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Noi v Noi [1990] PGNC 118; [1990] PNGLR 335; N923 (28 July 1990)

N923

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

NOI

V

NOI

Lae
Doherty AJ

28 July 1990

MATRIMONIAL CAUSES - Maintenance - Wife application - Adultery as bar to - Except where misconduct of husband "conduces" to - Requires conduct causing adultery - Deserted Wives and Children Act (Ch No 277), s 3(5).

The Deserted Wives and Children Act (Ch No 277), s 3(5), provides:

"An order shall not be made on the application of a wife or a person on her behalf if it is proved that she has committed adultery or is of drunken habits, unless the husband had condoned or connived at the adultery or, by his cruelty, wilful neglect or misconduct, conduced to the adultery or drunken habits."

Held

(1) For the purposes of s 3(5), misconduct which "conduces" to adultery is conduct which in itself constitutes the true cause of the adultery.

(2) Accordingly, failure by a husband to fulfil his obligations to maintain his family, his brutality over a long period and his failure to provide personal security for the wife in a work situation which left her in a vulnerable situation, was conduct conducing to the wife’s adultery.

Cases Cited

Jacob v Jacob (No 1) [1976] PNGLR 261.

Appeal

This was an appeal from a decision of a District Court magistrate ordering payments of maintenance under the Deserted Wives and Children Act (Ch No 277).

Counsel

K Gamoga, for the appellant.
S Lupalrea, for the respondent.
Cur adv vult

28 July 1990

DOHERTY AJ: The appellant appeals against a decision of the District Court in Lae ordering him to pay maintenance for his wife, the respondent Irong Noi, and three children of their marriage, Patrick Sovi Noi, Alep Stella Noi and Asap Moale Noi. There were other children of this marriage but these are the only children aged under 16 years. The order was made pursuant to the Deserted Wives and Children Act (Ch No 277) on 22 December 1989. The appeal is against both the findings of facts and the amount of the order. I have asked, when the appellant sought leave to appeal out of time and at the appeal hearing, if the appellant has complied with this order. Counsel for the appellant did not know, but counsel for the respondent informs me that he was not paying, that a warrant for his arrest for non-payment and non-compliance was issued and was subsequently set aside pending this appeal.

From the depositions before me this appears to be one of three pieces of litigation between the parties. From the depositions before me it would appear that the appellant sued the respondent for adultery and the respondent sued the appellant for adultery. These are of some relevance in this case because the appellant relies on certain findings in relation to those adultery cases. I refer to these three cases although I note that the appellant in his evidence says "she brought me to court several times".

The grounds for appeal were:

(1) The magistrate erred in law in wrongly applying the hearsay rule thereby rejecting or giving no weight to the appellant and his witnesses’ evidence.

(2) The magistrate erred in law in disregarding the conviction of the respondent for adultery by the District Court on 20 July 1989 and ordering maintenance of K100 per fortnight for her.

(3) The maintenance of K250 per fortnight for the respondent and her three children is excessive under the circumstances.

(4) The evidence before the court did not warrant a finding in favour of the respondent.

Ground (1) was abandoned and not argued. Counsel for the appellant proceeded on grounds (2) and (3). Ground (4) appears to state in the same general terms grounds (2) and (3) and was not argued separately.

EVIDENCE

The District Court sat over several days and heard several witnesses and recorded in excess of 200 pages of evidence. The complainant/respondent gave detailed evidence of the marriage, the birth of the six children, whose paternity is not disputed, and the breakdown of the marriage. The couple were, as the learned magistrate found and it was not contested, married by civil ceremony in 1968 in Port Moresby. The wife was already pregnant. They took up residence in Lae and the learned magistrate found that when the wife was some eight and a half months pregnant she complained to the husband about his absence from home, his drinking of his entire salary and his associating with another woman. As a result of these complaints the appellant assaulted the wife rendering her unconscious. She had to be hospitalised and gave birth to the child who died of internal bleeding. The learned magistrate does not state in his decision that the child’s death was directly attributable to the assault but there is such an implication.

From the evidence adduced in the District Court this appears to have set an unfortunate pattern in the marriage. The wife gave detailed evidence of the behaviour of the appellant, his association with various other women throughout the marriage (there is an allegation of other ex-nuptial children), his drunkenness, his assaults on her, her attempted suicide, separations and coming together — what the learned magistrate referred to in his reasons for decision as "an ongoing process". The wife stated "when Bill (the appellant) came home after a night out there is always quarelling and fighting". The learned magistrate concluded that "the family life was destructive".

Having gone through the evidence and that of the witnesses called by the respondent I have no reason to find that the learned magistrate erred in his conclusions. It appears that the respondent did not dispute them either — either by way of evidence or cross-examination and his counsel, in submissions in this Court, refers to the marriage as being "stormy" and an "unhappy relationship".

The appellant’s evidence in chief in the District Court instead says that he did not desert his wife, that there were quarrels and good times. His evidence only concentrates in detail in the period from 1988.

