Mortimore v Mortimore and Huysman [1978] PNGLR 197 (2 June 1978)

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[1978] PNGLR 197 - Mervyn Frederick Mortimore v Margaret Aore Mortimore and Luke Huysman

MATRIMONIAL CAUSES - Dissolution of marriage - Damages - Adultery - Principles of assessment - Proof of loss required - No punitive element involved - Elderly petitioner husband - Very young children - Damages settled in part on children - Matrimonial Causes Act 1964, s. 37.

MATRIMONIAL CAUSES - Costs - Adultery - Petitioning husband’s successful claim for custody and damages - Co-respondent liable for all petitioner’s costs.

By s. 37 of the Matrimonial Causes Act 1964 the court may, upon the petition of a party to a marriage on the ground of adultery with a person, award damages against that person on the ground that that party has committed adultery with the other party to the marriage provided the adultery has not been condoned by the petitioner and provided the adultery is not older than three years prior to the petition.

On the hearing of a petition for dissolution of marriage on the ground of adultery, by a petitioner husband aged 62 whose respondent wife was aged 27 and the three children of the marriage aged 7, 5 and 2, and where the co-respondent was a married man aged 40, where adultery was admitted and where custody of the three children was awarded to the petitioner:

(1) To justify an award of damages under s. 37 of the Matrimonial Causes Act 1964, there must be proof of some loss suffered by the petitioner including pecuniary loss suffered by reason of the adultery, injury to pride, prestige and feelings and the loss of matrimonial and family life: such damages must not contain any punitive element and if no such loss is suffered, no damages should be awarded.

(2) In the circumstances damages should be awarded in the sum of K3,000, which, taking into account the ages of the petitioner and the children of the marriage, should be divided equally between the petitioner and the children.

(3) The co-respondent should pay the petitioner’s costs; he having actively supported the respondent wife’s claim for custody and having defended at length the successful claim for damages.

This was the hearing of a petition for dissolution of marriage on the ground of adultery. The matter is reported only on the question of damages and costs, and material not relevant to these issues has been deleted from his Honour’s reasons for judgment as indicated.

PRITCHARD J: This is a petition for dissolution of marriage on the ground of adultery. The adultery has been admitted by both the respondent and the co-respondent and no defences raised against it. The issues, contested at length, have been the question of custody of the three young children of the marriage, the claim for damages made by the petitioner against the co-respondent and finally the question of costs.

The marriage of the petitioner and the respondent was to say the least an unusual one. They were married on 27th March, 1968. He was an Englishman aged 52, twice previously married and divorced, working for the then Administration at Buin in southern Bougainville. The marriage, which took place on his birthday, was celebrated at the District Office at Rabaul. She was a 17 year old girl, a native originally of the Gilbert and Ellice Islands, whose people had been resettled on the Shortland Islands just below Bougainville by the British Administration. The respondent’s people used to travel by boat from their island to the mainland of Bougainville at Kangu Point where the petitioner was living. On the particular occasion when the parties met she had accompanied a young boy who was sick and was travelling to Buin for treatment. Although there is some dispute about how long the petitioner and the respondent knew each other before the petitioner proposed marriage, it certainly happened very quickly; she says on the first day they met; he says within months. In any event, the respondent stayed in the petitioner’s house for a week, went back to her home for a week where she discussed the matter with her father and then came back to the petitioner and lived with him for two weeks before they went to Rabaul to be married at the District Office. The petitioner had told her he would take her on a holiday to Australia and in fact the petitioner and the respondent went to Australia after the marriage for some 2½ months on holiday.

Throughout the marriage they lived mainly at Kangu Point and at other times in Arawa, Buin and Kimbe. In April 1976 they came to Port Moresby where they lived until the separation in January last year. They had had three children by this time, Sandra born on 31st December, 1970, Melinda born on 6th September, 1972 and Frederick born on 18th March, 1976.

The petitioner was employed as Senior Provincial Clerk for the Central Province in Port Moresby. It was here that he met the co-respondent who had been a kiap with the Department of Provincial Affairs and at that time was stationed at the Sub-District Office in Port Moresby.

