IN THE MAGISTRATES COURT AT NASINU

Family Court Case No. 74/NAS/12

BETWEEN:

S S P
[Applicant]

AND:

A A D
[Respondent]

The Applicant appeared in person
The Respondent appeared in person

RULING ON MAINTENANCE, CUSTODY AND PROPERTY DISTRIBUTION

1] THE Applicant filed Form 5 for maintenance for her children and spousal, Form 9 custody of the children and property distribution. In her Application for Maintenance, she seeks in her Form 5 – Part B;

a)	Maintenance to cater for the general expenses including medical, education, food and baby sitter for the children.

b)	Maintenance for myself.

2] In her Application for Final Orders. In her Form 9 – Part D, she seeks;

a)	Full custody of both children namely A A A and A A D.

b)	shares on value of all personal possessions plus FNPF and Insurance Policy and CTCS as well.

3] The Respondent opposed to these applications. On 03rd May 2012, the Respondent filed response to Form 5. On that date by agreement following orders were made; 

a) The Respondent to pay $80 fortnight as to the second child- A A D.

b) Matter is fixed for hearing on Maintenance and paternity of the first child.

c) Copy of form 6 is served the applicant in open court. 

4] The respondent has filed form 6, response to the application stating the first child is not his child and he do not wish take any welfare of him. With regard to second child the Respondent said he claims full custody of the child if the applicant is not capable of looking after the child. The Respondent did not filed specific response to the form 9, the custody application but he has mentioned this in his form 6 application. I treat this a valid objection though it was stated in form 6, response to maintenance application.

5] with related to form 9 property distribution, the respondent has filed form 10 and disagree to Form 9. 

6] In his Response form 10 he states; 

1.	FNPF I do not wish to agree with sharing of my funds, which will be partial cost of living in a dignified manner after retiring from work.

1.1	Applicant is well qualified with a suitable job to retire financially in a dignified manner.

1.2	My FNPF education eligibility was used by the Applicant to finance her various USP Units, namely Official Statistics Units.

2.	CTCS Funds – I do not agree to share funds saved under DTCS with ex-wife.

1.1	She was fully funded for her current qualification from funds saved in CTCS funds.

1.2	Cheque No. 745438 ($1455) dated 29/4/09 and Cheque No. 749025 ($1600) dated 23/11/09 was used to finance her IDTT (International Diploma in Tertiary Teaching Certificate).

3.	Insurance

1.1	This I do not agree to share with my ex-wife, the surrender value being $2960, she can pay this value and take all the dividends, with a hope that all dividend received from insurance is paid into a bank account or held in public trust account for the children until they are of a legal age.

1.2	Of the first dividend paid out in December 2010, $1500 was deposited into her account (BSP Account No. 6680749) to finance her accounting courses from US which she failed. 

7] In applicant's evidence she said that the respondent abandoned them in December 2011 and he never comes back and never supported them financially. The applicant said the respondent was creating problems and therefore she had to resigned. The resignation letter tendered as AEX-1. She said when he left she put police report, tendered as AEX-2. The Applicant said the respondent took away all items without informing her and he left only hire purchasing items. She said she had been divorced by her first marriage and Decree Nisi tendered as AEX-3. She tendered Good Bye note from the respondent as AEX-4. The applicant said the respondent is the biological father of the first child. When she conceived the respondent asked her to abort the child which she did not. She tendered torn photos as AEX-5. Before their separation the applicant said there was no dispute about the paternity. The Respondent signed the pupil's progress book as the father of child. This progress report tendered as AEX-6. The applicant said the respondent has filed divorce in Savusavu Magistrate's Court. They have separated on 15th December 2011. She said that she took BSP loan as rent deposit and she pays rent. Bank letter tendered as AEX-7 and Rent receipts tendered as AEX-8. She said monthly rent is $500. School fees receipts tendered as AEX-9. Water and FEA bills tendered as AEX-10 the Applicant tendered photo of current girl friend of the respondent as AEX-11. She said she took this photo from Face Book and she has talked to this Saleshni Kamal who works in Labasa and employed at Courts Fiji LTD. She said in Face Book this Saleshni called as Mrs Dutt, that message tendered as AEX-12. The applicant said they were working in Suva and the respondent was transferred to Levuka. So, she sacrificed her job and went to Levuka with him for 4 years. The applicant tendered e-mail message as AEX-13 and the respondent mentioned that she got dirty blood in clan. The applicant tendered heap of meal and entertainment bills as AEX-14. The applicant said that she did not get permanent job therefore she claims spousal maintenance as well. The respondent as secondary school teacher takes $435 per week package and he took house hold items such as LCD TV, Life Insurance, and Teachers Association. The respondent is not regular in payment and maintenance receipt tendered as AEX-15. The applicant said that she had abusive marriage and the respondent had unnatural behavior of sex, but sake of marriage she tolerated all. The applicant tendered ONE STUD 100 spray as AEX 16 and said when they were having sex he used this spray to delay the ejaculation. The applicant finally said that the respondent has come across with several women there are two in his Face Book. She claimed therefore spousal and children maintenance from the respondent. 

