Dacosta v Dacosta [2004] PGNC 259; N2502 (18 February 2004)

N2502

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MC No. 2(L) of 1993

BETWEEN:

JACK DaCOSTA
Petitioner

AND:

RHONDA DaCOSTA
Respondent

Lae: Manuhu, AJ
2003: October 10 &
2004: February 18

RULING

MATRIMONIAL CAUSES – Interlocutory relief - Maintenance of a party pending divorce – Discretion of the court – Relevant considerations – Application refused.

No case was cited:

Counsel:
Mr. D. Poka, for the Petitioner.
Mr. M. Mumure, for the Respondent.

18 February 2004.

MANUHU, AJ: The Respondent seeks by way of notice of motion, against the substantive proceeding for divorce, for orders for maintenance for herself pursuant to Section 73 of the Matrimonial Causes Act ("The Act"). The proposed terms of the maintenance orders are:

1. K600.00 per month payable on the first week of each month for accommodation;
   
2. K500.00 per fortnight for her own up-keep;
   
3. K80.00 per month payable on the first week of each month for water and electricity bills;
   
4. K60.00 quarterly payable on the first week of each first month of every three (3) months.
   

In the event of grant of maintenance orders, the Respondents seeks that payments be made retrospective to 27th October 1993, being the date of the filing of the Petition.

The Respondent deposes that she is the legal wife of the Petitioner. The Respondent does not oppose the Petition but seeks compensation for the reason that she was not responsible for the ground of adultery relied upon by the Petitioner in the substantive proceeding. She states that she has been attempting to obtain necessary information by Discovery from the Petitioner to assist her in her claim for compensation but the Petitioner has not been cooperative. Hence, the long delay in finalizing the proceeding. In the meantime, she supports herself by selling garden produce, which does not provide enough income for her living. She had been relying on relatives and friends which were unpleasant at times.

The Petitioner opposes the application on the grounds of adultery. The Petitioner deposes that at the commencement of the proceedings in 1993, the Respondent was living with a named person who was a policeman in Wau, Morobe Province. In 1995 or thereabouts the Respondent lived with another named person. In 1996, the Respondent brought out adultery proceedings against the Petitioner in the District Court which got dismissed due to her own adulterous relationship with the second person referred to.

In response, the Respondent admitted to committing adultery but says the Petitioner is also living in an adulterous relationship. She admits that she lived with the policeman referred to from 1993 to 2001 but did so because the Petitioner was not taking care of her. She was therefore "forced by the Petitioner into the arms of a protector." The Respondent maintains that the delay in expediting the divorce proceeding is because of the Petitioner’s reluctance to cooperative on the issue of joint property, which includes shares in companies. Thus, it is argued, irrespective of adultery, the Petitioner should continue to support the Respondent.

Section 73 of the Act provides:

"73. Powers of Court in maintenance proceedings.

(1) Subject to this section, in proceedings with respect to the maintenance of a party to a marriage or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings the Court may make such 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.

(2) Subject to this section and to the Rules, in proceedings for an order for the maintenance of a party to a marriage or of children of the marriage pending the disposal of proceedings, the Court may make such 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.

(3) The Court may make an order for the maintenance of a party notwithstanding that a decree is or has been made against that party in the proceedings to which the proceedings with respect to maintenance are related.

(4) The power of the Court to make an order with respect to the maintenance of children of the marriage shall not be exercised for the benefit of a child who has attained the age of 21 years unless the Court is of opinion that there are special circumstances that justify the making of such an order for his benefit."

It is apparent that the Court’s power under Section 73 is discretionary. The exercise of such discretionary powers must be made judiciously and based on proper reasoning, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.

Having regard to the arguments by the parties, the factors for immediate consideration relate to the delay of more than ten years in completing the substantive matter, earning capacity of the Respondent and the issue of adultery. I will discuss these and, in addition, other factors which I consider to be relevant to the issue.

Inordinate delay

The Respondent says the Petitioner is responsible for the inordinate delay in finalizing the substantive proceedings in that he has failed to divulge appropriate information that would assist in settling the issue of joint assets between the parties. It seems that requests for the Petitioner to make discovery of documents and records have not been appropriately attended to.