The co-respondent, a Dutchman but a naturalised Australian, at the time of the hearing was aged 40. He had been married twice previously, having two children from each marriage. He has custody of his two sons of the first marriage, aged 18 and 16 who attend school in Australia and stay with him during their vacations. He has access to the two children of his second marriage, his wife having gone back to Australia to live. The marriage is still subsisting but the co-respondent says that he is taking proceedings to have the marriage dissolved by the Family Court of Australia. It is clear that the co-respondent never became close friends with the petitioner and respondent. The co-respondent and the petitioner saw one another at work quite frequently. The petitioner introduced him to the respondent outside the office for the first time in October 1976.

In January last year the petitioner was going to Australia accompanied by the two female children and a young Papuan girl named Jacki Kennedy, then aged 14½, who was living with the petitioner and respondent in their house and helping with the domestic work. I will refer to this girl later. Prior to leaving the petitioner arranged for two young Manus girls who were typists in the District Office to stay with the respondent and the baby during his absence. Their names are Silah Kuan and Janet Paniu. Silah gave evidence in this case. The petitioner says that he mentioned this to the co-respondent and asked if he might assist occasionally with transporting the two girls to work and also that he be good enough to start his motor vehicle engine occasionally during his absence.

It is quite clear that in the very brief contact he had had with her prior to the petitioner’s departure for Australia the co-respondent had become infatuated with the respondent (with no encouragement from her) and intended to win her if he could.

[His Honour then dealt with the particular circumstances of the adulterous relationship which developed immediately the petitioner departed for Australia] ...

I am utterly convinced that he (the co-respondent) was prepared to go to any lengths to keep the respondent from returning to her husband and the children. I am satisfied that the respondent has a genuine affection for her children and would have gone back to the petitioner had it not been for the persistence of the co-respondent in his demand for her. The petitioner himself said in court before me that despite all that had happened he wanted the respondent to come back to him and was prepared to forgive her for what had happened. This relationship between the respondent and the co-respondent in my view is a most unstable one. I am satisfied they have had many violent emotional arguments....

[His Honour then dealt with the allegations raised against the petitioner which were numerous] ...

I am quite satisfied the marriage had not broken down. I said before it may not have been the most perfect of marriages and the difference of age between the petitioner and the respondent quite obviously made it a marriage different from most....

On the question of custody the petitioner has said that as far as he is concerned the respondent is a good woman and a good mother but he does not feel she could cope with the responsibility of the children if this suspect relationship of hers with the co-respondent broke down. She has no means of livelihood and would be unable to care for the children at all. On the other hand the petitioner has a pleasant home belonging to the Government. I am satisfied on his evidence and the evidence of Mr. O’Reilly and a number of other witnesses that he is a good father and the children are being well cared for, educated and being brought up in a proper manner. Allegations were made against the petitioner that the children were not well cared for, that they were neglected. I am not satisfied that this is so. The evidence of the witnesses to the contrary is far too convincing.

It is against this background that I firstly must answer the question of custody. Mr. Francis, for the respondent and co-respondent, claims the petitioner was a very money conscious person who appeared to have treated his wife in a miserly fashion. He claims the marriage was virtually broken in any event. With both of these submissions I disagree. He claims the co-respondent has stuck with the respondent through difficult times. This may be so but I am far from satisfied that their relationship is a stable one.

