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Lucas v Lucas [1992] PGNC 33; N1104 (26 August 1992)

Unreported National Court Decisions

N1104

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MC. 18 OF 1992
BETWEEN: GERARDUS JOHNNUS ANTONUIUS LUCAS
PETITIONER
AND: LOYE ANNE LUCAS
RESPONDENT
AND: DAVID SMITH
CO-RESPONDENT

Waigani

Brown J
26 August 1992

INJUNCTION - Interlocutory injunction in matrimonial cause - Application made exparte - Principles where non-molestation orders sought Matrimonial Causes Act Chapter 282 s. 96.

A husband who sought to restrain his wife from attending at his place of business, a restaurant which was contiguous with the dance school run by the wife and further to restrain her from attending various other places and generally curbing her, brought proceedings exparte seeking the leave of the Court to dispense with compliance with the Rules of the National Court so that the matter could be heard. The facts appear from the judgment.

Held

(i) ټ W60; Where injunctive ordars, albeit interlocutory, may imping on a right to enjoy matrimonial property, great care should be exercised before granting such orders exparte. In this case no sufficient reasons beennced.

(ii)>(ii)&#160  ҈& No0; No molestatiotation orders will not be given on material which is unsupported by cogent medical evidence, where the applicant, a male, asserts cruelty by the wife, related to abase of the husband by the wife.

Cases Cited

Lawrence v. Lawrence (1970) 2 N.S.W.R. 293

Notice of Motion

Ex parte.

Counsel

Mr J. Bray, for the applicant.

No appearance by the respondent

BROWN J: The applica the petitionerioner in proceeding instituted for a Decree of Dissolution of Marriage on 24 August 1992. He comes before the Couday by way of notice of motion seeking injunctive orders directed to restrain his wife. It . It is important to remember that injunctions granted pending suit affects rights. The Court must first be satisfied the suit is properly founded and that the rights sought to be protected are such as to arise out of the matrimonial relationship. In this case the husband seeks various orders directed to restraining the wife from entering upon his restaurant and interfering with his business by her behaviour. In addition he seeks the surrender of duplicate keys to the door connecting the restaurant with a dance school and further that she be restrained from pledging his credit. The husband specifically seeks to restrain the wife from entering the restaurant or the dance school (her place of business next door apparently) on the 27 August 1992 between 8 am and 6 p.m because the restaurant and the dance school have been booked for a specific function involving as the husband puts it, various dignatories. In his evidence today, when he corrected the date shown in his affidavit, from the 17 to the 27 August, he said that he is very concerned that the security of the Prime Minister’s wife will be prejudiced. He has however admitted that the police will be at the restaurant “in full security” I must say I discount the threat which he seems to imply his wife may be to the person of the Prime Minister’s wife or other dignatories.

The non-molestation order is clearly one which lies within the province of the Court whether under the provisions of the Matrimonial Courses Act in its injunction making powers found in s.96 or in its inherent jurisidiction to protect a persons right to live without undue or uncalled for molestation by others. Of course, such an order if made, carries with it the liklihood of penal sanctions if breached so the court has a responsibility not to make orders lightly.

In Lawrence -v- Lawrence (1970) 2 NSWR 293 Selby J said, in a case where an injunction seeking a non - molestation order was refused “with regard to the application for restraints against molestation I do not consider it proper in the circumstances to grant this injunction. I have no doubt that each party when under the influence of liquor is guilty of conduct which provokes the other. If through provocation one party provoke the other into an assault it seems entirely inappropriate that the first party should be in a position entitling him to bring the other before the Court on an allegation of contempt, but I am satisfied that if I granted injunctions sought such action could be anticipated. No court can make a husband and wife behave towards one and other with proper regard and consideration. The Court has power to impose certain restraints under penalty of punishment for contempt if those restraints are disregarded. Where both parties not only take intoxicating liquor to excess but when under the influence of alcohol behave with complete disregard for the rights the comfort and the safety of the the other, I consider it entirely inappropriate to use the injunction making power of this court to restrain one at the suit or the other”. With those observations I agree.

In this case the husband says that he is reliant on his restaurant for his income to live. He separated from his wife in about August 1992 when she moved to the Hibiscus Motel in Port Moresby from the former matrimonial home. He says his health is suffering from abuse which she uses towards him. He gave as an example her disruptive behaviour on the 7 August 1992 at the Restaurant.

He maintains his wife by allowing her meals from the restaurant when she as he says “utilises these occasions to publicly hurl abuse at me”.

There is a joint business, a ballet school which is run by the wife. That school is contiguous with the restaurant premises. The premises are rented by the husband as part of the restaurant he says. The wife apparently retains fees received from parents for dance lessons.

On the 27 August 1992 the husband says that the Prime Minister’s wife has booked the restaurant “Agne’s Cooking Pot” and the dance school for a luncheon of 120 diplomatic guests. The husband seeks orders in terms of his application so that the function will not be disrupted.

He further says that on the 28 August he will go to Australia for a holiday long overdue for his nerves are very bad and he has been working long hours at the restaurant to make a success of the business.

