Faingata'a v Tau'alupe [2003] TOSC 45; FD 097 2003 (17 November 2003)

IN THE SUPREME COURT OF TONGA
FAMILY JURISDICTION
VAVA’U REGISTRY

NO. FD.97/2003

BETWEEN:

SIONE UASINA MOA FAINGATA’A
Petitioner

AND:

AFU NANISE ORIMA ‘ELEONOLA TAU’ALUPE
Respondent

AND:

PAEA KOLO
Co-Respondent

BEFORE THE HON. JUSTICE FORD

Counsel: Mr Vaipulu for the petitioner and
Ms Tonga for the respondent and co-respondent.

Dates of hearing: 17, 20, 21 October 2003.
Date of written submissions: 5, 10, 12 November, 2003.
Date of judgment: 17 November, 2003.

JUDGMENT

The petition.

In this proceeding the husband petitioner seeks a dissolution of his marriage on the grounds of the respondent's alleged adultery with the named co-respondent. The date of the alleged adultery is not disclosed anywhere in the petition. The respondent wife, referred to during the hearing as " Orima", has filed an answer denying adultery. She has also cross-petitioned for a decree of divorce on the grounds of her husband's unreasonable conduct.

The couple were married in Vava'u on 9 June 2001 after a courtship of only 2 weeks. The husband was 33 and the wife 19. Neither party had been married before. There are no children of the marriage. The petition was filed on 6 August 2003.

The petitioner told the court that for some five years he has owned a taxi base in Neiafu. He also operates one of the taxis working out of his own base. He explained that for security reasons someone has to be on duty at the taxi base 24 hours a day and, depending upon his work schedule, each week he works overnight either on Monday and Thursday or on Tuesday through to Friday. These matters assumed some importance during the hearing because the first ground of unreasonable behaviour advanced by the respondent in her cross-petition was that the petitioner spent most of his time at his taxi base. The petitioner admitted that particular allegation but denied the respondent's further claim in evidence that he spent virtually every night at the taxi base returning home each morning only to take a bath and clean up before going out again.

Returning to the petition itself, rather surprisingly, the petitioner in his evidence gave no details about the alleged adultery. He was asked by his counsel in evidence in chief why he had filed the petition and he simply responded: "There was a problem. This other man was found with my wife. Talia found him."

The December incident.

In cross-examination, Ms Tonga put it to the petitioner that in December 2002 he had left his wife even though there had been no arguments or problems. He admitted that proposition. It was then put to him: "Your wife asked you why you left and you said that you had heard stories about her?" The question really was unsatisfactory because it involved two propositions but the petitioner simply answered "no" which did nothing to clarify the situation. The December incident was important because the husband's conduct on that occasion is alleged in the cross-petition to amount to "desertion" and it was advanced as another example of his unreasonable conduct.

The matter was not followed up in re-examination and so the court sought clarification from the witness as to why he had left his wife in December 2002. He replied that he had had a fight with his mother-in-law after he had caught his wife in another man's vehicle at 3 o'clock one morning at the front of his in-laws' house. He said that he was unsure who the man was because the vehicle "took off" as he approached with his wife still inside it.

As it transpires, the December 2002 incident has nothing to do with the alleged adultery but it is, nevertheless, an important part of the narrative. The background to the incident, as it emerged in evidence, was that in November 2002 the respondent had become acquainted with a person called Uesi Filikitonga who had travelled up to Vava'u from Tongatapu as a member of a band. Uesi, as it turned out, was the person driving the vehicle the husband had given evidence about.

Referring to the same incident, the respondent in her evidence said that it occurred one morning just after Christmas 2002, not at 3 a.m. as claimed by her husband, but sometime around 6 a.m. She told the court that she and her husband (who both normally lived at her parents home) had separated at the time and she was living at her sister's home. She had slept the night at her sisters and then early on the morning in question she had ended up having a fight with her sister after her sister had accused her of having an affair with Uesi.

The sister did not give evidence but the respondent said that her comments had been based on unfounded rumours. The respondent denied having any affair with Uesi. She admitted having seen Uesi on occasions but those meetings had followed on from her request for him to compose a song about her parents. Uesi, according to the respondent, ended up composing the song and subsequently it has been played over the local radio station.

The respondent went on to explain how, after the fight, her sister had telephoned Uesi and he had driven over and they had talked before he then proceeded to drive her back to her parents' house. The respondent said that as she was about to be dropped off, she saw her husband running towards her. She was scared of her husband's likely reaction and so she asked Uesi to drop her off at another part of the village and she later walked home.

