N3060

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

MC NO. 04 OF 2005

BETWEEN:

FRANK DONALD MILLS
Petitioner

AND:

JANE SHAMBY MILLS
Respondent

Waigani: Davani, J
2005: 30 December
2006:	 5 January

FAMILY LAW – dissolution of marriage – cruelty as a ground for divorce.

FAMILY LAW – Discretion Statement filed – application to inspect Discretion Statement – Court has discretion but only to be exercised at trial of suit or at hearing of application for custody of children – s. 163(1) (a) (b) of Matrimonial Causes Rules Chap. 282.

Cases cited:
Nestor v Nestor (1965) 6 FLR 394; 
Wagner v. Wagner (1965) 6 FLR 446; 
Graham v Graham (1966) 8 FLR 90; 
Hadjer v Hadjer and Saddler (No. 3143 of 1966);
Hawkins v Hawkins (1966) 8 FLR 92; 
Jarvis v Jarvis (1966) 8 FLR 87; 
Tuck v Tuck (1966) 8 FLR 80; 
Carmen v. Carmen and others [1966-1967] 9 FLR 200;

Text and Legislation cited:
P.E Joske Matrimonial Causes and Marriage Law and Practice of Australia and New Zealand (1969) 5th Edn.
Matrimonial Causes Act 1959 – 65 (Cth)

Counsel:
B. Frizzel, for the petitioner
M. Age, for the respondent/applicant

5 January 2006

RULING

1. Davani .J:	Before me is Amended application to court filed on 29 November, 2005 by Saulep Lawyers. The amended application seeks the following orders:

"1.	An order pursuant to s. 98 (1) of the Matrimonial Causes Act that the petition of the petitioner be dismissed as frivolous and/or vexatious;
2.	In the alternative, AN ORDER pursuant to Section. 163 (1) (a) and (2) of the Matrimonial Causes Rules that the discretion statement filed by the petitioner in these proceedings be produced for inspection by the respondent and that the respondent be granted leave to inspect the said discretion statement;
3.	Costs."

2. The respondent’s application is supported by her affidavit sworn on 5 May, 2005 and filed on 27 May, 2005.

3. The application is opposed by the petitioner who relies on his verified amended Petition.

Background

4. The Petition for Dissolution of Marriage and Notice of Petition were filed on 10 February, 2005. The ground for dissolution of marriage is that of cruelty, available under s.17(d) of the Matrimonial Causes Act (the MCA). Together with those documents, the petitioner filed a Discretion Statement. 

5. According to the petition, the both parties were married in the District Registry Office Cairns, Queensland on 18 March, 1998. Two (2) children were born to this marriage on 11 July, 2001 and 16 January, 2004. 

6. On 12 December, 2005, the petitioner filed an Amended petition pleading that the acts of cruelty occurred prior to June, 2003. 

7. The orders sought in the Amended petition are;

(a)	A decree of dissolution of marriage on the ground of cruelty;
(b)	An order sanctioning agreement between the petitioner and the respondent in respect of Section 73, 74 and 75 of the Act;
(c)	Other ancillary relief in the event agreement is not sanctioned.

The application 

8. On hearing Mrs. Age’s submissions in relation to paragraph 1 of the amended application, that the petition be dismissed because it was frivolous and vexatious, I ruled that I would refuse that application because the ground of cruelty is specifically provided for under s.17(d) of the Matrimonial Causes Act (the MCA) and is a matter that must be proven at trial. Mrs. Age submitted that such acts of cruelty had never occurred and relied on the respondent’s affidavit which deposes and denies cruelty to the petitioner. The petitioner’s verified amended petition pleads cruelty. This demonstrated to the court that these were arguable issues of fact and that the matter must go to trial. 

9. Mrs. Age then proceeded to move her application in relation to paragraph 2 of her amended application, that the respondent be granted leave to inspect the filed discretion statement. She abandoned ground 3 in the amended application. I reserved to rule on that aspect of the application.

10. Mrs. Age submitted that the respondent should be given leave to inspect the Discretion Statement because she (respondent) does not know of any acts of adultery by the petitioner and that if the petitioner had indeed committed adultery, that she should be made privy to that information, to then enable her to file a cross-petition. Incidentally, Mrs. Age did not make any submissions in relation to s.163(2) of the MCR. Her focus was only on s.163 of the MCR and the court’s ruling is based on these submissions.