8] In cross examination the applicant said she resigned and she was not forced to resign. The respondent tendered REX-1 and she admitted there is a letter but she said those are false allegations. She said there is an allegation that she had extra marital affair with B M CEO of Fiji Commerce Commission and A R Former Legal Officer of Fiji Commerce Commission, but she denied the allegation. REX 2 tendered and the respondent said that she did not tendered resignation and she was asked to resign, which the applicant refused. The Applicant said when she got pregnant for first child she was living with her parents. PM's Office letter was tendered as REX-3., and the applicant said she had made complaint against him and it is under investigation. The Respondent said that she did not come to meet the child. The Applicant said she was working in Suva and it is hard to get leave. E-mails tendered as REX-4. The Respondent asked the custody of the younger child. The Applicant said both children should stay together either with her or with the respondent. 

9] Thereafter the respondent gave sworn evidence. The Respondent said that he objects to all applications. He said he is willing to take the responsibility of the both children if she cannot support them. If so he does not claim maintenance. The respondent drew attention to form 6. He said that he does not want to drag the court case and he had raised the child without anybody's help. Both can live peaceful own life. 

10] In cross examination the accused said that he does not admit the paternity of the child but he is willing to take responsibility of that child, but no paternity test to be done. The Respondent did not say what the reason for refusal of paternity test is. 

11] Both concluded their respective cases. Then the Applicant sought DNA test to be done with the First husband to exclude his paternity. The Court allowed this application. 

12] In this case the Respondent refused to pay Spousal and children's maintenance. The respondent is willing to take the responsibility of the children. I would like to deal with paternity issue first. The Respondent is whiling denying paternity willing to take the responsibility of the first child. This is peculiar situation. If he is not the father of that child why he should shoulder the burden of that child. The first child has a right have a biological father by denying to undergo a DNA test the respondent denied that right. To enforce a maintenance order paternity issue is to be resolved first. 

13] Parental responsibility is defined in section 45 of the family Law Act. It says; 

"parental responsibility", in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

14] Section 46 postulates each parent has parental responsibility. It says;

"Each of the parents of a child who is under 18 years has parental responsibility for the child.

(2) Subsection (1) has effect 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.

(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section)."

15] Therefore paternity issue of the first child is to be considered in first place. How is paternity of a child established? I consider common law. There are 3 ways to establish paternity of a child:

1. by Presumption, - or –

2. by Voluntary Acknowledgment, - or –

3. by Court Order.

16] When is a man presumed to be the father of a child? A man is presumed to be the father of a child if:

● he was married to the child's mother when the child was born, - or –

● he was married to the child's mother any time during the 300 days before the child was born,-or –

● he married the mother after the child was born and voluntarily claimed paternity of the child with the Vital Statistics Unit, on the child's birth certificate, or in a record in which he promised to support the child as his own; - or –

● during the first few years of the child's life, he continuously lived with the child and represented to others that the child was his own.

17] In this case the child's birth certificate indicates the father of the child is first husband. The child was born within the lawful wedlock with the first husband. Under section 131 of the Family Law Act 2003, there is a presumption. It says;

"131-(1) If a child is born to a woman while she is married, the child is presumed to be a child of the woman and her husband"

18] But in this case, to resolve the paternity the DNA test was performed in Accredited Lab Genetech, Sri Lanka, between the mother, child and the father of the birth certificate (First Husband). The result of DNA test says "it can be concluded with 100% certainty that Mr A A A is not the biological father of the child A A A A. ". Thus, although, there is presumption and the first husband name was in the birth certificate, he was excluded 100% paternity of the child. The Applicant said when the child conceived they were boy friend and girl friend. She stayed with her parents and they were dating. The first child was born on 06th October 2003. The respondent alleged that the applicant was in multiple extra marital affairs. The parties washed their dirty linen in public. But the court notes these extra marital allegations are made in 2012 and 2011 and it cannot be taken to resolve paternity as the child was conceived in 2003. The respondent did not say that she was having extra marital affair in 2003. Further in progress report the respondent signed as the father of the child. The respondent unreasonably refused to undergo DNA test. 
19] In the context of refusal by an adult party to submit to a blood test, the observations of Lord Denning MR in the judgment reported at 1968 (1) All ER 20, Re L is valuable. He noted; 

