IN THE FAMILY DIVISION OF THE MAGISTRATES'S COURT
AT NASINU

Family Court Case No. 0274/2008

BETWEEN:

RANADI VAKAMEAU BUTADROKA
[Applicant]

AND:

JOJI BUTADROKA
[Respondent]

Appearances:
Applicant appeared in person.
Respondent appeared in person.
For the FNPF: Manager Legal Mr Ajith Karunatilleke tendered written submission. 

Trial Details:
Date of Hearing: 23rd August 2012
Date and Place of Judgment: 23rd August 2012, at Nasinu, Fiji Islands
Judgment of: Resident Magistrate Sumudu Premachandra

Ruling on FNPF's refusal to release the funds

1.	Initially, this application is made by the Applicant-mother for order seeking child's Maintenance (Form 5). The maintenance order was made on 14th May 2009 and the respondent required to make payment of $150 per week as per Resident Magistrate Her Worship Madam Anjala Wati's (As she then was) order. 

2.	The payment was irregular, the respondent accumulated arrears of $8641.50 by 25th July 2011.

3.	The Respondent was not in position to make the make the payment. The Applicant insisted the payment as she is facing severe hardship to maintain the children. The Respondent suggested in that event his FNPF funds be release to set off the maintenance arrears. Therefore, upon perusing Judgment Debtor Summons dated 01st August 2011, the Court made following orders by agreement.

"IT IS HEREBY ORDERED BY AGREEMENT THAT:

1)	FNPF to release the amount of $8,630 to be paid for Judgment Debtor Summon arrears.

2)	Respondent to give consent letter to release this amount of money to the court

3)	Adjourned for Review on 12th January 2012

DATED this 07th day of November 2011

SUMUDU PREMACHANDRA [MR]
RESIDENT MAGISTRATE"

4.	The Respondent has signed the consent of letter of withdrawal of Superannuation funds for maintenance purpose. His membership number was -1308948. The Respondent sought partial withdrawal of money from the FNPF to set off maintenance arrears. 

5.	On 19th March 2012 this order was duly conveyed to the FNPF by Senior Court Officer of this court. On 03rd April 2012 One Ms Fuga Peniata (Legal Services) sent an e-mail stating that the respondent to fill their Partial Withdrawal form and visit the FNPF Legal Department and the court to confirm the payment details to release these funds. This directive has been informed to the Respondent by letter dated 18th April 2012 of the Senior Court Officer-Nasinu.

6.	The Respondent had acted upon FNPF instruction and partial withdrawal form has been tendered to the FNPF. On 05th July this case was called and the Respondent informed to this court that he handed over pertinent documents to the FNPF and is awaiting release of money. Then the court adjourned the matter to 19th July 2012. On that day the Respondent informed to the court that although he applied to the FNPF they failed to execute the court order. 

7.	The Court ordered that the FNPF to comply order dated 03th November 2011 on 19th July 2012.

8.	FNPF without complying the order of the court, the FNPF has e-mailed to the Senior Court Officer of this court on 24th July 2012 with some attachment. It was addressed to the Acting Registrar of the Family Court of Suva. But details refer to this case and I take that letter as submission of the FNPF. They have drawn various conflicts of the section and discrepancies of the Decree. I admit that FNPF Decree is not lucid and has certain ambiguities. These things need to be ironed out by an amendment near future; otherwise this will lead to maze. I note so far there is no guiding High Court or Appellate Court Judgement in this regard. 

9.	In that submission (letter) the FNPF Manager Legal Mr Ajith Karunatilleke has drawn conflicts of section 141(20 and the 136(1) of the FNPF Decree No 52 of 2011. He raises in line with the forgoing sections a member's fund cannot be directly transferred to the family court for maintenance arrears. Referring to section 136, the FNPF says the funds can only be transferred cross account within the FNPF. In the event of a party to the matrimonial proceedings is not a member, the court can issue an order to the FNPF to admit said party as a member. 

10.	I now reproduce the pertinent section for clarity. Section 141(2) says;

"141(2) Section 154 of the Family Law Act 2003 is amended by omitting the definition of "property" and substituting the following definition—

"'property', of a party, without limiting its definition in section 2, does not include—

(a)	amounts standing to the credit of the party's accounts in the Fiji National Provident Fund; or

(b)	any interest of the party in real or leasehold property that is inalienable;". 

11.	The Section 136(1) says;

"136.—(1) This section applies in proceedings under the Family Law Act 2003 between the parties to a marriage—

(a)	with respect to existing title or rights in respect of property; or
(b)	with respect to the property of the parties to a marriage or either of them; or
(c)	with respect to maintenance;
where one or both of the parties is an FNPF member.

