Piukala v Piukala [2021] TOSC 134; FD 107 of 2021 (20 August 2021)

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

FD 107 of 2021

BETWEEN : FAU MOE NGA PIUKALA - Petitioner/Applicant

AND : TOKA’ONE PIUKALA - Respondent

BEFORE HON. JUSTICE NIU

Counsel : Ms. F. Afu for petitioner.
: Mr. S. Fili for the respondent.

Hearing : 17 August 2021.

Ruling : 20 August 2021

R U L I N G

Ground of petition

[1] The husband (Fau) has petitioned for divorce on the ground that the wife (Toka’one) has behaved in such a way that he cannot reasonably be expected to live with her, as is provided under S.3 (1) (g) of the Divorce Act.

[2] Toka’one denies that she committed such behavior and opposes the petition. Fau has the burden of proving “such behavior” of Toka’one upon a balance of probability.

Particulars of the behavior

[3] Fau says in his petition that the particulars of such behavior of Toka’one are as follows:

(a) On 11 December 2019, an emergency protection order was issued by the Magistrate Court against Toka’one and which required that she was not to live with Fau from 11 December 2019 until 7 January 2020.

(b) Although the order expired, the parties continued to live apart from each other in their own respective homes which are close to each other.

(c) On 17 May 2021 Toka’one caused a letter to be sent from her lawyer to Fau to pay her maintenance of $300 per week and Fau went to the Legal Aid Protection Centre which responded to the letter and no further action was taken by Toka’one with regard to it.

(d) On 1 June 2021, Fau received another letter from Toka’one’s lawyer demanding the return of her fihu mat or $1,420 in lieu thereof and Fau duly returned it to her.

(e) From 23 May 2021 to 3 June 2021 Toka’one texted Fau 31 times in abusive and degrading terms.

Response of the respondent

[4] In response to that, Toka’one says that in respect of those 5 matters,

(a) she was acting in self-defence because Fau hit her with a gumboot and went to hit her with the coconut husking crow bar;

(b) it is true that they live apart but that Fau still comes to her to eat and for anything he needs;

(c) it is true she caused the letter to be sent for the maintenance and it was because Fau was having a girlfriend;

(d) it is true that she demanded her fihu mat and that she got it back;

(e) in respect of the text messages, she says that Fau had a girlfriend and that she texted him because he telephoned and abused her 8 times in May and 26 times in June.

[5] She also says that they have reconciled with each other and that they had slept together in May and that she still loves Fau.

Evidence

[6] Both Fau and Toka’one gave evidence and were cross-examined and they each confirmed their pleadings, and what I observed in their demeanours whilst giving their evidence was the difference in their characters. Whereas Fau appears to be humble and tolerant, Toka’one appears the opposite. She was aggressive and she spoke incessantly and loudly. I do not have to imagine that that is how she behaved when they were together. She tried to justify what she did which caused the protection order to be issued against her, but I do not believe her. She did not appeal that order. She accepted it and she continued to live separately from Fau ever since.

[7] I have also read the 31 text messages which she had sent to Fau from the 23 May to 3 June 2021 and I agree that they are abusive and degrading to say the least. They contain swear and belittling words which no spouse should say to his/her spouse. I do not have to imagine that if she had spoken directly to Fau, she would have used the same or even worse words, and incessantly and loudly and no spouse should be subjected to such abuse.

[8] I asked Fau whether they were still living together and when it was that they separated, and he said that they had lived together, although they lived in separate homes, up to May of this year when he decided not to be with Toka’one any more. Toka’one did not dispute that and I am satisfied that the 31 text messages confirmed the unreasonable contact of Fau.

[9] He filed his petition for divorce on 15 June 2021.

Consideration

[10] I have to consider, and I accept, that every spouse must expect and to put up with certain things during a marriage because he/she had agreed to live together with his/her spouse as husband and wife. But that does not mean that he/she has to expect and to put up with acts which are now called domestic violence. The Family Protection Act has expressly prohibited such acts.

[11] Section 4 of that Act defines domestic violence as acts which cause physical abuse, sexual abuse or mental abuse, beyond the reasonable expectations and acceptances of family and domestic life. Section 2 defines “mental abuse” as including “verbal abuse ... and degrading, humiliating, aggressive or intimidating conduct”.

[12] Section 28 makes it an offence for a person to commit domestic violence and it is punishable with imprisonment of up to 12 months and/or fine of up to $2,000.

[13] I consider that any act which is a domestic violence under that Act is an unreasonable conduct or behavior which may constitute a ground for divorce under section 3 (1) (g) of the Divorce Act, and I am satisfied that the conduct and behavior of Toka’one is domestic violence under that Act.

[14] In the present case, I have no difficulty in finding that the conduct and behavior of Toka’one is such that Fau cannot reasonably be expected to continue to live with her.

Order

[15] I therefore make the following orders:

(a) A decree nisi is granted in respect of the marriage solemnized on 16 August 2012 between the Petitioner and the Respondent which decree shall not be made absolute until after 6 weeks from today.

(b) There be no order as to costs.

Niu J
NUKU’ALOFA: 20 August 2021. J U D G E