"Both counsel for the husband and counsel for the wife felt bound to concede that, under these sections, the Court could not order an adult to submit to a blood test. A blood test which involves the insertion of a needle is an assault, unless consented to. It would need express statutory authority to require an adult to submit to it. If these sections do not authorise the court to order an adult to have his blood tested, I do not see that they authorise the court to make such an order in the case of an infant. A test of the child's blood would be useless unless there were tests of the adults also. But, I would say this. If an adult unreasonably refuses to have a blood test, or to allow a child to have one, I think that it is open to the court in any civil proceedings (no matter whether it be a paternity issue or an affiliation summons, or a custody proceeding) to treat his refusal as evidence against him, and may draw an inference there from adverse to him. This is simply common sense. It is in keeping with the rule that in a nullity case, if a party refuses to be medically examined, the court may infer that some impediment exists pointing to incapacity. Moreover, being a rule of evidence, it applies not only to the High Court but also in the magistrates' court, and to any court of the land." (Emphasis is added) 

20] Sellers LJ in Simpson v. Collinson (1964) 1 All ER 262 at p. 267, held that the refusal to undergo DNA test shows or tends to show the story is true of the applicant.

21] Justice Ms. Gita Mittal in the case of Rohit Shekhar vs Shri Narayan Dutt Tiwari & Anr, on 23 September, 2011 IA No.10394/2011 in CS(OS) No. 700/2008, Delhi High Court held; 

"DNA parentage testing may be used to rebut a presumption arising under the Act, or to establish evidence in the circumstances where no presumption arises. A man might seek DNA parentage testing in order to obtain evidence of non-paternity for the purpose of civil proceedings against the child's mother to prove ―paternity fraud"

22] In Rohit Shekhar vs Shri Narayan Dutt Tiwari & Anr. (Supra) it is held as follows:-

"(i) That the defendant cannot be physically compelled or be physically confined for submitting a blood sample for DNA profiling;

(ii) It is further held that the refusal by the defendant to submit the blood sample is willful, malafide, unreasonable and unjustified. Such refusal is taken on record.

(iii) The court would construe the weight to be attached to and the impact of this refusal by the defendant while evaluating the evidence produced by the parties, which then may be treated as corroborative evidence leading to the presumption that the result of the DNA profiling of the defendant's blood sample would have supported the plaintiff's claim" .

23] These common law judgments are persuasive to this court and adverse inference can be drawn against the respondent for the refusal to undergo DNA test. Further the Respondent signed the progress report of the child and he maintained the child at tender age. The Respondent asks the child to be maintained by him if the applicant cannot support them but he is not willing to admit the paternity. He might think the first husband should maintain the child as his name in the birth certificate. But under Family Law there is no liability cast on non biological father other than adopted father to maintain a child without his own child. Considering all these facts, legal principles and evidence, I hold the respondent is the putative father of the first child. Therefore he should pay maintenance for both children. 

24] I would like to deal quantum of children's maintenance now. The applicant filed for form 5 application and asked maintenance for both kids. Pertinent section is section 86. It defined the primary duty of the parents. Section 86 of the Family Law Act 2003 says; 

"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)"

25] Thus, above all other commitments the Respondent has prime duty to maintain his children and he has liability to pay maintenance to the applicant. The Respondent said he won't be able to pay maintenance. He sought custody of the children but not willing to pay maintenance. He did not say that he has no capacity to pay. 

26] Sections 90 and 91 of the Family Law envisage the matters to be taken into account when the maintenance payment is ordered. I reproduced those for clarity. 

"90.-(1) In considering the financial support necessary for the maintenance of a child, the court must take into account the following (and no other) matters-

(a) the matters mentioned in section 91;

(b) the proper needs of the child;

(c) the income, earning capacity, property and financial resources of the child.

(2) In taking into account the proper needs of the child the court-

(a) must have regard to-

(i) the age of the child;

(ii) the manner in which the child is being, and in which the parents expect the child to be, educated or trained; and

(iii) any special needs of the child; and

(b) may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.

(3) In taking into account the income, earning capacity, property and financial resources of the child, the court must-

(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and

(b) disregard the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.

(4) Subsection (2) and (3) do not limit the matters to which the court may have regard in taking into account the matters referred to in subsection (1).

27] Matters to be taken into account in determining contributions that should be made by party are;

91.-(1) In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account the following (and no other) matters-

(a) the matters mentioned in section 90;

(b) the income, earning capacity, property and financial resources of the party or each of the parties;

(c) the commitments of the party, or each of the parties, that are necessary to enable the party to support-

(i) himself or herself; or

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

(e) the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child;

(f) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person."

