Paasi v Toutai [2009] TOLawRp 10; [2009] Tonga LR 112 (26 February 2009)

IN THE SUPREME COURT OF TONGA
Supreme Court, Family and Divorce division, Nuku'alofa

FD 117/2008

Paasi

v

Toutai anor

Shuster J
26 February 2009

Divorce – adultery proved – divorce granted
Custody – two children aged 6 and 7 – best interests of the child considered – custody awarded to mother

The parties were married on 14 January 2003. There were two children of the marriage, one born in 2002 and one in 2003. The petitioner husband filed for divorce on the grounds of adultery, and petitioned for custody of the two children. The respondent wife was pursuing maintenance from the petitioner in the Magistrates court.

Held:

1. If the Court was satisfied that the case for the petitioner had been proved, and it did not find that the petitioner had in any manner been accessory to or connived at or condoned the adultery, the Court should pronounce a decree for divorce.

2. The Court found that the respondent committed adultery and therefore the application for divorce was granted.

3. The Court took into account the ages of the children and also considered the number of hours each parent worked and considered who best could care for the two children without splitting the children up.

4. The Court granted custody of the two children to the mother (the respondent) and the father was to have reasonable access to both children.

Statute considered:

Divorce Act (Cap 29)

Counsel for the petitioner : Mr Edwards
Counsel for the respondent : Miss Fifita

Judgment

SUPREME COURT CASE FD 117-08- seeks first of all- petition for divorce on the grounds of adultery, and also an order from the court for the custody of two young children of the marriage, Joseph and Lorraine PAASI and, that custody of the two children be granted to the petitioner Joseph Masao PAASI.

The petition was filed on 14th November 2008 in the Supreme Court Registry accompanied by a completed children's statement.

THE PETITION SEEKS TO SHOW:-

1. On 14th January 2003 the petitioner lawfully married the respondent Mele, at the Church of Tonga, Nuku'alofa.

2. After the marriage the petitioner and the respondent lived together as a husband and wife at 'UMUSI, MU'AFANGA, Nuku'alofa.

3. The petitioner currently lives at 'UMUSI and the respondent lives at NGELE'IA, KOLOFOOU (thus they currently live apart).

4. There are two children of the family-who are still living, they are:-

(1) Joseph Nathaniel Paasi (a male) born 14/03/2002

(2) Lorraine Maria Iva Paasi (a female) born 05/06/2003

The Ground for the Petition for Divorce

The ground on which this decree nisi is sought - is that the respondent has committed adultery with the co-respondent- on -the following dates and at the following places:-

1. On or about the 10th June 2008 (after 10pm) at the LEILANI Apartments, 'UMUSI, Ma'ufanga and

2. On or about the 26th June 2008 between 10pm and 12am at the Phoenix Motel, Fatafehi Road, Kolofo'ou

The Petitioner Prays

1. That the said marriage of the 14th January 2003- be dissolved and

2. That custody of the two children of the marriage be granted to the petitioner- with reasonable access to the respondent

3. The costs of these proceedings.

Notice of Opposition

A notice of opposition to the petition for divorce was filed in the Supreme Court Registry on the 17th December 2008. The Notice of opposition however admitted (outright) -paragraphs 1-6 of the petitioner's statement of claim.

The respondent ALSO admitted paragraph 7 of the petitioner's statement of claim - but stated additionally- as follows:-

1. In September 2005 the petitioner was having a relationship with 'Elenoa Ma'u from LAVENGAMALIE. The respondents complained to the police about her husband for having a relationship with 'Elenoa Ma'u. The respondent did not want to pursue legal proceedings against 'Elenoa but wanted police help to stop her from telephoning her husband again.

2. In February 2008 she could not confirm the exact date but one night the respondent and her friends came along the parking lot facing the Billfish Bar and restaurant and saw the petitioner with another woman inside the petitioners vehicle having an affair. The respondent got out of her friends vehicle and shouted at the petitioner, one of her friends DR SEVENITINI TOMO'UA calmed her.

3. In April 2008 the respondent told the petitioner that she would move out with the two children from the marriage and from their matrimonial home because the petitioner did not stop his behaviour. Then the respondent and the children moved to reside at the LEILANI Apartments 'UMUSI Ma'ufanga because the petitioner continued having an affair.

4. After the allegation in paragraph 7 of the statement of claim happened, the respondent finished off the relationship with the co-respondent and there is no relationship what so ever after that.

The Respondent Prays

1. That the said marriage of the 14th January 2003 is continued.

2. In the alternative, if the petition is granted, that the custody of the children is granted to the respondent, with - reasonable access to the petitioner.