During 1986-1987, after Mr Noi had been terminated from his employment, the respondent and the appellant started a business, Morobe Security Services, (hereinafter MSS) using a loan from the bank. The wife, the respondent, worked for the business and was named as a director. It is not clear if she has shares or the exact legal status of the business.

In the evidence she states that the company was a security company and as such supplied guards to private residences and other establishments in the evenings and through the night. Part of the duties of the company management was to check regularly that the guards were in position and fulfilling their functions. She says that the appellant did not fulfil these duties as the managing director and he failed to check the guards and she was therefore obliged to do so. She refers to him as being drunk and as attending meetings regularly of the Papua New Guinea Rugby League (PNGRL) and hence she was obliged to go and fulfil the duties of checking herself. The appellant says "I recall going to Port Moresby four times for PNGRL". "During 1988 was a very heavy year for PNGRL and I don’t know exactly which dates and times I have to travel to the highlands." He would appear to confirm his absence and his failure to check the guards. The respondent says that she was concerned for her own safety and was accompanied by the operations manager, Moke Kumne. This is the person with whom the appellant alleges the respondent committed adultery. The appellant sued the respondent and on 20 July 1989 the local court at Lae found them "guilty of the offence" and ordered payment of K300 compensation. Adultery ceased to be "an offence", viz, a criminal offence with the introduction of the Adultery and Enticement Act (1988) and a record of "guilty" is not a proper one. The respondent strenuously denied an adulterous affair and the respondent appealed against the decision but that appeal was never prosecuted and does not appear to have reached the National Court list.

I note, because I consider it very relevant, that the respondent says that the appellant had indulged in various adulterous affairs throughout this marriage and he has not rebutted that. However he makes only this one allegation against the respondent. In fact he says "I always trust her" (sic). There is no suggestion by him or his witnesses that she had any other relationship outside the marriage, that she fought or was cruel to the appellant or in any other way neglected the family home.

As I have mentioned the respondent denies the adulterous relationship with Moke Kumne and stressed instead the need of security whilst she was checking guards late at night. The learned magistrate in the case before me was not at all impressed with the evidence of the appellant in regard to the adulterous affair. He said "it is all hearsay" and "it is mainly based on his witnesses especially his employees appear to me to be prefabricated" (sic). The learned magistrate said that he considered there was only evidence of "only driving around" to check security guards. Counsel for the appellant says in his submission, and that it was adduced in evidence, that the two lived together in Chimbu and that there was evidence of them travelling together to the highlands and Wau.

The fact remains that the finding of a lower court was that the respondent had committed adultery and that finding of facts remains. It would appear, though it is not entirely clear, that the action was brought under the Adultery and Enticement Act 1988.

The Evidence Act (Ch No 48) provides at s 45 that a conviction by a court of a person found guilty of an offence may be proved by:

(a) producing a certificate containing the substance of the conviction purporting to be signed by the officer having the custody of the records of the courts; and

(b) showing the person whose conviction is to sought to be proved is identical with the person named in the certificate.

(c) it is not necessary to prove a signature of the officer referred to in (a) or his official position or the truth of a statement made by him.

Section 44 of the Evidence Act (Ch No 48) provides:

"Evidence of:

(a) a judgment, decree, rule, order or other judicial proceeding of:

(i) a court of Papua New Guinea, the High Court or a Federal Court of Australia or a court of a State or Territory of Australia; or

(ii) a Judge, justice or magistrate of any such court, or

(b) an affidavit, pleading or legal document filed or deposited in any such court,

may be given in a court by the production of a document purporting to be a copy of it, and

(c) proved to be an examined copy of it; or

(d) purporting to be sealed with the seal of the court; or

(e) purporting to be certified as a true copy by a registrar or chief officer of the court."

There appears to be no certificate of conviction nor a certified copy of an order before the court in compliance with the Evidence Act (Ch No 48) relating to the finding of adultery and the order for compensation in the depositions. There is a copy of the District Court work sheet written by the learned magistrate who heard the adultery proceedings. Whether this was properly presented to the court or not is not recorded. The appellant was not represented in the lower court but the respondent was and there is no record of any objection being raised to the introduction of that evidence. Without making a ruling as to the legality of the information before the learned magistrate I accept that it was within his knowledge that the respondent had been ordered to pay compensation in accordance with the Adultery and Enticement Act and that that order still stood, despite, (as the learned magistrate stated), it was "pending appeal anyway". An order of the court remains in force until it is quashed or changed on appeal or set aside by some judicial process.

I do agree, however, with the learned magistrate that this is a clear case of constructive desertion and in this I disagree with the arguments of counsel for the appellant that the respondent merely left. I do not think that any woman should expect to put up with 20 years of brutality such as is described in the evidence nor should she be expected cheerfully to accept the liaisons with other women, albeit I cannot make any clear finding as to the number of those liaisons.