11. Mrs. Age has also not put before the court any authorities that may assist the court in its deliberations.

12. The application is made pursuant to s.163 (1) (a) of the Matrimonial Causes Rules (the MCR). I set out in full s.163 of the MCR. It reads;

"163.	Disclosure of discretion statement

(1)	Where the court thinks it proper in the circumstances of the particular case, it may require a discretion statement filed by a party to a suit to be tendered in evidence, read out in open Court or produced for inspection by another party to the suit:-
(a)	at any stage of the trial of the suit; or
(b)	at any stage of the hearing of proceedings with respect to the custody of a child of the marriage to which the suit relates.
(2)	Except as provided in subsection (1), a discretion statement is not open to inspection, without the leave of the court, by a person other than the Principal Legal Adviser or a person authorized in writing by the Principal Legal Adviser to inspect the discretion statement.
(3)	An authorization by the Principal Legal Adviser under subsection (2) may be either general or in relation to a particular suit or class of suits.
(4)	In Subsections (2) and (3), references to the Principal Legal Adviser shall be read as including references to a person to whom the Principal Legal Adviser, by a delegation that is in force, has delegated all or any of his powers and functions under Part VI. Of the Act."

13. The court must give leave before a Discretion Statement can be tendered into evidence and read out in open court or produced for inspection.

14. The application for leave for disclosure of discretion statement can be made at any stage of the trial of the suit or at any stage of hearing of the proceedings with respect to custody of a child of the marriage to which the suit relates. (my emphasis). In this case, application under the former category is before me.

15. Has the application been brought at the right time? In relation to s.163(1)(a) of the MCR, the petitioner brought the application before filing an Answer to the amended petition. The matter is not even ready for trial. Section 163 (1) (a) is very clear that the application for leave should be made when the matter is being tried or to be precise, the matter is before a judge, at trial. I say this because the MCR provides for the hearing of two (2) types of petitions. There is the undefended petition and the defended petition. The undefended petition proceeds as an undefended suit and this is done by compliance with s.170 of the MCR. The defended suit proceeds under s.171 – 177 of the MCR. If the matter was proceeding as an undefended suit, then in all likelihood, the respondent would not be making this request to the court. But in this case, the court at this time, does not know of the respondent’s intentions, whether she intends to defend the petition or whether the petition will be unopposed. 

16. Both counsel have not submitted on that aspect, i.e as to whether a party can make such an application now before me, before commencement of trial. To assist me, I have had recourse to the Federal Law Reports of Australia, the case of Carmen v. Carmen and others [1966-1967] 9 FLR 200. In that case, Mitchell .J considered an application by the petitioner who requested that the respondent disclose to her the contents of his Discretion Statement. The application was made under r.164 (2) of the Matrimonial Causes Act 1959 – 1965 (Cth) for leave to the petitioner to inspect the Discretion Statement filed by the respondent.

17. Rule 164 of that Act is in identical terms to s.163 of the MCR It reads;

"(1)	The court may, if it considers it proper so to do in the circumstances of the particular case, require a Discretion Statement filed by a party to a suit to be tendered in evidence, read out in open court or produced for inspection by another party to the suite –

(a)	at any stage of the trial of the suit; or
(b)	at any stage of the hearing of proceedings with respect to the custody of a child of the marriage to which the suit relates.

(2)	Except as provided in the last proceedings – rule, a Discretion Statement is not open to inspection by a person other than the Attorney-General, or a person authorized in writing by the Attorney-General to inspect the Discretion Statement, without the leave of the court.

(3)	An authorization by the Attorney-General under the last proceedings – rule may be either general or in relation to a particular suit or class of suits.

In the last two preceding sub-rules, references to the Attorney-General shall be read as including references to a person to whom the Attorney-General has, by a delegation that is in force, delegated all or any of his powers and functions under part VII of the Act."

18. In that case, the questions put before the trial judge by the Master (or Registrar), were the following;

"1.	Is there vested in the court by virtue of r.164 of the Matrimonial Causes Rules or otherwise a power or discretion, exercisable in appropriate circumstances, to make on application prior to trial an order permitting a party to a suit (not being authorized by the Attorney-General as in the rule referred to) to inspect a Discretion Statement filed by another party?

2.	If such a discretion exists, is it in the circumstances of the present application proper to exercise the same in favour of the applicant?"

