N5726

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MC NO 20 OF 2013

FABIANA JENJET PONTING
Petitioner

V

DEREK RICHARD PONTING
Respondent

Madang: Cannings J
2014: 16 May, 27 June, 15 September

FAMILY LAW – petition for dissolution of marriage – grounds of dissolution: cruelty, separation – Matrimonial Causes Act, Sections 17(d), (m) – ancillary relief sought re custody and welfare of children of marriage – settlement of property

The petitioner filed a petition for dissolution of her marriage to the respondent on two grounds, cruelty and separation. She also sought orders relating to custody and access in respect of the two children of the marriage and maintenance and settlement of matrimonial property. The respondent opposed all relief sought in the petition, admitting that marital relations had been strained but denying the existence of both grounds of dissolution and arguing that there was still a reasonable prospect of reconciliation.

Held:

(1)	To prove cruelty as a ground of dissolution under Section 17(d) of the Matrimonial Causes Act the petitioner must prove (i) the respondent has habitually been guilty of cruelty to the petitioner (ii) during a period of not less than one year, since the marriage.

(2)	To prove separation as a ground of dissolution of marriage under Section 17(m) the petitioner must prove (i) the parties have separated and (ii) they have lived separately and apart for a continuous period of not less than five years immediately preceding the date of the petition and (iii) there is no reasonable likelihood of cohabitation being resumed.

(3)	There was insufficient evidence for the Court to be reasonably satisfied of the existence of the ground of cruelty. The evidence, though suggestive of improper and violent behaviour by the respondent, fell short of establishing that he was guilty of habitual cruelty or that it had been committed during any particular one-year period. The ground of dissolution under Section 17(d) was not proven.

(4)	The parties had lived separately and apart for less than five years immediately before the date of the petition, so the ground of dissolution under Section 17(m) was not proven.

(5)	Obiter dictum: the petitioner had not condoned or connived at the ground of cruelty, nor was she guilty of collusion with intent to cause a perversion of justice, so if a ground of dissolution had been made out, there was no reason under Sections 27 or 28 of the Matrimonial Causes Act to refuse to make a decree of dissolution; further, though there was evidence suggesting that the petitioner had committed adultery and been guilty of cruelty to the respondent, these would not have been regarded as sufficient reasons for the Court to under Section 29 of the Matrimonial Causes Act refuse to make a decree of dissolution.

(6)	As neither ground of dissolution had been made out the part of the petition seeking a decree nisi of dissolution of marriage under Section 58 of the Matrimonial Causes Act was dismissed.

(7)	The question of whether other relief should be granted, in particular orders relating to custody and access and maintenance, was referred to mediation, having regard to Section 78 of the Matrimonial Causes Act, which provides that when the petition for the principal relief (dissolution) has been dismissed, the Court may make orders under Part VII other than for settlement of property.

(8)	Summing up: the petition for dissolution of marriage was dismissed; the petition for custody, access and maintenance was referred to mediation.

Cases cited

The following cases are cited in the judgment:

Brennan v Brennan [1973] PNGLR 372
Kiruhia v Kiruhia [1992] PNGLR 30

PETITION

This was a petition for dissolution of marriage and orders regarding custody and access in respect of children of the marriage, maintenance and settlement of matrimonial property.

Counsel

M S Wagambie, for the Petitioner
B B Wak, for the Respondent

15th September, 2014 

1. CANNINGS J: The petitioner, Fabiana Jenjet Ponting, has filed a petition for dissolution of her marriage to the respondent, Derek Richard Ponting, on two grounds, cruelty and separation. She also seeks orders relating to:

•	custody and access in respect of the two children of the marriage,

•	maintenance of herself and the children, and

•	settlement of matrimonial property.

2. The respondent opposes all relief sought in the petition. He admits that marital relations have been strained for some time but denies the existence of both grounds of dissolution and argues that there is still a reasonable prospect of reconciliation. A trial has been conducted and this is the Court's ruling on the petition.

UNDISPUTED FACTS

3. A number of undisputed facts have emerged from the evidence:

•	The petitioner and the respondent were married in accordance with the Marriage Act Chapter No 280 on 22 November 2003 at the Holy Spirit Roman Catholic Cathedral, Madang.

•	The petitioner is a PNG citizen. Her date of birth is 28 September 1977. Her present age is 37 years. The respondent is an Australian citizen. His date of birth is 25 July 1949. His present age is 65 years.

•	The petitioner and the respondent met in Madang in 2000 and formed a relationship and commenced living together. The respondent was at the time manager of Brian Bell & Co store, Madang. In 2001 he was transferred to Lae and the petitioner went with him and they lived together in Lae. They moved back to Madang in 2003. The respondent continued to be employed by Brian Bell & Co.

•	There are two children of the marriage, a girl and a boy. The girl, T, date of birth 15 March 2003, is presently aged 11 years. The boy, R, date of birth 5 April 2005, is presently aged nine years. Both children have Australian citizenship, by descent.

•	In 2006 a residential property in Coronation Drive Madang was purchased, apparently in the name of the respondent, using funds substantially provided by him. It became the site of the family home. The property was big enough to be also the site of a guesthouse, consisting of four rooms and two self-contained units, which the parties established as a business, to be run largely by the petitioner.