Mr. Francis then made various submissions on the principles set out in Australian Divorce Law and Practice (Toose, Watson and Benjafield Law Book Company Ltd. 1968 pars. 729-745). I have considered these submissions and those references in detail. Both he and Mr. Lay referred me to a number of authorities on custody. Amongst these were J v. C.[cccxxiii]¹ which simply confirms that the views of unimpeachable parents need not prevail over other considerations and that although serious harm can be done to young children by changing their present custody there are the questions of the child’s future happiness and security to consider which may well outweigh such harm. In Barker v. Barker[cccxxiv]² again particular stress was laid upon the child’s future interests as opposed to past history or present circumstances. In the Marriage of Sanders[cccxxv]³ stress was laid on the importance of the benefits of a child’s emotional development from being in the constant care of its mother and in establishing with her a close and secure bond of affection. In the Marriage of Raby[cccxxvi]⁴ dealt (as the last mentioned case did also) with the principles upon which appellate courts would interfere with the discretion of the trial judge. This case confirmed the principles of Sanders’ case[cccxxvii]⁵ but did say that the “preferred” role of the mother is not a principle, a presumption, a preference, or even a norm, but it is a factor to be taken into account where relevant. It did, however, reaffirm a fundamental principle, that the facts in each case vary and many different factors apply to each. Each of these last two cases was referred to In the Marriage of Lamche[cccxxviii]⁶ which in addition confirmed the trial judge’s decision to permit the mother of a child to take it outside the country, a problem which no longer, it seems, is necessary for me to consider here.

I have considered all the above matters. Although the petitioner is elderly compared to his wife, a fact constantly stressed by her counsel, he is in my view the only really stable parent of these children. Their general care, education, home, health and happiness are, in my view, catered for far better by him than they could be by their mother. Good mother though she was, loving her children as she does, she has in my view proved to be unstable and on the evidence of the co-respondent I have above quoted, liable to get into difficult circumstances in some situations, proving to me she can be easily led and influenced, which the co-respondent himself has amply demonstrated. The father has friends who help him. To uproot these children from this stable existence to life on a plantation and the uncertainty of their mother’s future with the co-respondent would be quite wrong. The co-respondent himself, I am absolutely convinced, would virtually ensure that these children would be weaned away from their father. On the question of elderly fathers, although dealing only with the question of access to an 11 year old boy by a father of 74, I refer to the humane and understanding views expressed by Selby J in Gallaghan v. Gallaghan[cccxxix]⁷ where his Honour speaks of the obligations of the young involving duties as well as privileges. This fortunately is not a case where the children do not like their father and the father is only too willing for their mother to have access. I feel sorry for the mother in this matter and I am sure that if the co-respondent had not prevailed over her, with promises of security, and of assistance to obtain her children from the father, she would never have taken the steps she has. I note in passing here that she broke her undertaking to me given in December, and in fact brought the children into contact with the co-respondent. I am afraid that if she does this again she will lose her right to see the children at all.

The next question is that of damages. The right to claim damages in England was abolished in 1970. However, as that right was allied to the old action for criminal conversation the English law I believe does not help to any degree. As our Act follows the former Australian Matrimonial Causes Act 1959 in its precise wording concerning damages claims, I consider the authorities under that Act of much more assistance. That Act has of course now been repealed in Australia and damages for adultery can no longer be claimed there. Under our Act (s. 37) damages can be awarded for adultery so long as it has not been condoned and is not older than three years prior to the petition. The court has the power to direct the manner of payment of damages and the manner in which they are to be applied, including the power to settle them on the children of the marriage.

“As the object of damages is not to punish the adulterer but to compensate the petitioner for the loss he has suffered, the heads of damage include the pecuniary loss he has suffered by reason of the adultery, the injury to his pride, prestige and feelings, and the loss of his matrimonial and family life.”

Many authorities are quoted in support of these principles and I will not go into them here. The text goes on to say:

“If, in fact, the petitioner has suffered no loss, he is not entitled to any damages.”

This principle was affirmed by Carmichael J in Forsyth v. Forsyth[cccxxx]⁸ where his Honour refused to award damages. However, in that case his Honour made a substantial settlement of property in favour of the petitioner husband.

