'Ataveifoa v 'Ataveifoa [2023] TOSC 21; FD 7 of 2023 (13 April 2023)

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

FD 7 of 2023

BETWEEN:

MOSESE TIO ‘ATAVEIFOA
Petitioner

-and-

TIULIPE SEIKATAVU ‘ATAVEIFOA (nee LE’OTA)
Respondent

RULING

BEFORE: LORD CHIEF JUSTICE WHITTEN KC

To: The Petitioner

The Respondent

Date of ruling: 13 April 2023

1. The parties to this proceeding were married on 3 March 2016. There are no children of the marriage.
2. By petition sworn and filed on 16 January 2023, the petitioner applies for divorce on the ground provided in subsection 3(1)(g) of the Divorce Act, namely, that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with her. The respondent’s behaviour is particularized as:

"The respondent spends most of her time on her mobile phone rather than spending time with me to talk about our family, things we would plan to do together and to enjoy our married life; I do not trust her spending many hours on the phone because I do not know of whoever is on the phone with her. She would get mad at me if I tried to touch her phone because I always know she's up to something. I have asked her for so many times to stop but every time I bring it up, we always have a fight.
We hardly spend time together as husband and wife. Coming home from work she will always be on the phone with someone, even holidays and weekends she was not comfortable staying at home she would try something to be always away from me and from our home.
Before we were married she had two illegitimate children. I have asked her that I want to adopt the children as our children because I have loved them as my own but she did not want me to. It was hard for me to bring up the children and try to get along with them because most of the time she did not want me to punish or yell at the children if they did something wrong. It was hard for me to try to teach them because the respondent does not want me getting angry at the children and we would end up fighting about this.
That she is deceitful, especially in relation to things here at home like money, and our credit account in the shop that I don't trust her anymore. She is also a strong-willed woman in lying. She lied in everything I had asked her we end up fighting because she is not honest with me.
That she has moved back to her family's house with all her personal belongings because we cannot tolerate to live with each other."

3. On 4 February 2023, the petition was served on the respondent. The respondent has not filed an answer to the petition within the period provided by the Divorce Rules, or at all.
4. As a result, on 16 March 2023, the petitioner requested that a Decree Nisi be issued in respect of the undefended petition.
5. In the circumstances, the matter was listed for a hearing today, during which the petitioner stated, relevantly, that:
   • (a) the respondent moved out of the family home in November 2022;
   • (b) his only contact with her since has been to discuss filing for divorce which she asked him to do;
   • (c) prior to separation, they received counselling from the respondent’s cousin and the petitioner’s father and both of whom are church ministers, but their problems were "too big";
   • (d) apart from his suspicions, he had no evidence of adultery by the respondent; and
   • (e) there is no urgency in obtaining a divorce, he just wants “to be free” of the respondent.
6. In Ata v Fa'ase'e [2011] TOCA 18, the petitioner/appellant relied on the same ground for divorce. He complained that the respondent there was a person of hard character, easily provoked and hard to pacify; repeatedly committing adultery with other men without the consent of the appellant; repeatedly drinking liquor without the knowledge of the appellant; arguing with the appellant on occasions and using abusive language in the presence of their child and the appellant's mother; arguing with the appellant on matrimonial matters and using abusive language directed toward the appellant; taking their joint property and damaging the appellant's parents' house where the respondent was residing whilst the appellant worked in Vava'u; and repeatedly trying to commit suicide.
7. The allegation of adultery was not proven. The primary judge dismissed the petition. The petitioner appealed. In dismissing the appeal, the Court of Appeal observed:

“[8] The evidence relied on by the appellant to prove the other aspects of respondent's behaviour referred to in [2] of these reasons was not, in our opinion, so overwhelmingly compelling as to have required the trial judge to accept the evidence or, additionally, to accept that it demonstrated the appellant could not reasonably be expected to live with the respondent. The reasons of the trial judge did not address this behaviour in detail. We have reviewed the evidence ourselves and the evidence does not, in our opinion, demonstrate the appellant could not be reasonably expected to live with the respondent. While the relationship between the appellant and the respondent became a troubled one in which they quarrelled, the evidence about the respondent's drinking and arguing and the other conduct the appellant complains of was not so serious as to compel the conclusion that this ground of divorce was made out. ...”

8. Similarly, in Fili v Afei [2015] TOSC 43, the parties were married in May 2012 but since November 2013, the respondent refused to live with the petitioner when he returned to Tonga from Australia where he was on a seasonal workers scheme. The respondent said that she hated the petitioner and did not want to see him again, that she did not care about him and that her family did not like him either. The petitioner said the respondent sent their daughter away to be cared for by her parents at that time and he had no chance to see her. Throughout that period, the petitioner had no contact with the respondent except in relation to getting a divorce.
9. In dismissing the petition for divorce, Paulsen LCJ held:

[4] Whilst the petitioner will have been 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 the failure of the marriage. Those are acts such as domestic violence, aggression or physical and mental abuse: Tonga v Falepapalangi [2009] Tonga L.R. 33.
[5] Any other interpretation would effectively mean that parties to a marriage would be entitled to a divorce upon separation and would deprive the grounds of divorce set out in section 3(1)(a) to (f) of the Divorce Act of any meaning. That is clearly not the law in Tonga.
[6] The Court's obligation is to apply the law and whilst there is no doubt that the marriage between these parties is over, that does not entitle the petitioner to a divorce; at least not yet. On the information before the Court the petitioner will be entitled upon the expiration of two years from separation (November 2015) to apply for a divorce on the grounds in section 3(1)(f) of the Act.”

10. In my view, the same may be said of the petitioner’s complaints about the respondent’s behaviour here. While he may well feel hurt and aggrieved by his wife’s conduct, they are not acts which could be regarded as destroying the fabric of the relationship or result in the failure of the marriage, such as domestic violence, aggression or physical and mental abuse.
11. The parties have now been separated since November 2022. Should that remain the case for another 20 months, then divorce on the grounds provided by ss 3(1)(c) of (f) – desertion / separation for a continuous period of 2 years or more - will be available.
12. Accordingly, the petition is dismissed.

NUKU’ALOFA	M. H. Whitten KC
13 April 2023	LORD CHIEF JUSTICE