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Mamata v 'Akolo [2001] TongaLawRp 54; [2001] Tonga LR 300 (15 November 2001)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

F 86/2000

Mamata

v

'Akolo

Ford J
18 September, 12 November 2001; 15 November 2001

Family law – divorce application – granted on basis of unreasonable behaviour
Practice and procedure – application to amend petition – not bona fide so application refused

The parties were married at Nuku'alofa on 17 June 1999. On 27 April 2000 the petitioner gave birth to a son. The couple separated on 15 September 2000 and on 26 September 2000 the wife filed for divorce on the grounds that the respondent had behaved in such a way that the petitioner could not reasonably be expected to live with him. On 5 October 2000, the petitioner, without her husband's knowledge, took her young son to New Zealand. She told the court that she went to Auckland to reside with her mother's sister. She thereafter made no attempt to contact her husband. On 11 December 2000 the petitioner telephoned her supervisor at the Tonga Communications Corporation, Hon Luani, and asked for more time off work. He spoke to her about the separation and he went and got her husband and put him on the phone and he then left the room. Over the next few weeks the respondent telephoned her and sent her a total of $400. The petitioner told her husband that she was pregnant when she had left Tonga back in October. The last telephone communication between the couple was in early March 2001. On 8 May 2001 she gave birth to another son and returned to Tonga on 3 July 2001. By this time the respondent was cohabiting with the co-respondent, Popua Moa. On 10 July, the petitioner filed an application in the Magistrates' Court for maintenance. The magistrate ordered the husband to pay $10 per week for the wife's maintenance and $18 per week for each child, making a total maintenance payment of $46 per week. The petitioner told the court that she had applied for maintenance of $250 per week. On 13 August 2001 the wife made ex parte application to amend her petition to allege adultery and claim damages in the sum of $1000 from the intended co-respondent, Popua Moa.

Held:

1. The Court refused the application for leave to amend her petition on two grounds: the application was devoid of merit; and the Court did not accept that it was a bona fide application.

2. When the petitioner failed to secure the maintenance award that she sought from the magistrate, she filed her application for leave to seek damages from the co-respondent. That did not give rise to a bona fide application.

3. As to the merit of the application, damages were not normally awarded for adultery. The remedy was inappropriate because the adultery was merely a symptom, and not the cause, of the breakdown in the marriage.