Taylor v Taylor [1977] FJSC 121; Action 28 of 1977 (16 March 1977)

IN THE SUPREME COURT OF FIJI
IN DIVORCE

ACTION NO. 28 OF 1977

BETWEEN

NINA BROWN TAYLOR
Petitioner

AND

KEVIN GEOFFREY TAYLOR
Respondent

DECISION

The petitioner in her petition alleges that the respondent deserted her in England in March 1973 and she then returned to Fiji and has not lived with her husband since.

In evidence the petitioner stated:

"In March 1973 he told me that it was the end of our marriage and I could return to Fiji. I had no choice but to return to Fiji."

This is all the evidence that the petitioner offered in support of her allegation that she was deserted by the respondent. She called one witness, her sister Maraia Brown who merely established that the petitioner returned to Fiji in March 1973 and since that time the respondent has not rejoined the petitioner.

It is clear from the record that the petitioner's petition is based on constructive desertion which is defined in section 16 of the Matrimonial Causes Ordinance as under:

"16. A married person whose conduct constitutes just cause or excuse for the other party to the marriage to live separately or apart, and occasions that other party to live separately or apart, shall be deemed to have wilfully deserted that other party without just cause or excuse, notwithstanding that that person may not in fact have intended the conduct to occasion that other party to live separately or apart."

The petitioner's evidence does not in my view satisfactorily establish constructive desertion by the respondent. It would appear from the petitioner's evidence that the parties may have initially agreed that the petitioner could return to Fiji or the respondent may not have been concerned whether she did or did not return to Fiji. There could however be a background to the petitioner's contention that she had no choice but to return to Fiji which might establish constructive desertion.

I consider the petitioner should be allowed a further opportunity to establish constructive desertion within the meaning of the term in section 16 of the Ordinance. If the petitioner is relying on the fact that she was expelled from the matrimonial home either by conduct or words there should be evidence to this effect. If she relies solely on expulsive words then the evidence must establish that the words used by the respondent make it clear that they finally conclusively and effectively showed an intention by the respondent to expel the petitioner from the matrimonial home. The petitioner's evidence should also explain why she had to return to Fiji thereby putting herself in a position where it would be very difficult for the respondent to have the petitioner return to the matrimonial home. The petitioner should also state what contact if any she has had with her husband since March 1973 and what if any steps she has taken to persuade her husband to take her back.

If it is the respondent's conduct which drove the petitioner out of the matrimonial home and such conduct can be corroborated in some material particular by an independent witness affidavit evidence may be given on behalf of the petitioner by an independent witness. If no such witness is available the petitioner's evidence should explain why no such witness is available.

The question whether there has been proper service must be considered before there is any rehearing.

The petitioner made application to serve the petition by registered post at two addresses stated in her supporting affidavit. The learned Magistrate made an order for substituted service to be in the form of an advertisement in two consecutive issues in a daily paper printed and published in Cheshire, England. The record does not indicate why the order did not refer to publication in a newspaper circulating in Hull North Humberside England the other address where the respondent could have been residing as mentioned in the petitioner's affidavit.

The affidavit sworn by Balram Singh a clerk employed by the petitioner's solicitors exhibits two copies of the Liverpool Daily Post dated 1st and 2nd February 1977. Balram Singh in his affidavit states as a bare fact that the Liverpool Daily Post has a circulation in Wirral Cheshire but there is nothing in his affidavit to indicate his knowledge of this alleged fact nor is there any explanation as to why the Court's order was not strictly complied with - namely advertising in a daily newspaper "printed and published and circulated in Cheshire England".

The affidavit in support of the application for substituted service was not in proper form. Joske's Marriage and Divorce 4th Edition Reprint at page 375 states:

"Affidavit in support. - On an application for an order for substituted service or to dispense with service an affidavit by the petitioner is essential. The evidence placed before the Court should show that all reasonable inquiries and searches have been made and that all avenues through which the respondent might be traced have been investigated; details of inquiries made of relatives, friends, any other persons, whose names and addresses should be given, and the result of the inquiries, should be set out. So long as it appears that there is any reasonable line of inquiry which has not been pursued, the court will decline to make an order for substituted service. It is well to have corroboration of a petitioner's affidavit, and where it alone is relied on, it must be very clear and must state specifically what inquiries have been made."

However, it was for the learned Magistrate and not this Court to consider the application and he has made an order which however was not the proper order he should have made. The order should also have covered advertising in a newspaper circulating in Hull Humberside England. A proper form of order would be to order the form of advertisement to be published in two consecutive issues of a daily newspaper printed and published in England and circulating in Childer Thornton, Wirral Cheshire and also publication in a paper circulating in Hull North Humberside. The publications should be verified by affidavit of someone who has knowledge of the facts or who states the source of such knowledge i.e. for example by annexing a letter from an United Kingdom agent or agents who have knowledge of the facts.

I order that the case be set down for hearing de novo before the Magistrate who heard the evidence or another Magistrate if he is not available.

It is appreciated that the petitioner will be put to further expense and delay but the alternative to a rehearing would be to dismiss the petition in view of the unsatisfactory position regarding both the question of substituted service and the nature of the evidence adduced in support of the petition. While I have given some indication as to the nature of the evidence which would support the allegation of desertion this is by way of illustration only to assist the petitioner. It is for the petitioner to establish desertion by the respondent and this court is not concerned with how she does it provided she does establish it and provided the court is satisfied that all reasonable steps in the circumstances have been taken to bring notice of the petition to the respondent.

The Magistrate should first take steps to vary his order so as to cover both addresses of the respondent given by the petitioner and after compliance with the varied order the case should then be reheard.

(SGD) R. G. Kermode
JUDGE

Suva,
16th March, 1977.