Dyson v Dyson [1956] PGSC 6 (18 June 1956)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

JUDGMENT NO. 86

CORAM: MR JUSTICE BIGNOLD

18th June, 1956, M.C. 7 of 1955.

IN THE MATTER of the MATRIMONIAL CAUSES ACT 1945 (Commonwealth of Australia) Part III.

BETWEEN

DONALD ROBERT DYSON
Plaintiff

and

BESSIE MYRTLE DYSON
Defendant

and

ALAN KINSMAN RICHARDSON
Co-Defendant.

JUDGMENT

In this action the plaintiff, Donald Robert Dyson, seeks a dissolution of his marriage with Bessie Myrtle Dyson, formerly Bacon, upon the ground of her adultery with Alan Kinsman Richardson, who has been joined in the action and against whom a claim for the costs of the action has been made in accordance with the law of the State of New South Wales.

The defendant, Bessie Myrtle Dyson, entered on appearance but did not enter a defence, whilst the co-defendant, on the other hand, did not even enter an appearance.

Mr. P. Clay of Counsel appeared for the plaintiff, but there was no appearance at the hearing either personally or by Counsel, of either the defendant or co-defendant.

The defendant, however, has asked to be heard upon the question of custody of the child of the marriage, and by an order of this Court, that question has been reserved until after the trial and until further application is made by either party.

The action is brought under the provisions of Sections 10 and 11 of the Matrimonial Causes Act 1945-1955 (Commonwealth) and under those provisions the substantive law applicable is the law of the place of domicile of the plaintiff, namely, in this case, the law of the state of New South Wales. Mr. Lynch of Counsel, a practitioner of that State, has given evidence as to what is the relevant law of New South Wales, whilst a procedural law of the Plaintiff's place of residence, namely, the law of the Territory of New Guinea, a Territory of the Commonwealth within the meaning of the Act, applies.

I find that the defendant, Bessie Myrtle Dyson, was duly served with the petition and the writ of summons, and, of course, she has, in fact, entered an appearance in the action.

The evidence of service upon the co-defendant, Alan Kinsman Richardson, is rather unsatisfactory, for reasons mentioned to Counsel for the plaintiff, but in view of paragraphs 9 and 10 of the Affidavit of the process Server, Michael Richard Callen, I am prepared to accept the Affidavit of Service upon the co-defendant as sufficient, though had I not done so, I would have given leave to learned Counsel for the petitioner to file a further Affidavit identifying the co-defendant.

I find that the provisions of the Matrimonial Causes Act 1945-1955 (Commonwealth) are applicable to this action, the evidence adduced having shown to my satisfaction that the plaintiff, who was born in New South Wales where his father was living, is domiciled in that State, and that at the institution of the action had been resident in the Territory of New Guinea not less than one year immediately prior to the institution of these proceedings, as required by Sections 10 and 11 of that Act.

The petitioner seeks a dissolution of his marriage with the defendant upon the grounds of adultery, as set out in Clauses 4 and 5 of his petition.

Clause 4 reads as follows:-

"On divers of occasions in and during the months of November, 1953, to March, 1954, inclusive the said Bessie Myrtle Dyson committed adultery with ALAN KINSMAN RICHARDSON, formerly of Madang in the said Territory but now of Rabaul in the said Territory, Baker, at Madang aforesaid and from March, 1954, continues to commit adultery with the said Alan Kinsman Richardson at Rabaul aforesaid."

Clause 5 reads as follows:-

"On divers of occasions in and during the months of November, 1953, to March, 1954, inclusive, the said Alan Kinsman Richardson committed adultery with the said Bessie Myrtle Dyson at Madang aforesaid and from March, 1954, continues to commit adultery with the said Bessie Myrtle Dyson at Rabaul aforesaid.

The plaintiff was married to the defendant on the 24th December, 1941 at St-John's Church, Ashfield in the State of New South Wales according to the rites of the Church of England.

I find the marriage proved.

The plaintiff, after his marriage, lived in Ashfield until he went on war service in 1941, when he went on war service leaving the defendant, and had his discharge from the Army in January, 1946. He lived a few months at Ashfield at the home of his wife's parents and then moved to 238 Sydenham Road, Marrickville, where he and his wife conducted business.

