Fe'ao v Fe'ao [2001] TOSC 32; FD 038 2001 (8 August 2001)

IN THE SUPREME COURT OF TONGA
FAMILY JURISDICTION
NUKU’ALOFA REGISTRY

NO. F.D. 38/01

BETWEEN:

‘AHO FE’AO
Petitioner

AND:

DIANA MARIE FAKA’ANAUA
KI HE VAHANOA FE’AO
Respondent

BEFORE THE HON MR JUSTICE FORD

Counsel: 'Amini Tu'ivai for the petitioner
and Sione Fakahua for the respondent

Date of hearing: 6 Aug 2001
Date of judgment: 8 Aug 2001

JUDGMENT

Seldom can a divorce petition have been filed as rapidly as the present one after the happening of the incident which allegedly triggered off the action. The petition in this case was filed on the same day.

The petitioner and the respondent were married at Tongatapu on 7 January 1999. There is one child of the family - a daughter Lesly Viven Tina Fe'ao born on 31 May 1999.

The husband has petitioned for divorce on the grounds that the respondent has behaved in such a way that he cannot reasonably be expected to live with her. He also seeks custody of the child. The wife opposes the petition and seeks custody and an increase in the maintenance payments. The matter proceeded to trial.

The conduct which the husband complains about is described in paragraph 7 of the petition as follows:

"(i) That the respondent always acts in an abusive manner towards the petitioner's mother and sisters.

(ii) That the respondent is always provoking verbal arguments between them and it always extends towards the petitioner's family whom they were not involved in any way with their family private arguments.

(iii) That the respondent is a person of uncontrolled temper and has frequently used violence and obscene language towards the petitioner and his family."

In evidence the husband said that prior to the marriage he had been going out with the respondent for several months and he found her "very obedient" and that is why he considered marrying her. He said that he also thought that she "would come to love the rest of my family especially my mother." He went on to say that a few months after their marriage her behaviour was not what he would have expected from her. He said that she would swear at him and she told him that his mother and sister were whores. He said that at other times she attacked him with a chair or a stick.

That was about the extent of what I will refer to as the "generalised evidence" which the husband gave before he went on to describe the specific incident that caused him to leave the home. Other similar generalised evidence was given by a witness, 'Amoni Ngaue, who plays in the same band as the petitioner. He said that he could tell that some nights 'Aho and Diana had had an argument because 'Aho would arrive late and did not concentrate on what he was playing. He said that Diana often swore at 'Aho and abused his mother.

The husband did not make any reference in his petition to the incident that he says caused him to leave the matrimonial home, which occurred on Thursday 3 May 2001 but his wife mentioned it in her reply. She said that:

". . . the petitioner is doing what ever his mother namely Lesila Fe'ao wishes him to do as she repeated(ly) spoke abusive language to the respondent and she tried to run down and spoil the reputation of the respondent and her family and argument occurred on 3/5/01 and the petitioner's mother step(ped) in and created this problem and convinced the petitioner to file the petition."

The evidence was that on the night of 2 May 2001 the wife had had an argument with the husband's mother. The evidence relating to this incident and its aftermath was in many respects confusing and vague but piecing it together as best as one could, it seems that later the wife apologised to the mother-in-law for telling her to take a good hard look at herself but the mother-in-law did not apologise to the wife for the things that she had said about her.

Later again, and I gather that it was in the early morning of 3 May, the husband picked his wife up from the house where she had had the argument with his mother and he proceeded to drive her to their home. He had not been present during the argument. At that stage the husband was teaching at Mo'unga 'Olive College at Kolonga and the couple lived in a house in the college compound. The husband had heard his mother's account of the argument and as he drove his wife home he began to express considerable anger over the way in which she had allegedly talked to his mother and he threatened to kill his wife by running her over with the car. The tension obviously continued after they arrived home. The child urinated on the kitchen floor and the wife asked the husband to clean it up. He refused and went to the bathroom to have a shower before going off to his teaching job. The wife followed him into the bathroom and struck him across the shoulder with the mop handle. She told the court that she did that because she was still angry at her husband over the way he had threatened to kill her. The husband then attacked the wife, pulled her hair and chased her outside. He saw the school Head Tutor and resigned from his teaching job; he took the child and went to the house where his mother was.