The issue has, however, been brought to the attention of the court by way of a motion to punish the Petitioner for contempt for giving "false and inaccurate information of his interest in companies he has control of and further that he did not disclose all financial returns or accounts of those companies for the purposes of the settlement in the proceedings". On 1st November 1999, Injia, J, as he then was, found the Petitioner not guilty of contempt. His Honour further stated that whether the information provided was correct or not "is a matter for proof at the substantive petition hearing". And substantive hearing is what the parties should be aiming for. I raised this issue with counsel before the adjournment as a matter of general concern.

In the circumstances, it is inappropriate that the same ground, that the Petitioner failed to divulge information, must be used again to support this interlocutory application. That is what the Respondent has done here, which is contrary to the directional ruling by Injia, J, as he then was. In so doing, the Respondent is also responsible for the delay in bringing the substantive matter to an early completion.

Earning capacity

The Respondent does not have any children from the marriage. She says she supports herself by selling garden produce, which does not provide enough income for her living. She has been relying on relatives and friends which is unpleasant at times. The Respondent does not state where she is presently residing. She does not state whether she lives in a rented accommodation and how much the rent is. She does not justify the figures she proposes in the motion. It is therefore difficult to ascertain the standard and cost of her present living against that which she says she rightly deserves. Accordingly, I cannot find for the Respondent under this head.

Adulterous relationships of the parties

It is undisputed that while the substantive proceeding remains pending, the parties engaged themselves in adulterous relationships. Accordingly, the Respondent argues that the Petitioner cannot oppose her application for maintenance on the ground of adultery. I am of the view, however, that he who comes to court must do so with clean hands. He cannot come to court just because the other party is equally dirty. The onus on the Respondent to justify exercise of discretionary power in her favour is not enhanced by the Petitioner’s adultery. The Court is interested first and foremost in how clean the Respondent is before calling upon the Petitioner to answer.

Secondly, adultery is a serious cultural, moral and social issue in Papua New Guinea. Adultery and suspicions of adultery have resulted in conflicts and deaths in the country. There are broken homes where deserted unemployed wives and mothers with children are left to makes ends meet by themselves. These are considerations the court cannot ignore.

Thirdly, the Adultery and Enticement Act specifically provides for the mechanism for the resolution of adultery disputes. There is a maximum compensation of K1,000.00 which is regarded by some as inadequate. Unless condoned, adultery is a ground for denial of maintenance of a deserted wife under the Deserted Wives and Children’s Act. Thus, if the Respondent had applied for maintenance under this legislation, her adulterous relationship would deny her maintenance.

Consequently, in considering how I must exercise my discretion, I am unable to ignore the Respondent’s adulterous relationship. For the reasons I have given, the Respondent’s adulterous relationships, even if she is no longer engaged in such conduct, will be considered against her.

Miscellaneous factors

I further note from the pleadings that adultery is the principal ground in the Petition. It seems that the Respondent will not oppose divorce but will seek compensation. It seems to be that the question of compensation and maintenance are interconnected, if not the same. Given this scenario, any issue of financial hardship presently faced by the Respondent is better left alone until such time the court deals with the issue of compensation. Similarly, since adultery is the reason for the divorce application, questions on the rights and wrongs of the parties’ acts of adultery (which could also affect the question of compensation) should be left for the substantive hearing. It may be prejudicial to the Petitioner to entertain these issues now.

In addition, it has been ten years since the filing of the Petition. The parties have virtually gone their separate ways. There is no evidence that there exist anything still warm between the two of them. It has been all cold for the last ten years. It should just be noted that ten years is four years more that the allowable statutory period for instituting civil proceedings. Time heals but time denies too. It is adverse to the Respondent’s application that maintenance orders must be made after more than ten years.

In the final analysis, I am unable to find any reasons compelling enough for the exercise of my discretion in the Respondent’s favour. I must therefore dismiss the application and I do so with costs.

Application dismissed with costs.

______________________________________________________________________

LAWYER FOR THE PETITIONER : GAMOGA LAWYERS

LAWYER FOR THE RESPONDENT : PRYKE & BRAY LAWYERS