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Wati v Prasad [2016] FJHC 687; Appeal 0001 of 2014 (21 March 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION (Family Division)

Appeal No. 0001 of 2014

BETWEEN

Bijma Wati

Appellant

AND

Gaya Prasad

Respondent

BEFORE The Hon. Mr Justice David Alfred

Counsel
Ms C Choy for the Appellant
Ms M Rakai for the Respondent

Date of Hearing : 7 March 2016
Date of Judgment : 21 March 2016

JUDGMENT

1. This is an Appeal from the Order of the Resident Magistrate, Suva dated 14 December 2012. The Notice of Appeal contains 4 Grounds as follows:
   • (1) The Appellant was prejudiced due to lack of legal representation which

led her to decide to forego her appeal in respect of the Court Order

dated 14 December 2012 (the Order).

(2) The Magistrate erred in law and in fact when she dismissed the

maintenance application without any cogent evidence.

(3) The Magistrate erred in law and in fact when she failed to consider the Respondent’s financial status was better than the Appellant’s when invoking section 86 of the Family Law Act.
(4) The Magistrate erred in law and in fact when she failed to realize that the child Kirti has disabilities which may affect her studies and should be financially assisted in her studies despite her unsatisfactory performance.

2. This Appeal came up for hearing before me on 7 March 2016. Counsel for the Appellant informed me that the Appeal would only be with regard to the 28 years old daughter of the marriage, Kirti Prasad (the daughter).
   
3. Counsel submitted with regard to ground 1, the Fiji National University had given the daughter a scholarship to take care of the fees for a beautician’s course. She is now 28. There was an internal problem between the 2 schools. Counsel confirmed that a beautician’s course is tertiary education. The Appellant was proceeding under Section 92(1) of the Family Law Act 2003 (FLA). They did not have any medical evidence of the speech and hearing disabilities of the daughter. The daughter had completed her 1^st tertiary education. Counsel finally submitted the Respondent was better off than the Appellant and should support the daughter, who has disabilities, as the Appellant does not have means.
   
4. Counsel for the Respondent now submitted. She said the onus is on the Appellant to show how the Magistrate erred. The Appellant was out of time as the Appeal had not been filed within 1 month of 14 December 2012 and had been filed on 11 July 2014.
   
5. With regard to Ground 1 of the Appeal at the hearing the Appellant had a McKinsey friend and was given time. With regard to Ground 2, cogent evidence was provided by the witnesses and documents. There was no medical evidence
   

that the daughter had these disabilities and therefore does not qualify under section 92 of the FLA. The Magistrate correctly applied Section 92(1)(a) of the FLA. The Scholarship means the parties do not need to pay the fees. Ground 3 cannot apply as Section 86 of the FLA cannot be invoked as the daughter is not a child. Ground 4 does not apply and is not consistent with section 92 of the FLA. In any event it is open ended.

6. The Appellant’s Counsel in her reply said there was no appeal against the Magistrate’s order that the Appellant pay half of the fees, but Counsel still maintained that the Respondent must pay for the entire beautician’s course for the daughter to obtain her diploma.
   
7. At the conclusion of the hearing, I reserved Judgment to a date to be announced. In the process of reaching my decision I have read the Order of the learned Magistrate, and the Appeal Record and documents.
   
8. I now proceed to deliver my judgment.
   
9. As this is an Appeal, I propose to deal first of all with the Respondent’s Counsel’s submission that the Appeal was filed out of time.
   
10. The Order was made by the Magistrate on 14 December 2012, while the Notice of Appeal was filed on 11 July 2014. This is certainly more than one month after the date of the decision appealed against.
    
11. Counsel for the Appellant surprisingly made no attempt either in her oral submission or in her reply to address this issue, except a passing reference to the prejudice alluded to in ground 1. Counsel failed to take cognizance of Respondent’s Counsel submission that the Appellant had a McKinsey friend to assist her at the hearing.
    
12. As this is a Family Court matter, I have perused the Family Law Act 2003 with regard to the provisions relating to Appeals. Section 19(1) thereof states that an appeal from the Family Division of the Magistrates’ Court lies as of right to the Family Division of the High Court.
    
13. Section 184(1) provides that an appeal under section 19 must be instituted within the time prescribed by the Rules of the Division or within such further time as is allowed in accordance with the Rules of the Division.
    
14. The Family Law Rules 2005, Order 11.01 provides that an appeal under the FLA shall be instituted in accordance with Form 26 in the court appealed from within-
    • (a) One month after the day on which the order appealed from was made; or
    • (b) Such further time as that court orders.
      
15. The provisions governing an appeal show that the Legislature has prescribed the course of action that a party in the position of the Appellant here has to take in order to obtain an extension of time to file an appeal. The route leads to the Magistrates’ Court.
    
16. I am of opinion that any extension of time to file an appeal has to come from the Magistrates’ Court that made the order. There is nothing before me to show that the Appellant had resorted to making such application to that court. Absent such an order, there is no appeal on foot before me.
    
17. I am therefore unable to consider this Appeal, and have no alternative but to dismiss the Appeal with costs which I summarily assess at $1,000.00 to be paid by the Appellant to the Respondent.
    

Delivered at Suva, this 21^st day of March, 2016.

David Alfred
JUDGE
High Court of Fiji