Fonokalafi v Fonokalafi [2021] TOSC 103; FD 30 of 2021 (10 June 2021)

IN THE SUPREME COURT OF TONGA

DIVORCE JURISDICTION

NUKU’ALOFA JURISDICTION

FD 30 of 2021

BETWEEN: PAEA HE AKO FONOKALAFI

Petitioner

AND: SIOSI’ANA LAVEMAAU FONOKALAFI

Respondent

RULING

BEFORE : ACTING JUSTICE LORD TUPOU

Counsels : Ms Sisi Kakala V Ebrahim for the Petitioner
: Ms Siosifa Tu’utafaiva for the Respondent

Date of Mention : 27 March 2021

Date of Hearing : 18 May 2021.

Closing Submission
from Petitioner : 19 May 2021

Closing Submission
From Respondent : 19 May 2021

Date of Ruling : 10 June 2021

1. This is a petition by the husband for divorce on the ground that the behavior of his wife (respondent) is such that he cannot be expected to live with her.
   
2. Section 3 (1) of the Divorce Act state that the husband or wife may present a petition to dissolve the marriage upon evidence –
   

“s.3 (1) (g) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.”

3. The petitioner and the respondent married on 30 November 2017 in Vava’u.
   
4. After the marriage they lived as husband and wife in ‘Utui, Vava’u at a home that belonged to the mother of the petitioner.
   
5. In June 2018, the petitioner and the respondent travelled to Australia as part of a fruit picking group. They returned in November 2018.
   
6. They used the money from their work in Australia to re-furnish the house and bought a vehicle.
   
7. Their first child a boy, was born on 16 January 2020. The respondent is now 6 months pregnant carrying their second child.
   
8. The petitioner says that the behavior of the respondent to him as her husband has been very bad but took it with patience.
   
9. The behavior of the Respondent complained about is swearing in a very vile manner at him, his mother and sister. This came through arguments over things they did not agree on.
   
10. The petitioner says that the swearing at him by the respondent began after 2 months of their marriage. It was not just swearing but also included scratching his hand and face and tearing his singlet. The petitioner took these and not hit the respondent.
    
11. The petitioner’s sister was in Australia when they went fruit picking. One day the petitioner came and saw her crying. He asked why she was crying and she told him that none of her brother’s wife swore at her in the way the respondent did and belittling their mother. The petitioner was very upset and asked the respondent who said that his sister was lying.
    
12. There was one time in 2020 when the petitioner was carrying their child that the respondent swore at him and pushed him, he protected the child but fell down injuring his foot.
    
13. The mother of the petitioner was very sick one day and he brought her to their home. He persuaded the respondent to allow his mother to sleep on their bed. The mother’s illness got worse and an ambulance came and took her to the hospital. The bed was wet from the mother which the respondent took on board in her swearing at the petitioner and calling bad things about his mother and used this against him.
    
14. The respondent in her evidence say that they had arguments but most of the time they lived happily.
    
15. She says that it is not true that her family directs on how they live.
    
16. The swearing at each other when they argue and says that the petitioner threatens her many times that he will hit her. One time when she was pregnant he hit her shoulder with a broom handle.
    
17. The respondent claims that his mother and sister lie and when the mother is angry she chases them out of the house.
    
18. The only other witness called was Lehuani Mahe, the local preacher who was a close neighbor.
    
19. Mahe first met the petitioner and respondent in December 2018, he took the petitioner to his land where they planted kava and gave him part of that land in 2019.
    
20. Mahe heard many arguments between the petitioner and the respondent.
    
21. In June 2020, Mahe say that the respondent left their home and went to her parents. As a Minister of their church he went to the respondent and asked her to return to her husband. The respondent was willing to return but asked that the petitioner come and take her and their son. When he informed the petitioner, Mahe noticed that he was not enthusiastic.
    
22. The quarrel between the petitioner and the respondent made Mahe think that he is the trouble maker by having him at his home and taking him planting Kava. So he stopped taking the petitioner.
    
23. Mahe said that in his view, the petitioner had a lot of patience and forgiving in line with Christian belief. He says this after hearing the arguments from his neighbours – the petitioner and respondent.
    