He lives at Nonohau Crescent Tokarara in the former matrimonial house. I do not know who owns the property but it is apparently under mortgage to secure a loan advanced for the purposes of the restauraunt and the dance school. In those circumstances there are obviously equitable proprietary rights in the wife in the lease of the premises if she is retaining some part of the profits from the dance school.

On Friday 21 August 1992 consent orders were obtained in the Port Moresby District Court that the wife would not abuse or harass the husband and would refrain from entering the restaurant or house at Tokarara. The husband alleges in his affidavit that the wife abused two customers Mr & Mrs Boyd as they came out of the restaurant by swearing at them. No particulars of the alleged swearing were detailed nor was there any time or date mentioned. The presumption the court is asked to draw is, no doubt that this incident happened after the time of the District Court orders.

Those orders beg the question why the husband should now come to this court. Especially so for this application is made ex parte, leave having been sought to dispense with compliance with the National Court rules so that the application could be heard today. The motion was specifically listed for hearing today at the request of the husbands lawyer, the proceedings having being filed and instituted by petition for dissolution of marriage on the 24 August 1992.

The affidavit in support of the motion was sworn on the same day before Mr Bray the lawyer. I am bemused that the motion which is directed to a large extent, to avoiding a scandle at the Restaurant on the 27 August comes before the court urgently today relying on an affidavit sworn on the 24 August but which only specifically deposes to an incident on the 7 August almost 3 weeks ago. If the husband was concerned (and he says he has suffered this abuse for some six weeks,) then the urgency now seems to be related rather to avoiding the need to give notice to the wife than for any other reasons, time has beer allowed to pass until the institution of proceedings on the 24 August when these steps were taken. No explaination has been made for this apparent reluctance to act earlier. In fact steps were taken elsewhere in the District Court to obtain orders.

The husbands attitude in seeking ex parte orders of this nature so soon after a seperation, which if the behaviour of the wife is to be believed has caused acrimony between them both, is surely not reasonably based when the court has such ambivalent material. On the one hand the husband says he has agreed to provide meals from the Restaurant and supports the wife in other ways, (presumably allowing access by his wife to the Restaurant when it suits him,) and on the other hand he comes here today, without her knowledge, to seek orders preventing her from accepting those benefits.

I do not know what the commercial arrangements between the parties are, concerning the management or the sharing of profits of the Restaurant and dance school run by the wife but the husband wants me to interfere with her use of those premises for he has made unilateral arrangements which apparently conflict with her use. He wants the Restaurant and dance school for the function on the 27 August. Surely she has some right to know that her husband is seeking orders of this nature.

This application is not without its merits, but it smacks of an ambush. It clearly does not exhibit the degree of frank- ness which is necessary before the court will consider issuing ex parte injunctive orders in domestic disputes. If the wife is upset (and her behaviour if I accept the statements in the husband’s affidavits suggests it), doesn’t human nature also suggest that it may be as a result of the interaction between the two. Orders of this nature can only go to exacerbate the situation. Why should the Court take sides.

Mr Bray intimates the petition filed will be amended to allege cruelty. Mr Lucas gave evidence today and agreed with his counsels suggestion that his health is suffering from his wifes six weeks abuse. He appeared to me to have a brash domineering personality and while his mental state may be suffering because of the break - down of his matrimonial relationship and the abuse he has been obliged to bear from his wife, his physical health at first glance does not seem to have yet suffered. I have only his evidence on this aspect, unsupported by any medical opinion. He was accompanied in court by his adult son, a large strapping fellow who looked well able to cope with fortune as he found it. I presume, although it was left unsaid, that his son will assist at the Restaurant while Mr Lucas is in Australia on holiday.

In any event the solution is in hands of the husband. He can secure his restaurant against her assaults. He has the means. He has police arranged for tomorrow and has already changed the locks. He can close the intervening door. If she annoys him beyond tolerance, he can go back to the District Court and ask that Court to deal with her for breach of that restraint to which she has apparently consented.

Another consideration is the state of the material filed with the Petition. There has been filed a photocopy of a marriage certificate. It is not certified, no explanation has been proffered as to why the requirement to file the marriage certificate has not been satisfied. It is obviously available. The petition then, on which the motion rests is defective. That will need to be corrected.

An affidavit of service of the motion was filed in Court today. It is no service. It deposes to the fact that a Lawyer was served with these documents. The lawyer served is not on record. In any event where injunctive orders affecting the person are sought, personal service of the application is imperative.

A proliferation of orders cannot advance the orderly resolution of the relationship between these two people. As I say how can I impose restrictive orders on the wife, curbing her right to be at or about the premises of the restaurant and dance school or the former matrimonial home when they are possibly “matrimonial property” (inspite of legal ownership), and she has rights which need to be considered not in her absence but by this court in full knowledge of the facts.

The affidavit is not exhaustive of the background giving rise to the wife’s abusive attitude towards the husband. That in itself must make this court take pause and allow her the opportunity to be heard.

I consider the motion is precipitous and without merit. There are already orders elswhere which may be enforced. Mr Bray has chosen to proceed ex parte. I refuse leave to dispense with compliance with the rules as to notice and I dismiss the motion.

Lawyers for the Applicant: Pato Lawyers

Lawyers for the Respondent: No appearance