(2) The powers of the court extend to making an order requiring the Board—

(a) if 1 of the parties is not an FNPF member—to admit the party as an FNPF member and make an order under subsection (2)(b); and

(b) to credit a specified amount to an FNPF entitlement of a party, and debit a specified entitlement of the other party, accordingly; and

(c) to require a specified part of payments under an annuity payable to 1 of the parties to be paid to the other party.

(3) The Board must comply with an order under subsection (2).

(4) This section does not affect any other power of the court." (Emphasis is mine)

12.	It is to be noted that the function of the court only to interpret the statue not to amend it. In HBJ0027 of 1995 The State v. Attorney-General of Fiji ex-parte: Joseph Nainima delivered on 21st October 1997 the court held that it is the function of the Courts only to interpret the law but not to amend it. This problem has aroused in many cases. Thus, I wish to deliberate my judgment on it, which I deal now. 

13.	The Main contention of the FNPF is encompassed with that the section 141(2) which has amended the section 154 of the Family Law Act. Plainly it shows that the FNPF contribution cannot be included or considered as matrimonial property. When We peruse the section, The section 154 of Family Law Act comes under PART VII- PROPERTY, SPOUSAL MAINTENANCE AND MAINTENANCE AGREEMENTS of the Family Law Act 2003. It is an interpretation section basically in settlement of property. It is to be borne in mind that this case is children maintenance and not a property settlement in family Law. Family Law Act itself has special provision for enforcement of maintenance order, which court can order the FNPF to release funds to set off maintenance arrears. 

14.	The Sections 141(2) and 136(1) of the FNPF Decree are bit contradictory to each other. However the general rule is if one section is contrary to the other, the first section overrides the second section in the statutes. The sections are complied according to the importance and validity of the sections. This can be noted in the Crimes Decree the grievous offence such as treason has been place in the first place in the Crimes Decree 2009 the murder comes after that section. This indicates the importance and validity of the section is prevailed the sequence and numbering of the sections. Thus, the section 136(1) overrides the section 141(2) of the FNPF Decree. Therefore FNPF is bound to follow section 136(1). 

15.	DIVISION 7 of the Family Act 2003 deals with the CHILD MAINTENANCE ORDERS. It is different from property settlements, spousal Maintenance or maintenance agreement. The parents' responsibility is equally shared. It seems to me that the section 141(2) is only apply for the property settlement cases hence the FNPF contribution cannot be taken into the pool of assets in the property settlement action, thus it has no application for children's maintenance. 

16.	Section 46 of the Family Law Act states that "each of the parents of a child who is under 18 years has parental responsibility for the child" and this responsibility persists "despite any changes in the nature of the relationships of the child's parents such as becoming separated or either or both of them marrying or re-marrying".

17.	Section 86 of the Family Law Act 2003 says; 

86.- (1) The parents of a child have, subject to this Division, the primary duty to maintain the child.

(2) Without limiting subsection (1), the duty of a parent to maintain a child-

(a)	is not of lower priority than the duty of the parent to maintain any other child or another person;

(b)	has priority over all commitments of the parent other than commitments necessary to enable the parent to support-

(i) himself or herself; or

(ii) any other child or another person that the parent has a duty to maintain; and

(c) is not affected by the duty of any other person to maintain the child. (Emphasis added)

18.	The Family Law Act has given various powers to the court when enforcing the maintenance order the courts are given powers under section 95 of the said Act. 

"95.-(1) In proceedings for a child maintenance order, a court may at any time do one or more of the following-

(a)	order payment of a lump sum, whether in one amount or by instalments;

(b)order payment of a weekly, monthly, yearly or other periodic amount;

(c) order that a specified transfer or settlement of property be made by way of maintenance for a child;

(d) order that a party deliver to another party, or to a child, goods specified in the order;

(e) determine the times and places for goods to be delivered under an order made under paragraph (d) and place a monetary value on such deliveries;

(f) order that payment of an amount ordered to be paid be wholly or partly secured as the court specifies;

(g) order that any necessary instrument be executed, and that such documents of title be produced and such other things be done, as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;

(h) order that payment be made to a specified person or public authority or into court;

(i) make a permanent or interim order, an order pending the disposal of proceedings, an order for a fixed period, an order until a child attains a specified age or an order until further order;

(j) make an order imposing terms and conditions;

(k) make an order by consent;

(l) make any other order (whether or not of the same nature as those referred to in paragraphs (a) to (k)) that it considers appropriate."