3. The costs of the proceedings.

The Childrens Statement and their Financial Provisions

If I am to consider custody of children- in respect of this application for a decree nisi, then the law says I am also obliged to formally consider the question of: - what is in the best interest of the two children?

In this case we have two young children who are currently staying with their mother. There is a boy and a girl. The boy was born on the 14/03/02 the girl was born on the 05/06/03

According to the petitioner's children's statement:-

• The petitioner currently works as a computer operator, he earns $1,700.00 net a month.

• The respondent works as a nurse and earns $405 per fortnight ($805 net a month)

• Since the parties separated; the petitioner says in his children's statement he has been providing groceries worth over $200 per fortnight and he says there had been other assistance provided for the children- by his parents.

• The petitioner said in his children's statement, he is prepared to provide maintenance of $50.00 per week- per child.

The Respondents Written Defence

In response to the plaintiff's statement of claim filing for divorce on the grounds of adultery, and petitioning for custody of the two children - the respondent filed (1) her defence and also (2) her children's statement- on 17th December 2008.

In that children's statement dated the 17th December 2008 the respondent admitted part of the petitioner's paragraph 3, but she denied the petitioner has been providing groceries worth over $200.00 per fortnight, and the children receiving any other assistance from the petitioner's parents.

I have been told, and I have also had confirmed that the respondent is currently pursuing maintenance from the petitioner, in the Magistrates court via case number CV 248-08.

Settlement

There being no realistic prospect of formal settlement in this matter by way of reconciliation, the case was listed for hearing; and it was also heard at short notice, during the afternoons of the 17th and 18th February 2008. At the conclusion of the evidence, I reserved my written judgment to Wednesday 4th March 2009- at 09.30.

The Law

Section 3(1) of the DIVORCE ACT CAP 29 states:-

3(1) Any husband or wife, who is at the time of the institution of the suit who is domiciled in the Kingdom, may present a petition to the Supreme Court, praying the court to dissolve the marriage UPON EVIDENCE

(a) That since the celebration of the marriage, the respondent has committed adultery, or has been sentenced to a term of imprisonment of not less than five years.

Documentary Evidence

The court received formal evidence of a marriage ceremony between the parties, by way of the plaintiff exhibiting a marriage certificate number, A28901 shows clearly the parties full names, their dates of birth and their residence. Exhibit 1-is formal proof of the lawfulness of the marriage; further this is not in dispute.

Similarly the existence of the birth of two children, Joseph and Lorraine PAASI (known as issues of the marriage) were established by the production of birth certificates numbered 084669 and 084667 (Exhibits 2 and 3) these documents were not challenged and this is not in dispute.

The three documents clearly provide (1) proof of marriage and (2) consummation of the marriage. According to these records the marriage between the parties took place on the 14th January2003.

Section 3(1)(a) of the Divorce Act

• Section 3(1)(a) of the Divorce Act (Cap 29) provides adultery as a specific ground of divorce which if proved - entitles the petitioner to a Decree Nisi.

• If an allegation of adultery is made, the name of any co-respondent is required as per section 4 of the Act.

• This required notification of the co-respondent has been complied with in this case by the addition of the name of-SEKILOPENI FINAU a serving a soldier whose named has been included in the petitioner's statement of claim.

The Duty of the Court

In any petition for divorce alleging adultery, the law says:-

• It shall be the duty of the Court to satisfy itself in so far as it reasonably can, both as to the facts alleged, AND, as to whether the petitioner has been an accessory to or, has connived, or condoned the adultery (or not) and also to enquire into any counter charge which is made against the petitioner.

• If the court is satisfied on the evidence that the case for the petitioner has been proved, and it does not find that 180 the petitioner has in any manner been accessory to or connived at or condoned the adultery, the court shall pronounce a decree for divorce.

The Evidence

In this case I heard oral evidence that the respondent came home after she had been out all night on the 4th April 2008, with quote, "love bites on her neck." Evidence was led the respondent was challenged by the petitioner as to how she got the love marks on her neck- without a satisfactory explanation. The court was told on the next morning — which was the 5th April 2008, the respondent packed her bags and left the matrimonial home- together with their two small children. The petitioner when he gave evidence he testified he did not hit the respondent saying he merely asked her how the love bites got to be on her neck. I believed him.

The petitioner also gave evidence he did not tell the respondent to leave or go away from the matrimonial home, with the two children. The petitioner told the court that he received certain information from his sister's babysitter; to the effect the respondent had in fact visited an apartment on the 10th June 2008- with another man: The petitioner was also informed by the same witness- she also went to the Phoenix Hotel on the 26th June 2008 with another man.