In Springett v. Springett[cccxxxi]⁹ Jenkyn J was dealing with a case of adultery committed a second time after condonation of the first adultery. His Honour held that damages could not relate to the first adultery as the Act clearly prevents this, and went on to say at p. 121:

“I must remember that damages must contain no punitive element. To use the words of Scarman J in Pritchard’s case (Pritchard v. Pritchard and Sims [1967] P. at p. 216) ‘The solatium must be sufficiently large to mark the court’s sympathy, so that there is comfort to the husband in the award without pandering to a desire for vengeance or intruding into the sphere of punishment ... The sum must be reasonable so that the solatium offered is no mere empty show. It is to be a genuine balm to injured feelings, yet it must be modest.’ “

I was referred to the decision of Selby J in Woodward v. Woodward[cccxxxii]¹⁰ where his Honour described the marriage as “empty and barren” and said of the parties “boredom and irritation seemed to be the principal reaction which one brought about in the other.” His Honour awarded the husband, who had been guilty of casual adultery himself, $1,000 damages as “some compensation for the final destruction of his household and compensation for the injury to his feelings and affront to his pride which the co-respondent’s adultery with his wife caused.”

In Ford v. Ford[cccxxxiii]¹¹ Joske J reviewed many of the authorities. His Honour cited the following passage from Oliver v. Oliver[cccxxxiv]¹²:

“Whilst the grounds upon which damages are awarded and the heads under which they are assessed are now firmly established, it is clearly impossible to specify, as a general proposition, all facts which must be taken into consideration. The vagaries of human behaviour are infinite, the situations in which people become involved are innumerable. It would be impossible to determine what facts should be taken into account and what weight should be given to them until the whole picture has been unfolded.”

His Honour then referred to a passage in the judgment of Carmichael J in Forsyth v. Forsyth[cccxxxv]¹³:

“The grounds for and heads of damages are established but the principles as to which are to be applied in any particular set of facts are not.”

His Honour approved the above passage in Oliver’s case[cccxxxvi]¹⁴ and quoted Carmichael J’s conclusion in Forsyth’s case[cccxxxvii]¹⁵:

“One has to find something unusual in a case, some tangible injury beyond mere loss of consortium or feelings of hurt to one’s ego before an award of damages is justified.”

“I assume this means that there must be proof of damage and there was a finding of fact that the petitioner did not suffer damage.”

Later, in Woodman v. Woodman[cccxxxviii]¹⁶ Jenkyn J reaffirmed these principles.

So in Australia, the field was narrowing and as had happened in England, was finally legislated out of existence. Our Act remains the same, however, and the question I pose is what law is appropriate to Papua New Guinea. The principles set out in Toose, Watson and Benjafield which I quoted when first discussing this problem seem appropriate to me in this country together with the necessity for real damage as developed in the Australian decisions. The Law Reform Commission prepared a report on adultery in February, 1977 which recommended that the present penal provisions for adultery contained in the Native Regulations be abolished and replaced by a compensatory system with a maximum amount of compensation of K200.00. It also, as a matter of interest recommended the repeal of s. 37 of the Matrimonial Causes Act and that the right to compensation be limited to the new compensation system proposed. In my experience as a magistrate and judge in this country I express grave doubts as to whether Parliament would enact such legislation and indeed it has not been brought forward. In this country adultery is regarded very seriously indeed and the damage it does to family and clan relationships brings frequent demands for punishment. The loss of face a man suffers in Papua New Guinea traditional society when his wife commits adultery with another man is great indeed. However, the Report does recognize that adultery should be the subject of compensation and I believe the principles developed under the former Australian legislation to be appropriate here, no matter what the racial background of the parties may be.

In this case the petitioner is going to have to employ a housekeeper and apart from that the actions of the co-respondent have also caused him expense, e.g. paying the respondent’s fare to Bougainville. His pride, prestige and feelings have been injured in no uncertain fashion by a co-respondent who has acted generally through the whole affair in contemptible fashion. He has lost his family life, unglamorous though it may have been. His was not, however, a “barren and empty” marriage. He had, by his standards a happy and contented home and family which this co-respondent has deliberately smashed and into the bargain done his best to destroy completely by supporting the respondent in her claim for custody. I have before me some evidence of the co-respondent’s means. Where they have been used to induce the respondent into breaking up the marriage, as I find they were here, such evidence is properly admissible, apart from other reasons. Butterworth v. Butterworth and Englefield[cccxxxix]¹⁷, Scott v. Scott and Anyan[cccxl]¹⁸.

