Peck v Peck [1993] FJHC 33; Hbd0004j.92s (2 April 1993)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

DIVORCE ACTION NO. 4 OF 1992

Between:

BRENDRA MARY PECK
Petitioner

- and -

DAVID GEORGE PECK
Respondent

Mr. B. Sweetman for the Petitioner
Mr. Fa for the Respondent

JUDGMENT

On the 30th of October 1987 the parties were married by Rev. Stanley Good in St. Luke's Anglican Church at Laucala Bay, Suva. The parties are distantly related by blood and although their courtship might be considered a short one, they had corresponded over a period of time and had met on several occasions during the respondent's visits to Geneva where the petitioner worked as an international civil servant with the International Labour Organisation (ILO).

After their marriage the parties lived at 16 Kavika Place. The marriage however was short-lived lasting barely 21 months. The parties both now seek an order dissolving their marriage. The petitioner's petition raises 2 grounds 'habitual cruelty' and 'wilful desertion'. The respondent in his answer denies both grounds and cross-petitions on his own behalf for a decree of dissolution also based on the dual grounds of cruelty and desertion.

A great deal of particulars are given in the petition and cross-petition regarding each parties allegations of cruelty. These range from allegations of physical assaults and unreasonable conduct on the part of the respondent to excessive drinking and constant complaining on the petitioner's part.

I heard a great deal of evidence on both sides regarding the above allegations of cruelty but in the light of the firm view I have formed on the ground of desertion, I am thankfully spared the necessity of having to deal in any detail with the allegations and counter-allegations made by the parties in support of the ground of cruelty.

Suffice it for present purposes to say that before habitual cruelty can succeed as a ground for the dissolution of a marriage the evidence must clearly establish that the conduct complained of was such as to cause actual injury to health or endanger either the mental or physical wellbeing of the party alleging cruelty or be of sufficient gravity to raise a reasonable apprehension of such injury.

In this latter regard both parties claim to have suffered considerable anxiety and mental distress and although the petitioner suffered fainting attacks and near fainting episodes which could be precipitated by sudden emotional stress, this was a longstanding medical condition not directly related to any allegation of cruelty on the part of the respondent.

So much then for cruelty. I turn next to the ground of desertion which on both accounts arises out of the single undisputed fact that on the 29th of May 1989 the petitioner left the matrimonial home at 16 Kavika Place and the parties have been living separately and apart since then.

The petitioner described the events leading up to her departure in her evidence as follows:

"On 28.5.89 I gave his (the respondent's) youngest son Colin who was visiting us at the time, a belated birthday dinner party for husband's friends. It was a very successful dinner party. Everyone had a good night. After the party Colin was in an irritating mood and started to go at me about our marriage. I told him he was being a pest and that our marriage wasn't his affair. He seemed to be jealous that I had taken over his mother's place.

Next day after lunch 29.5.89 Ateca came and said my husband wanted to see me and I went and he thanked me for the nice party and said he wanted me to go. He was in a bad temper and before he got physically violent I was told by him that he had booked a room for me at the Courtesy Inn. I said we should come to some settlement and he said let the lawyers attend to it.

As I went to go out upstairs I saw a Wormald Security Guard and Colin wouldn't let me in to pack an overnight bag. He said Ateca will see to that.

I went out in the pouring rain. Couldn't find anyone in. It was 2.30 p.m. Eventually I knocked on a neighbour's door and asked to use the phone. I rang John Falvey and he suggested I ring the police and suggested Wormald. Then Safety Security sent 4 men around and I pointed out that I needed to be protected and eventually I got inside and got some things together with Ateca helping after she had shown everything to my husband.

I rang and spoke to a friend and Margaret Hiscox invited me to stay with them. I came from Geneva with 1/2 a container load which I had to leave at the house. Eventually packers packed my things but still others left.

House now has a fence erected around it and locks have been changed. I can't get in now."

The respondent for his part described the events of that fateful day in his evidence as follows:

"On 28.5.89 my son was visiting us. Colin was getting very fed up with Brenda's behaviour and he took her to task and told her if she wanted to carry on she would have to go and do it somewhere else. I was not present at the time. I returned home in the late afternoon 4-4.30 p.m. and I found a security guard van outside the house with 5 guards belonging to Triple "SS" Security. They and Brenda were inside the house and Brenda was claiming property and they were loading things into a van.

Eventually Brenda came and asked for a car. I gave her the little Honda and she drove off on her own steam. She did not return the car."

Under cross-examination he denied telling the petitioner to leave, denied arranging a room for the petitioner at the Courtesy Inn, denied hiring a Wormald Security guard, denied seeing any confrontation between the petitioner and his son Colin or seeing her way barred by them. In short he was out at the time and didn't know anything.

In his answers under cross-examination about the events of that rather 'important' afternoon the respondent left me with the distinctly unfavourable impression that he was being purposefully evasive and vague. Indeed at one stage he appeared to blame his son Colin for the petitioner's departure from the matrimonial home and his 1/2 hour absence from the house at the critical time struck me as being incredibly convenient.

Having considered the evidence in regard to the events of that fateful afternoon and bearing in mind the demeanour of the parties I am firmly of the view that the evidence of the petitioner is the more reliable and accurate and I prefer and accept it in its entirety.