•	The marriage was initially stable and happy. However, marital disharmony gradually developed and increased to a point where in 2011 it was decided, mutually it appears, that the parties would live separately and apart in the Coronation Drive property. They have not lived together since then.

•	Since their separation in 2011, the parties have shared primary custody of the children. The girl, T, lives with the respondent. The boy, R, lives with the petitioner.

•	Each party has at various times made allegations of adultery against the other. In 2012 the respondent commenced proceedings under the Adultery and Enticement Act against the petitioner in the Madang District Court, alleging adultery with an Australian man, JM; those proceedings were dismissed for want of prosecution.

•	During 2013 the respondent attempted to reconcile with the petitioner, with the assistance of a Catholic Priest. The attempt was unsuccessful, as the petitioner did not appear to be interested.

ISSUES

4. The principal relief sought by the petitioner is a decree of dissolution of marriage. To be eligible for such a decree the Court must, in accordance with Section 80 (standard of proof) of the Matrimonial Causes Act be "reasonably satisfied" of the existence of one or more of the grounds set out in Section 17 (grounds for dissolution of marriage) of the Act.

5. If the Court is so satisfied, making a decree of dissolution is not, however, automatic. Consideration must be given to whether there is some reason the Court should refuse to make a decree, for example, where:

•	there is a reasonable possibility of reconciliation (Section 10 (reconciliation));

•	the petitioner has condoned or connived at the ground of dissolution (Section 27 (Condonation or connivance));

•	the petitioner is guilty of collusion (Section 28 (collusion));

•	the petitioner has committed adultery or been guilty of cruelty to the respondent or committed one of the other 'discretionary bars' to relief provided for by Section 29 (discretionary bars) and Section 25(4) (separation).

6. If the Court, after considering those matters, decides to make a decree of dissolution of the marriage, a decree nisi will in the first instance be granted under Section 58 (decree nisi in first instance). A decree absolute will only be granted in accordance with the conditions set by Section 59 (decree absolute where children under 16 etc) and the timeframe set by Section 60 (time of decree absolute). If neither of the grounds of dissolution is made out the Court will refuse to make a decree nisi.

7. Irrespective of whether the Court makes a decree of dissolution of marriage, the question will arise whether to grant the other relief sought in the petition and on what terms. Dissolution of the marriage is regarded as the principal relief being sought, but if it is refused, the Court can still make most of the other orders sought in the petition if the preconditions in Section 78 (orders where petition dismissed) are complied with. The issues are:

1	Has the ground of cruelty been made out?

2	Has the ground of separation been made out?

3	Is there a reasonable possibility of reconciliation?

4	Has the petitioner condoned or connived at the grounds relied on, or been guilty of collusion?

5	Has the petitioner committed adultery or been guilty of cruelty to the respondent?

6	Should a decree of dissolution of marriage be made? In what terms?

7	Should the other relief sought in the petition be granted?

8	What orders should the Court make?

1	HAS THE GROUND OF CRUELTY BEEN MADE OUT?

8. Section 17 (grounds for dissolution of marriage) of the Matrimonial Causes Act provides that a petition for a decree of dissolution of a marriage may be based on one or more of 14 grounds:

(a)	adultery;

(b)	desertion;

(c)	refusal to consummate;

(d)	cruelty;

(e)	rape, sodomy or bestiality;

(f)	drunkenness or intoxication by drugs;

(g)	frequent convictions;

(h)	imprisonment;

(i)	attempted murder or other offence of which involving intent to inflict grievous bodily harm;

(j)	failure to pay maintenance;

(k)	non-compliance with restitution decree;

(l)	insanity;

(m)	separation;

(n)	presumption of death.

Section 17(d)

9. The first ground on which the petitioner relies, cruelty, is prescribed by Section 17(d), which states:

Subject to this Division, a petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be based on one or more of the following grounds:

that, since the marriage, the other party to the marriage has, during a period of not less than one year, habitually been guilty of cruelty to the petitioner.

10. The petitioner must prove, to the reasonable satisfaction of the Court, that:

(i)	the respondent has habitually been guilty of cruelty to her;

(ii)	during a period of not less than one year, since the marriage.

Relevant principles

11. In determining these matters the following principles, derived from the leading PNG case 	Brennan v Brennan [1973] PNGLR 372, are relevant:

•	the conduct must cause injury or reasonable apprehension of injury to the health of the other party, irrespective of whether such result was intended;

•	the conduct which is alleged to constitute cruelty must be grave and weighty; and

•	the conduct, viewed as a whole in the light of all relevant circumstances, must be capable of bearing the description of cruelty in the generally accepted use of the word.

Has the respondent habitually been guilty of cruelty to the petitioner?

12. Resolution of this issue requires a:

•	summary of evidence for the petitioner;

•	summary of evidence for the respondent;

•	formal determination of the question whether the Court is reasonably satisfied that the respondent has habitually been guilty of cruelty to the petitioner.

