IN THE SUPREME COURT OF TONGA
FAMILY DIVORCE JURISDICTION
NUKU'ALOFA REGISTRY

F. 23/2000

BETWEEN:

'ISIKELI FELE'ATOU'A PULINI
Petitioner

AND:

VIKA MASUNU
Respondent

BEFORE THE HON. JUSTICE FORD

COUNSEL: Mr Sione 'Etika for the Petitioner,
and Ms Lesina Tonga for the Respondent.

Date of Hearing: 26, 29, 30 January, 2001
Date of Judgment: 31 January, 2001

JUDGMENT

The parties were married at the Catholic Church at Longoteme on 12 January 1994. The petitioner was 33 years of age and the respondent was 37. They have an adopted son, Rotorua Fele'atou'a Masunu Pulini born on 16 March 1995.

The husband has petitioned for divorce on the grounds that the respondent has behaved in such a way that he cannot reasonably be expected to live with her. The respondent denies that allegation and the petition proceeded to a defended hearing.

The parties first met in 1985 and in 1986 they started living together in a de facto relationship. The respondent had had children from a previous de facto relationship. At the time they met, the petitioner was working for the Ministry of Works. He had joined the Ministry in 1980. At present he holds the position of deputy director of the Ministry of Works.

In 1987 the petitioner won a scholarship to study in Australia and the couple ended up living in Australia until 1991. In March of that year, the respondent came back to Tonga to look after her ill mother who subsequently passed away and in November of that year the petitioner returned and resumed his employment with the Ministry of Works.

During that part of their lives, there was much love in the relationship. The petitioner, as he put it, was "getting respected in the workplace" and the respondent was fully supportive and proud of his achievements. In 1994 they married. The petitioner says that at that point in their lives everything changed. He said that there was never any love in their life after the marriage because from that moment on his wife became bitterly jealous and suspicious. He said that her jealousy was based on stories she would hear from people about his alleged association with other woman. He said that the things that she suspected him of were not true but her behaviour as a result of her unfounded suspicions began to affect him in his life and in his career. At the time of the marriage, the petitioner held the position of Chief Engineer with the Ministry.

In his affidavit setting out particulars of the conduct complained of, the petitioner said:

"3. During the time we have been living she has been a suspicious and jealous woman about myself accusing me to be having affairs with women whom she has suspected me with and this has stirred up arguments which at times got heated up and had embarrassed me in the public with her manners.

4. We had not been a settled couple and most of our unsettled moments arised from her confrontations of myself which had always spark heated arguments that disturbed our love life for most of the times.

5. She had even come to my workplace and insulted one of the female staff there in the eyes of her work mates with indecent languages and accusing her of enticing me and trying to have an affair with me.

6. That it is now over six years of our marriage and the same problem have eroded our marriage life, without any children of our own except an adopted son.

7. She is not happy with my relatives coming to me or asking me anything and is habitually insulting people with aggressive threats and indecent languages which I am being embarrassed by in the eyes of the public and is ruining my self-esteem in the society.

8. That she has even assault me a while we had arguments and now my face is left with scratch marks from her finger nails while assaulting me."

In oral evidence, the petitioner expanded upon the two main incidents he relies upon as evidence of the respondent's behaviour which makes it unreasonable to expect him to have to live with her. The first was sometime in 1995 when the respondent came into the office where the petitioner works during working hours and attacked a girl she suspected the petitioner was having an affair with. The petitioner said that she came into the office without warning and slapped the girl and yelled abusive language at her. He said that she had to be restrained by other members of the staff and the petitioner ended up taking her home. He made the point that at that stage he was acting Director of Works and the incident, in front of all the staff, was deeply embarrassing for him.

The second incident the petitioner described took place over the Christmas period of 1999. He said that he was due to accompany the Minister and His Majesty on a trip to the Niuas on the Monday and on the Saturday at home his wife assaulted him and scratched his face. He said that it was extremely embarrassing being part of the official delegation having scratch marks on his face. When he got back from that trip he told the court that "that was it ".As he put it, "she has been doing this all my married life and I just can't take it any more." He moved out of the matrimonial home in January 2000 and has not returned.

There were two other incidents the petitioner gave evidence about. He said that on numerous occasions he would go out drinking on Friday nights with his colleagues and on one such occasion when he arrived back home the respondent grabbed a chair and crashed it onto the car and all his neighbours heard. He said that there was no other reason for her conduct apart from her unreasonable suspicions and jealousy.

