IN THE HIGH COURT OF FIJI
(AT SUVA)
FAMILY JURISDICTION

CIVIL APPEAL NO. 4 OF 2001

Between:

LAWRENCE DINESH RAM

and

EVELYN SHARMILA SURAN

Seru for the Husband
Sharma for the Wife

JUDGMENT

These are cross appeals by the husband and wife against orders made by the Suva Magistrates’ Court (E. Sauvakacolo Esq.) on 7 December 2000.

The wife presented her petition for divorce on the grounds of cruelty in October 1999. She disclosed that there are 2 children of the family, now aged 8 and 3. Apart from dissolution of the marriage she sought custody, care and control of the children, maintenance for their support and transfer to her of the husband’s half share in the matrimonial home.

In November 1999 the husband filed an answer to the petition. He denied cruelty. He sought to have the petition dismissed and custody of the children.

On 3 December 1999 the Resident Magistrate ordered a welfare report to be prepared and set the petition down for hearing the following February. During February, March, June and August it appears from the record that various attempts were made at mediation but on 25 October the matter proceeded to hearing. For some reason the husband was not represented although Messrs. Sherani & Co. had acted for him previously, had appeared and had filed his answer.

The wife gave evidence and was cross examined by her husband. She also called her mother and another lady to give evidence on her behalf. The husband then presented his case and was cross examined. Following the hearing the Resident Magistrate called for written submissions. Submissions were filed by or on behalf of both parties and are included at pages 36 to 41 and 51 to 58 of the record. The welfare report is at pages 59 to 63.

In his Judgment delivered on 7 December 2000 the Resident Magistrate granted the wife a decree nisi on the grounds of cruelty. He awarded her the custody of the children with defined access to the husband. He ordered the husband to pay $15.00 weekly by way of maintenance for the older child and $12.50 for the younger. The orders relating to the matrimonial property were rather unusual in that they were in the alternative, apparently offering the parties a choice. It is however clear that the Resident Magistrate assessed the value of the wife’s share at $21,000 and the husband’s at $4,000. Either the wife paid the husband $4,000 and took the home or the husband bought out the wife for $21,000.

The husband appealed on 19 December 2000. The wife cross appealed on 10 January 2001.

As appears from his Petition of Appeal the husband’s case is that the Resident Magistrate’s findings on the question of cruelty were unreasonable and unjustified, that the hearing was conducted unfairly and that the matrimonial property award was inequitable.

On behalf of the husband Mr. Seru pointed out that he had denied being cruel to his wife when he gave his evidence that he denied cruelty to the Welfare Officer and that he repeated his denial in his Written Submissions. As to the conduct of the hearing Mr. Seru pointed out that in her letter to the Court (page 29 of the record) the wife mentioned that her husband had told her that he would bring several witnesses to testify against her. This Mr. Seru suggested was consistent with the husband’s complaint (ground 2 of the appeal) that he was not allowed to call his witnesses. Mr. Seru complained that the wife had prevented access to the children taking place. He also suggested that the matrimonial home which was in the joint names of the parties should have been jointly shared in recognition of the contributions in kind which the husband had admittedly made to bringing up the children. Mr. Seru invited me to set aside the Resident Magistrate’s orders and to dismiss the Petition.

In answer, Mr. Sharma (who, I gained the impression, may have filed the cross appeal for tactical reasons) suggested that the Resident Magistrate had made a finding of fact on the question of cruelty which was open to him given the evidence adduced. He pointed out that there was nothing in the record to support the husband’s claim that the Resident Magistrate had prevented him from calling any witnesses (some of whom, Mr. Sharma confirmed, were indeed present at court). He and Mr. Seru both agreed that the defined access order was inappropriate and should be set aside. Mr. Sharma suggested that the division of the matrimonial assets had received insufficient detailed examination by the Resident Magistrate. He also submitted that the husband’s means and earning capacity had been insufficient evaluated. In fact the husband had never paid any maintenance at all but $25 per week per child which he had once offered was entirely reasonable.

In my view the Resident Magistrate’s findings on the question of cruelty are unassailable. Admittedly this is not the most serious case of cruelty but it is nevertheless clear that the marriage was irretrievably broken down (see Welfare Report – page 60 of the record). In the absence of anything in the record to support the husband’s complaint that he was prevented from calling his witnesses and bearing in mind Mr. Sharma’s assurance that this was not the case I reject this ground of appeal. The recommendation of the Welfare Report was that custody of the children to be awarded to the wife. Although she is working her mother helps her. The children are young. They should be with their mother with reasonable access to the husband.

The two remaining issues are the matrimonial home and maintenance for the children.

It was not disputed that the wife who is a bank officer bought the house and was paying for the mortgage. The husband, whose principal interest appears to be throwing darts has never had a proper job although when the Welfare Report was prepared he was working in supermarket as a casual worker earning $70 per fortnight. How the Assistant General Superintendent of the All Nations Christian Fellowship could describe him as “hardworking” I really do not know (page 40 of the record). I was told that the husband is waiting to emigrate to the United States but what particular skills he will be taking to that country I was not told.

Looking at the evidence in the round I conclude that the Resident Magistrate’s assessment that the husband had probably contributed about $4,000 to the marriage was reasonable. According to his submission sent to the Court (page 36 of the record) in 1991 the husband was working by day as a food and beverage stock controller and in the evenings as a barman and waiter. In my view he has the earning potential to pay $20 per week maintenance for each child. As has been seen he has so far paid nothing. In these circumstances it would be unreasonable to expect the wife to pay him for his share of the matrimonial home when he has not been paying her. At the rate of $20 per week each the husband should have been paying the wife $2080 per annum with effect from October 1999, the date of the presentation of her petition. It is now October 2001 and therefore almost exactly $4,000 is owed. In these circumstances I am satisfied that the husband’s contribution to the marriage can properly be offset against the amount which he owes.

I order:

1.	Both appeals dismissed.
2.	Husband’s share of the matrimonial home to be transferred to the wife forthwith.
3.	Custody of the children to the wife with reasonable access to the husband.
4.	Husband to pay $20 each weekly for the maintenance of the children. First payment 2 November 2001.

M.D. Scott
Judge

26 October 2001