He left Marrickville in March, 1953 to go with his wife and daughter on a round trip on the "Bulolol" to the Territory of New Guinea, and in Madang he saw a representative of The New Guinea Company and accepted employment in that Company. In June, 1953 he took up residence in Madang in the Territory of New Guinea, having flown up. His wife and daughter came three weeks later by the Motor Vessel "Bulolo", and the family lived together in married accommodation supplied by The New Guinea Company. In Madang the plaintiff and the defendant were living together; his wife, being employed at the Freezer, bought the meat for the household and the husband provided the groceries axed paid the boys.

The plaintiff swears that he knows of no conduct on his part at any time to cause her to leave him.

It was not long after her arrival that his wife expressed dissatisfaction with her life and wanted to go out as she pleased, a thing she had not been doing previously. The husband's attitude was much against her going out as she pleased, but he could not do much with her, and she went out after that more and more, until finally she only came home to sleep. She went out every night and occasionally stayed out all night, and the plaintiff was left to look after the child. She then moved the daughter, aged about 10 years, into the plaintiff's room and she herself moved onto the child's room. All marital relations had ceased in July, 1953.

As previously mentioned, the defendant, with the consent of her husband, was employed at the Burns Philp Freezer, and the plaintiff and the defendant had a joint account, but the plaintiff was one day asked to call at the Commonwealth Trading Bank and found that his wife had split the joint account.

Marital relations between the two were very strained and the plaintiff says there was little normal discussion, and conversation was mainly confined to recriminations.

That state of affairs continued until November, 1953, when she left the marital home and moved to the Madang Hotel. She gave no reason for moving except to tell her husband that she was living her own life at last. She made no attempt to take the daughter with her, and simply left the child with her father.

The wife stayed a Short time at the Madang Hotel and then moved to Burns Philp Women's accommodation, but she was hardly ever there, and the plaintiff swears that she spent most of the time at the Bakery.

The Bakery was conducted by a Company styled "The Madang Bakery" and its Manager was Alan Kinsman Richardson, the co-defendant in the present action.

The plaintiff has testified that he saw his wife often passing his house each morning going from the Bakery to Burns Philp Freezer, and explained the Burns Philp Women's accommodation was on the waterfront and not anywhere near the Bakery.

Ultimately, he says, that whilst she was officially at the Burns Philp Quarters, she, in fact, spent most of her time at the Bakery, in which there is a small flat with one bedroom.

The plaintiff says that on one occasion after she had quit the marital home, but he could not fix the date, he took his daughter, Lorraine, to a children's party, where the child remained overnight. He says that on returning from the place where the party was to take place; he observed the co-defendant and the defendant together arriving at the Bakery quite late at night and did not come out after the place had been in darkness for a long time.

His wife continued in her employment at the Burns Philp freezer until March, 1954. The plaintiff says that on one occasion in December, 1953 he went to see his wife in the hospital and asked if he could do anything for her, when she replied ironically there was nothing he had that she wanted, and this brought the conversation to a close.

In November, 1953, he says, she moved to the Bakery and never came back to the matrimonial home again. The plaintiff does not seem to have attempted to get her to do so.

After she had left him, he says, has wife spoke to the daughter casually in the street, but at other times she would pass her by without speaking to her at all.

On March 8th, 1954 he heard that his wife had left Madang, and about this time a new Manager was appointed to the Bakery.

The plaintiff remained in Madang until January, 1956, when he went on leave. In March, 1954, just about the time his wife left Madang, he joined the Administration. Since that date, he has had no communication whatever with his wife, except to reply to her letter asking him to send their daughter, Lorraine, over to Rabaul for holidays, a proposal, he refused, in writing, and they had no further communication at all except when he wrote to her returning a small gift she had sent to the daughter.

That, then, is the evidence relating to the alleged adultery mentioned in Clauses 4 and 5 of the petition, so far as it relates to Madang. That evidence is quite uncorroborated.