The other incident he described occurred after he had actually left the matrimonial home and was living in an investment house at Ha'ateiho which he and the respondent own jointly. He said that one Saturday afternoon his wife telephoned him and said that one of the beds in the house belonged to her and she asked if she could come across and collect it. He told her that she could and she arrived at the agreed time. He said that while he was dismantling the bed for her to take, he heard her smash a louvre window and then she hit a door with a chair and she swore from the front gate as she was leaving. On that occasion the police were called.

The petitioner gave evidence about how he had helped set the respondent up in a small business which hired out machinery to customers, including the Ministry of Works. He also explained how he had been able to supplement his income from a small private business operation which he ran on his own account. I also heard evidence about how the couple came to adopt the young boy. The petitioner said that there was no reason he was aware of which would have prevented them from having children of their own but it had not turned out that way.

That was the essence of the petitioner's evidence but from a question he was asked right at the very end of his evidence in chief it became apparent, as is so often the case, that there was another side to the story. He was asked whether he was now living alone to which he responded that he was living with a girlfriend. He explained that the woman worked for Tonga International Telecommunications. He said that they had an eight month-old daughter and his girlfriend was presently four months pregnant with another child of his. He said that this affair had began back in 1998. The final question he was asked by his counsel was whether the respondent knew about the affair to which the answer was, "no, not until later."

The full picture then began to unravel through cross-examination and through evidence given by the respondent.

The respondent said that after the marriage in 1994, the relationship carried on as normal and there was never any domestic argument until later that year when the petitioner started getting involved with other women. She said the first affair was with a young woman called Senolita. The respondent said that she started hearing rumours about this other woman and she questioning the petitioner from time to time about the matter but he kept denying the rumours but one-day Senolita called her on the telephone and abused her with insulting language and told her that she had no right to interfere with the affair she was having with her husband. The affair went on for about a year. The petitioner later admitted everything and reconciled with his wife. Senolita also apologised to the respondent for the mistake she made in having an affair with her husband and she later left Tonga for the USA.

The respondent said that after that the petitioner continued to go out drinking every Friday night and would not get home until the early hours of the morning. She said that she knew that he was with women on some of those occasions because he would come home with love bites on his neck.

Some six months after the affair with Senolita ended the respondent discovered that the petitioner was having another affair with a girl called Katalaine who worked at the Ministry of Works. This was the affair that led to the workplace incident the petitioner had earlier described to the court. The respondent said that about this time she noticed the petitioner spending long hours on the telephone at late hours of the night and when she asked him about the calls, he said that they were none of her business. She then began hearing stories from others about his association with this girl but whenever she tried to put the rumours to him, he became angry and denied them.

One-day a woman rang the respondent and told her that she had just had lunch in town with her husband (the petitioner) and another woman. The respondent knew immediately from the description given that the other woman was Katalaine and so in anger she went to the workplace and slapped Katalaine's face once and told her not to ever have anything to do with her husband again. She said that she did not swear at the girl but she admitted that she was very angry because when they reconciled after the affair with Senolita ended the petitioner had promised that nothing like that would happen again. Katalaine later admitted to the respondent that she and the petitioner had been having an affair and she begged the respondent's forgiveness. The petitioner also admitted that they had been lovers but, again, he and the respondent reconciled.

The following year, 1996, the petitioner had a relationship with another woman up in Vava'u called Tilisia. The respondent heard from two reliable sources that they had slept together at the Paradise Resort. One of these informants was the security night watchman at the resort who happened to be related to the respondent and he knew the petitioner well. The petitioner later admitted the relationship to the respondent.

The respondent also told how in September 1994 the petitioner attempted to rape her young niece, Tilini, at the Ministry of Works premises at Vaololoa. She caught up with them at the premises after 8am in the morning after going to look for them because her husband had not arrived home and she had heard from another girl who had been with them that Tilini had gone off with the petitioner in his car. The respondent said that she was worried about the niece who was like a daughter to her. When that incident had been put to the petitioner and he was asked to confirm that he had picked Tilini up at a nightclub he denied it and said that he had picked her up while she was walking along the road and they had driven around and drunk beer and kissed along the road. The petitioner also gave evidence about another incident in 1995 when a girl, Vika, was staying at their home and the petitioner tried to make love to her. Vika told the respondent what had happened and when she confronted the petitioner he fully admitted it and apologised. Vika, who was the respondent's cousin, was attending Tupou High School at the time and after the incident she was returned to her parents.

The respondent said that the car incident which the petitioner had talked about happened in May 1999. She said that the petitioner had gone out for his usual Friday night drinks but he did not come home until around midnight on the Saturday. Earlier during the day she had seen a woman driving her husband's car around town but when she tried to follow the car to see who the woman was, the woman drove off and she was unable to find it again.