The wife stayed in the schoolhouse at Kolonga for the remainder of the day waiting for her husband to return home but he never showed up. That night she tried to persuade a relative to take her to the house where she suspected her husband was staying in Tatakamotonga but it was not until the following morning that she was able to arrange for an uncle to drive her out in his car. On arrival she was unable to see her husband because she was immediately confronted by his mother who told her that her husband had filed for divorce on the previous day. Upon hearing this both the wife and her uncle apologised but the mother-in-law would still not let them into the house and chased them away. The petitioner told the court that she could see her husband in the background and she could hear her daughter crying. She said that she wanted to talk to her husband and ask him why he was angry with her and why he had left home but his mother prevented her from saying anything to her husband or her child.

Most of the trial was taken up with evidence about the 3^rd of May incident. Neither the mother-in-law nor the sister gave evidence. The court was told that the mother-in- law had, in fact, returned to the USA in June. Apparently, she is a United States citizen but she had arrived back in Tonga in 1997 and had lived in the Kingdom throughout the period of the couple's courtship and marriage.

The respondent said in evidence that her mother-in-law was the cause of all the problems in the marriage. She believed that she had wanted 'Aho to get his divorce so that he would be free to go to America with her. She said that she believed that if the mother-in-law had gone back to America earlier then the marriage would have been a happy one.

The legal test for the type of behaviour that would make it unreasonable for the petitioner to live with the respondent is stated in Halsbury, 4th edition, vol 13, para 574, as follows:

"The matter has been approached by considering whether any right-thinking person would come to the conclusion that the (respondent) had behaved in such a way that (the petitioner) could not reasonably be expected to live with the (respondent) taking into account the whole of the circumstances and the characters and personalities of the parties."

In Stevens v Stevens [1979] WLR 887, Sheldon J adopted the following passage from Rayden on Divorce:

"In all these cases the totality of the evidence of the matrimonial history must be considered, and the conclusion will depend on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view, after a consideration of any excuse or explanation which this respondent might have in the circumstances, the conduct is such that this petitioner or not to be called upon to endure it."

The "generalised evidence" of the petitioner and his witness which I described earlier was denied by the wife and it was so vague and uncertain that I place no reliance on it. In any event, it is not conduct that would in my view fall within the scope of the definitions I have just referred to but it is more the type of conduct encompassed by the well known phrase "the ordinary wear and tear of married life" which on the authorities, has no legal significance.

I found the petitioner's behaviour following the incident on 3 May quite extraordinary. It was obviously a most unpleasant incident all round and no one comes out of it with any credit but the petitioner's reaction, particularly given the extent of his provocation, in resigning from his teaching career and immediately filing for divorce was, in colloquial terms, "completely over the top".

Given the almost indecent haste in which the divorce petition was filed following the incident, and the involvement of the petitioner's mother in the incident itself, I am inclined to the view that there is probably substance in the wife's belief that the mother-in-law was the manipulator behind the scenes actively encouraging her son to obtain a divorce.

In all events, the petitioner has failed to satisfy the court on the balance of probabilities that the respondent's conduct was so unreasonable that he could no longer be expected to live with her. The petition is, therefore, dismissed. The respondent is entitled to costs to be agreed or taxed.

The respondent seeks orders under the Maintenance of Deserted Wives Act (CAP.31) for custody and maintenance. Turning first to custody, the wife is presently looking after the two-year-old daughter at her parents' home. The husband very fairly conceded in evidence that the wife's parent's home is better than the house he lives in with his uncle and that his wife's parents are better able to provide for the child.

I make an order for custody in favour of the respondent with reasonable rights of access reserved to the petitioner. In doing so, I record that during the hearing the child was in court and her equal love and affection for both parents was very obvious. That was something that was not "stage managed".

Turning now to the question of maintenance, the respondent seeks $100 per week. In addition to his income from the Band, which can vary each week depending upon the number of performances, the petitioner said in evidence that he receives payments of $120 per week from his mother in the States. At present the petitioner is paying maintenance of $35 per week pursuant to a consent order made in the Magistrates' Court, but having heard all the relevant evidence I am satisfied that the amount is inadequate. No detailed budget figures were produced and I am not prepared to allow the full amount the respondent seeks but I make an order that as from Monday 13 Aug 2001 the maintenance payments are to increase to $60 per week.

I conclude this judgment by expressing the fervent hope that the parties may see fit to attempt a reconciliation. They both seem decent young people. They have gone through a very difficult period in their lives but they must surely be able to see that for their daughter's sake at least, they should give the marriage another chance. I would hope that their very experienced counsel could be instrumental in trying to achieve such a reconciliation. If further assistance is required from the court in this regard then they should feel free to make the appropriate approach to the Registrar.

NUKU'ALOFA: 8 August, 2001.

JUDGE