Tu'iono v Tu'iono [2004] TOSC 1; FD 007 2003 (12 January 2004)

IN THE SUPREME COURT OF TONGA
DIVORCE JURISDICTION
NUKU'ALOFA REGISTRY

NO. FD.7/03

BETWEEN:

‘AISAKE E. TU’IONO
Petitioner;

AND:

DIANE LISLY TU’IONO
Respondent.

BEFORE THE HON. CHIEF JUSTICE WARD

Decree nisi: 16 April 2003.
Custody order: 17 June 2003.

Hearing on Maintenance: 9 September and 8 December, 2003.
Ruling on Maintenance: 12 January 2004.

RULING

At the time of the decree nisi in this case, the husband/petitioner was paying maintenance under a magistrates’ court order at the rate of $150.00 per week for the wife and $50.00 per week for the child of the marriage. He sought a variation of that order but has continued to honour it in the meantime.

The matter has been delayed because both parties have been abroad at the time of various chambers fixtures and I have adjourned it on more than one occasion for counsel to try and reach agreement. I ordered affidavits of means and one was filed by the petitioner but none by the respondent. Eventually I ordered both parties to attend before me to be examined. That has taken place.

The petitioner is a Chartered Accountant and the respondent runs a small hairdressing business. She also has the custody of the child who is still at school. It is clear that the petitioner has a substantially greater income than the respondent but it has been impossible to gain a clear picture. I am satisfied that both parties have understated their true incomes and neither has given full details.

However, I accept the petitioner has given generally honest evidence about his means. Unfortunately I formed the opposite impression of the respondent. She was evasive in her answers during examination in the witness box and in some aspects was, I am sure, not speaking the truth.

One of the main problem is that the petitioner and his wife have a number of debts and the repayment of those is a major part of the petitioner’s expenses. Another problem is that both have medical problems which require regular treatment abroad.

I do not consider the court should go into the matter in detail. What is needed is a settlement which will meet the justice of the case and allow the parties to continue to live in circumstances that are reasonable in the light of their overall position.

With regard to the maintenance, I accept on the evidence I have heard that the petitioner should stop paying the maintenance ordered by the magistrates’ court for the respondent. I do not accept he can avoid his responsibility to pay towards the maintenance of his child and he has not sought to do so. However, that must now be increased.

I must in some manner try and settle the remaining financial matters to give some finality to the finances following the divorce.

There is a substantial loan with the Bank of Tonga which had been incurred during the marriage. I order that the repayment of the loan shall be the sole responsibility of the petitioner. It appears to be in his name only but, if it is not, his counsel shall take immediate steps to have it placed in his name and the respondent shall have no liability under it.

The matrimonial home is built on the land of the respondent’s father. The respondent is still living in it with her father. The petitioner tells the court that he paid for the building of that house. It cost a total of $28,000.00 and there is still an outstanding debt with Jewett Cameron of $11,000.00. The respondent does not agree with the petitioner’s account of how the house came to be built and financed but I accept the account of the former. I order that the respondent shall have the house but she shall also take over liability for repayment of the remaining debt to Jewett Cameron. Counsel shall take immediate steps to ensure all necessary documentation is completed to give clear title to the house to the respondent together with liability for the remaining debt to Jewett Cameron.

Some items of matrimonial property were left in the house when the couple separated. There is a sharp dispute as to what exactly is there and its condition and value. I do not intend to go into the details but I have taken them into account in the overall picture and I order that all those items shall go to the respondent.

There is also a car which has been paid for, in part at least, by the petitioner’s sister. Some of the cost is still owed to Si’i Kae Ola. The respondent is using it at present. I order that the car shall be sold. The proceeds shall be used to pay off the outstanding loan and any sum remaining after that shall be divided equally between the petitioner and the respondent. If either party wishes to retain the car, the parties shall obtain a valuation from a responsible dealer. The party retaining the car shall then pay the other party half of that sum and be liable for the remaining debt outstanding to Si’i Kae Ola.

I make no other orders with regard to the property. There is a block of four flats in New Zealand, one of which is occupied by the respondent’s brother. The evidence is contradictory about the rights to this property but it is clearly an issue between the petitioner and the respondent’s brother. It is up to the petitioner to decide whether he will need to take legal action over that property. I do not list it as matrimonial property.

Returning to the maintenance payments, I order that the petitioner shall cease to pay any maintenance for the respondent but his payment for the child shall be increased to $75 per week. The child is still at school and I direct that the petitioner shall also pay half of all school fees, books and uniform as long as the child is in full time education or until he attains the age of 21 years whichever is the earlier date.

Any and all legal transfers of property or liability shall be completed by the last day of January 2004 and the new maintenance payments shall start in February 2004.

Nuku’alofa: 12 January, 2004.

Chief Justice