24. Mahe also said that the respondent posted bad things about his wife in facebook in September 2020 saying she was a liar, in her prayers. In December 2020 the petitioner and the respondent came to his home and no regrets was expressed by the respondent.
    
25. Matters came to a head in January 2021 when they were preparing for the first birthday of their son. This was meant to be on the 16^th January but had to be deferred for things which were coming by boat. Eventually it was celebrated on 27 January.
    
26. The petitioner say he came home from working in his allotment and was helping outside with preparing for the celebration. The respondent yelled and told him to come in and fold the son’s diapers. The petitioner was tired and he got angry.
    
27. He went to their vehicle and started to leave the home. The respondent ran outside and stopped him. She slapped his face and tore his singlet telling him to stay and do the work instead of going drinking alcohol with the money needed for the birthday. She said that it was just as well that her family donated a cow for the birth day to cover him and his poor family.
    
28. From the respondent’s affidavit of 16 April 2021 at para.53 she says that what happened in the day of the birthday is true, that she was very tired and she slapped the petitioner on the face saying the cow her family brought covered his and his family poor conditions.
    
29. She goes on to say that the celebration went well inspite of their arguments.
    
30. On 29 January 2021, the petitioner and respondent went to town with their family. They saw his brother in town, the Petitioner talked with him and came back to say that they should go home. At home, the petitioner kissed the respondent and their son and said to listen to him and left them.
    
31. The following day, 30 January 2021 the petitioner came home and asked why the respondent has not left home. The respondent said nothing and the petitioner left.
    
32. The Town Officer then came and told the respondent that he had been directed by the petitioner and his family to leave the home. The respondent left with their child and went to her parent’s home.
    
33. The petitioner says that when he returned home the following day, the respondent and their son had left leaving a very nasty message which the respondent denies.
    
34. The respondent made a complaint to the Magistrates Court resulting in an order in 23 February 2021 that the petitioner is restrained from Leaving the Kingdom until further order of the court.
    
35. On 13 April 2021, made an order that was agreed –
    
    1. That the petitioner makes the following payments to the respondent.
    2. To the respondent $30 per week and $10 per week in respect of the child she is carrying.
    3. To Nehumi F M L Fonokalafi (m) born on 16/0120 - $50 per week.
    4. Payments to be made two weekly on the 14^th and the last day of each month.
    5. That the petitioner pays $250 within one month legal and court fees.
    6. Failing to make these payments will result in auctioning the petitioner’s properties to make the payments.
36. Despite the constant quarrels the respondent still wants to stay married.
    
37. The petitioner, however, in giving his evidence said that he has had enough and he did not want to stay married because of the behavior of the respondent outlined above.
    

DISCUSSION

38. It can be seen, and I believe that the parties argued constantly. What made it worse for the petitioner is the abuse of his mother sisters in vile and insinuating manner she told the petitioner to go and sleep with his mother. The respondent claims that the petition said the same thing to her – go and sleep with your father or brother.
    
39. It is apparent that the arguments and what was said had a mental effect on the petitioner but not the respondent. This cumulated over the years they were married.
    
40. In P v V [2015] Tonga L.R.1 at para 6 Paulsen LCJ stated –
    

“I take guidance as to the meaning of section 3(1) (g) from the decision of Ford J in Pulivi v Masunu [2001] TPSC 6 and Fe’ao v Fe’ao [2001] Tonga L.R.44. In particular, I must decide whether the cumulative conduct of the respondent was sufficiently serious that judged from a reasonable person’s point of view the petitioner cannot reasonable be [expected] to live with the respondent”. That ease involved serious assault by the respondent of the petitioner resulting in her going to the hospital for treatment and constant alcohol drinking and leaving home by the respondent.

His Honour was satisfied that the cumulative conduct of the respondent was such that it was unreasonable to expect the petitioner to live with the respondent.

41. In Fili v Afei [2015] Tonga L.R. 238 at 239. A divorce petition on the ground set out in section 3 (1) (g) where the parties married on 5 January 2012 and the respondent has refused to live with the petitioner since November 2013 when he returned from Australia where he was in a seasonal worker’s scheme. The evidence was [2] that the respondent hated the petitioner and did not want to see him again, that she does not care about him and her family does not like him either.
    