I propose to award the sum of K3,000.00 and I now intend to rely on the petitioner’s age, not for the benefit of the respondent and corespondent who sought to use it for their advantage, but for the benefit of the children, looking to the future when their father may no longer be able to give them the support he would wish. I intend the amount be divided equally between the petitioner and the three children.

Finally, costs. On dealing with the application for security for costs I referred to the decision of Fenston v. Fenston[cccxli]¹⁹ in which the Court of Appeal held that a co-respondent who actively supported a wife’s claim for custody was liable to pay the husband’s costs. This principle was confirmed in Brow v. Brow[cccxlii]²⁰. In this case, into the bargain, the co-respondent has at length defended a successful claim for damages. In fact, on looking back, I really believe many of the matters raised by the wife apparently on the question of custody, were built up by the co-respondent in her mind in a deliberate attempt to minimize or defeat the petitioner’s claim for damages. In view of the fact that the respondent and co-respondent have been represented by the same solicitors from the very beginning of this suit I do not propose making an order that the petitioner pay her costs. They are very much the co-respondent’s affair and he is to pay the petitioner’s costs as hereafter ordered.

In view of the fact that the co-respondent’s only major asset is the yacht I have mentioned, that he has no real ties in this country and that for almost three months he disobeyed my order to pay the sum ordered by way of security, to protect the petitioner and the children, of my own volition, I propose restraining him by way of injunction under s. 102 of the Matrimonial Causes Act 1964 from leaving Papua New Guinea until the damages and costs are paid. As part of that order, he is to surrender his passport to the Registrar forthwith to be returned to him upon such payment.

2. I find the petitioner is domiciled in Papua New Guinea according to the common law.

4. I pronounce a decree nisi for dissolution of the marriage on the ground of the respondent’s adultery with the co-respondent.

5. I award custody of the three children of the marriage, Sandra Elizabeth Mortimore born on 31st December, 1970, Melinda Anne Mortimore born on 6th September, 1972 and Frederick Harvard Mortimore born on 18th March, 1976 to the petitioner and declare that I am satisfied that proper arrangements in all the circumstances have been made for their welfare, advancement and education.

6. I order the respondent have reasonable access to the children whenever she is in Port Moresby on the following conditions:

7. I award the sum of K3,000 damages against the co-respondent on the ground of his adultery with the respondent and I direct those damages be paid into court forthwith and further that K750 of that sum be paid out to the petitioner and the balance in equal shares be settled on the three children of the marriage to be held in trust until each attains the age of 18 years with the specific proviso that advances may be made from such trust for the maintenance, education or other benefit for the said children from time to time as their needs dictate until they attain such age.

9. I order the co-respondent to pay the petitioner’s costs of and incidental to this suit, if not assessed, to be taxed and in this regard the hearing of the suit itself, not including applications pending suit, shall be deemed to have taken 10 full hearing days.

10. I order the co-respondent be restrained from leaving Papua New Guinea until the damages and costs above ordered have been paid and to surrender his passport forthwith to the Registrar of this Court to be retained until such payments have been made.

12. K750 interim costs of suit paid into court may be paid out to the petitioner’s solicitors.

[cccxxiii] [1969] UKHL 4; [1969] 2 W.L.R. 540.

[cccxxiv] (1976) 9 A.L.R. 451.

[cccxxv] (1976) 10 A.L.R. 604.

[cccxxvi] (1976) 12 A.L.R. 669.

[cccxxvii] (1976) 10 A.L.R. 604.

[cccxxviii] (1977) 15 A.L.R. 376.

[cccxxix] (1966) 9 F.L.R. 331.

[cccxxx] (1970) 16 F.L.R. 248.

[cccxxxi] (1968) 12 F.L.R. 110.

[cccxxxii] (1972) 14 F.L.R. 385.

[cccxxxiii] (1972) 18 F.L.R. 426.