Learned Counsel for the plaintiff then called, as a witness, in Francis Nigel Warner Shand of Rabaul. Mr. Shand practices in Rabaul as a barrister and solicitor of this Court. Mr. Shand testified that he is acting for the petitioner and first met the defendant in August, 1954 when she came into his office in Rabaul accompanied by a man known to him as Alan Kinsman Richardson.

Alan Kinsman Richardson told Mr. Shand that that was his name and introduced the now defendant as his wife. They were, at the time, carrying on a business of restauranteurs in Rabaul in premises, directly opposite Mr. Shand's place of business, known as the Mango Cafe and operated a Commonwealth Trading Bank account in Rabaul in the names of A.K. & B. Richardson, and the man knownto him as Alan Kinsman Richardson and the woman then known to him as B. Richardson, who are the defendant and co-defendant respectively in this action, both signed cheques drawn on that account.

The defendant also has, to Mr. Shand's knowledge, a bank account with the Australian and New Zealand Bank Limited in Rabaul in the name of B. Richardson. Mr. Shand says he knows about these accounts because either the defendant or the co-defendant have given him cheques for various of his clients.

Mr. Shand has testified that he has seen the defendant and the co-defendant together, not only in the Cafe, but driving round Rabaul in a jeep together, and at Kokopo, which is some distance from Rabaul, and on the road to Kokopo. Mr. Shand also described how one day when he was out for a drive with his wife he saw the defendant and co-defendant sitting in the lounge room of a house in a new residential area between the hours of 5 and 6 in the afternoon. Mr. Shand further testified that adjoining his residence there are four rooms opening on to a common verandah. A centre room is a kitchen and the other room in Mr. Shand's house the whole length of that verandah can be seen.

In June last year in the room furthest from his lounge, he frequently saw, about 7 o'clock in the morning, the co-defendant's jeep underneath the verandah, and both the defendant (whom he knows as Mrs. Richardson) and the co-defendant were sitting on the verandah, but whilst he had seen them going individually into the room furthest along the verandah from his (Mr. Shand's) house, he had never seen them go into the room together or come out together.

That, then, is the evidence of Mr. Shand, so far as it concerns/the relationship of the defendant and the co-defendant in Rabaul.

Before leaving this evidence, I should like to say once again, as I said in Court, how very unfortunate it is to have a solicitor for the petitioner giving evidence in support of his client's case. It is true that this petition is undefended, but were it defended, Counsel appearing for the defence would be placed in the invidious position of cross-examining a fellow practitioner on matters upon which he gave testimony.

Now Mr. Clay of Counsel frankly admitted, as, of course he had to, that there was no corroboration of the evidence of the plaintiff upon which he relied to prove the adultery of the defendant and the co-defendant, and the co-defendant and the defendant in Madang, but he rightly submitted that the requirement of corroboration is merely a rule of practice, and that it is open to the Court to accept it in the absence of corroboration, if the Court, in its discretion, thinks fit.

I think it is open to the Court to take into consideration, in assessing the evidence of the plaintiff, that the defendant and the co-defendant were in Rabaul openly known as Mr. and Mrs. Richardson, husband and wife, even though that concerns a period after the date of the occasion upon which the plaintiff has testified as having occurred in Madang, but the evidence failed to disclose any occasion where it might be inferred that there was adultery there. Wales v. Wales 1 Probate page 63.

As I said in Court, the evidence on the issue of adultery is slender.

The evidence of Mr. Shand seems to me insufficient to draw the inference that there was adultery between the defendant and the co-defendant and the co-defendant and the defendant at all. As regards Madang, in the period mentioned in Clauses 4 and 5 of the petition, whilst it is uncorroborated, I believe what the petitioner says, yet believing what, he has testified in relation to the allegation of adultery at Madang, his, evidence lacks detail, and I can not understand why he did not go to the Bakery instead of merely going to his own home, even in the light of the fact that the defendant the co-defendant were openly known, with their consent, as husband and wife in Rabaul, at a later period.

The evidence, is, in my view, insufficient, to establish adultery.

I find the issue of adultery between the defendant and the co-defendant and the co-defendant and the defendant, as regards the period alleged in Clauses 4 and 5 of the petition, not proved, and I dismiss the petition.