19. I consider the questions posed in that court to be relevant to this case and adopt them with a few modifications that are appropriate under the circumstances i.e in place of Attorney-General, to insert therein, Principal Legal Adviser.

20. In relation to the first question, Mitchell .J referred to six (6) cases that were considered by the New South Wales Supreme Court, wherein applications were made under r.164. These cases have since been published in the Federal Law Reports and are Wagner v. Wagner (1965) 6 FLR 446; Nestor v Nestor (1965) 6 FLR 394; Tuck v Tuck (1966) 8 FLR 80; Jarvis v Jarvis (1966) 8 FLR 87; Graham v Graham (1966) 8 FLR 90; Hawkins v Hawkins (1966) 8 FLR 92. His Honour noted that in Wagner (supra) the application was made at the trial and therefore was properly made under r.164 (1). He noted that in none of the other suits until Hawkins (supra) was the power of court to make an order in favour of a party pursuant to r.164 (2), disputed.

21. The Master had heard similar applications (under r.164 (2)) in other matters and supplied to the learned judge, a copy of one such decision, that of Hadjer v Hadjer and Saddler (No. 3143 of 1966). But this issue that is now before me, was not taken in that case, that the power of the court to order that a Discretion Statement be produced for inspection by a party to the suit, is limited to cases falling within the ambit of r.164 (1); and that r.164 (2) does not enable the court to order inspection by a party to the suit. This issue was first considered and decided in Hawkins (supra) where Jenkyn .J held that the court had no power under r.164 (2) to allow inspection by a party to a suit of a Discretion Statement filed by another party to the suit.

22. In Carmen (supra), Mitchell .J considered the history of Discretion Statements in England and which are discussed in great detail in Hawkins (supra). Mitchell .J having considered all materials, then concluded that;

"There is no doubt that the practice of the court requiring a party seeking the exercise of the discretion to disclose to the court the acts of adultery in respect of which he sought the court’s discretion, which practice became crystallized in Rules of Court in England and in the various States of Australia, was designed to ensure a full and proper disclosure was made to the court, and not to supply evidence of adultery to the opposite party." (pg. 203)

23. His Honour further held;

"Nevertheless, if it was intended by r.164 to give the court a discretion to require the Discretion Statement to be produced for inspection by another party to the suit at any time, the limitation contained in sub-rule (1) to the time of the trial of the suit, or the hearing of an application for custody, would be unnecessary." (pg. 204)

24. His Honour’s answer basically to the first question was that the power of the court to permit a party to a suit to inspect a Discretion Statement is limited to the period set forth in r.164 (1), namely at any stage of the trial of the suit or at any stage of the hearing of proceedings with respect to the custody of a child of the marriage to which the suit relates.

25. Furthermore, in this jurisdiction, there are other provisions in the MCR which suggest that this application is premature. These are;

- Section 159 of the MCR. It reads; 

"159.	Discretion statements

(1)	a petitioner or respondent in any proceedings –
(a)	who is seeking a decree of dissolution of marriage on a ground specified in Section 17 (a) to (m) of the Act or a decree of judicial separation on a ground specified in Section 17 (a) to (l) of the Act; and
(b)	who has committed adultery since the marriage,
shall file a discretion statement.

(2)	The discretion statement shall be filed –
(a)	if the adultery was committed before the filing of the petition or answer, as the case may be, by which the proceedings for the decree are instituted – at the time when the petition or answer is filed; or
(b)	if the adultery was committed after the filing of the petition or answer but before the trial of the proceedings – as soon as practicable after committing the adultery."

26. This provision is specific in that the petitioner can file a Discretion Statement whether he relies on the act of adultery or not, for the divorce.

- Section 37 of the MCR. It reads;

"37.	Discretion statement where petitioner committed adultery

Where a petitioner for a decree of dissolution of marriage on a ground specified in Section 17 (a) to (m) of the Act, has committed adultery since the marriage but before the filing of his petition, his petition shall state that the Court will be asked to make the decree notwithstanding the facts and circumstances set out in his discretion statement."

27. That section is also specific in that the court will be asked to make a decree of dissolution of marriage notwithstanding the matters set out in the Discretion Statement.