Evidence for the petitioner

13. Eight affidavits were admitted into evidence by consent. There was no oral testimony.

No	Witness	Description	
1	Fabiana Jenjet Ponting	Petitioner	
Evidence: During the marriage she and the respondent have had two joint bank accounts – they also in joint names acquired the property in Coronation Drive, Madang as a gift from her father – the house formerly occupied by the petitioner's parents was converted to a guest house with six rooms – the petitioner runs the guest house and she deposits the earnings into an account at ANZ Madang – however the respondent changed the signatories from 'any one to sign' to 'both to sign' – when respondent did that, she stopped depositing the earnings into that account and kept the cash to pay staff and overheads – property valued at about K3.5 million – the respondent has taken over running of the guest house and has denied petitioner to receive any income from it.

It is difficult to conduct business with the respondent whose behaviour is violent – she wants the Court to order sale of the property and equitable distribution of the proceeds between her and the respondent, with some funds kept in trust for the children until their maturity – any other properties held in joint names be shared between respondent and petitioner.

The respondent's work permit was due to expire on 3 July 2014 – he will not be able to find active employment, as he is asthmatic and physically unfit – she seeks orders for custody of the children as she is young and will be able to look after them – unlimited access can be given to the respondent to see the children.

She and the respondent have not lived as husband and wife since 2011 due to the respondent's violent and cruel behaviour – it is impracticable for the marriage to continue hence the request for the marriage to be dissolved – she and their son live in one room of the house while the respondent and their daughter live in another room.	

2	AS	Neighbour's employee	
Evidence: He knows the Ponting family as his boss's property is next to theirs – the expatriate man [the respondent] often screams at his wife [the petitioner] and most times they end up fighting – the wife calls out for help and the wife's parents sometimes go in to stop the fight – the husband is now sick and weak and abuses his wife and children verbally – his (the witness's) family on many occasions have pleaded with the respondent not to assault his wife as they have a lot of respect for expatriates and thought a white man would not beat his wife – he (the witness) is shocked at seeing what is happening.	
3	SB	Neighbour	
Evidence: The Ponting family moved into the property in 2006 and have had constant arguments ever since, often ending up in fights – from his (the witness's) residence he can hear the respondent beating his wife and shouting abusive language at her – she often calls out for help and in most cases the Police have been called in to assist – he (the witness) is concerned that the respondent is beating up his wife in front of his children committing the crime of wife bashing – he (the respondent) has no respect for her and is a cruel and abusive husband – the authorities should investigate this man who has no regard for the laws of this country.	
4	JM 	Neighbour	
Evidence: The Ponting family moved into the property in 2006 and have had constant arguments ever since, often ending up in fights – from his (the witness's) residence he can hear the respondent beating his wife and shouting abusive language at her – she often calls out for help and in most cases the Police have been called in to assist – he (the witness) is concerned that the respondent is beating up his wife in front of his children committing the crime of wife bashing – he fears that if nothing is done to separate the couple, something terrible will happen to the wife – the husband has no respect for the wife who is a local woman from Madang – the respondent is a very cruel and very abusive man.	
5	AR	Former guesthouse employee	
Evidence: When he was employed at the guesthouse he felt more relaxed when the respondent went to work – when he came back from work he often yelled at him and other employees saying things like "fuck you bighead like a pig" – he has a very bad temper and often got angry with his wife (the petitioner), his children and workers – he gets very angry with his wife for very small family matters – if the marriage continues he (the witness) feels something terrible may happen to the wife.	
6	BJ 	Petitioner's mother	
Evidence: She had doubts about the marriage from the beginning as she heard of how the respondent treated his former wife who ran away back to Australia – as time passed she observed that the negative indicators increased while positives reduced in the relationship – she thought of many ways to improve the lives of her daughter and the respondent including prayer – she got worried and angry each time the situation grew from worse – the respondent is a very stubborn and difficult person who often engages in violent behaviour – he does not respect others, including the petitioner.

Many times arguments between the petitioner and the respondent end up in fighting – these arguments were over little things but they ended up by her daughter being beaten and sworn at – some of the fights led to the respondent stepping on the petitioner's throat – these physical fights were an absolute abuse of petitioner's human rights – her (the witness's) attempts to institute legal action to stop the fights were discouraged by the petitioner – the family has had enough and would like the marriage dissolved.	
7	MJ	Wife of AS, neighbour	
Evidence: Ever since the Ponting family moved into the property there have been arguments, ending in fighting – the husband (the respondent) is the cause as he starts the fights with the wife – the petitioner cries out – sometimes she (the witness) has told the white man to stop fighting his wife – she wonders when he will be punished by the law – now the respondent is physically weak and he shouts and says bad words to his wife, children and workers.	
8	OJ	Petitioner's father	
Evidence: Since the marriage the respondent has been abusive and violent – he (the witness) advised his daughter to report the matter to Police to punish the respondent for his inhuman treatment to her but she ignored these pleas for fear of uncertain consequences – the respondent has carried on his unreasonable, violent and abusive behaviour since 2000 and this has put the lives of his daughter and her children under threat – the respondent has not shown regard for human life and the welfare of the children and the marriage must now end.