In all events, when the husband arrived home at around midnight the first words the petitioner said to him were, "thank God that you are alive". She said that he was very drunk and he still had a can of beer in his hand and he sat down with his beer and carried on drinking. She then noticed love bites on his neck and she said that that made her furious. She said that she tried to talk to him to get him to tell her where he had been but he carried on drinking and said, "if you get sick of what I'm doing and get sick of my way of life - get out." The respondent said this made her even more upset and she picked up a bit of iron and hit the bonnet of his car with it and then she ran inside the house crying. She said that at the time of the incident, there was no one around the area watching because it was about midnight. She said that their young son was still up waiting for his father to come home.

The respondent next gave her version of the barbecue incident which the petitioner had said was the final straw which led him to leave the home. She said that it occurred on the 4th December 1999. The barbecue was for one of the petitioner's work mates and she said that it was a lovely evening with all the guests leaving about 11 p.m. apart from one of the petitioner's cousins who stayed on drinking. The respondent said that she was not a drinking woman except occasionally when she was with friends and then she might have one or two glasses of wine but this particular night the petitioner urged her to drink beer and so she sat down and joined him and the cousin and between them they drank about three and half litres of beer. She said that they were laughing and talking and having a great time and there were no arguments but they became extremely drunk and she did not know what was going on until the early hours of the following morning when they woke up. She said that they both looked in the mirror and her husband asked what happened to his eyes and the respondent said that even she was shocked over the scratch marks she saw on his face but neither of them could remember what had happened. She said that they were both still drunk and the respondent noticed that her own shirt was ripped and she had bruises on her shoulder. Neither of them knew what had happened but they hugged and made up and apologised to each other and reconciled. She said that later that same morning the petitioner went out drinking again with one of his mates and then he came home before leaving on the official trip to the Niuas on 6 December.

Earlier the respondent had described to the Court the emotional scene which had taken place a few days after the break up of their son's school in late November 1999 when the petitioner had sat down with her and told her about the affair he had been having with another woman called Malavine since 1998 and he disclosed that she was then pregnant with his child.

Finally, the respondent addressed the incident which the petitioner had given evidence about relating to the breaking of the louvre window in their investment house at Ha'ateiho. The respondent said that the husband moved into the house on 4 July 2000 after tenants had left and the reason for her anger when she went to pick up the bed was the realisation that it was here in the house that they had jointly purchased as an investment property where she had spent months renovating, decorating and painting and cleaning that her husband was living with his girlfriend. She said that it had been her dream house and when she saw the other women's clothes in the closet that had been the last straw. She said that she was overwhelmed with grief and in her anger she broke a window. She said that it was a plain window not a louvre one.

The respondent told about the petitioner's departure from the matrimonial home. She said that on 31 December 1999 he told her that he wanted to talk to her at the end of the day. The respondent got quite excited. She was anticipating that at their meeting, the petitioner would be announcing to her a complete reconciliation to mark the end of the millennium. He had already told her at the end of November about his affair with Malavine and, in her mind, there could not be any more bad news.

The respondent was stunned, therefore, when they sat down to talk and the petitioner told her that he was going to leave the matrimonial home and move into his parent's place with his girlfriend. The respondent described how she pleaded with him to change his mind and stay. In desperation, she said that he could keep going out with that woman so long as he still came home to her and their son. He replied that he was leaving to live with Malavine.

That discussion took place on 31 December which was a Friday. Next day, the Saturday, the respondent said that the couple carried on with their usual routine. There was much talking and laughter and again on the Sunday everything seemed normal. The respondent thought, hopefully, that her husband might only have been joking about his threat on the Friday to leave.

On Monday, the petitioner went off to work following his normal routine but he did not come home that evening. Not having heard anything, the respondent in the early hours of the Tuesday morning, telephoned his mobile phone number and asked him where he was. He said, "I told you I'm leaving. I'm staying at my mother's house."

That was it. He has never returned to the matrimonial home.

Some guidance as to the meaning of section 3(1)(g) of the Divorce Act CAP 29 can be found in the English cases dealing with identical wording where it appears in section 1(2)(b) of the Matrimonial Causes Act 1973. Halsbury, 4th edition, vol 13, para 574, states:

"The matter has been approached by considering whether any right-thinking person would come to the conclusion that the (respondent) had behaved in such a way that (the petitioner) could not reasonably be expected to live with the (respondent) taking into account the whole of the circumstances and the characters and personalities of the parties."