28. Thirdly, the petitioner has complied with the provisions of the MCA and MCR in filing the Discretion Statement. The respondent however, apart from prematurely filing this application, has also asked that the petition be read because she wishes to file a cross-petition. But that again, contradicts Mrs. Age’s earlier submissions. Mrs. Age relies on the respondent’s affidavit, which deposes her denial of the allegations of cruelty by her and that the petitioner should not proceed with the divorce but that the parties receive professional counselling "as a step toward addressing our marital problems" (see par. 14 of affidavit). She deposes further "par 15 – the petitioner and I have not made any attempts at reconciliation and I believe there is still room for reconciliation in this marriage."

29. She has attached to her affidavit her letter dated 2 May, 2005 addressed to the National Court which states at the third paragraph "I also don’t believe the overloaded judicial system of PNG should waste any more of its precious time on this matter. The petition should be thrown out and the petitioner and the respondent should be encouraged to work on the relationship and give it another chance for the sake of themselves, their children and for what it is worth, the institution of marriage in this developing Christian nation. Families with no real reason for divorce must not be encouraged to break up by the courts etc."

30. This tells me that the respondent does not wish that the petitioner proceed with his petition for dissolution of marriage. Under these circumstances, she should avail to herself the processes under the MCA and MCR, to oppose the petition. But she has so far not demonstrated that. Her actions in requesting a disclosure of the petitioner’s Discretion Statement for her viewing, and to rely on it to file a cross-petition relying on the ground of adultery, suggests to me that she also wants a divorce, thereby contradicting herself.

31. Mr. Frizzel also made submissions on the law. He referred the court to P.E. Joske’s Matrimonial Causes and Marriage Law and Practice, 5th Edn. pg. 524 which states;:

"The object of the discretion statement is to secure full and frank disclosure to the court and not to afford evidence of adultery for the benefit of the opposing party."

Joske states again at par. 10.25 that:

"The court may, if it considers it proper, require a discretion statement to be tendered in evidence or produced for inspection by another party to the suit at the trial thereof or on the hearing of the custody proceedings (see Powell v. Powell (1967) 10SLR 19; Per Toldi v. Per Toldi (1966), 11 FLR 53) but there is some question as to whether there is power to make an order for disclosure of the statement prior to the hearing of the suit Hawkins v Hawkins [1966] 1 NSWR 156; (1966) 8FLR 92; Carmen v Carman (1966) 9 FLR 200) although such orders have been made in special circumstances (see Graham v Graham [1966] 1NSWR 132)."

32. In Graham v Graham (supra) Selby .J in the Supreme Court of New South Wales heard an application where, on the matter proceeding to hearing as a undefended suit, the respondent sought leave to file his Answer out of time and also again for leave to inspect the Discretion Statement.

33. The court held, that although, when hearing a suit based on the ground of cruelty, it (the court) is obliged to examine the whole history of the marriage and in most cases the adultery of one of the parties would be a significant event in that history, the general scheme of the rules requires that aspect to remain secret until the hearing. The Supreme Court of New South Wales made it clear that the contents of the Discretion Statement should only be disclosed in special circumstances.

34. In that case, the petitioner admitted that it was she who left home following an adulterous association. The respondent/applicant submitted that if the wife’s petition fails, he would have a good ground for a petition based on his wife’s admitted adultery and that he should now be given the opportunity to raise that ground in a cross-petition. The applicant’s lawyer submitted that the disclosure may lead to a full investigation by the respondent and may bring to light further undisclosed adultery by the petitioner. Justice Selby held this;

"Most of these arguments apply to every case in which petitioners file discretion statements, but the rules make it clear that such statements are not to be indiscriminately available for inspection. The rules are silent as to the circumstances in which inspection may be allowed. They do not even give an expressed power to the court to order disclosure before the hearing except in proceedings for custody." 

35. The power to order inspection of Discretion Statements, is discretionary, but will only occur during the trial of the suit or on the hearing of proceedings with respect to the custody of a child or children of the marriage.

36. Of course, there is also the power to intervene by the Principal Legal Adviser or his nominee and that process is set out in Part VI of the MCA (see s. 163 (2), (3) (4) of MCR). But that issue is not before me for determination. 

Conclusion

37. Having already found that the applicant’s application is pre-mature, I further find that it is also an abuse of the court’s process. The respondent shall also pay the petitioner’s costs of the application.

The court’s formal orders are;

1.	The amended application filed by Saulep Lawyers on 29 November, 2005 is dismissed;

2.	The respondent shall pay the petitioner’s costs of the application.

_______________________________________________________________________
Warner Shand Lawyers: Lawyer for the petitioner
Saulep Lawyers: Lawyer for the respondent/applicant