Tefenoli v Tefenoli [1991] SBHC 16; HC-CC 214 of 1990 (21 February 1991)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 214 of 1990

TEFENOLI

-v-

TEFENOLI and BAIABE

High Court of Solomon Islands
(Ward C.J.)

Hearing: 19 February 1991
Judgment: 21 February 1991

A. Radclyffe for the Petitioner
P. Watts for the Respondent

WARD CJ: The petitioner sues for divorce on the grounds of her husband's adultery with the co-respondent and of his cruelty.

The husband originally opposed the petition and cross petitioned for divorce on the basis of the petitioner's adultery with the party cited. However, he now simply seeks to oppose the petition on the ground that the adultery did not occur and, anyway, it and the cruelty have been condoned because the petitioner has stayed with him for a week since those events and consensual sexual intercourse occurred.

The parties were married on September 1987 in Fiji when both were studying. The respondent had previously had a relationship with the co-respondent that had resulted in a child being born. He did not tell the petitioner about this before they were married and he tells the court that he has never had any sexual relationship with her since his marriage. At the end of 1987 he preceded the petitioner to Solomon Islands and she later telegrammed him to say when she was arriving. However, when she arrived, he did not meet her because he had gone with the co-respondent to the Western Province to leave their child with the respondent's mother. He denies any sexual intercourse took place but the petitioner clearly believed such a relationship still existed. However, she forgave him and they lived happily enough as man and wife.

He returned to Fiji to continue his studies in 1989. When he returned later that year the petitioner found a letter he was writing to a girl other than the co-respondent about a child he had by her. He later returned to Fiji and, whilst he was away, the petitioner went to see a solicitor about a divorce.

On the respondent's return, an incident occurred in December 1990 in which he struck the petitioner.

This year on 6 February 1991, the petitioner found him sleeping in the same room as the co-respondent.

The respondent's case is that the petitioner has had an adulterous relationship with the person named, that he has not had any sexual relationship with the co-respondent since the marriage and the only time he struck the petitioner was a slap because of her relationship with the person named and because of her swearing.

I do not go through the evidence any further.

I am satisfied beyond any doubt at all that the petitioner has proved adultery with the co-respondent. I am satisfied the evidence of the trip to the West, the general attitude of the co-respondent to the petitioner and the incident of 6 February 1991 all clearly demonstrate a long standing sexual relationship.

I do not find the respondent has produced sufficient or, indeed, any evidence of adultery by the petitioner. I do not believe the respondent's evidence that he and the petitioner have cohabited this year. Indeed I am satisfied that there has been no sexual relationship between them since before the filing of the divorce papers.

As to the cruelty, I accept that the respondent struck the petitioner but I am not satisfied that he did not have sufficient reason and that prevents it amounting to cruelty. Similarly, I do not feel the way the co-respondent reacted to the petitioner, unpleasant and vicious though it was, added to the allegation of cruelty by the respondent.

I, therefore, grant the petitioner's claim for divorce on the grounds of the respondent's adultery with the co-respondent.

I dismiss the claim of cruelty and I reject the respondent's claim of adultery by the petitioner or of condonation of his adultery.

I grant a decree nisi.

The respondent no longer seeks custody so I give custody of Fraulien and Darren Tefenoli to the petitioner. In view of the evidence I have heard of the respondent's conduct in relation to the children and the manner in which he treated the petitioner, whose account of which I entirely accept, I am not willing to grant any access by the respondent. If he wishes to have access he must apply to the court.

On 6th December I made an order that the respondent should not molest the petitioner, that he does not go to her house and that he stay away from her place of work which was then the Honiara Hotel. I order that order shall remain in force in the following terms -

1. The Respondent be restrained from molesting, interfering with or visiting the Petitioner until further order of the Court.
   
2. The Respondent be restrained from going to the Petitioner's residence in Honiara at any time without her express invitation.
   
3. The Respondent be restrained from visiting the Mendana Hotel during the Petitioner's working hours or within one hour before and one hour afterwards.
   

On 18 January 1991, I further ordered that the co-respondent be restrained from making any contact with the petitioner or her children in any way until the date of this hearing. The evidence I have heard and which I accept about the conduct of the co-respondent persuades me that that order must remain in force until further order of this Court.

I shall adjourn matters of maintenance to chambers pending receipt of affidavits of means.

I order the costs of the proceeding so far to the petitioner against both the respondent and co-respondent.

(F.G.R. Ward)
CHIEF JUSTICE