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AN v SL [2013] FJMC 237; 422-NAS-2010 (13 June 2013)

IN THE MAGISTRATES COURT
AT NASINU

Family Case No. 422/NAS/2010

A N
[Applicant]

-v-

S L
[Respondent]

Mr. Nilesh Sharma (LAC) for the applicant
The Respondent Appeared in person.

Ruling on Maintenance

1] The Applicant filed form 5 seeking maintenance from the Respondent for two children namely K K L born 12th June 2009 and P born 21st March 2009.

2] The parties were on de facto relationship. On 12th July 2012, the Respondent was present in open court and admitted paternity of the two children. The Respondent invited the applicant and two children. Then, they reconciled and the court ordered standard non molestation under Domestic violence Decree order against the Respondent.

3] On 17th January 2013, the parties have reported there is no reconciliation and previous form 5 was reinstated. Meantime the Applicant filed form 12 for interim orders to put Respondent's name in her children's birth Certificates and as the respondent admitted paternity, the Registrar General was ordered to put the Respondent's name as father of Children's Birth Certificates.

4] The Respondent filed form 6 respondents to the application. In that he seeks orders to be allowed to pay $50 per week as he is getting $150 per week. He says the amount the applicant claimed as maintenance is too high. On 14th February 2013, by consent the court ordered the Respondents to pay $50 per week.

5] The hearing was done on 18th April 2013. At the hearing both parties gave sworn evidence.

6] The Applicant, A N said they are in de facto relationship for 5 years. From that they got two kids, the eldest one is K C L and the youngest one is S R L. The first one is 3 year 10 months and second one is 1 year 1 month. As children are not going to school she does Domestic duties. She said since she is breastfeeding her child she is unable to work. She explained daily needs of the children. She said cost for shopping comes around $70 - $75 a week. They separated on 8th of December 2012. He works as Electrician. The Applicant said that while they were together he earned close to $200 per week and he did private jobs as well. Therefore she seeks $75 per week as children maintenance.

7] In cross examination the respondent suggested that children expenses are not that much. But she refused and said her parents also bring the food for the children.

8] The Respondent, S V L, in his evidence said "Sir we used to live together in our house and I didn't have any problem with her. My mother and one day I went to work and in the morning it was always ok and when I return from the work. I went to my room there was nothing over there. She argued with my mother and she left the house. When I came back from work she wasn't at home. After 4 months she came back. I brought her home again. And then after few days she argued with my mother. I was there but when I heard the argument I went away from the house, thinking that it would be fine after sometime. But when I returned she wasn't at home again. She always leaves my house and she goes. So my mother told then I reconciled with my mother that I am bringing them. But my mother said you have to build another flat at the back, so I built it over there. I took her over there. And I was also supporting my family because my mother is a very sickly lady. She got diabetes, pressure, and she has lungs infection also, she got heart attacks before. And my father is asthmatic patient. He's a mechanic so he's sometimes allergic to the smoke. So he doesn't go to work always. He goes about 3 days. He has been given medical certificate from CWM. He is not suitable to work. So I have to support them also Sir. And for my children I can't leave my children like that. So I am supporting my children but I can't support them much. I know because I was controlling the house. My children's expenses are not the things that she is telling they eat this, they eat that that's ok. But it doesn't cost that much, because when we 4 were living over there the cost was about $110, $120 like that. And for that much I used to feed my family". Then, the Respondent explained their family disputes and how he went through the bitter marriage.

9] In cross examination, the Respondent admitted that he is working for Western Wreckers as Auto Electrician and he works 5½ days per week. But he said he is a casual worker and is not a permanent staff. But he said he failed to bring the contract. He admitted that he did private jobs once a week, once in a fortnight or once in a month. He said that he needs to support his parents. But he failed to bring his father's medical report. But the Respondent admitted his father works at S. Nair Transport and he is in full time employment. Further he said he got 2 brothers, they both schooling – one is in Form 6 and the other one is in Class 5. Thus he is also contributing towards the expenses of his siblings. He said he pays $50 per week towards sibling's expenses. He also admitted that he smokes and drinks that cost and own expenses are come about $15 or $20 per week.

10] I now consider family law in this regard. Parental responsibility is defined in section 45 of the Family Law Act 2003. 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.

11] 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)."

12] In this case the applicant is unemployed and her children are tender ages. Therefore, it is understood that she cannot be engage in gainful employment. Facts of the case excuse herself being employed.

13] 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)"

14] 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 that he is supporting father's medical expenses and siblings' schooling expenses. Indeed, it is meritorious deed, but Family Law put burden him to support children first. If any money is left, he could support his extended family.

15] 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).

16] In this matter the Respondent pays $50 per week. The Applicant asks $75 per week. The Respondent alleges that expenditures of the children have been exaggerated. But the court is mindful of cost of living. The Respondent did not produce his wages slip. He hid it. He also admitted he does private jobs once a week or one a month. However he has capacity to earn money and support his children. He spent money weekly $15 to $20 for his smoking and gorging sometimes.

17] Considering all these facts, I make following orders;

1. The Respondent to pay $75 per week as children's maintenance with effect from today.
2. Parties to bear their own costs.
3. 30 days to appeal.
   

Orders Accordingly.

On 13th June, 2013 at Nasinu, Fiji Islands

SUMUDU PREMACHANDRA
RESIDENT MAGISTRATE-NASINU

Copies. 1- The Applicant
2. The Respondent
3. File 422/NAS/ 2010.