On 27 June 1996 the Hon. Chief Justice granted a stay of the Orders appealed against ransferred the appeal to Suva. The petition was
based on thon the two grounds of cruelty and adultery and there was an answer based on adultery which did not however seek the dissolution
of the marriage. At the conclusion of the hearing which lasted three full days of evidence the Resident Magistrate delivered a lengthy
judgment which is to be found set out at pages 281 to 317 of the record.
The Resident Magistrate correctly defined cruelty for the purposes ofion 14 (d) of the Matrimonial Causes Act (Cap 51) as being conduct of such a character as t as to have caused danger to life, limb or health (bodily or mental) or as to give
rise to a reasonable apprehension of such danger (see Russell v Russell [1897] UKLawRpAC 31; [1897] AC 395, 467; Gollins v Gollins [1963] UKHL 5; [1963] 2 All ER 966; [1963] 3 WLR 176 and Williams v Williams [1963] 2 All ER 994; [1963] 3 WLR 215). He then made two very important findings of fact. The first was that there was no sufficient evidence to satisfy him that there was,
as a result of the Respondent's behaviour, any danger to the Petitioner's health. The second was that insofar as the Respondent had
in fact misbehaved such misbehaviour had (apart from earlier isolated incidents) only commenced following and as a result of the
petitioner's association with the party cited; in other words that it was provoked. A spouse who provokes behaviour which bears a
reasonable relationship to the provocation offered is of course not entitled to relief (see e.g. Cloborn v Cloborn (1630) Het 149 and Best v Best (1823) 1 Add 411).
As to the allegation of adultery the Resident Magistrate was required to find himself satisfied that the Petitioner had prthat the
Respondent had hadd had consensual sexual intercourse with the Co-Respondent during the subsistence of the marriage. Having heard
the Petitioner and his witnesses he pronounced himself unsatisfied as to the truth of the account given by them and further went
on to say that even if he had believed their account then he did not find that it amounted to proof of adultery.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Having read the evidence and closely examined the Resident Magistrate's Judgment I t satisfied there was any significant error in
his approachroach or findings. He obviously took the view that the Petitioner was himself in all probability guilty of adultery,
"wanted to get out of the marriage as quickly as he could" (see paragraph 8 of the Petition) and had, by process of exaggeration
and invention concocted the case against an all but blameless wife and mother of 10 years standing. In my view there is nothing to
show that the Resident Magistrate misdirected himself in reaching this conclusion.
It is hardly necessary to refer to Powell v Streatham Manor ng Home [1935] AC 243 and Benmax v Austin Motor Co [1955] 1 All ER 326 to emphasmphasise that an appellate Court is extremely reluctant to reverse findings of fact in the absence of mistaken inferences.
I can find no significant mistaken inferences in the Resident Magistrate's Judgment on the questions of cruelty or adultery. The
appeal against the dismissal of the petition must fail.
The remaining matters are maintenance and property settlement. Hehave to say, with respect, that I find that the Resident Magistrate
erred in his approach. ach. He was not helped by counsel who singularly failed to place before him in a systematic and comprehensible
way the relevant facts and matters required before he could deliver a properly founded decision on these questions. In their absence
the Resident Magistrate (page 16 of his Judgment) began his assessment of the amount of maintenance to be paid by preparing a schedule
(page 319 of the record) which contained material which was not adduced in evidence but which he apparently devised himself. Mr.
Maharaj conceded that the evidential origin of the schedule could not be established. I am satisfied that in basing his calculation
on this schedule the Resident Magistrate erred and that consequently neither the maintenance nor the related property settlement
award can stand. Both are set aside. Rather than refer the matter back to the Magistrates' Court for reassessment these matters can
conveniently be considered in this Court. I have already awarded interim maintenance of $25 per week per child i.e. $200 a month.
Following delivery of this Judgment I will give further directions for the hearing of these Applications including directions for
the filing of affidavits of means.
M.D. Scott
JUDGE
5 December 1996
Hba0010j.96s
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