Yambu v Yambu [2024] PGNC 40; N10693 (22 March 2024)

N10693

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MC NO. 13 OF 2023

BENJAMIN YAMBU
Petitioner

-V-

ROBINA YAMBU
Respondent

Madang: Narokobi, J
2024: 22^nd March

FAMILY LAW – dissolution of marriage – grounds of cruelty – undefended petition – settlement of matrimonial property not requested –custody not sought- settlement by court to be just and equitable – s.75, Matrimonial Causes Act
The petitioner filed for dissolution of marriage. The petitioner does not make any claim for property nor does he seek custody. The petition was not challenged.

Held:
1. The grounds for the petition being habitual cruelty were not challenged and the court was satisfied they had been proven.
2. No orders sought pursuant to s 75 Matrimonial Causes Act, for distribution of property nor custody of the 11-year-old child.

Cases Cited:
Kupo v Kupo (2021) N9857

Counsel:
Petitioner in person
No appearance for the Respondent

PETITION

This was a petition for dissolution of marriage.
22^nd March 2024

1. NAROKOBI, J: The petitioner filed for dissolution of his marriage to the respondent on grounds of habitual cruelty pursuant to s 17(d) of the Matrimonial Causes Act. I am guided by the National Court decision by Kariko J in Kupo v Kupo (2021) N9857.
   
2. The parties are both Papua New Guineans from East Sepik province and are resident in the country. They were married in church on 29 August 2014.
   
3. They settled in Madang and have property in Port Moresby.
   
4. They have four biological children, and two adopted children. All are adults now, except for one who is 11 years old.
   
5. Since their marriage, the couple started experiencing marital problems, which according to the petitioner arose from the respondent’s lack of trust and abusive behaviour of the petitioner.
   
6. There was no possibility of reconciliation of the relationship, resulting in the petitioner filing this petition on 10 November 2023.

PLEADINGS

8. The petitioner alleges that the respondent is very authoritative and abusive and is always suspicious of the Petitioner’s work interaction and professionalism, suspecting him of extra marital affairs.
   
9. The Petitioner has obtained an interim protection order against the respondent basically ordering her to keep 100m away from the petitioners place of work.
   
10. All the petitioner requests is for the dissolution of marriage, which has not been defended by the Respondent filing an Answer to the Petition or any affidavits in response.
    
9. There are no orders being sought for distribution of family assets or custody of the child who is now 11 years old. The other children are all adults now.
   

ISSUES

10. The relevant issues I have to determine are:
    
    • Have the grounds for dissolution of marriage been properly established?
    • What orders should the court make?

EVIDENCE

11. All parties appeared on 11 December 2023 and the court directed all parties to file affidavits and any relevant notices under the Evidence Act. The petitioner has filed his affidavit, but the respondent has not filed any affidavits. After the respondent’s initial appearance, she has not appeared in any subsequent hearing of the matter.
    
12. In compliance with the directions, the petitioner tendered one affidavit, that is from himself filed on 10 November 2023.
    
13. In essence the petitioner states the following in his affidavit:
    
    • He was customarily married to the respondent on 30 June 1993 and they married on church on 29 August 2014. He has lived with the respondent for just over 30 years.
      
    • Of those 30 years, nine of them have been unhappy with the respondent being abusive, authoritative, disrespectful, and threatening to terminate the plaintiff from his employment.
      
    • On 6 December 2022 the respondent entered the petitioner’s workplace after he left, and asked the petitioner’s work colleagues about who he deals with professionally. Staff at the petitioner’s work place were also threatened if they did not cooperate with her and provide information about the petitioner to the respondent.
      
    • The petitioner than obtained an interim protection order against the respondent on 15 December 2022 and served it on the respondent on 19 December 2022.
      
    • The respondent has not complied with the order, as she has entered the workplace premises of the petitioner to get information about the petitioner.
      
    • On 13 June 2023 the respondent went to the Digicel Madang branch to obtain information about who the petitioner has been calling and texting.
      
    • On 13 June 2023 the respondent threatened to terminate the petitioner’s employment.
      
    • The respondent does not respect the interim protection orders that were issued against her.
      
    • The respondent’s behaviour has affected the petitioner’s health and wellbeing, and his customary tribal lineage identity. He is constantly under pressure and anger, and this will cause him to suffer illness.
      
    • The petitioner has also gone through the village court and signed a settlement order for the dissolution of marriage.
      
    • All he wants now is to dissolve the marriage and says issues in relation to distribution of assets has been agreed to.

DISSOLUTION OF MARRIAGE

20. Pursuant to s.17 of the Matrimonial Causes Act, a marriage may be dissolved on various grounds, including:

“(d) that, since the marriage, the other party to the marriage has, during a period of not less than one year, habitually been guilty of cruelty to the petitioner”

22. The respondent has not defended the petition. After considering the petition and the evidence I am satisfied that the grounds pleaded for dissolution of marriage have been properly established. I find the parties were lawfully married under the Marriage Act, and that for a good nine years culminating in 2022 the respondent has been habitually cruel to the petitioner, and there is no reasonable likelihood of reconciliation. In my view there is no bar to the marriage being dissolved.
    

MATRIMONIAL PROPERTY AND CUSTODY

23. In relation to matrimonial property, the petitioner accepts that the respondent will assume all the property and also take custody of the 11-year old child. He is more concerned with his health and wellbeing.
    

COSTS

40. As the petition for dissolution of marriage was not defended, the parties should bear their own costs.

ORDER

41. On account of the above discussions, I make the following orders:
    
    • (1) A decree nisi of dissolution of the marriage is granted forthwith.
    • (2) The decree nisi will become absolute in three (3) months from today in accordance with s 60 of the Matrimonial Causes Act unless this Court orders otherwise before then.
    • (3) On the decree nisi becoming absolute, the respondent may resume use of her full maiden name.
    • (4) No orders are made with respect to the custody and maintenance of the children of the marriage as the petitioner accepts that the respondent will assume full custody.
    • (5) No orders are made with respect to the matrimonial property as the petitioner has accepted the respondent to assume full ownership of the properties.
    • (6) Parties will bear their own costs.
    • (7) The time for entry of these orders is abridged to the time of settlement before the Registrar which shall take place forthwith.
      

_______________________________________________________________
Petitioner appears in person