In Stevens v Stevens 1979 1 WLR 887, Sheldon J. adopted the following passage from Rayden on Divorce:

"In all these cases the totality of the evidence of the matrimonial history must be considered, and the conclusion will depend on whether the cumulative conduct was sufficiently serious to say that from a reasonable person's point of view, after a consideration of any excuse or explanation which this respondent might have in the circumstances, the conduct is such that this petitioner ought not to be called upon to endure it."

In the present case, I found the wife to be an impressive witness. I believe that she gave the Court an accurate account of the history of her relationship with the petitioner without embellishment or over-statement. Wherever there is a conflict in the evidence, I accept the respondent's account over the petitioners.

One of the witnesses called for the respondent was Manusiu Tupou who worked as a housekeeper at the couple's home from early 1999 until March 2000. She gave evidence largely confirming what the respondent had said, namely, that everything appeared to be perfectly normal in the matrimonial home up until towards the end when the petitioner left. At that stage, she was aware of the petitioner's association with Malavine. Manusiu's evidence confirmed the respondent's statements to the Court that there is no substance to the petitioner's claim that she (the respondent) had shown disrespect to his relatives.

The other witness called by the respondent was her niece, Tilini. Tilini confirmed that one night around Christmas in 1994 she had been picked up by the petitioner at the Ambassador's night club with another girl friend. They drove to a house and the girlfriend went inside to get a relative but the petitioner drove off in the car without waiting and took Tilini to a beach where they drank beer. She then asked him to take her to a particular house because she wanted to go to the bathroom but instead he took her to the Ministry of Works office where he worked. She said that while she was in the toilet she heard the petitioner lock the door to his office outside and she said that she knew she didn't have a chance of getting out and so she remained there with him. This was in the early hours of the morning .She said that they only kissed. In answer to a question from the Court she indicated that they were in the office for about an hour and then they heard Vika banging on the office door. Vika had earlier told the Court that she had arrived at the office sometime after 8 a.m. Tilini said that Vika would have been banging on the door for some 10 minutes before the petitioner went out and opened it. She said that when she went outside Vika yelled at her and told her that this was her husband and that she would tell her (Tilini's) father. Tilini told her that her husband had not done anything to her but she told the Court that she had been afraid and there was no chance for her to say, "no".

Although I accept Tilini's evidence as to how she came to be picked up by the petitioner that night (or early morning), her discomfort in the witness box was apparent and I do not think that she was being completely frank when she told the Court that all they did during the time they were at the Ministry of Works office was "kissed". I also suspect that they were at the office for longer than she was prepared to let on.

The petitioner did not call any corroborative evidence.

The particular incidents which the petitioner purports to rely upon as grounds for his divorce petition were in my judgment an understandable stressful reaction by the respondent to extreme provocation resulting from the petitioner's philandering and unfaithfulness. As Bush J. said in Welfare v Welfare, The Times, October 12, 1977:

"Conduct of a respondent could not be looked at in isolation but had to be viewed in the light of all the surrounding circumstances, including the degree of provocation."

Here, as I have said, the provocation was extreme.

The petitioner has failed to discharge the burden of establishing on the balance of probabilities that the respondent's conduct was so unreasonable that he could no longer be expected to live with her. On the contrary the evidence has persuaded me beyond doubt that the petitioner's conduct has been such over a sustained period of time that the respondent could not reasonably be expected to endure it any longer but that is not the case before the Court.

I suspect that the marriage has now broken down irretrievably but in my judgment it is the petitioner's own conduct that has caused him to leave the matrimonial home. The marriage has not ended by reason of the behaviour of the respondent. The petition is dismissed with costs to the respondent.

The respondent in her answer to the petition seeks other orders consequent upon the petitioner's decision to leave the matrimonial home and, with some variation, I now make these further orders in the terms requested:

1.	Custody of the child ROTORUA FELE'ATOU'A MASUNU PULINI is awarded to the respondent with reasonable rights of access reserved to the petitioner, subject to prior arrangement. The respondent asked that access be "without the presence of the petitioner's mistress or girlfriend". In the face of such an order, I consider it is less likely that the petitioner would want to exercise access rights and I do not believe that that would be in the child's best interests. The proviso, therefore, will not be included in my Order.

2.	The petitioner is to pay maintenance for the said child in the sum of $25 per fortnight.

3.	The petitioner shall meet the costs of all educational expenses of the said child.

The respondent also sought an order requiring the petitioner to continue to provide accommodation for the child and the respondent. They are presently residing in the family home which is a rented Government Quarter at Fanga. As I understand the evidence, accommodation would only become an issue if the husband's petition had been successful. If that does not turn out to be the situation than leave is reserved to the respondent to re-apply to the Court.

NUKU'ALOFA: 31 January, 2001.

JUDGE