SC359

IN THE SUPREME COURT
OF THE TERRITORY OF
PAPUA AND NEW GUINEA

Coram: Mann C.J.

PHYLLIS DOREEN HILLIARD
Plaintiff

v.

THOMAS MICHAEL HILLIARD
Defendant

REASONS FOR JUDGMENT

PORT MORESBY
22nd June, and 12th July,
1965

This is an undefended divorce case on the ground of desertion. The wife, who is the plaintiff, alleges that the conduct of her husband was such that she was compelled to leave the matrimonial home on the 16th February, 1962. On several occasions previously during the course of the marriage the wife had been compelled to leave home for some months at a time and, on each occasion, had been persuaded to return. After leaving in February 1962 the plaintiff went to live, at different times, in a flat and with her parents in Lae. 

The plaintiff took proceedings for maintenance. At first the defendant was agreeable to an Order being made but, when the matter came on for final hearing, he contested the claims and the complaints were dismissed.

The plaintiff appealed to the Supreme Court when the disputes between the parties were thoroughly considered by the Acting Chief Justice, Mr. Justice Ollerenshaw, who delivered his judgment on the 24th July, 1963. He made an Order in favour of the plaintiff for maintenance for herself at the rate of £25.0.0a. per week, and awarded custody of the child, Katherina Michel, and a further £5.0.0d. per week for her maintenance to the plaintiff. Further Orders were made to recover arrears of maintenance then outstanding. The defendant was also ordered to pay costs.

In 1965 the defendant applied to the District Court at Lae for a variation of the Order made by Ollerenshaw A.C.J. The application was dismissed with costs and the Learned Magistrate gave detailed reasons for his conclusions.

It seems to me that no useful purpose would be served by my stating the facts in great detail. The defendant has not seen fit to defend these proceedings, or take any steps to place his version of the facts before the Court. The plaintiff has, on her own version of the facts, adequately made out her case and should her evidence amount in any respect to a partisan view of the facts, there is nothing further that I can do to protect the interests of the defendant. I have made a critical examination of her evidence. 

Ollerenshaw A.C.J. in his judgment was not concerned with precisely the same issues for, in the proceedings before him, the question was not whether the plaintiff had been deserted, but whether she had been left without lawful and sufficient means of support, other than her own earnings. His Honour did say that on the evidence before him he would have been prepared, if necessary, to find that the defendant had deserted the plaintiff, but that the issue was not strictly before him. Nevertheless, it is clear that on the substantial questions of fact which have arisen between the parties, the proper inferences and conclusions to be drawn would support an answer favourable to the plaintiff, whether the precise issue were leaving without support or desertion. I have studied the judgment of Ollerenshaw A.C.J. and, with respect, I agree entirely with his analysis of the case. The plaintiff's evidence still supports the same case, and so I concluded, for the same substantial reasons, that the plaintiff was deserted as she alleged. 

The plaintiff claims custody of both children. Again, the conduct of the defendant is a relevant consideration to take into account. I can see no basis for any criticism of the plaintiff in relation to the care and attention that she has afforded the children during the times when they have been under her care. On the other hand, the defendant's conduct has been calculated to evade his responsibilities and to place difficulties and obstructions in the way of his wife in relation to her natural wish to play her proper part in the care and upbringing of her children. As the evidence stands I think that the case is substantially in her favour and, in spite of the smaller indications of the defendant's willingness to support his son, albeit to the exclusion of his wife, I conclude that both children would be better off in the substantial care of their mother. I therefore award custody of both children to the plaintiff. 

On the question of maintenance, there is again difficulty because the defendant has not made any adequate disclosure of his means. This has already operated to the disadvantage of the plaintiff on previous occasions and the Order previously made in her favour might well have been for a considerably larger amount if the plaintiff had been in a position to prove in detail the resources available to he defendant. 

Under the Divorce and Matrimonial Causes Ordinance, 1934, the powers to vary the amount of an Order appear to me to be sufficiently widely expressed to make it desirable in the interests of both parties and their children, that I should not at this stage attempt to fix a figure that will necessarily apply for a long period in the future. The plaintiff's needs are likely to vary considerably, particularly in relation to the education of the children. If the defendant continues to pay his son's fees for education in Australia the matter will be greatly simplified, but if he does not it will be necessary for a substantial allowance to be assessed in respect of this item. At a later stage the same questions will arise with regard to the daughter and one material consideration might well be the availability and the established standards of secondary education in the Territory. 

It would be very much for the benefit of the children and, I would think, of the parties themselves, for some adequate arrangement to be arrived at by agreement, and for the plaintiff's allowances to be secured to her. I propose, therefore, to make an Order limited to the conditions as they obtain at the present time whilst the plaintiff is looking after the younger child, with provision for the second child designed only to cover the cost of keeping him in the Territory and not to include the cost of educating him. When the Plaintiff obtains the actual custody of the son, she should apply for such further Order as will be sufficient for the position which will then arise. 

The Previous Order for £25.0.0d. per week was already less than the plaintiff might well have expected had she been in possession of information which was disclosed to her after her application was made. In the absence of further information applicable up to the present time I propose to order that the defendant pay for the maintenance of the plaintiff as from the date of the Order Absolute and until further Order the sum £30.0.0d. per week; and that he pay to the plaintiff as from the date of that Order and until further Order, for the maintenance of his daughter, Katherine Michel Hilliard, the sum of £5.0.0a. per week. I will further Order that as from the same date or the date upon which the custody and control of the child Gary Michel Hilliard is handed over to the plaintiff, whichever is the later, the defendant should pay to the plaintiff for the maintenance of the said Gary Michael Hilliard, the sum of £6.0.0d. per week. 

I think that the plaintiff's claim for provision of reasonable transport in the Territory is a necessary and proper one, but I do not think that it is necessary or desirable for her to have as expensive or as large a car as she formerly had and, I should think, that a much smaller outlay would place her in possession of a modern and suitable car for the purpose of her family transport needs. I find that the plaintiff is entitled to reasonable provision in this regard and I propose to defer pronouncing any specific Order in relation to this item to give the parties an opportunity to make a sensible and suitable arrangement. If they fail to agree, then the plaintiff may apply for further provision in this respect.

I make the findings of fact as alleged in the petition in support of the plaintiff's case and I pronounce a decree nisi for the dissolution of the marriage, which was celebrated on the 13th March, 1954, upon the ground of desertion, as alleged in the petition. I award the costs of these proceedings, such costs to be taxed by the Registrar. The decree is to be in the usual form.

I also make the Orders for custody and maintenance previously specified, but the Orders for maintenance are not to come into operation unless in the meantime, or until, the existing Maintenance Orders in the District Court are terminated by, or with the consent of, the Plaintiff.