The couple remained separated for a short period after that incident but sometime in January 2003 they were reconciled and then they lived together again up until the time of the alleged adultery.

The alleged adultery.

The petitioner's key witness in relation to the adultery allegation was Talia'uli Lapota ("Talia"), a young looking 19-year-old. His family live next door to the respondent's parents home. Talia told the court that he was a very close friend of Orima's brother, ‘Eiki. He described ‘Eiki as a "relative, neighbour and friend." He said that he frequently visited ‘Eiki at his home and they "hang out together."

Talia gave evidence about a scene he had witnessed when he visited ‘Eiki's place one Sunday afternoon. He was uncertain of the month or the time but, when pressed by counsel, he estimated that it was around March or April 2003 and he said that, going on his recollection of the position of the sun, it would have been approximately 5 to 5:30 p.m.

Talia said that the entrance door to the house was not locked and he pushed it open and walked inside. ‘Eiki's room was upstairs and as he walked over to the stairway he passed a bedroom on the ground floor. The door to the bedroom was open and he said that when he looked inside the room he saw Orima and a man, who he identified as the co-respondent, lying on the bed facing each other. The witness said that Orima saw him and asked him what he was doing and he told her that he had come to see her brother. Talia then explained how he went upstairs and filled in time with ‘Eiki until later in the evening when he eventually returned to his home.

Talia was closely cross-examined by Ms Tonga on every aspect of his evidence. It was put to him that Orima was not lying on the bed but standing beside the door holding a photograph album. Talia denied that suggestion. He also denied another suggestion that she was wearing her "church clothes" and he described her as wearing a denim miniskirt and a blouse.

Ms Tonga then quizzed Talia about an incident involving a tape recorder and counsel put it to him that he had been caught taking the recorder from the respondent's family home. Talia freely admitted taking the recorder without permission but he denied having been caught. He explained that sometime after he had taken it he heard that the police had wrongly arrested and charged someone else in relation to the theft and so he took the recorder back to ‘Eiki's mother and apologised to her.

Finally, it was put to Talia by Ms Tonga that the bedroom scene he had described was simply a false story that he had been encouraged to spread around by the petitioner and by his own brother who works as a taxi driver out of the petitioner's taxi base. It was suggested that he had been paid money to spread the rumour and pass the information on to the peitioner's counsel, Mr Vaipulu. The witness strongly denied all these allegations.

When asked by the court at the end of his evidence how he had been able to recognise the man he had seen in the bedroom with Orima as the co-respondent, Talia answered that he knew him because he (the co-respondent) often came to Orima's house. Talia was the only witness for the petitioner apart from the petitioner himself.

Evidence for respondent.

The respondent gave evidence strongly denying adultery or any other kind of association with the co-respondent, Paea Kolo. She said that she had known Kolo since he had arrived in Vava'u in November or December 2002. She explained that he was with the same band from Nuku'alofa that Uesi had been with and she had got to know him because he was a good friend of younger brother, ‘Eiki. ‘Eiki is also, apparently, a member of the same band.

The respondent was asked by her counsel if Kolo had ever slept in her house and she replied that he had on one occasion only which was a Sunday sometime in June or July of this year. She stressed, however, that she had only found this out later when she had been told about it by her brother. She confirmed that Kolo had slept in the room downstairs. The witness was then asked whether she had entered the bedroom on the Sunday in question while Kolo was sleeping. She said that she had gone into the room at one stage when she was trying to find her photograph album and she had noticed that someone was asleep on the bed but she did not know that it was Kolo. She found her photograph album on a table in the bedroom and she said that as she was leaving the room she saw Talia who had just entered the house and he had asked her where her brother ‘Eiki was. Orima told him that ‘Eiki had gone to take care of the cows on their tax allotment.

The respondent admitted that Kolo frequently came to their home but she said that she had talked with him "only sometimes". She also explained that, although she now lives in the downstairs room, at the time Kolo slept there it belonged to one of her brothers and she and her husband had lived in a room upstairs. Referring to her husband's whereabouts at the time of the incident, the respondent explained that he had gone to Tongatapu some two weeks before the Sunday in question to purchase headlights for his car. He had not given the respondent any indication as to when he would be returning to Vava'u.

