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Douglas v Douglas [1965-66] PNGLR 407 (2 December 1966)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 407 - Douglas v Douglas

[1965-66] PNGLR 407

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

DOUGLAS

V.

DOUGLAS

Port Moresby

Minogue j

23-25 November 1966

2 December 1966

HUSBAND AND WIFE - Divorce - Domicil - Petition by wife - Cross-petition by husband - Wife found guilty of adultery notwithstanding denial - Amendment of petition to include prayer for exercise of discretion - Exercise of discretion - Decree on petition and cross-petition - Matrimonial Causes Ordinance 1963, ss. 32, 33, 34, 62; Matrimonial Causes Rules 1965, rr. 41, 162.

On the hearing of a petition by a wife for dissolution of marriage on the grounds of, inter alia, adultery and desertion and of a cross-petition by her husband on the same grounds the trial judge was satisfied that the grounds relied on by the wife and the ground of adultery relied on by the husband were proved and that he should exercise his discretion in favour of both parties. However the wife had denied her husband’s allegation of adultery and her own petition had contained no prayer for the exercise of the court’s discretion in her favour notwithstanding her adultery. She had not lodged a discretion statement.

Held:

(1)      In the circumstances leave should be granted to the wife to amend her petition by adding a prayer to the effect “that the Court will exercise its discretion to grant a decree notwithstanding the adultery found to have been committed by her”.

Paton v. Paton, Bell Co-respondent, [1965] V.R. 108 followed; Chetwynd-Talbot v. Chetwynd-Talbot, [1963] P. 436; and North v. North, [1963] P. 450, referred to.

(2)      One decree nisi only should be pronounced on the grounds both of the husband’s adultery and desertion and of the wife’s adultery.

Dent v. Dent[1953] VicLawRp 9; , [1953] V.L.R. 667 followed; dicta of Viscount Simon L.C. in Blunt v. Blunt, [1943] A.C. 517, at p. 531, not followed; Paton v. Paton, Bell Co-Respondent supra, not followed on this point.

Petition for Dissolution of Marriage.

Shirley Estelle Douglas petitioned for dissolution of her marriage with Dennis Brian Douglas on the grounds of his cruelty and desertion and of adultery with Heather Barrett. Her petition contained no prayer for the exercise of the court’s discretion and no discretion statement had been lodged. By his answer the respondent denied the desertion and cruelty but admitted the adultery. He cross-petitioned on the grounds of desertion and adultery by the petitioner with Peter Pritchard and prayed for the exercise of the court’s discretion in his favour notwithstanding his own adultery. By her answer the petitioner denied the grounds alleged in the cross-petition. The petition and cross-petition were heard together by Minogue J.

Counsel:

White, for the petitioner.

Hogan (of the New South Wales Bar), for the respondent.

2 December 1966

MINOGUE J:  [after discussing the evidence continued] This leaves me in the position that I find that the respondent deserted the petitioner and that he was guilty of adultery with the corespondent, and I find that the petitioner was guilty of adultery with the party cited. The respondent has also prayed the court to find in his favour on the ground of the petitioner’s desertion of him but it follows from what I have said that this ground must fail.

Before proceeding any further I set out my findings with regard to domicil. I am satisfied that the respondent has lost his domicil of origin and that he intends to reside permanently in the Territory of Papua. His home is here and he has brought his widowed mother and his young brother up to live with him. He has large and growing business interests in the Territory and I am satisfied that as far as one can see his future lies here. Consequently I find that both the petitioner and the respondent are domiciled at common law in this Territory.

Section 62 of the Matrimonial Causes Ordinance 1964 provides as follows:

“Except as provided by this Ordinance, the Court, upon being satisfied of the existence of a ground in respect of which relief is sought, shall make the appropriate decree.”

The other relevant provisions of the Ordinance to be considered are s. 32 which makes condonation or connivance absolute bars to relief, s. 33 which makes collusion with intent to cause a perversion of justice such a bar and s. 34. I am satisfied that there has been no condonation, connivance or collusion on the part of either the petitioner or the respondent. Section 34 contains discretionary bars and enacts that the court may in its discretion refuse to make a decree of dissolution of marriage upon the grounds relied on by both parties if, since the marriage, inter alia:

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

(c)      the petitioner has wilfully deserted the respondent before the happening of matters constituting the ground relied upon by the petitioner.

