in person.

The petitioner and respondent were married at the General Registry Office in Port Moresby on 30 December 1975. The petitioner’s birth place is Uritai village near Malalaua in the Gulf Province and the respondent’s birth place is Rapitok village, Rabaul in East New Britain Province.

At the time of the marriage, the respondent was a lieutenant in the defence force. Between the date of the marriage and November 1978 the petitioner and respondent lived some time in the defence force married accommodation in Port Moresby or Lae and for some period the petitioner lived in the respondent’s village in East New Britain. In November 1978 the respondent was transferred again and the petitioner went to her own home village for the birth of the third child of the marriage.

When the petitioner returned to Port Moresby in January 1979, the respondent informed her that they must separate. The petitioner was able to secure married accommodation for herself and the children at Taurama Barracks while the respondent lived in the officer’s mess at the barracks. However, this was not a satisfactory situation and the petitioner had to leave the barracks and find her own accommodation. Later on in 1979, she sought and obtained a maintenance order of K50 a fortnight which maintenance has been paid regularly.

The evidence presented before me is sufficient for me to infer that adultery with the co-respondent has taken place, the respondent has been seen with the co-respondent at various times since 1979 and appears to be living with the co-respondent in married accommodation at Murray Barracks with a very young child.

The respondent appears to have shown no interest in the children of the marriage, so there is no dispute that custody should be given to the petitioner.

The petitioner is seeking maintenance of K70 per fortnight for the support of the three children of the marriage plus school fees and medical expenses. To his credit the respondent has been paying K50 a fortnight since 1979. However, the respondent has improved his position in life, he is now a captain in the defence force and his children are entitled to the benefits and standards of living that the father could give. They should be entitled to the high standard of accommodation that an officer in the defence force can give, the standard of education to be obtained at community schools or high schools in the vicinity, and the medical protection they would get in a defence force establishment. However, they will not get all that so the father will have to make up for it. The petitioner herself is fortunate in that she has gainful employment but that is not sufficient to give her children all the benefits to which they are entitled.

As it is, she had to leave them in her village because of the difficulties she has as a single mother to find suitable accommodation in Port Moresby where she works. She wishes to bring them to live with her if she can get some security for the problems that would create for her.

Details are before me of the petitioner’s and respondent’s means and the amounts sought for maintenance would not place an impossible burden on the respondent. Whilst he would appear to have a new family to support, the co-respondent is employed. The respondent has chosen to create two families and must fulfil his obligations to both. He would appear to be very lucky in having a good and secure job with appropriate benefits and a petitioner who can obtain employment and a co-respondent who can also obtain employment. I find nothing unreasonable in the order for maintenance sought.

The petitioner is also seeking damages pursuant to the Matrimonial Causes Act (Ch No 282), s 32. Under that section, damages can be awarded for adultery so long as it has not been condoned and is not older than three years prior to the petition.

In Toose Watson and Benjafield Australian Divorce Law and Practice 1968 at 529 it is said:

"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."

Many authorities are quoted in support of these principles and I do not need to go into them here. The text goes on to say:

"If, in fact, the petitioner has suffered no loss, he is not entitled to any damages."

The above principles were analysed by Pritchard J in the case of Mortimore v Mortimore [1978] PNGLR 197. At 204 his Honour poses the question; what law is appropriate in Papua New Guinea? He says:

"... The principles set out in Toose, Watson and Benjafield ... seem appropriate to me in this country together with the necessity for real damage developed in the Australian decisions."

And later on the same page he says:

"... In this country adultery is regarded very seriously indeed and the damage it does to family and clan relationships brings frequent demands for punishment."

His Honour refers to a Law Reform Commission Report of 1977 which recognises that adultery should be the subject of compensation and he states his belief that the principles developed under the former Australian legislation to be appropriate here.

I agree with his Honour’s views in that case, and the very existence of the adultery offence in the Native Administration (TNG) Act and the Native Regulations (Papua) Act (Ch Nos 315 and 316) and the number of times matters come before the lower courts under those provisions, confirms these views. Damages for adultery are available under the Matrimonial Causes Act (Ch No 282) and are appropriate here.

The petitioner has definitely suffered loss and damage. Whilst it appears that she is able to obtain employment, there would appear to be no security for her in such employment. She has had four different jobs over the years since 1979. She has lost all the security she would have had as the wife of a captain in the defence force. Of course, it would be nigh on impossible to put a value on that loss and any maintenance award for the children would only partly make up for that. The petitioner obviously is still emotionally very upset over the position she has been placed in as she became very upset in the witness box. The change from a married life in the security of the defence force establishment to the last six years living mainly in single women hostels with the children having to live in the village is an enormous loss. She is entitled to some compensation, not as a punishment against the co-respondent but as some small compensation to the injury to pride, prestige and feelings and loss of security and home life.

I propose to award an amount which would not be impossible for the co-respondent to pay but in view of the fact that she is earning well herself and has all the benefits of living with a captain in married accommodation at Murray Barracks is an amount which could be saved in a reasonable time. I will award the sum of K300.

My formal findings and orders are as follows:

1. I find the petitioner and respondent were married on 30 December 1975.

2. I find the petitioner and respondent domiciled in Papua New Guinea.

3. I find adultery as alleged in the petition proved.

4. I pronounce a decree nisi for dissolution of the marriage on the ground of the respondent’s adultery with the co-respondent.

5. I award custody of the three children of the marriage, to the petitioner and declare that I am satisfied that proper arrangements in all the circumstances have been made for their welfare advancement and education.

6. I order that the respondent pay to the petitioner the sum of K70 per fortnight for the maintenance of the said three children, plus pay all school fees, medical, dental and pharmaceutical expenses incurred by or on behalf of the said three children until each child attains the age of sixteen years or completes his or her education.

7. I award the sum of K300 damages against the co-respondent on the grounds of her adultery with the respondent and I direct that those damages be paid into court by 29 July 1985 for payment out to the petitioner.

8. I order that the respondent pay the petitioner’s costs of and incidental to this suit.

Orders accordingly

___________________________

Lawyers for the petitioner: N Kirriwom, Public Solicitor.
The respondent in person.