The respondent uses words like "I will kill you" when he gets angry with his wife – the respondent threatened to shoot him (the witness) with a pistol when he went to help his daughter during an assault on her by the respondent who had assaulted and punched her to the floor and stepped on her throat with a work boot he was wearing – it is an ongoing problem with no peace in the family and this is affecting the two children – he does not think the marriage will last and he supports his daughter's application to dissolve the marriage.	

Evidence for the respondent

14. Five affidavits were admitted into evidence by consent. There was no oral testimony.

No	Witness	Description	
1	Derek Richard Ponting	Respondent	
Evidence: He is an Australian citizen with permanent PNG resident status – he is a former branch manager of Brian Bell, Madang – he and his former wife separated in 2000 when she hated the idea of staying in PNG while he loved PNG and wanted to continue to live and work here – he denies all allegations of cruel behaviour towards the petitioner.

He and the petitioner met and commenced their relationship in 2000, living together in Madang – in mid-2001 he was transferred to Lae so they moved there – in 2003 he was transferred back to Madang and they moved back, moving into the Coronation Drive property.

They separated in 2011 because the petitioner was not willing to resolve family issues out of court – she had started a relationship with an Australian man, JM, and other men too – he (the witness) did his best to keep the family intact but the petitioner refused to come to terms maybe because she wanted a younger man.

He denies all allegations of assault and violence – all allegations are false and misleading, vague and uncorroborated – he recalls an incident in 2010 when the petitioner was beating their daughter with a broom handle so he ran upstairs to intervene – he pulled the broom from her grasp, so she ran after their daughter and he quickly followed but in the confusion she fell – her father and sister rushed upstairs thinking that there was a fight but that was not in fact the case – he has never been arrested by Police or charged with any criminal offence.

The violence in the matrimonial home is actually committed by the petitioner and he and the two children are the victims of it – he presented a medical report by Dr CK and a report by Mrs MH of a school to corroborate the allegations of physical violence by the petitioner against him and the children – he is concerned that if the court grants custody to the petitioner their welfare, education and lives will be adversely affected – the petitioner is often supported by her relatives and in September 2012 he obtained an order from Madang District Court (annexed to his affidavit) restraining the petitioner, her relatives, servants and agents from physically attacking him and the children.

He denies committing adultery; as with the cruelty allegations it is the petitioner who is the guilty party – he denies ever saying that the son from the marriage is not his son and says this assertion is false and misleading – he denies ever telling the petitioner that he murdered his first wife.

He closed the joint bank accounts as the petitioner was misusing the money, on one occasion she bought a ticket and hired a car for her boyfriend – he has tried to reconcile with her with the assistance of a Catholic priest and a Lutheran Pastor but the petitioner refused and said she wanted to start a new life with the other man.

The main reason for their separation is that he took the petitioner to Dr CK who diagnosed her with a sexually transmitted disease – this finished his living with her as husband and wife.	
2	Dr CK	Family doctor	
Evidence: On 17/02/10 he treated the respondent who had been attacked with a whiskey bottle and a billiard stick – the respondent told him that his wife (the petitioner) attacked him – on 26/11/13 he examined their son who had been subjected to assault by his mother (the petitioner) – there were several occasions on which he treated the children who had been subjected to physical assault from their mother.	
3	RK	Managing director, security firm	
Evidence: His security firm has provided security at the Coronation Drive property since 2006 – he and his staff are aware of the problems that the respondent and the petitioner have gone through – on 4 May 2012 he was at his office when a call came from his guards that there was an argument going on between the respondent and the petitioner that could end up in a fight – the matter was reported to the Police, who attended the scene and defused the tension – his guards were prevented by the petitioner from entering the premises to witness any damage to the properties – he was concerned that the respondent was a sick man and that anything could happen to him if he was pushed or punched in the stomach.	

4	Fr Phil 	Catholic Priest	
Evidence: He knows the respondent and the petitioner well – in 2013 the respondent approached him to mediate over their marital problems that they had for some time but the petitioner refused saying it was too late for her to reconcile.	
5	NT	Brian Bell employee	
Evidence: He lived next door to the Ponting family from 2000 to 2006 and did not hear any fights or undue noise coming from their residence – he in 2006 moved into the residence that they had occupied and did not observe anything untoward such as damaged walls or windows.	

Is the Court reasonably satisfied that the respondent has habitually been guilty of cruelty to the petitioner?

15. Having weighed the competing evidence and the submissions of counsel I am not reasonably satisfied that the respondent has habitually been guilty of cruelty to the petitioner, for the following reasons.

(a)	The evidence of the petitioner's witnesses is vague

16. None of the witnesses identified particular incidents by date, or even by year. The evidence was very general. The petitioner makes general allegations of erratic, violent behaviour but fails to give evidence of specific incidents. The neighbour AS states that the respondent often screams at the petitioner and that they usually end up fighting but did not refer to specific incidents. The neighbour SB says that on a number of occasions he has heard the respondent beating his wife and shouting abusive language but fails to identify when these incidents occurred. He states that in most cases the Police have been called, but fails to indicate when this happened. The neighbour JM gives similar evidence to that of SB and it is of similar quality: vague and non-specific. The former guesthouse employee AR suggested in his evidence that the respondent has a short temper and often gets angry for no good reason with his wife and children and guesthouse employees. But he provides no evidence of physical violence by the respondent. The petitioner's mother, BJ, speaks in general terms of the concerns that she has for her daughter and of incidents involving the respondent stepping on the petitioner's throat. No reference is made to any particular incident. The evidence is hearsay. The neighbour MJ speaks in general terms only of fighting between the petitioner and the respondent. No reference is made to any particular incident.

