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SW v SN [2013] FJMC 168; 0323NAS.2012 (11 April 2013)

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

File No: 0323/NAS/2012

S W
[Applicant]

-v-

S N
[Respondent]

BEFORE: RESIDENT MAGISTRATE: MR. SUMUDU PREMACHANDRA

APPLICANT : Present, appeared in person
RESPONDENT: Present, appeared in person

Trial Details

Date of Hearing: 07th February 2013
Judgment : 11th April 2013 at Nasinu Family Court Division.

JUDGMENT

A. The Application

1. This is an application for spousal maintenance.

B. The Response

2. The Respondent has filed his response form 6 and disputed the application sought following orders;

1. that the application be dismissed.
   
2. Applicant is not entitled to spousal maintenance.
   
3. She is able to work and support herself. She is the one who made him leave the matrimonial home.
   

C. The Law

3. The relevant laws governing spousal maintenance are provided in Sections 155, 156, 157 and 165 of the Family Law Act 2003. For clarity I will reproduce these sections 155, 156, 157 and 167.

"155-A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party if reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately, whether-

(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c) for any other adequate reason"

"Section 156 says in proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part"

"Section 157 says In exercising jurisdiction under section 155, the court may take into account only the following matters-

(a) the age and state of health of each of the parties;

(b) the income, property and financial resources (including any interest in leasehold or real estate which is inalienable) of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

(c) where either party has the care or control of a child of the marriage who had not attained the age of 18 years;

(d) commitments of each of the parties that are necessary to enable the party to support –

(i) himself or herself; and

(ii) a child or another person that the party has a duty to maintain;

(e) the responsibilities of either party to support any other person;

(f) the eligibility of either party for a pension, allowance or benefit under-

(i) any law of the Fiji Islands or of another country; or

(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside of the Fiji Islands;

(g) the rate of any such pension, allowance or benefit being paid to either party;

(h) a standard of living that in all the circumstances is reasonable;

(i) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earnings capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

(l) if either party is cohabitating with another person - the financial circumstances relating to the cohabitation;

(m) the terms of any order made or proposed to be made under section 161 in relation to the property of the parties.

"165(2) An order with respect to the maintenance of a party to a marriage ceases to have effect upon the re-marriage of the party or the party cohabitating with another person in a domestic relationship unless in special circumstances a court which has jurisdiction under this Act otherwise orders.

(3) Where a re-marriage or the cohabitation referred to in subsection (2) takes place, it is the duty of the person for whose benefit the order was made to inform without delay the person liable to make payments under the order of the date of the re-marriage or cohabitation."

D. The Issues

4. (i) Whether the Respondent is responsible for pay spousal maintenance;

(ii) If so, whether he has the capacity to pay any maintenance for the wife; and

(iii) Is the financial support necessary for the wife

E. The Evidence

5. The Applicant gave sworn evidence.

6. The Applicant in her testimonies told the court briefly the following:-

"They got married on 1st April 1989. It was love marriage. They stayed at her in-laws place Sir for 5 years. She said she knew that her husband is having an affair with a Fijian girl namely Titilia Ramoli. She was a cashier at New World Nakasi. For the past 5 years she knew he was having an affair but on the 6th year she caught them red handed and she also assaulted the Fijian girl and there's a case going on in Nausori Court. Meantime she filed DVRO in Nausori Court and they all 3 were present the respondent informed the Magistrate that he is no longer with that Fijian girl. In that case he was supposed to pay $30 as Urgent Monetary Relief and he informed the Magistrate that he won't be able to pay $30 so he agreed to pay $15.00. The Applicant questioned if he can rent with that Fijian girl then why can't he pay her maintenance money. She said she is also medically unfit. That's why she is unemployed. The applicant produced the Gynae clinic card produced in open Court. (Tendered as EX-1) She said she has this problem since 2007. If she would have been working she wouldn't have been claiming for the maintenance. Before marriage she was working as a Cashier, but her husband, the respondent asked her to leave that job, so she had to stay home. The Applicant said that she is having bleeding problem, so she cannot work and earn. She said on the 30th of January 2013 she had Pap smear test and her result is pending. She said she was admitted to the hospital and she asked $30 per week. She said he is a mini van driver at Suva Nausori express. He does not know how much he is earning but before he was paid $180 per week. She said the Respondent got baby girl from that Fijian girl."

