Aisa v Aisa [2019] PGNC 173; N7903 (4 July 2019)

N7903

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MC. N0. 10 0F 2015

IN THE MATTER OF MATRIMONIAL CAUSES ACT CHAPTER N0.282

BETWEEN
AILEEN AISA
Petitioner

AND
CHARLES AISA
Respondent

Kokopo: Susame, AJ
2019: 02 & 04 July

FAMILY LAW- Petition for dissolution of marriage – ground - s 17 (m) Matrimonial Cause Act – Separation – petition heard ex-parte by implied consent – no challenge to the petition – order for decree nisi of dissolution of marriage granted

Cases Cited:

Ponting v Ponting (2014) PGNC 268)

Counsel:

Ms. C Pulapula, for the Petitioner
Respondent entered no appearance

JUDGMENT

04^th July, 2019

1. SUSAME AJ: This was a petition for dissolution of marriage. Petitioner, Aileen Aisa is from Autonomous Region of Bougainville. She is working and living in Kokopo, East New Britain Province. The Respondent is from Central Province and is living in Port Moresby in the National Capital. Both contracted statutory marriage in 2002. The respondent left the petitioner in December 2009. They have since been separate which led to the filing of this petition. Petitioner is petitioning this court for an order seeking dissolution of her marriage to the respondent.

2. Hearing of the petition was ordered on 14 May 2019. There was no representation from the respondent or his lawyer if any was engaged. Court had the discretion whether to vacate trial and adjourn the hearing or proceed to hear the petition in the absence of the respondent. (Order 10 R10.)

3. I decided to hear the petition considering these factors. The petition was filed on 7 April 2015 in Buka where proceedings commenced. It has taken 4 years for it to be heard and determined. Court endorsements show that respondent entered no appearance in the subsequent proceedings until matter was transferred to Kokopo where petitioner was living. Respondent had been given notice to appear at the hearing and raise any objection to the petition. Affidavit of service of one Helen Mukar dated 21 August 2018 is sufficient proof that respondent has personally been served the petition.

4. Respondent had been served order of court of 14 May 2019 for trial of the matter on 2 July 2019, with petitioner’s affidavit sworn on 29 June 2019 and extract of submission dated on 24 June 2019. Ms. Pulapula’s has attested to that in her sworn affidavit of service dated 1 July 2019. In that same affidavit Ms. Pulapula stated respondent had in their conversation on 28 June and 1 July 2019 made representation to the effect that he will not raise an objection to the petition. Considering the above factors further adjournment of the petition would have prolonged the proceedings casing injustice to the petitioner. There was no positive indication respondent will appear in court in the near future to raise his objection to the petition.

Law

5. Section 17 from subsection (a) to (n) sets out grounds petitioner may rely on for an order seeking dissolution of a statutory marriage.

6. Order seeking dissolution of marriage cannot be granted if court is reasonably satisfied on evidence establishing one or more of the grounds relied on. Secondly petition will fail if the statutory bars in granting of the relief sought are present. And these are:

• If the petitioner condoned or connived on a ground specified in s 17 (a) to (k)
• If petitioner is guilty of collusion (s28)
• If the petitioner had committed adultery that has not been condoned or connived by the respondent. [s 29 (a)]
• If the petitioner is guilty of cruelty [s29 (b)]
• If the petitioner has wilfully deserted the respondent [s29(c)]
• If the petitioner’s habits and conduct contributed to the existence of the grounds petitioner relies on. [s29 (d)]
• If there is reasonable possibility of the couple reconciling (s 10)
• If separation is a ground court is satisfied on the evidence petitioners conduct is harsh and oppressive to the respondent or contrary to public interest [s 25(4)]
• And other considerations in s 25(6)(7)(8)
  

7. The only ground the petitioner relies on in this petition is separation. [Subsection (m)]. In support of that ground petitioner had deposed an affidavit dated 29 May 2019. Annexed to her affidavit is the copy of the marriage certificate as proof of her marriage to the respondent.

8. After considering evidence on those matters court may grant a decree of dissolution of the marriage which is only decree nisi in the first instance. (s 58). A decree nisi will become decree absolute only in accordance with conditions set out in s 59 and the time frame stipulated in s 60. (see Ponting v Ponting (2014) PGNC 268)

Issue

9. Whether the ground of separation relied on has been established?

10. Whether one or any of the bars against granting of decree of dissolution are present?

Finding of Facts

11. The following facts emerge from petitioner’s affidavit evidence. The couple entered statutory marriage on 4 January 2002 at Gerehu, Port Moresby. Evidence of that is the marriage certificate dated 9 December 2011 certified and issued by the Deputy Registrar General.

12. From their marriage the couple have 3 children, the first being 20 years of age second 17 years old and the third 10 years old. Separation occurred while the family was living in Port Moresby. In December 2009 respondent deserted the petitioner with the children and left them without any means of support. Since then they have been living apart for 10 years now. Petitioner is working and living in Rabaul, East New Britain Province with the third child who is in her 5^th grade at Kokopo Primary School. The eldest of the children is doing her 11^th grade at Caritas Girls Technical School Port Moresby and is living with the petitioner’s younger brother. The second child is doing grade 9 at Talena Secondary School, Autonomous Region of Bougainville and is living with the petitioner’s parents.

13. Petitioner filed this application after the 6^th year of their separation. By this year they would have been separated for continuous period of 10 years.

14 Ms. Pulapula asserted respondent had remarried and has children from his current wife. No evidence is before me if the petitioner and respondent had remarried. They may have or may not have. Court can only assume.

15. There is no indication from either the petitioner or the respondent of the prospect of reconciliation in the near future. Respondent has decided not to challenge the petition. If he had put up a challenge I am pretty sure one or few of the statutory bars discussed above would have been relied on against the grant of the relief sought. As it stands petitioner had not been taken to task of any of the bars that would have a bearing on the outcome of the relief she is asking for. So it can be inferred respondent is content with where he is and had unequivocally given his consent for the grant of the petition.

Property & Maintenance.

16. No properties or assets were acquired by the couple during their marriage and are jointly own or held in common. In addition to the substantive relief sought no ancillary relief for maintenance is sought by the petitioner for her personal benefit and her three children. She was able to manage to fend for her children with support of her family. It can be inferred that she is content where she is now with her children. That said though petitioner is at liberty to file maintenance proceedings against the respondent in future as and when need arises. The father has a moral and legal duty to provide maintenance support in the best interest and welfare of his biological children until adulthood and they are able to fend for themselves.

Custody

17. Again no such ancillary relief was sought regarding custody of the children, perhaps because the children are with the petitioner and her family and petitioner does not anticipate respondent will take her to task over that.

18. The conclusion reached from the discussions is that petitioner has reasonably proved to my satisfaction for the grant of decree nisi of dissolution of her marriage to the respondent.

19. Order
1. That decree nisi of dissolution of marriage in the first instance is
granted.

2. That grant of decree nisi shall become decree absolute upon expiration

of 03 months.

Public Solicitor: Lawyer for the Petitioner
Respondent: Nil Representation