Counsel for the appellant further says that once adultery is proved then this is a bar to any maintenance for the respondent.

He refers here, I presume, to the provisions of s 3(5) of the Deserted Wives and Children Act (Ch No 277). This provides:

"An order shall not be made on the application of a wife or a person on her behalf if it is proved that she has committed adultery or is of drunken habits, unless the husband has condoned or connived at the adultery or, by his cruelty, wilful neglect or misconduct, conduced to the adultery or drunken habits."

I have not been referred to any precedents in the Papua New Guinea Law Reports relating to the application of this section and I have been unable to find a ruling on what constitutes misconduct conducing adultery. Nor have I been able to find any reference in the works of Messrs Jessop and Lulugai Principles of Family Laws of Papua New Guinea. They refer at par 4.21 to s 11(5) of the Deserted Wives and Children Act and the provisions of that section if adultery is committed after the date of the order.

There are similar provisions in other jurisdictions. Halsbury’s Laws of England (4th ed, 1975), Vol 13, par 1318 notes that originally at common law any adultery would disbar a spouse from claiming for maintenance. However, clearly this is now a statutory provision and the common law precedents are not binding on this Court. However I consider, with respect, the statement in Halsbury, Vol 13, par 1318 — "misconduct conducing to adultery or desertion is conduct which in itself constitutes the true cause of the adultery or desertion" — as an appropriate definition of misconduct conducing and one which would be applicable in a situation such as the case before me. Fogarty on Maintenance, Custody and Adoption, at 44, refers to a husband raising a defence of adultery at the hearing of a claim by a wife for maintenance even though he is not taking proceedings for divorce against her on this ground. The learned writer goes on to allude briefly to the statutory provisions that this will not apply where there is conduct conducing that adultery but does not give precedents or examples of what has been held to amount to "conduct conducing".

I consider on the facts before me that the appellant’s failure to fulfil his obligations to maintain his family, and his brutality towards the respondent as conduct conducing to adultery. I further consider that the failure to do his company work by being absent, by not checking guards so that the respondent was obliged to fulfil this duty and then failing to provide some form of security to the wife as soon as she was obliged to go and make the checks by herself at night was conduct and neglect conducing to her being alone with Moke Kumne and was conduct or neglect conducing to adultery with Moke Kumne. Hence while there may have been adultery it does not constitute a bar to a claim for maintenance and I do not uphold the a on this ground. I find that the appellant’s own conduct precludes him from raising adultery as a bar to maintenance.

GROUND THREE

From the records before me it would appear that the learned magistrate did not take into consideration the earnings of the respondent wife. She had been "sacked" by the appellant; how he could sack a fellow director is not clear particularly as she was a contributor and a shareholder to the business, but she was dismissed and was obliged to leave. It is not clear if she was working at the time of the proceedings and what was her income, if any. The provisions of the Deserted Wives and Children Act in relation to the wife’s earnings and the assessment for maintenance has been fully considered in Jacobs v Jacobs (No 1) [1976] PNGLR 261 and the ruling was that a wife’s earnings should be considered in assessing the amount of maintenance to be awarded to the wife. I consider that the learned magistrate should have enquired into income and outgoings of both parties.

The earnings or the income of the appellant is not clearly ascertainable from the record. There is a reference to him earning between K12,000 and K15,000. It is not clear if this is per month. There is also reference to him earning "ten", apparently this was K10,000 per month, according to counsel for the respondent although this is not clearly recorded in the depositions. Mr Gamoga says that this is not in the depositions at all but I note figures are recorded in the District Court worksheets. However I am not altogether clear on the information before me whether this was clear income of the company, turnover or personal income. The learned magistrate was obliged to fix a sum for maintenance and from lack of definite information appears to have fixed the sum he did. It has not been suggested that the appellant does not earn any cash income, it is the amount that is in dispute.

I think that more information should have been called on as to the appellant’s means and the respondent’s earnings, if any, and their respective expenses. I consider the learned magistrate erred in not calling for further evidence and I therefore uphold ground three of the appeal and I order that the appellant give a full statement of his income and earnings. I will remit the matter for hearing of that evidence together with the evidence of the respondent’s income in accordance with the ruling in Jacobs v Jacobs (No 1) [1976] PNGLR 261.

However I make such an order subject to a condition in accordance with s 230 of the District Courts Act (Ch No 40) that the appellant pay maintenance in respect of his wife and family. In view of the evidence that he had earnings I set this at K40 for each child per fortnight and K30 for the wife and order that the appellant pay the respondent and the children of the marriage maintenance in the sum of K150 per fortnight with effect from the date of the District Court decision.

Payment is to be made by 25 September 1990. This matter is adjourned to 25 September 1990. Both parties are at liberty to apply before that date. There being no appeal against the other orders of the learned magistrate in relation to custody, school fees and costs I make no comment or order in relation to them.

____________________

Lawyers for the appellant: Warner Shand.
Lawyers for the respondent: Simon Lupalrea & Co.