The petitioner's evidence not only had a 'ring-of-truth' to it but was supported in material details by Akosita Rokomarama the neighbour's housegirl who struck me as being totally independent and reliable in her evidence and to a lesser extent by Ateca Ditewa.

In the light of the above I have no hesitation in saying and I so find that the respondent's statements and actions and conduct on the afternoon of the 29th of May 1989 constituted just cause for the petitioner to leave and in fact did cause her involuntarily to leave the matrimonial home at 16 Kavika Place.

Accordingly I find the petitioner has proved that the respondent is guilty of 'constructive desertion' and I grant her an order dissolving her marriage to the respondent.

The petitioner also seeks the following ancillary relief:

(i) maintenance for herself and

(ii) property settlement.

In this regard it may be observed that the Court's powers under Sections 84, 86 and 87 of the Matrimonial Causes Act (Cap.51) are very wide and comprehensive.

In particular Section 84(1) empowers the Court to make a maintenance order "as it thinks proper having regard to the means, earning capacity, and conduct of the parties to the marriage and all other relevant circumstances" and under Section 86(1) an order for 'settlement of property' "... as the Court considers just and equitable in the circumstances of the case.".

It is necessary briefly to consider the various "heads" or "matters" enumerated in the above sections in order to arrive at a fair decision on this aspect of the petitioner's claim particularly as it is clear that the respondent has altered his assets position during the course of the trial.

The petitioner who retired from paid employment in 1987 receives 2 pensions and has some investment but nothing to compare with the respondent's. Since her separation from the respondent she has managed on her own resources and perhaps not surprisingly, given the length of time she has spent in Fiji and the painful experiences she has had throughout her stay, she wishes to return to her country of origin in England to be close to her remaining family and friends.

The petitioner besides seeking an order for maintenance for the rest of her natural life also seeks a settlement in order to enable her to acquire and establish a modest home.

In her evidence which I accept the petitioner said that in Geneva where she had lived and worked for the best part of her working life, she shared a comfortable apartment in a nice area. She had a lot of friends and an active social life. She had to give all of that up when she married the respondent.

They had agreed at the time to live off their combined pensions and had not discussed in any detail their finances or provision for their future. She had been involved in the setting up of the Parc Settlement Bank Trust and was aware that she was an equal beneficiary of the trust along with the respondent's sons of his first marriage.

They had also agreed at the time to eventually settle in Perth, Australia where the respondent's 2 sons lived.

The attitude of the respondent on the other hand is best summed-up in 2 answers he gave in his evidence. When asked whether he was prepared to maintain his wife for the rest of her life the respondent answered: "She has sufficient funds from her pension. I don't see why I should have to do that." Earlier in relation to the Parc Settlement Trust he said:

"The trust is every penny I have worked for through the sweat of my brow and if you think I will hand it over to you you're mistaken. I'll only give it to the Court with a request that it be kept confidential. We are talking about my life savings. 50 years of savings from my working life."

In cross-examination he exhibited a marked reluctance to divulge any information regarding his financial position generally and about the Parc Settlement Trust in particular. On being questioned however about his "letter of wishes" (Exhibit P1) dated 3 Aug '87 and addressed to the Trustees of the PARC Settlement he confirmed that his "instructions" had been altered in 2 ways (how ? is not disclosed) but presumably it was to exclude both the respondent (as he claims) and the petitioner from the list of beneficiaries.

No documentary evidence has been produced to support the respondent's claim that he is no longer entitled to the income from the PARC Settlement Trust or that he has completely divested himself as the settlor of the Trust of all authority or power over its disposition.

Be that as it may I am left in no doubt that the respondent is a man of substantial means and financial resources and will be able to meet any reasonable order for maintenance and/or property settlement that the Court may consider fair to order.

This raises the inevitable question what is 'just and equitable' to order in the particular circumstances of this case?

In his written submissions in opposing any order for maintenance or property settlement learned counsel for the respondent highlighted the independent means of the petitioner, and the duration and quality of the marriage. It is also common ground that the petitioner neither contributed in any way to the capital of the PARC Settlement Trust or in the acquisition of 16 Kavika Place.

Counsel for the petitioner on the other hand lays emphasis on the fact of the marriage, the upheaval caused to the petitioner and the relative "isolation" of the petitioner caused by the respondent and her desire to return to England and establish a home for herself.

Even the respondent agreed in cross-examination that it would be better for the petitioner to return to England. He also appeared to accept after some prompting by Counsel that he wouldn't want the petitioner to be destitute and that he could only agree to maintain her to the same scale of accommodation that he had provided her in Fiji.

I observe at once that but for her marriage to the respondent, the petitioner would have had to provide for her own future security including the establishment of a home for herself from her own resources.

In all the circumstances of this case I am satisfied that the petitioner is entitled to an order for a 'settlement of property' and that such an order should be in the form of a once only lump sum payment.

The amount of the settlement however is a little more difficult to determine having regard to the un-cooperative attitude adopted by the respondent in that regard and the paucity of evidence adduced before the Court.

Doing the best I can I order that in full and final satisfaction of the petitioner's claims for both maintenance and property settlement the respondent do pay into Court for payment out to the petitioner a sum of $100,000 within 21 days of the date hereof. The petitioner as the successful party is also granted costs to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
2nd April, 1993.

HBD0004J.92S