These appear to me the only two bars to be considered in this case.

Mr. Hogan, who appeared for the respondent, has submitted to me that if I find in the petitioner’s favour I should also find in favour of the respondent and grant him a decree. Before considering this submission there is an earlier difficulty to be encountered. The petitioner has not filed any discretion statement and indeed in the light of her denial she could hardly be asked to do so. A somewhat similar situation was met by Starke J. in Paton v. Paton, Bell Co-Respondent[cdxx]¹. In that case he held that where a petitioner against whom adultery is found in a cross-petition notwithstanding his denial thereof is himself successful in his petition, it is not necessary that he shall have filed as required by rr. 40a and 161 of the Matrimonial Causes Rules 1960 a discretion statement in his petition. The Rules may be complied with by the petitioner, after a finding of adultery against him, being given leave to amend his petition by adding a request for the exercise of the court’s discretion notwithstanding that adultery has been found to have been committed by him. In so holding Starke J. agreed with the reasoning in both Chetwynd-Talbot v. Chetwynd-Talbot[cdxxi]² and North v. North[cdxxii]³, to both of which cases I was referred by Mr. White. Rules 40a and 161 find their counterpart in rr. 41 and 162 of the Matrimonial Causes Rules of this court and I think I should take the same course as did Starke J. and give leave to the petitioner to amend her pleading by adding a prayer to this effect “that the Court will exercise its discretion to grant a decree notwithstanding the adultery found to have been committed by her”. That prayer has of course already been made by the respondent.

I turn now to consider the exercise of my discretion in this case and I can do no better than refer to what was said by Viscount Simon in Blunt v. Blunt[cdxxiii]⁴ as to the chief considerations which ought to be weighed in appropriate cases as helping to arrive at a just conclusion. These are:

(1)      the position and interest of any children of the marriage;

(2)      the interest of the party with whom the petitioner has been guilty of misconduct with special regard to the prospect of their future marriage;

(3)      the question whether if the marriage is not dissolved there is the prospect of reconciliation between husband and wife;

(4)      the interest of the petitioner and in particular the interest that the petitioner should be able to remarry and live respectably;

(5)      the interest of the community at large to be judged by maintaining a true balance between respect for the binding sanctity of marriage and the social considerations which make it contrary to public policy to insist on the maintenance of a union which has utterly broken down.

I shall deal with these in turn.

(1)      The child of the marriage is now five years of age and of course knows nothing of these proceedings. He is being well and properly looked after by his mother and his father is content that he should remain in her custody and has expressed himself, I have no doubt truly, as anxious to do all that he can to further the child’s interest. There is no possibility of reconciliation of the parties. They are both still comparatively young and may wish to remarry and I see nothing contrary to the interest of the child in having this marriage dissolved.

(2)      This consideration is not present in this case. I have already stated the nature of the association between the petitioner and the party cited, which was casual and fleeting.

(3)      I need say no more than that there is not the slightest prospect of a reconciliation between the husband and wife.

(4)      In my view it is in the interests of both petitioner and respondent that they should be in a position to remarry. The respondent has already had a fairly lengthy adulterous association with one woman, he is only 30 years of age and I think it better that he should be in a position to marry if he so wishes rather than enter into a further illicit relationship as he may be minded to do. With regard to the petitioner this is her second unsuccessful venture into the matrimonial state and she may not be disposed to make a further attempt particularly as for the present at any rate she has the responsibility of both a young child and a growing business to look after. On the other hand she is herself comparatively young and I do not think she should be denied the opportunity to marry again if she wishes to.

(5)      As was said by Viscount Simon in Blunt v. Blunt[cdxxiv]⁵ in recent years this consideration has operated to induce the court to exercise a favourable discretion in many instances where in an earlier time a decree certainly would have been refused. This was said in 1943 and it seems to me that the tendency adverted to by the Lord Chancellor has continued and strengthened in the last 20 years. However, I have been troubled as was Starke J. in Paton v. Paton[cdxxv]⁶ because of what I consider to be the failure of the petitioner to fully and candidly place all the facts before the court. However, I take into account the fact that this allegation may well have taken her by surprise in the maintenance proceedings and that her immediate reaction may have been one of fear that any admission on her part would leave her in dire financial straits. Having made the denial she may have felt that her only course was to persist in it. I take into account too that at the time of the adultery I found to have occurred the marriage had completely broken down, that the adultery was of a most casual nature and not to be wondered at in the circumstances in which it occurred. There has been no allegation of any further conduct of this kind and I should also allow for the possibility that the petitioner may be telling the truth no matter how improbable her story may seem. I join with Ormrod J. in Chetwynd-Talbot v. Chetwynd-Talbot[cdxxvi]⁷ in regarding judges as not infallible. My finding is not necessarily conclusive of the truth in an absolute sense.

