Rowles v Rowles [1964] PGSC 27; [1964] PNGLR 142 (14 November 1963)

Papua New Guinea Law Reports - 1964

[1964] PNGLR 142 - Rowles v Rowles

[1964] PNGLR 142

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ROWLES

V

ROWLES

Rabaul & Port Moresby

Mann CJ

31 October 1963

14 November 1963

MATRIMONIAL CAUSES - Dissolution of marriage - Domicile of choice - Divorce and Matrimonial Causes Ordinance 1934-1951 (New Guinea).

In order to establish a domicile of choice in the Territory of Papua and New Guinea it is necessary to adopt the Territory in an affirmative way as a place in which to settle. It is not sufficient to intent to remain only until retirement from the Public Service of the Territory.

Petition:

Victor Clayton Rowles petitioned for dissolution of his marriage to Sheila Mabel Rowles. The relevant facts appear sufficiently from the judgment hereunder.

Counsel:

Smith, for the Petitioner (Plaintiff).

No appearance for the Respondent (Defendant).

MANN CJ:  This is an undefended divorce case. It came on for hearing before me on the 31st October, 1963, whilst on Circuit in Rabaul. I made all the findings of fact required by the Plaintiff, other than the finding as to domicile. I reserved this point for further argument, and later heard further submissions from Plaintiff’s Counsel.

I intimated to Counsel that I would not find against the Petitioner on the question of domicile until I had had an opportunity to refresh my memory as to the effect of the decided cases which I had not had an opportunity to consider for some time and to which no specific reference was made in Counsel’s submissions.

The Plaintiff, in his evidence, said that he had come to the Territory as a Police Officer in September, 1948. He intends to remain in the Territory in that occupation until he reaches retirement. He said that his career is in the Territory.

From his evidence it appears that the Plaintiff has a domicile of origin in New South Wales, married the Defendant there, and set up home in Sydney. He had difficulty persuading his wife to settle down in the Territory, and after many unsuccessful attempts to live here, she finally returned to live in Sydney in what was at various times the matrimonial home of the couple. This home consisted of a home unit at which the Plaintiff and his wife lived when they were in Sydney. The Plaintiff since has transferred his share in the home unit to his wife, who continues to live there. The Plaintiff also has a house at Thirroul, New South Wales, and he intends to keep it until he retires. At various times after the marriage husband and wife lived at Thirroul.

The Plaintiff has no property in the Territory, and his term of service here is more or less fixed by provisions as to his retirement.

Although there is nothing necessarily involved in service in the Territory to prevent a person from acquiring a domicile of choice here, it is clear in the present case that the Plaintiff’s intention as to residence is limited to remaining in the Territory so long as his service requires him to do so, and that upon reaching his retiring age, he will go back to live in Sydney. He has not in any affirmative way adopted the Territory as a place in which to settle, otherwise than to enable him to carry out his duties. The Plaintiff likes the Territory as much as his wife apparently dislikes it, but this fact does not help to displace the intention which he has clearly expressed of not remaining in the Territory indefinitely.

For these reasons I regret I must find that the Plaintiff is not domiciled within the Territory and that therefore this Court has no jurisdiction to grant a Decree. I think it is plain on the facts that the Plaintiff has retained his New South Wales domicile.

Petition dismissed.

Solicitor for the Petitioner: F. N. Warner Shand, Rabaul.