7. Answering to the cross examination, she admitted that she was wrong and they married in 1999 and not in 1989, it was a mistake. She also admitted that the Fijian girl was her friend and she used to come to her place and she also knows her mother in law. She answered her baby is also registered under his name Sir. The father's name is the Respondents. They are renting at Davuilevu Housing.

8. The Respondent opted to give sworn evidence. In his evidence he testified as follows; I reproduce it.

"I was residing at Visama Feeder Road that was my family house. We were married on 1989 1st April. That was the time I was working for Jay's Supermarket and my wages was $30 a week. That was the time to us.

After that I joined C.J. Patel in Suva and that time I was getting $50 a week. From there we started and after that I just left that job started doing farming.

And I was doing farming, farming and my in-laws, my mother in law, she asked my wife and me that if we can come and stay at 9 miles. More often she visits New Zealand, Australia to see her children.

And me and my wife we talked and after that we agreed that we go and stay there. But our belongings were still in Visama.

So we were staying there and after that she came back in 6 month time then I ask my wife that we go back to Visama.

And when the time she came to started going back to Visama she asked my wife to stay back don't go back to Visama because she is alone, so she has somebody to her to stay there.

And we talked and after that we agreed. And I was staying there and I started driving mini van. And when the time I started driving mini van and she came to know that I am having an affair with a Fijian girl, but the Fijian girl was her friend. Good friend of her. By the time we were staying at Visama the girl used to come to my house, eat guava all the fruits at home. And go to her house.

And slowly by slowly she starts going to my van too. To go to school. And it was not true that she was having an affair with me. She was having an affair with one Fijian boy. And that daughter she is claiming that is mine, it's not that mine. It's that Fijian boy's daughter.

So when the time she caught me in my van she punch her and marks on her body and what happened when the boy came to know that this thing has happened the boy just ran away from there.

And now I am taking care of that baby and that girl. She is staying with me. And it's true that I am going to my house. Not everybody wants me at home.

And I was in the past 3 years, I was staying at 9 miles my wife 4 times she took my clothes and put it outside. It was 3 times. She took my clothes and put it outside and ask me to leave the house. It was my in-laws house. Every time I used to hear it's not your house, why you staying here, because nobody is there to do things for you that's why you staying here.

And 3 times I bashed her and went back and stay. And the last time she packed my clothes so it was my last day with her. I just came home. I just call my mum and told my mum what was the story. What's happening to me know every time this thing this.

Sometimes I used to get up early in the morning, I don't have food to eat. In the afternoon I go home there's no food. She don't cook the food.

So I told my mum this thing is happening to me and my mum just asked me to come back. The room was there for me.

And when the time I left her I asked her I gave her 3 weeks time to come and we stay in Visama and her answer was no.

So I couldn't do anything. So who will tolerate all this things now when you are kicked from one house by your wife. That was not my house that's my in-law's house that's why she was doing you know she was taking advantage of the house.

And 3 times she packed my clothes and thrown outside. Who will do all this things. You go home there is no food there. Nothing to eat. In the morning you get up nothing to eat. Who will tolerate all this things.

I can't do it. That's why. And I didn't leave her she pushed me out of the house. I did not leave her. She asked me to leave the house.

And after that she asked me to leave the house she said I don't need you I don't need your money nothing. And she asked I will go to Court ask for the maintenance. I said ok. It's ok. She said she can well like that.

So I see here now coming for the maintenance. When she was the one to push me out of the house. I didn't leave her. She left me. She asked me to leave. Even my mother in law asked me to leave one time.

She is the one who took us there and she was the one who ask one day to leave this house. And I did every maintenance at that house as I was staying in my in-law's house. I used plenty money there.

Everything I was doing, all the maintenance all the painting I was doing. And it's true I can bring the witness there, that I was doing.