The petitioner's visit to Tongatapu is another ground of unreasonable conduct relied upon in the cross petition. The respondent told the court that the petitioner had travelled down to Tongatapu towards the end of June 2003 and while he was away she had needed the family car to travel for certain medical treatment, which she described, but her husband had left the car with another couple and had then given instructions to the couple that his wife was not to have access to it. The respondent also said that her husband had not made any contact with her while he was in Tongatapu nor had he responded to messages that she had left on his mobile telephone. The respondent said that she had no idea when her husband finally returned to Vava'u but the next communication she received from him was the divorce petition which was served on her on 6 August 2003.

The co-respondent also gave evidence in the case. Paea Kolo is a 39-year-old married man from Tongatapu. He is in the produce business and makes visits to Vava'u every month. He told the court that he became friends with the respondent's brother ‘Eiki around June 2002 and whenever he visits Vava'u he meets up with ‘Eiki and they go "cruising" in a vehicle together. Referring to the Sunday in question, Kolo said that he and ‘Eiki had been cruising around Vava'u and then they returned to ‘Eiki's place where he had a meal around 3 p.m. with ‘Eiki and his three brothers. Afterwards ‘Eiki had suggested that he could rest in one of the rooms downstairs and so he lay on the bed in the room and went to sleep. He said that he was woken by ‘Eiki around 5 p.m., they talked until 6 p.m. and then they both drove into town.

Kolo said that he had no recollection of anyone entering the bedroom while he was asleep. He denied ever having an affair with Orima. In answer to a question from his counsel, he said "I would not do that anyway because she is my friend's sister."

The respondent's mother, Piheloti, gave evidence. She said that her husband is in New Zealand. Piheloti described her daughter's marriage as an unhappy one because "mostly they appear to have problems." She confirmed that Paea Kolo was a friend of her fourth child, ‘Eiki. She had no knowledge of Kolo ever having slept at her house but she was told about it later on. She said that when Talia returned the tape recorder she asked him if the rumour was true and he had replied that the reason he had not returned the tape recorder earlier was because he had been ashamed of what he had said about Orima.

According to Piheloti, Talia had admitted to her that his older brother had come looking for him telling him that he would be paid money if he made up the story and repeated it to Mr Vaipulu. Piheloti said that there was a bad relationship between her family and Talia's family which went back to a land dispute many years ago.

In giving evidence about her recollection of the Sunday in question, Piheloti told the court that after church that morning she had had a meal between 1 and 2 p.m. and then sometime after 2 p.m. she had gone with ‘Eiki to the bush allotment to look after their cows. She said that they returned from the bush between 4 and 5 p.m. and then she had gone to evening prayers at 6:30 p.m.. In answer to further questions under cross-examination, Piheloti said that she had no knowledge that Kolo had slept in the room downstairs and she admitted that had he had a meal downstairs as he had described to the court then she would have known about it but she could not recall Kolo having a meal that particular Sunday.

The final witness for the respondent was her 19-year-old brother ‘Eiki. ‘Eiki said in evidence that he had first met the co-respondent in May 2002 in, Tongatapu. He said that Kolo was a friend of his uncles. He confirmed that whenever Kolo visited Vava'u he socialised with him and he frequently visited his family's home.

Referring to the Sunday in question, ‘Eiki told the court that he and Kolo had gone cruising and then they returned home and had a meal. In cross-examination it was put to ‘Eiki that Kolo had described having a meal with ‘Eiki and his three brothers. ‘Eiki denied that any of his brothers had been present. The witness told the court that around 3 p.m. Kolo had gone to sleep in the room downstairs while he had taken his mother out to the bush allotment to look after the cows. He estimated that it was approximately 6 p.m. when they returned home from the bush and there was no one else in the house apart from Kolo who was still asleep. ‘Eiki said that while his mother then got herself ready for evening prayers he woke Kolo up and they both proceeded into town.

‘Eiki denied having seen Talia at any time on that particular Sunday and he said that Talia later admitted to him that his brother had been paid money by the petitioner to get him (Talia) to make up the story. ‘Eiki admitted, under cross-examination, that he had certain criminal convictions.

Findings.

The foregoing is necessarily only a general summary of all the evidence before the court. There were some wide disparities in time estimates and other details and I find it quite extraordinary that while all the witnesses were able to give evidence about their movements on the Sunday in question, not one of them had been able to give the precise date of the alleged incident.