19.	This is to secure that the children are being well maintained by the parties. Further when any order made by the court, it should be best interest of the child. In Family Law Act section 120 says;

"120.-(1) This subdivision applies to any proceedings under this Part in which the best interests of a child are the paramount consideration. (Underlining is mine) 

20.	This Principle has emanates from the Child Rights Charter. In Article 3 of the Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2 1990, mention as follows; 

"1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (Emphasis added) 

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 

3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision."

21.	It seems the Family Law supersedes the FNPF Decree. For the importance value the FNPF Decree is a subsidiary legislation to the Family Law. The society's basic unit is family and to maintain the society the basic unit of the society- family must be protected. The preamble says aspiration of the FNPF Decree is "A DECREE TO REFORM THE FIJI NATIONAL PROVIDENT FUND, TO MAKE PROVISION TO SECURE RETIREMENT SAVINGS AND RETIREMENT INCOMES, AND FOR RELATED PURPOSES". The Family Law Act preamble says "TO ESTABLISH FAMILY DIVISIONS OF THE HIGH COURT AND THE MAGISTRATES' COURT, TO MAKE FRESH PROVISIONS RELATING TO DISSOLUTION OF MARRIAGE, SPOUSAL AND CHILD SUPPORT, PARENTING RESPONSIBILITY AND SPOUSAL PROPERTY, TO PROVIDE FOR MARRIAGE COUNSELLING AND RECONCILIATION, AND FOR RELATED MATTERS". Thus, Family Law has broad spectrum of application on society unlike the FNPF Decree. 

22.	As I noted in my judgment, the Family Law has given vide power to recovery of maintenance. The court is the upper guardian of the children. Further the doctrine of implied powers of court gives court to act independently under the Family Law. This doctrine articulates "Quando Lex Aliquid Councedit Concediture Et Id Sine Quo Res lpsa Esse Non Potest; this means that "where an Act, confers jurisdiction, it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary to its execution". Hence, I cannot say that the legislature gives power in one hand for full effect of recovering of maintenance and curtail it on the other hand by section 141(2) of the FNPF Decree. The section 136(1) of the FNPF Decree clearly provides that maintenance can be recovered from the FNPF funds. This is a consent order. The party should not wait until age of 55 years to get FNPF or release funds. As a matter of urgency, the member should be able to utilize his FNPF funds. The result of refusal is detriment to the Respondent. In the event of failing to clear maintenance the court has to send the respondent to Jail for considerable period of time invariably. The Respondents owns this money and he should be able to use this funds. If not the jail term is inevitable and this is to be released for betterment of his children. reluctance of releasing money for the best interest of children by FNPF cannot be taken as reasonable ground. Sections $5 and 48 of the FNPF Decree preserve 70% of Members money and only 30% can be used. But When it comes to the family Law this interpretation is curtailed by the section 136(1) of The FNPF Decree. As I said the best interest and well being of the children are paramount consideration for the court in all other commitments.

23.	It is to be noted that the FNPF in earlier court decision admitted the court orders and released the money. Suddenly this stance of the FNPF has changed and they resist to release money which is a contempt of court. In this application, the FNPF, initially, did not say that they are not in a position to release the funds. They first advice to fill partial withdrawal form to the Respondent, which the Respondent did. Then, they accepted the withdrawal form and holding money without execution the court order, which is a contempt of court. By allowing first steps (Accepting partial withdrawal form) the FNPF is estoppled by releasing the funds. 

24.	The FNPF suggested that the court can issue an order to admit the party as a member. This is a discretionary matter and the court exercises its discretionary powers under exceptional circumstances. If the applicant becomes a member of the FNPF, how does she claim money for her children's benefits? She will be abide by all FNPF rules and regulations. It is to be noted that this is children's money and the applicant is the guardian or trustee of that money. This money is urgently needed by the applicant lady to support her children. The order was made on 03rd November 2011, yet FNPF ultimately came with these results which cannot be tenable.

25.	The court hold under section 136(3) of the FNPF Decree the Board must comply with an order under subsection (2). Which the FNPF failed to do so. Further the section 136(4) did not curtail any other power of the court. Thus, this court has jurisdiction to make attachment order of FNPF money.

26.	Considering all these facts, I make following orders;

i) The FNPF to carry out the order dated 03rd November 2011 forthwith. Copy of this order to be sent to the FNPF by senior Court Officer of this Court

ii) If not the Respondent or the Applicant may file contempt papers against the FNPF Director Board

iii) The FNPF may appeal against this order

iv) 30 days to appeal

Orders Accordingly

SUMUDU PREMACHANDRA [Mr]
RESIDENT MAGISTRATE-NASINU
23-08-2012