(b)	 No evidence of any incident or complaint being reported to the Police

17. Though some witnesses referred to incidents being reported to the Police, there was no evidence to corroborate these claims.

(c)	No evidence that the petitioner has taken any court action

18. There is no evidence of the petitioner commencing proceedings in the District Court or the National Court to restrain the respondent from assaulting or harassing her. The only evidence of such an order being obtained came from the respondent, who has proven that he did succeed in obtaining such an order against the petitioner and her family in 2013.

(d)	No medical evidence

19. As the petitioner's case was based on allegations that she has been the victim of domestic violence it was preferable for there to be medical evidence. There was none, however. This gives rise to the question whether the allegations are genuine. If they are, the inference arises that any physical assault was minor.

(e)	No direct evidence of any incident

20. The only witness to give direct, eyewitness evidence of any incident of violence is the petitioner. But her account of such incidents is general and this gives rise to the inference that the sort of physical violence that occurred was fighting between two people rather than an attack or assault by one upon the other. 

(f)	Respondent's evidence of cruelty by the petitioner is more specific

21. I agree with the submission of Mr Wak for the respondent that the respondent's allegations and evidence of cruelty committed by the petitioner against the respondent are more specific and weighty than the petitioner's allegations and evidence.

(g)	Allegations in the petition are not supported by the evidence

22. The petition alleges two specific incidents of violence, one in 2004 (para 6), the other in 2012 (para 10), but the evidence provided in support of each is general. The petition makes a general allegation in para 13 of "continued domestic violence" but the evidence in support of the allegation is vague.

Conclusion as to habitual cruelty

23. Making a finding that a respondent to a petition has been guilty of habitual cruelty to his spouse is a serious matter. Such a finding cannot be made lightly. That is why the law insists that the Court be reasonably satisfied that this state of affairs has existed. Taking into account the principles set out in Brennan's case I am not satisfied that the respondent's conduct caused injury or reasonable apprehension of injury to the health of the petitioner or that his conduct was grave and weighty or that viewed as a whole the respondent was cruel.

24. I am not saying that evidence of the petitioner and her witnesses is entirely rejected or devoid of credibility. There is little doubt that the petitioner and the respondent have had a difficult marriage and that this has been manifested quite often in verbal and physical altercations. However the evidence is not of sufficient quality for the serious finding of 'guilty of habitual cruelty' to be made. I decline to make such a finding.

Was the cruelty committed during a period of not less than one year, since the marriage?

25. No. The evidence presented by the petitioner is non-specific as to time. Even if I had been reasonably satisfied that the respondent had been guilty of habitual cruelty at some time during the course of the marriage, there is insufficient evidence on which to base a finding that the cruelty extended over any specific one-year period.

Conclusion as to first ground of petition

26. The first ground of the petition – cruelty under Section 17(d) of the Matrimonial Causes Act – has not been made out.

2	HAS THE GROUND OF SEPARATION BEEN MADE OUT?

27. The second ground of dissolution of marriage, separation, is prescribed by Section 17(m), which states:

Subject to this Division, a petition under this Act by a party to a marriage for a decree of dissolution of the marriage may be based on one or more of the following grounds:

that the parties to the marriage have been separated and afterwards have lived separately and apart for a continuous period of not less than five years immediately preceding the date of the petition, and there is no reasonable likelihood of cohabitation being resumed.

28. The petitioner must prove, to the reasonable satisfaction of the Court, that:

(i)	she and the respondent have separated;

(ii)	they have afterwards lived separately and apart;

(iii)	for a continuous period of not less than five years immediately preceding the date of the petition;

(iv)	there is no reasonable likelihood of cohabitation being resumed.

29. The parties agree on (i) and (ii). They separated at some time (though neither provides a specific date) in 2011 and they have lived separately and apart at the Coronation Drive property since then. The fact that they have lived under the same roof does not mean that they did not separate. It is sufficient that they lived separate lives and that the major features of their previous relationship no longer exist (Kiruhia v Kiruhia [1992] PNGLR 30).

30. They disagree as to (iv). The petitioner expresses no desire to reconcile with the respondent and therefore considers that there is no reasonable likelihood of cohabitation being resumed. The respondent still appears to have a lingering desire to reconcile, in the interests of the children, and argues that there is a reasonable likelihood of cohabitation being resumed.

31. The Court does not, however, have to make a finding on that issue, and I decline to do so, as it is clear that (iii) is not satisfied. Even if it is presumed that the parties separated on 1 January 2011 and they thereafter lived separately and apart until the date of filing of the petition, 19 November 2013, the continuous period of separation is only two years, 11 months and 19 days. Mr Wagambie submitted that the shortfall of two years, one month and 11 days could be overlooked due to there being no reasonable likelihood of cohabitation being resumed and it being in the best interests of both parties and the children that the marriage be dissolved. However the minimum period of separation is five years. It is a mandatory requirement if a marriage is to be dissolved under Section 17(m). It cannot be overlooked. The second ground of the petition has not been made out.