28] The respondent is a secondary school teacher. The applicant is also qualified degree holder. Both have shared responsibility to maintain the children. The Applicant has asked spousal maintenance as well. 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."

 29] The applicant in her form 5 asks $286 per week as Children and Spousal Maintenance. She asks $128 for herself and $158 for children. This is weekly expenses and as shared responsibility one should bear $143 per week. The Applicant did not tell that she has no capacity to earn and has other impediment to maintain herself. But the respondent's complain tends to give the resignation. The respondent took the revenge if she betrayed to him by having extra marital affairs. But he did not realize that he threw mud on his children's face as well. By losing well settled job the children had to undergo enormous pressure. In fact, she is qualified and can find a permanent job. Till then the respondent shall pay $20 per week as spousal maintenance. The Respondent mentioned his weekly income is $370(Form 6, part C). He mentioned he supports his mother and sickly father. But the respondent's primary concern is to support his children. I order the respondent to pay $40 per child weekly and $80 per week for both. 

30] The next issue is that the applicant asked full custody of the children. The Respondent did not ask the custody of the child but he made half hearted application if the applicant cannot support the children he asks the custody of the children. When court makes parenting order the court must look at best interest of the children. 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). 

31] Matters are to be considered in section 121 when parenting order made as follows;

Section "(121)- (1) Subject to subsection (3), in determining what is in the child's best interests, the court may consider the matters set out in subsection (2).

(2) The court must consider-

(a) any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

(b) the nature of the relationship of the child with each of the child's parents and with other persons;

(c) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from-

(i) either of his or her parents; or

(ii) any other child, or other person, with whom the child has been living;

(d) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(e) the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;

(f) the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of the child) and any other characteristics of the child that the court thinks are relevant;

(g) the need to protect the child from physical or psychological harm caused, or that may be caused, by-

(i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or

(ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;

(h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(i) any family violence involving the child or a member of the child's family;

(j) any family violence order that applies to a child or a member of the child's family;

(k) any other fact or circumstances that the court thinks is relevant."

32] After December 2011, the children with the applicant mother. In her evidence, she said that the respondent did not come to see the children and support them financially. The respondent admitted that his parents have arranged a decent girl. The applicant said the respondent his having affair with S K. The children are growing and they have to be with step mother. Mainly the respondent denied the paternity of the child and that child has to undergo mental trauma if custody was given to the respondent. The Applicant said both children are attached to each other and if the respondent wants both children should be taken. But the respondent asked younger child. The ulterior motive of the respondent is just to pay money; in fact maintenance money. I cannot see the application to get children's custody is bona fide. I therefore declined the request of the respondent. Children's status quo should remain. The children therefore stay with his mother.

33] I now turned to property settlement. During the pre trial stages the respondent did not come before deputy registrar. The Applicant states 50% value of all personal possessions, FNPF funds, Insurance Policy and CTCS shares. The respondent said that his FNPF education benefit was used to finance the applicant's studies at USP. The court cannot deduct these education expenses as they have used with affection as gifts. The respondent has not given a loan to that effect and all funds used for education such as CTCS funds and Insurance dividends. I therefore hold that the application has right to have 50% of the property settlement. 

34] Considering all these facts, on balance, I make following orders;

i)	The Respondent to pay $40 per week, per child ($80 per week altogether) as child's maintenance with effect from the sealed date of original Form 5. 

ii)	In addition that the Respondent to pay 50% of school fees and all books, school clothes and stationeries of the children.

iii)	The Respondent to pay $20 per week as spousal maintenance and this will be ceased when the Applicant gets permanent job.

iv)	The applicant to calculate JDS for backdated maintenance and be served to the respondent. 

v)	If the Respondent failed to pay, after JDS, there will be 10 days imprisonment for every $100 ( One penalty unit each) 

vi)	The full custody of the children to be with the applicant mother.

vii)	The respondent to have reasonable access if children want to see him (father), with prior arrangement and notification by both parties. The respondent must not contact without children's wish and the supervision of the applicant mother.

viii)	If necessary to this effect the children are to be counseled together with the parties and senior court officer is advised to arrange the counseling.

ix)	In relation to property distribution the applicant have 50% of FNPF, CTCS and insurance dividends. I make no orders with regards to household items as there is no list of items provided in the trial. 

x)	Parties to bear their own costs. 

xi)	30 days to appeal.

Orders Accordingly.

On 06th June, 2013 at Nasinu, Fiji Islands

SUMUDU PREMACHANDRA
RESIDENT MAGISTRATE-NASINU

Copies. 1- The Applicant
2. The Respondent
3. File 74/NAS/ 2012.