At the end of the day it is really a question of credibility and, as it turns out, the court is required to make an assessment of Talia's credibility, on the one hand, and the evidence given by the respondent and her three witnesses on the other. The respondent's mother, her brother ‘Eiki and the co-respondent all told the court that they did not see Talia at any time on the Sunday in question. The respondent, however, admitted having seen Talia inside the house and she admitted to having been in the same room that the co-respondent was in when Talia saw her. The big difference in the evidence is that Talia said that he saw them lying on the bed facing each other whereas the respondent says that all she had been doing was picking up her photograph album and when Talia saw her she was at the doorway of the room on her way back upstairs.

In her submissions, Ms Tonga challenged Talia's credibility on the basis of his evidence that the incident had happened in April when, in fact, it appears to have been in late June or early July. There is some substance in the criticism but, as I have observed, Talia made it clear in evidence in chief that he could not now recall the month of the incident and it was only after he had been pressed by counsel to give an estimate that he speculated it could have been around March or April.

I must say that I found Talia to be a very impressive witness and, in terms of credibility, I have no hesitation in preferring his evidence where ever it conflicts with that given by the respondent and her witnesses. In this regard, I simply do not accept that he made the admissions attributed to him by the respondent's brother and mother. If he had been paid to make up a story which would form the basis for a divorce petition based on adultery, I have no doubt that the young man would have seen more activity than the couple simply lying on the bed facing each other. But whilst I accept that Talia did, in fact, see the respondent and co-respondent lying on the bed in the way he described that, unfortunately for the petitioner, is as far as Talia's evidence went.

The petitioner seeks a divorce on the grounds of his wife's adultery. Adultery is a serious matrimonial offence and when it is denied then it must be strictly proved. The petitioner, in other words, has to prove to the required standard of proof that sexual intercourse took place between the respondent and the co-respondent.

The law.

There is English authority to indicate that the appropriate standard of proof in such a case is the criminal standard, namely, proof beyond reasonable doubt - see Inglis v Inglis and Baxter [1967] 2 All ER 71 at 76 and 78, but Halsbury 4th ed. vol 13, para 563 better states the position as follows:

"Adultery must be proved to the satisfaction of the court, that is on a preponderance of probability; but the degree of probability depends on the subject matter, and, in proportion as the offence is grave, so ought the proof to be clear. Divorce is a civil proceeding and the analogies of criminal law are not apt."

Although, as Halsbury goes on to note, direct evidence of adultery is rare and it normally can only be inferred from circumstantial evidence, the court is not bound to infer adultery even when there is evidence of inclination coupled with opportunity.

Conclusions.

Applying these principles to the present case, even accepting Talia's evidence, it has still not been proved to my satisfaction that the respondent did, in fact, commit adultery with the co-respondent. Talia admitted that the door to the bedroom was wide open and when he saw the respondent lying on the bed she was fully clothed. It was still daylight and there were other people in the house. Given that evidence, Talia's description of the scene he observed on the bed does not drive me to the inevitable conclusion that adultery must have taken place.

I can accept, given the unhappy state of her marriage and her husband's effective rejection of her, that the respondent had been driven to a point where she needed to seek companionship elsewhere. In this regard, I have no doubt that the respondent was attracted to the co-respondent and the feeling was reciprocated but, quite simply, the petitioner has failed to make out any stronger case. The evidence before the court does not establish adultery and the petition on that ground is, accordingly, dismissed.

Cross-petition.

Turning to the cross-petition, my conclusion is that the respondent has succeeded, to the required standard of proof, in establishing unreasonable conduct on the part of the petitioner. It is unnecessary for me to refer to all the evidence before the court on this aspect of the case but it is clear that, virtually from the outset of the marriage, the husband treated the respondent with complete indifference and proceeded to carry on living the lifestyle he had grown accustomed to as a single man approaching middle age. His departure in the end for Tongatapu, ostensibly to purchase headlights for his car, without giving any indication to his wife as to when he would be returning and his subsequent conduct in completely cutting off all communication with his wife coupled with his refusal to allow her to use the car while he was away, is fairly typical, it seems, of his detached approach throughout the marriage. It was a selfish attitude that inevitably was going to result in the irretrievable breakdown of the marriage relationship. His conduct, in terms of section 3 (1) (g) of the Divorce Act (CAP. 29) was such that the respondent could not reasonably be expected to live with him.

The end result is that the respondent has succeeded in her cross-petition and there will be a decree nisi accordingly. The respondent is entitled to costs in a sum to be agreed or taxed.

NUKU'ALOFA: 17 NOVEMBER 2003.

JUDGE