32. As neither of the grounds of dissolution is made out, the marriage cannot be dissolved. I refuse to make a decree nisi.

3	IS THERE A REASONABLE POSSIBILITY OF RECONCILIATION?

33. Though no decree nisi will be made it is worthwhile making brief comment on the issues that would have had to be addressed if one of the grounds of dissolution had been made out. The first is the possibility of reconciliation. The Court is obliged to be alert to this possibility because of the requirements of Part III (reconciliation) of the Matrimonial Causes Act, comprising Sections 10 to 13, which states:

10.	Reconciliation.

(1)	Where a matrimonial cause has been instituted in the Court, it is the duty of the Court to give consideration, from time to time, to the possibility of a reconciliation of the parties to the marriage unless the proceedings are of such a nature that it would not be appropriate to do so.

(2)	If at any time it appears to the Judge constituting the Court, from the nature of the case, the evidence in the proceedings or the attitude of the parties or of either of them, or of counsel, that there is a reasonable possibility of a reconciliation, the Judge may do all or any of the following things—

(a)	adjourn the proceedings—

(i)	to afford the parties an opportunity of becoming reconciled; or

(ii)	to enable anything to be done in accordance with Paragraph (b) or (c); and

(b)	with the consent of the parties, interview them in chambers, with or without counsel, as the Judge thinks proper, with a view to affecting a reconciliation; and

(c)	nominate—

(i)	an approved marriage guidance organization or a person with experience or training in marriage conciliation; or

(ii)	in special circumstances, some other suitable person, 

to endeavour, with the consent of the parties, to effect a reconciliation.

(3)	If, not less than 14 days after an adjournment under Subsection (1) has taken place, either of the parties to the marriage requests that the hearing be proceeded with—

(a)	the Judge shall resume the hearing; or

(b)	arrangements shall be made for the proceedings to be dealt with by another Judge,

as the case requires, as soon as practicable.

11.	Hearing where reconciliation fails.

Where a Judge has acted as conciliator under Section 10(1)(b) but the attempt to effect a reconciliation has failed, the Judge shall not, except at the request of the parties to the proceedings, continue to hear the proceedings or determine the proceedings, and in the absence of such a request arrangements shall be made for the proceedings to be dealt with by another Judge.

12.	Evidence of statements, etc., at reconciliation attempts.

Evidence of anything said or of an admission made in the course of an endeavour to effect a reconciliation under this Part is not admissible in a court or in proceedings before a person authorized by a law or by consent of parties to hear, receive and examine evidence.

13.	Oath of secrecy.

Before entering on the performance of his functions as a conciliator, a marriage conciliator shall make and subscribe, before a person authorized to take affidavits, an oath or affirmation of secrecy in the form in Schedule 1.

34. On the evidence available, in particular in light of the attitude of the petitioner expressed in her evidence, I am unable to conclude that there is a reasonable possibility of reconciliation. I therefore decline to take any of the steps outlined in Section 10(2).

4	HAS THE PETITIONER CONDONED OR CONNIVED AT THE GROUNDS RELIED ON OR BEEN GUILTY OF COLLUSION?

35. If the ground of cruelty (Section 17(d)) had been proven, the Court would have had to consider whether it should nonetheless refuse to make a decree nisi of dissolution for any of the reasons set out in Sections 27 and 28 of the Matrimonial Causes Act, which state:

27.	Condonation or connivance.

A decree of dissolution of marriage shall not be made on a ground specified in Section 17(a) to (k) if the petitioner has condoned, or has connived at, the ground.

28.	Collusion.

A decree of dissolution of marriage shall not be made if the petitioner, in bringing or prosecuting the proceedings, has been guilty of collusion with intent to cause a perversion of justice.

36. If the ground of separation (Section 17(m)) had been proven, the Court would have had to consider whether it should nonetheless refuse to make a decree nisi of dissolution on the ground that the petitioner had been guilty of collusion for the purposes of Section 28.

37. My views on these matters are that:

•	if the ground of cruelty had been proven, it would not have been found (for the purposes of Section 27) that the petitioner condoned or connived at that ground or that she had (for the purposes of Section 28) been guilty of collusion with intent to cause a perversion of justice;

•	if the ground of separation had been proven, it would not have been found that the petitioner had (for the purposes of Section 28) been guilty of collusion with intent to cause a perversion of justice.

