Fainga'anuku v Kalu [2018] TOSC 45; FD 57 of 2018 (6 September 2018)

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

FD57 of 2018

BETWEEN: SIONE LATU PALEIONO FAINGA’ANUKU

- Petitioner

AND: ‘OFA LAKALAKA KALU

- Respondent

AND: SIONE HAVEA

- Co-Respondent

BEFORE HONOURABLE JUSTICE NIU

Petitioner counsel : Mr. S. Tu’utafaiva
Both respondents counsel : Mrs. L. Pahulu-Kuli

Hearing date : 31 August 2018 and 6 September 2018
Judgement date : 6 September 2018

JUDGEMENT

1. The petitioner husband filed his petition on 4 April 2018 to divorce the respondent wife on the ground that she had committed adultery with the co-respondent in January 2017. Both respondents were served with a copy of the petition on 19 April 2018 and 21 May 2018 respectively.
   
2. Neither respondent filed any defence to the petition, and the petition was heard undefended before me on 11 July 2018 when the petitioner and a neighbour both gave evidence in consequence of which I was satisfied that the ground of adultery was made out and I granted a decree nisi.
   
3. On 22 August 2018, the respondent filed an application for leave to re-hear the petition upon the ground that she had been wrongly advised by the Court staff that the petition served upon her had not been registered in the Court and not to worry about it. She denied that she had committed adultery and for her sake and for their son’s sake (born 2015) she wanted to dispute the petition and the allegation of adultery against her.
   
4. On 23 August 2018, I issued a notice to both counsel to attend before me in Chambers on 27 August 2018 for directions.
   
5. On 27 August 2018, I discussed the matter with both counsel and it was agreed that it was desirable that all allegations, including custody and maintenance be properly and finally determined between the parties. It was agreed that the petition be re-heard on 31 August 2018, and the decree nisi was recalled and cancelled.
   
6. On 31 August 2018, the re-hearing was held at which the petitioner and four witnesses gave evidence. The respondent then gave evidence and produced her affidavit dated 21 August 2018 which she had attached to her application as evidence. She confirmed on oath that its contents were true and correct. She then began to explain that photographs of girls shown together with the petitioner in her production of documents were girlfriends of the petitioner. I stopped her from giving such evidence because we were only concerned with the allegation that she committed adultery with the co-respondent, and not with any adultery committed by the petitioner with anyone else. That was because the defence raised by both respondents (in the separate affidavits attached to the application) was simply a denial that they had had sexual intercourse with each other as alleged by the petitioner.
   
7. The respondent then continued her evidence in chief and was cross-examined at length up to end of the day and the matter was adjourned to continue with her being cross-examined on 6 September 2018.
   
8. During the adjournment, I re-read the respondent’s affidavit and noted that in paragraph 29 thereof, she stated that the petitioner had admitted to her at the police station that he had been living with one, Tulele Theresa Longopoa, a woman, in New Zealand from November 2016. I also considered that the alleged adultery of the respondent was stated to have occurred in January 2017, and that the petitioner became aware of it soon thereafter in January or February 2017, whereas his petition was only filed in April 2018, some 15 months later.
   
9. I then considered the proviso to s.5 of the Divorce Act which provides as follows:

“Provided that the Court shall not be bound to pronounce a decree for divorce if it finds that the petitioner has during the marriage been guilty of adultery or if in the opinion of the Court he has been guilty-

(a) of unreasonable delay in presenting or prosecuting the petition; or
(b) of cruelty towards the other party to the marriage; or
(c) of having without reasonable excuse deserted, or of having without reasonable excuse wilfully separated himself from, the other party before the adultery complained of; or
(d) of such wilful neglect or misconduct as has conduced to the adultery.”

and in particular the provisos of paragraphs (a) and (c) with reference to the discretion of the Court not to grant a decree for divorce if the petitioner is guilty of either (a) or (c).

10. Accordingly, I issued a notice to both counsel on 3 September 2018 and referred to said paragraph 29 of the respondent’s affidavit and referred the counsel to the proviso above quoted and the discretion given to the Court therein and asked both counsel to consider the implication of the proviso and to come prepared to argue it today.
    
11. When this matter was called to continue today, both counsel informed me that they have considered the matter and are agreed that the petition be withdrawn with no order for costs.
    
12. I am grateful to and congratulate both counsel for their most sensible and responsible decision to discontinue these proceedings, in the best interests of the parties and of the three year old child of the marriage.
    
13. Accordingly, I order that these proceedings are forthwith discontinued with no order for costs.
    

L.M. Niu J

NUKU’ALOFA: 06 September 2018. J U D G E