I have the receipts for all the things I bought. I got it there."

9. The Respondent told his whole story in his evidence briefly. Then, he was cross examined by the applicant. The Respondent said there is nothing to say that he is having affair with that Fijian girl. He denied the affair with Titilia Ramoci. Then, the Applicant tendered post office receipts which he had sent money by post to her family. The Respondent answered that he sent Fijian girls' (Her) money by post to her family. Because she was working as cashier in Suva she used to pass him the money and he used to go to the Post Office and do the payment. The Respondent admitted that he is receiving $120 per week and he is a Mini Van driver. The Respondent agreed to file his salary slip before 3pm on the hearing day but he did not file till today. Thereby he hid his income from this court. He said he is paying $15 as urgent monetary relief in Nausori courts. He did not consent to increase that amount up to $30 per week. The Respondent agreed that he pays $200 per month as rent but someone share it with him $100.

F. The Findings

10. The Applicant and the Respondent admit that they are married to each other. The Applicant said the Respondent is living with another lady and she had given birth to a child from the Respondent. The Respondent denied it. But the Applicant filed the post office receipt to prove that the Respondent has sent money to that girl's family. They Respondent says those moneys belonged to her that he just posted it. This proves the respondent and this lady have close relationship. The respondent admitted he is renting and he pays $100 per month as rent with sharing other. In his evidence The Respondent did not disclose who his sharing person is. This person may be his current de facto partner. The Respondent promised to file his pay slip before the judgment, but he failed to do so. That seems that he is hiding his income, though he promised to tender it. Though The Respondent said that he can bring witnesses, he did not call any witness to prove his facts.

11. I consider law on spousal maintenance. To claim spousal maintenance the Applicant to show that she is unable to support herself and the Respondent is reasonably able to support the Applicant. As there is no divorce granted, no divorce papers here, I hold the Respondent has legal responsibility to support the Applicant. The Respondent admitted he works as Mini Van Driver. He told that he gets nearly $120 per week. But he failed to prove his income, tender his salary slip to the court. The court rules that he earns more than $120. At this juncture, he did not give his expenditure break down and he did not say that he has other liabilities and commitments. The Respondent in his evidence informed his mental agony and what happened. He was thrown out from the marital house. But it is seen ever since he has closed to another lady, it caused the all trouble. Before the trial, parties were referred to the family counseling and family counselor's finding is that the Respondent is having extra marital affair and there is no reconciliation. This finding is not conclusive but it appears that there is something behind on it. The applicant is having excessive bleeding problem and her health condition proves that she cannot support herself. Her medical condition is under investigation. By the way the Respondent is Mini van driver who has sufficient means to support the Applicant. Therefore I hold the Respondent has capacity to earn and support the Applicant. The Applicant evidence proves now the applicant is unhealthy and cannot support herself. The Applicant is asking $30 per week and it covers all her medical, food expenses and everything. I hold this amount is not excessive, with current cost of living. Common Law allows that the effective date of maintenance payment would be date of the application. Otherwise any Respondent can drag their cases to evade the legal responsibility and it would be mockery of justice. On the other hand the maintenance simply means day to day living expenses. To get maintenance the applicant should be alive. Therefore this order will be date of application.

G The Decision

12. For the above findings, I answer following questions

(i) Whether the Respondent is responsible for pay spousal maintenance? Yes, the Applicant has no capacity to maintain herself.

(ii) If so, whether he has the capacity to pay any maintenance for the wife? The Respondent works as Mini Van Driver and has capacity to earn and maintain the Applicant.

(iii) Is the financial support necessary for the wife? The applicant has proved that she needs financial support.

(iv) I order Respondent to pay $30 per week as Spousal maintenance from the date of Application (sealed).

(v) If defaulted JDS to be calculated.

(vi) In default, 14days imprisonment for each default payment (weekly).

12. I hereby allow the spousal maintenance application of the Applicant with $100 cost.

16. 30 days to appeal

Order Accordingly.

SUMUDU PREMACHANDRA
RESIDENT MAGISTRATE