5	HAS THE PETITIONER COMMITTED ADULTERY OR BEEN GUILTY OF CRUELTY TO THE RESPONDENT?

Cruelty

38. If the ground of cruelty (Section 17(d)) had been proven, the Court would have had to consider whether it should nonetheless refuse to make a decree nisi of dissolution for any of the reasons set out in Section 29 (discretionary bars) of the Matrimonial Causes Act, which states:

The Court may in its discretion, refuse to make a decree of dissolution of marriage on a ground specified in Section 17(a) to (l) if, since the marriage—

(a)	the petitioner has committed adultery that has not been condoned by the respondent or that, having been so condoned, has been revived; or

(b)	the petitioner has been guilty of cruelty to the respondent; or

(c)	the petitioner has wilfully deserted the respondent before the happening of matters constituting the ground relied on by the petitioner or, where that ground involves matters occurring during, or extending over, a period, before the expiration of that period; or

(d)	the habits of the petitioner have, or the conduct of the petitioner has, conduced or contributed to the existence of the ground relied on by the petitioner.

Separation

39. If the ground of separation (Section 17(m)) had been proven, the Court would have had to consider whether it should nonetheless refuse to make a decree nisi of dissolution for the reasons set out in Sections 25(4), (5) and (6) (separation) of the Matrimonial Causes Act, which states:

(4)	Where, on the hearing of a petition for a decree of dissolution of marriage on the ground of separation, the Court is satisfied that, by reason of the conduct of the petitioner, whether before or after the separation commenced, or for any other reason, it would, in the particular circumstances of the case, be harsh and oppressive to the respondent, or contrary to the public interest, to grant a decree on that ground on the petition of the petitioner, the Court shall refuse to make the decree sought.

(5)	Where, in proceedings for a decree of dissolution of marriage on the ground of separation, the Court is of opinion that it is just and proper in the circumstances of the case that the petitioner should make provision for the maintenance of the respondent or should make any other provision for the benefit of the respondent, whether by way of settlement of property or otherwise, the Court shall not make a decree on that ground in favour of the petitioner until the petitioner has made arrangements, to the satisfaction of the Court, to provide the maintenance or other benefits on the decree becoming absolute.

(6)	The Court may, in its discretion, refuse to make a decree of dissolution of marriage on the ground of separation if the petitioner has, before or after the separation commenced, committed adultery that has not been condoned by the respondent or that having been so condoned, has been revived.

40. My views on these matters are that:

•	if the ground of cruelty had been proven, though there is some evidence to suggest that the petitioner committed adultery that has not been condoned by the respondent and that the petitioner has been guilty of cruelty to the respondent and that the conduct of the petitioner has contributed to the existence of cruelty by the respondent, these would not have been sufficient reasons for the Court, in the exercise of its discretion in Section 29, refusing to make a decree of dissolution of marriage;

•	if the ground of separation had been proven, it would not have been harsh and oppressive to the respondent or contrary to the public interest to grant a decree of dissolution of marriage, and the Court would not have been of the opinion that it was just and proper that the petitioner make provision for the maintenance of the respondent or make any other provision for the benefit of the respondent, and though there is some evidence to suggest that the petitioner committed adultery that has not been condoned by the respondent, these would not have been a sufficient reasons for the Court in the exercise of its discretion in Sections 25(4), (5) or (6), refusing to make a decree of dissolution of marriage.

6	SHOULD A DECREE OF DISSOLUTION OF MARRIAGE BE MADE?

41. No. I restate the conclusion reached at the end of part (2) above: neither of the grounds relied on by the petitioner has been proved. The Court has no power in these circumstances to make a decree of dissolution of marriage. I refuse to make such a decree. The views expressed in parts (3), (4) and (5) above are tentative views only which do not form a necessary part of the reasoning of the Court. They are obiter dictum and should be understood as such. They might be of use to the parties in the course of determination of the other relief sought by the petitioner.

7	SHOULD THE OTHER RELIEF SOUGHT IN THE PETITION BE GRANTED?

42. The principal relief sought by the petitioner, dissolution of the marriage, will be refused. Does that mean that the other relief sought – orders relating to custody and access in respect of the two children of the marriage, maintenance of the petitioner and the children and settlement of matrimonial property – should also be refused? Not necessarily. The Court can still make most of the other orders sought, in accordance with Section 78 (orders where petition dismissed) of the Matrimonial Causes Act, which states:

(1)	In this section, "principal relief" means relief of a kind specified in Paragraph (a) or (b) of the definition "matrimonial cause" in Section 1(1 [including proceedings for a decree of dissolution of marriage].

(2)	Except as provided by this section, the Court shall not make an order under this Part [Part VII: Maintenance, Custody and Settlement] where the petition for the principal relief has been dismissed.

(3)	Where—

(a)	the petition for the principal relief has been dismissed after a hearing on the merits; and

(b)	the Court is satisfied that—

(i)	the proceedings for the principal relief were instituted in good faith to obtain that relief; and

(ii)	there is no reasonable likelihood of the parties becoming reconciled,

the Court may, if it thinks it desirable, make an order under this Part, other than an order under Section 75.

(4)	The Court shall not make an order under Subsection (3) unless it has heard the proceedings for the order at the same time as, or immediately after, the proceedings for the principal relief.

43. The effect of Section 78 is that if a petition for dissolution of marriage is dismissed, the Court can still make orders under Part VII if the following preconditions are satisfied:

(i)	the petition has been dismissed after a hearing on the merits (s 78(3)(a));

(ii)	the Court is satisfied that the proceedings for the principal relief were instituted in good faith to obtain that relief (s 78(3)(b)(i)); and

(iii)	the Court is satisfied there is no reasonable likelihood of the parties becoming reconciled (s 78(3)(b)(ii));

(iv)	the Court "thinks it desirable" to make an order under Part VII;

(v)	the Court has heard the proceedings for the order under Part VII at the same time as, or immediately after, the proceedings for the principal relief, the decree of dissolution of marriage (s 78(4)).

