Pita v Vaiola [2005] TOSC 28; FD 036 2004 (1 March 2005)

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

NO. FD. 36/2004

BETWEEN:

SONO PAKILETI PITA
Petitioner

AND:

TEVITA VAIOLA LATU
Respondent

BEFORE THE HON MR JUSTICE THOMAS

Counsel: Ms Mangisi for the Petitioner
Mr Veikoso for the Respondent

JUDGMENT

This is a defended petition for divorce on the ground that the parties had been separated for a continuous period of two years from about April 2000 and under section 3(1)(f) of the Divorce Act, CAP 29.

The Respondent filed a defence alleging a later separation date of March 2003 and a cross-petition alleging adultery on the part of the Petitioner and the co-respondent Viliami Folau. The petitioner admitted in evidence a de-facto relationship with Mr. Folau from about the end of 2001.

The parties were married at Nuku’alofa on the 16th July 1981. There are 5 children of the marriage but only the two youngest need to be considered by the court. They are Kale Vaiola born 11 October 1991 who is in the custody of the respondent and ‘Eli Latu Vaiola born on 20 May 1994 who is in the custody of the petitioner although living with her sister.

The petitioner seeks orders in terms of the existing arrangement and the respondent seeks custody of both children, each reserving reasonable access.

There are major conflicts in the evidence between the husband and the wife. They were the only witnesses called. There are differences in respect to the dates, which are significant, but there is no supporting evidence either way in respect to the two different versions.

The wife’s evidence is that after the marriage commenced the husband beat her on numerous occasions and at least twice a week but she never complained.

In December 1997, the family moved to New Zealand after the husband had gone first with the 2 older boys. They lived with his parents in Mt. Wellington, Auckland and then had their own apartment in Otahuhu. The wife and the boys worked and supported the husband who used their money to go out drinking. The beating continued. A complaint to the Police was made in 2000 after a serious assault. The husband was convicted and sentenced to Periodic Detention. The assaults continued. The wife’s evidence was that it was in 2000 that the husband was sent to prison for 4 years for a rape offence committed some years earlier. At a visit to prison shortly after his imprisonment he attacked her and she told him she never wanted to live with him again. She has not done so in New Zealand or Tonga after being deported in February 2004.

Mr. Folau who resides in New Zealand has visited her for a total of 3 weeks since her return to Tonga. She has no wish to return to her husband despite his apology last year seeking to reconcile.

The husband for his part denied that the assaults were continual. He said less than 3 times in evidence in chief at one stage and then later admitted 3 times while living in New Zealand in cross-examination. He agreed he used his wife’s earning to go drinking. His evidence was that he was sentenced to 4 years imprisonment in May 2001 and served 2 years and 8 months of that sentence before he was deported from prison to Tonga in January 2004.

He also stated that his wife admitted the relationship with Folau for the fist time in 2000 and this was the reason for the assault leading to his conviction. He said she again admitted it in March 2003 to him in prison and that was when he decided he no longer wanted the marriage to continue.

There was also evidence about the associate of Folau who was living with friends of the wife, although the husband also visited his home. I need not go into that given the acknowledgement by the wife of the de facto relationship.

Neither party accepted under cross-examination the version of the other party. So there is a conflict - a question of credibility. Having listened to the parties carefully I am satisfied the husband was minimising considerably the true situation in respect to the assaults. At one stage he attempted in court to intimidate his wife while she was giving evidence and then tried to deny he had done so. Where his evidence conflicts with that of the wife I accept and prefer the evidence of the wife. I am satisfied that on the important issues the respondent was lying.

So far as the separation is concerned there is still the difficulty with the dates because the wife said the husband went to prison in 2000, the husband said it was May 2001 and his length of time served equates with his release in January 2004 so that appears more accurate. Whether it was 2000 or 2001 probably does not matter. I reject any suggestions of admissions made in 2000 and 2003 by the wife to the husband. I am satisfied that this marriage was effectively over shortly after the accused was imprisoned. On that basis this petition was presented more than 2 years after the separation commenced and there was no intention to renew a normal marital relationship on the part of the wife. The wording of the provision in subsection (1)(f) with its reference to “both of them” makes it a ground, which can be proved by unilateral conduct or intent. I am satisfied therefore on a balance of probabilities that the ground set out in section 3 (1)(f) has been established and the petitioner is entitled to her divorce decree.

So far as the cross petition is concerned the adultery has been effectively admitted although only in terms of a de facto relationship. The cross petition does not seek a divorce but seeks damages against the co-respondent and costs. Ms. Mangisi submits that it would be unreasonable in the circumstances of the cruel behaviour of the husband towards his wife. Mr. Veikoso submits that the adultery is a serious wrong and cannot be excused.

It is appropriate to consider the assaults and the physical condition of the husband who is in a wheelchair. It is clear he did suffer a back injury which became worse over the years to the extent he was using crutches and a wheelchair in the mid 1990’s. Despite that situation the wife said the beatings continued because she had a “mind like a child” and would go to him when called and he would beat her. I am satisfied his physical condition did not stop his violence to his wife, nor indeed did any order made by the New Zealand Court. Had there been a petition for divorce I would have found cruelty established in terms of section (5) (4) (b) and therefore not pronounce the decree. I am satisfied the husband did consume alcohol to excess and alcohol purchased with his wife’s earnings, he did assault her, did act cruelly to her and did effectively drive her away. Even though there was only one complaint Mr Veikoso confirms it was Tongan custom for wives not to complain of such assaults. It follows from this that I find that it is inappropriate to award damages or costs against the co-respondent and these claims are dismissed.

So far as the children is concerned, there is no dispute about Kale. In respect of ‘Eli and despite Mr. Veikoso’s approach based on the wrong of the relationship between the wife and Folau, the paramount interests of the child are plainly to be with her mother and her mother’s sister. The child has not lived with her father during the 10 years of her life except for 3 days. It would be wrong to change the status quo.

In the circumstances I make the following orders:

(1) The marriage between the petitioner and the respondent on 16 July 1981 is dissolved on the ground of separation for more than 2 years and shall not become absolute unless good cause is shown within 6 weeks why this decree shall not be made absolute.

(2) The cross petition is dismissed

(3) The respondent shall have the custody of Kale Vaiola born 11 October 1991 and the petitioner shall have the custody of ‘Eli Latu Vaiola born 20 May 1994 with reasonable access reserved to each.

(4) The Petitioner is entitled to costs to be agreed or taxed.

NUKU’ALOFA: MARCH 2005

JUDGE