Giving the matter the best consideration that I can I do not think that considerations of public policy prevent the granting of a decree to the petitioner in this case and in my opinion I ought to exercise my discretion in her favour.

With regard to the respondent I must consider both his adultery and the desertion which I found against him and which began before the commission of the petitioner’s adultery. His adultery, although it was of a continuing character over a long period, has not in my opinion debarred him. The marriage had long broken down before the adultery began and from the outset of these proceedings he frankly confessed it and sought the court’s indulgence in his favour. His desertion needs closer examination. I am satisfied that his decision to leave his wife sprang from his conclusion, after a considerable amount of thought, that the marriage was a failure and that it could not possibly work. I think he was right in his conclusion but I am equally of the view that the situation was to a large extent of his own making. For that situation both parties were in some measure to blame but having seen and heard them both I find it difficult to say which was the more blameworthy. I have no doubt that he should and with very little effort could have devoted more time to his wife but I have the strong feeling that she lost no opportunity to remind him of this fact. I do not see that apart from remotely providing the occasion his desertion in any way led to the adultery which took place in Easter, 1963. On the whole I do not think that I should exercise my discretion against him under s. 34 (c) and that being so I must pronounce a decree under s. 62.

In Blunt v. Blunt[cdxxvii]⁸ Viscount Simon L.C., with whom the other members of the House agreed, said “it appears to me that cases may not infrequently arise in which each party, while proving the case for his or her petition, has been guilty of such conduct as by the terms of the statute entitles the court to dismiss the petition, where injustice may be done if discretion is exercised in favour of one of the parties only. There is no reason in principle why, where both sides are in mercy, if the judge decides to exercise his discretion, he should not exercise it in favour of both parties and pronounce the decree without drawing a distinction between them.” This course has been followed on several occasions in England and as recently as Paton v. Paton[cdxxviii]⁹ in Victoria. In that case Starke J. granted a decree to both the petitioner and the respondent. However, I have felt some difficulty in granting decrees in this manner and with respect agree with Lowe A.C.J. where he said in Dent v. Dent[cdxxix]¹⁰, “Notwithstanding some dicta to the contrary I do not think it is right to pronounce two decrees—one in favour of each party. There is but one marriage and it is dissolved by a single decree though that decree may be based on the conduct of both parties. If there were two separate decrees metaphysical questions might arise. The decrees could not be pronounced uno flatu as it were, and how it might be asked could one pronounce the second decree when immediately before the first decree had dissolved the marriage.” Following the course taken by Lowe A.C.J. in that case I think that I should pronounce a decree nisi for the dissolution of the marriage between the parties on the grounds of the respondent’s desertion of the petitioner and of his adultery with the co-respondent and of the petitioner’s adultery with the party cited and I so pronounce.

(His Honour then considered the other relief sought by the parties.)

Leave to wife to amend prayer of petition by adding the words “that the Court will exercise its discretion to grant a decree notwithstanding the adultery found to have been committed her”. Discretion exercised in favour of both wife and husband.

Decree nisi.

Solicitors for the petitioner: Norman White & Reitano.

Solicitors for the respondent: J. Irwin Cromie & McCubbery.

[cdxx][1965] V.R. 108.

[cdxxi][1963] P. 436.

[cdxxii][1963] P. 450.

[cdxxiii] [1943] A.C. 517, at p. 525.

[cdxxiv] [1943] A.C. 517, at p. 525.

[cdxxv][1965] V.R. 108.

[cdxxvi][1963] P. 436.

[cdxxvii] [1943] A.C. 517, at p. 531.

[cdxxviii][1965] V.R. 108.

[cdxxix][1953] VicLawRp 9; [1953] V.L.R. 667, at p. 668.