Tovi v Fifita [2018] TOSC 2; FD 11 of 2016 (18 January 2018)

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

FD 11 of 2016

BETWEEN : LATAI MAFANA TOVI

- Petitioner

AND : SAIMONE POHIVA FIFITA

- Respondent

BEFORE LORD CHIEF JUSTICE PAULSEN

Hearing : 18 January 2018

Date of Ruling : 18 January 2018

Counsel : Mrs. F Vaihu for the petitioner
No appearance for the respondent

RULING

[1] The petitioner seeks an order dissolving the marriage between her and the respondent that was solemnised on 7 October 2008 at Tongatapu.

[2] There are two children of the marriage, both daughters aged 7 and 5 respectively. They are presently in the custody of the respondent.

[3] The petitioner relies upon section 3(1)(g) of the Divorce Act that:

...the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.

[4] The petition was filed on 26 January 2016 and was issued by the Supreme Court on 27 January 2016. Mrs. Vaihu, who appeared as Counsel for the petitioner today, was not acting at that time and only recently received instructions.

[5] A certificate of service has been filed proving service of the petition on the respondent on 13 December 2017, which is almost two years after the petition was issued.

[6] At the hearing today I heard evidence from the petitioner and submissions from Mrs. Vaihu. At the conclusion of the hearing I advised Mrs. Vaihu that I would issue a decision later today. Having reviewed the file and the evidence I have decided that the petition must be dismissed.

[7] A divorce petition must be served within 12 months of it being issued. This is the effect of O.2 Rule 2 and O.6 Rule 4 Supreme Court Rules. A petition that is not served within 12 months is invalid unless time is extended, in which case such order extending time must be served on the respondent (O.6. Rule 4(2)). In this case the petition was not served within 12 months and no application for an extension of time was sought or made. Notwithstanding this technical objection I would not have granted the petitioner a divorce in any event.

[8] To satisfy section 3(1)(g) of the Divorce Act the petitioner must prove to the civil standard that the cumulative conduct of the respondent was sufficiently serious in all the circumstances of the case that judged from a reasonable person’s point of view the petitioner cannot reasonably be expected to live with the respondent (Fe’ao v Fe’ao [2001] Tonga LR 44 and P v V [2015] Tonga LR 1).

[9] Before the petitioner gave her evidence I expressed concern to Mrs. Vaihu that the particulars relied upon in the petition would not satisfy this test and appeared to be matters that were simply symptomatic of an unhappy marriage.

[10] When the petitioner gave her evidence she departed from what is in the petition and described an abusive relationship between her and the respondent. She alleged that the respondent had assaulted her on many occasions with his fists and on at least one occasion with a piece of wood. It was in reliance on this evidence that Mrs. Vaihu submits a divorce may be granted. I do not accept that submission for two reasons.

[11] First, there is nothing in the petition which alleges that the respondent was physically violent towards the petitioner. If such a serious allegation is to be made the respondent should have notice of it and the opportunity to defend himself against it.

[12] Secondly, the evidence of the petitioner was uncorroborated. She did not ever make any complaint to the Police. She did not make a complaint to the Hospital on the one occasion that she said that she sought treatment for injuries. There are of course many reasons why a victim of violence might not make a complaint or hide the fact that they have been attacked. These include shame, denial, and fear of reprisals from the attacker (as examples). The absence of any complaint or corroboration would not in usual circumstances cause me to not accept the petitioner’s evidence. However, in this case the balance of the petitioner’s evidence contained contradictions or was clearly incorrect in important respects. I am not satisfied that she is a reliable witness. I do not need to set out here all the aspects of the petitioner’s evidence that concern me but I will give an example. The petitioner said that she had not seen the respondent or her children since separation in January 2016. She later gave conflicting evidence that when separating from the respondent she brought her children with her to Tongatapu and later, when the respondent was returning from fruit picking overseas, he stopped in Tongatapu and took the children from her.

[13] It is the cumulative effect of the failure of the petitioner to allege physical violence in the petition, the lack of any complaint to the Police or the Hospital, the absence of any other corroboration and the generally unsatisfactory nature of the petitioner’s evidence that lead me to conclude that the ground for divorce is not made out.

Ruling

[14] The petitioner’s petition for divorce is dismissed.

O.G. Paulsen
DATED: 18 January 2018. LORD CHIEF JUSTICE