At [4] His Honour said:

“Whilst the petitioner will have seen deeply hurt by his wife, what he has described in his evidence is common following the failure of a marriage.

Section 3)1) (g) is not concerned with such matters but with acts of a party to the marriage that destroy the fabric of the relationship and result in failure of the marriage. Those are acts such as domestic violence, aggressive or physical and mental abuse: Tonga v Falepapalangi [2009] Tonga L.R.33”

At [6] “The Court’s obligation is to apply the law and whilst there is no doubt. That the marriages between the parties is over that does not entitle the petitioner to a divorce”. The petition for divorce was dismissed.

42. It is clear that to be successful in his petition for divorce under section 3(1) (g) that the acts are such that they destroy the fabric of relationship and result in failure of the marriage. These are acts such as domestic violence, aggression or physical and mental abuse.
    
43. It is clear from P v V (Sapra) that there was a domestic violence, aggression and physical and mental abuse when the respondent assaulted the petitioner causing her to go to hospital, and his leaving the petitioner to go out drinking alcohol. This cumulated over the years.
    
44. It is clear also from Fili v Afei that the act of the respondent in leaving the petitioner and saying she hated him is not domestic violences, aggression or physical and mental abuse.
    
45. In this case where there are frequent quarrels on their own would not be sufficient to come with in section 3 (1) (g). However, the words used in the quarrels become important to see if they lift the act to be one of mental abuse. Swearing and the words used is bad enough but when the swearing include saying to the petitioner to go and sleep with his mother, this takes the level up to a stage where it becomes mental abuse. It accumulates or become accumulative in the mind of the petitioner who was patient and tolerate it for some time until finally bursting into a stage where he does not want to live with the respondent any more.
    
46. The mental abuse was accompanied by physical abuse in the scratching his hand and face and tearing his singlet and the constant quarrels cumulated the physical and in particular mental abuse to this stage we are in now.
    
47. Aggression was also present in delivering the swearing and together can amount to domestic violence.
    
48. It was apparent to me when the petitioner gave his evidence and the emotion shown that the acts of the respondent destroyed the fabric of the relationship and resulted in the failure of the marriage: Fili v Afei (Supra)
    
49. I conclude from the facts of this case that the cumulative conduct of the respondent is such that it is unreasonable to expect the petitioner to live with her.
    
50. The petitioner also seeks custody of the male child who is 1 year 4 months old. This was not argued in the hearing but in the affidavit of the petitioner he asks to have custody of this child and the respondent can have the child she is bearing which will be born in a few months.
    
51. To determine who should have custody of the child I need more evidence.
    
52. I will therefore ask the Solicitor General or a person he delegates this, to act as a Guardian Ad Litem and give me the facts and his recommendation who should have the custody of child in the best interest of the child. This is to be filed before 30 June 2021.
    
53. I would like also submissions from both parties on this issue of custody before 30 June 2021.
    
54. I will then make a decision on who should have custody of the child.
    
55. The petitioner also requests that the restraint order of 23 February 2021 imposed on him not to leave the country by the Magistrate Court be lifted. This request should be made to the Magistrate Court.
    
56. There is also an agreed maintenances order of 13 April 2021 by the Magistrate Court which will continue and any application in respect of his will be made to the Magistrate Court.
    

RESULT

57. Accordingly, I order as follows;
    
    1. The marriage solemnized on 30 November 2017 between the petitioner and respondent is dissolved unless sufficient cause is shown to the court within six weeks why this decree should not be made absolute.
       
    2. By agreement the custody of the children of the marriage is granted to the Respondent with reasonable access to the Petitioner.
       
    3. The restraint order on 23 February 2021 by the Magistrate Court is to continue and any application is relation thereto shall be made to the Magistrate Court.
       
    4. The maintenance order of 13 April 2021 by the Magistrate Court is to continue and any application in relation thereto shall be made to the Magistrate Court.
       

Tupou J
NUKU’ALOFA: 10 June 2021 ACTING JUDGE