44. If those preconditions are satisfied the Court can make, by virtue of Section 78(3), except in the case of Section 75 orders, the type of orders provided for by Part VII. Thus it can make orders with respect to:

•	maintenance of a party to the marriage or of children of the marriage under Section 73;

•	custody, guardianship, welfare, advancement or education of children of the marriage under Section 74;

•	implementation of orders made under Part VII, under Section 76;

•	execution of deeds and instruments under Section 77.

45. The Court cannot, however, even if the preconditions of Section 78 are satisfied, make orders under Section 75 for settlement of property. This prohibition arises from the qualifying phrase at the end of Section 78: "other than an order under Section 75".

46. Applying the preconditions of Section 78 to the present case, I find that:

(i)	the petition has been dismissed after a hearing on the merits;

(ii)	the Court is satisfied that the proceedings for the principal relief, dissolution of marriage, were instituted in good faith to obtain that relief;

(iii)	the Court is satisfied that there is no reasonable likelihood (as distinct from a possibility) of the parties becoming reconciled;

(iv)	the Court "thinks it desirable" to make an order under Part VII;

(v)	the Court has heard the proceedings for the order under Part VII at the same time as the proceedings for the principal relief.

47. It is therefore open to the Court to make orders that the petitioner seeks relating to custody and access in respect of the two children of the marriage and maintenance of her and the children. The Court cannot make orders for settlement of matrimonial property.

48. The orders relating to custody, access and maintenance that the petitioner seeks are set out in paragraphs 10(b), (c) and (d) of the petition, in the following terms:

(b)	that the petitioner and the respondent shall have joint custody of the children [and] the petitioner shall have the daily care and control of the children of the marriage ...

(c)	the respondent shall have unlimited, unrestrained access to the children whenever convenient to both parties and the children.

(d)	in relation to the daily maintenance of the children, whilst the children reside with the petitioner, she shall be responsible for the daily maintenance of the children including medical and school fees but with the assistance from the respondent.

49. I consider that there is insufficient evidence before the Court, at this stage, to make such orders. However, rather than refusing outright to make orders (and therefore entirely dismissing the petition) the parties should be given the chance to meet and discuss these issues. In fact, they should be ordered to do so. This can be done under the ADR [Alternative Dispute Resolution] Rules and in accordance with Sections 7B(1) and (2) (power to order mediation etc) of the National Court Act (Chapter No 38), which state:

(1)	In addition to the jurisdiction vested in the Court by Section 166 of the Constitution, and any other law, the Court—

(a)	may order a resolution of a dispute or a matter before it by mediation for an amicable resolution of the dispute; or

(b)	may order or direct a proceeding or any part of the proceeding to be inquired into and resolved by an appropriately qualified and experienced person or an expert in the issue.

(2)	At any stage of a proceeding, the Court may, whether with or without the consent of the parties, order that the proceeding or a part of the proceeding before it be referred to mediation.

50. To sum up: the relief other than dissolution of the marriage that is sought in the petition will be neither granted nor refused, at this stage, but will be referred to mediation.

8	WHAT ORDERS SHOULD THE COURT MAKE?

51. Under the ADR Rules the National Court is empowered by Rule 5(2), of its own motion, to order mediation for a resolution of any part of any proceedings if at the time of considering whether to order mediation it has regard to the factors prescribed by Rule 5(3). I have had regard to those matters. I consider that:

(a)	mediation will not result in prejudice to the rights of either party;

(b)	it is reasonably within the ability and power of both parties to comply with a mediation order;

(c)	mediation will not entail substantial work for either party;

(d)	the nature of the relief sought lends itself to mediation;

(e)	a mediation at Madang can be set up very soon and this should be convenient to both parties;

(f)	neither party has expressed opposition to the prospect of mediation;

(g)	mediation has not yet been formally attempted and it should be attempted before the remaining issues are determined;

(h)	neither party loses the right to have the remaining issues tried in court; and

(i)	it is in the interests of justice to attempt mediation as a method of resolving disputes such as this.

52. I will make an order for mediation in relation to the relief sought in the petition other than for dissolution of the marriage. The Court declines to make a decree of dissolution of marriage, as neither of the grounds put forward by the petitioner has been proven. The parties will bear their own costs.

ORDER

(1)	The petition for a decree nisi of dissolution of marriage is refused.

(2)	The question of whether any other relief sought in the petition should be granted and on what terms shall under Rule 5(2) of the ADR Rules, on the court's own motion, be referred to mediation pursuant to a separate mediation order under Rule 5(4) of the ADR Rules.

(3)	The parties will bear their own costs of the proceedings.

Ordered accordingly.
_____________________________________________________________
M S Wagambie Lawyers: Lawyers for the Petitioner
Kunai & Co Lawyers: Lawyers for the Respondent