The court was told that after that revelation, the petitioner went along to see the co-respondent SEKILOPENI FINAU, who at the time was a serving soldier- at his place of work. The petitioner told the court he visited the co-respondent at the Navy Camp where he confronted Private FINAU about him having any connection / relationship with his wife. He testified FINAU said yes, and he said Finau also apologised to him. I believe him.

The petitioner' sister's babysitter; (the informant) - Lolia gave evidence that she went to a defence force base camp dance- with the respondent and also with the co-respondent. They were all drinking and after the dance they all went back to an apartment.

She told the court private FINAU and the respondent slept in the lounge while she slept in another room. She testified the respondent only left during the morning and when it was light. The witness told the court- she slept in another room while the respondent slept with the soldier and I believed her evidence.

The respondent also admitted in her evidence-she slept with a soldier on the 10th June 2008, at the LEILANI Apartments, and in her oral evidence the respondent admitted having sexual intercourse with the soldier.

It was also admitted in her opposition to the plaintiffs statement of claim paragraph 7 that the respondent told the petitioner that she will move out with her two children from the matrimonial home and they did move apparently they move to the LEILANI apartments. They are still living apart.

The Welfare of the Children

At the present time the respondent looks after and she fully cares for the two children Joseph and Lorraine. The petitioner- the father told me in evidence he works on average 65 hours a week but he does not work on a Sunday. The mother told me she worked 45 hours a week- as a nurse.

The petitioner / father told me if he were granted custody of the two children he would hire a babysitter to look after the children, while he was at work.

Both parents said they would make all necessary arrangements for the children's proper education. The mother says Joseph wants to attend Ngele'ia primary school in class two- from his school- in Ha'apai; whilst Lorraine is waiting to attend the Tonga Side School at Ngele'ia this year 2009. She currently attends Kindergarten.

Ruling on the Application for a Decree Nisi

I have fully considered the submissions in this case both oral and written. I have considered whether adultery has been proved in this case.

I find as a fact that the respondent and the Co-respondent SEKILOPENI FINAU did in fact commit adultery on the 10th June 2008-

Because that assertion has been proved to the satisfaction of this court then the petitioner's application for a Decree Nisi- must of necessity be granted.

I also find on the evidence placed before me the petitioner did not connive or abet the adultery in any way.

Order

The petitioners application for a DECREE NISI based upon my findings - on the facts that the respondent committed adultery with SEKILOPENI FANAU on 10th June 2008 IS HEREBY GRANTED.

Ruling on the Custody of the Children

In a case such as this- it is inevitable that one side- or the other will suffer. It is well accepted that children need the care and the assistance of both a loving mother and a father. Whenever a marriage breaks down, as this marriage has done- then all the parties will inevitably suffer.

When it comes to the court considering granting custody of the children; to either party- on the breakdown of the marriage; it is settled law that the court looks at:- " what is the best interest of the child- that matters" NOT what is or may be in the interest of one; or either of the child's natural parents.

Courts generally place younger- smaller children with their mother- ostensively- because of the natural affinity which younger children have with their mothers, unless the court finds there is a good and a sufficient reason- not to do so.

Having heard all the facts in this particular case, I have no doubt both these parents love their children and would equally care for them, in a proper manner; and that both parents would arrange for the children's well being- in true Tongan tradition.

I must decide on who is to have the custody of these two siblings- without seeing them. I take into account the ages of the children and also consider the number of hours each parent works; (or not) and consider who best- can care for the two children without splitting the children up. In this context I have been told one parent- the plaintiff /father works 65 hours per week in the IT Industry- the respondent / mother is a nurse and she works 45 hours a week. Both parties appear to be quite well paid by Tonga standards.

If the petitioner were to be granted custody of the two children, I was told he would have to hire a babysitter while he is away at work- because of the ages of the children. I have no doubt in my mind the father works hard, and that he would provide a good standard of living for his children because he is so well paid, but, on the other hand- a babysitter is- and could never serve to be a substitute for a natural mother- perhaps more particularly- a mother who is also a nurse. On balance looking at all the facts of this case and; in the absence of any evidence to show the respondent mother is a bad parent towards her children I make the following order-

Order

• I grant custody of the two children (1) Joseph PAASI and (2) Lorraine PAASI to the mother (the respondent) at this time

• The father is to have reasonable access to both children and

• The ACCESS TO THE TWO CHILDREN IS to be agreed by the parties- by mutual CONSENT

• The parties are ordered comply with the Magistrate's Court Ruling on the question of Child Maintenance.

• I direct the hearing in the Magistrates Court of case CV 248-08 is to be listed and is to take place within 14 days of today's Order.

It would perhaps be very appropriate for the parties to meet and consent to the quantum of maintenance BEFORE the lower court hearing in case CV248-08

COSTS: - The costs in this case, shall be costs in the cause.