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Malewa v Vitalina [2014] FJMC 185; File No 1181 of 2006 (26 June 2014)

IN THE FAMILY DIVISION OF THE MAGISTRATE’S COURT AT SUVA

FILE No: 1181 of 2006

BETWEEN:

JESE MALEWA
Applicants

AND:

MEREONI VITALINA
Respondent

____________________________________________________________________________
APPEARANCES/REPRESENTATIONS

The Applicants- Present in Person

The Respondent- Ms.Ratidara (LAC)
___________________________________________________________________________

RULING ON SPOUSAL MAINTENANCE

BACKGROUND FACTS

1. The Applicant man filed a Form 5 Application dated 08^th August 2013 seeking spousal maintenance Orders of $70 per fortnight dated on the 8^th June 2012 to cease.
   
2. The Respondent was duly served and the Respondent lady filed her Form 6 Response on the 18^th November 2013.The respondent in her Form 6 states that she is disagreeing with the application to cease the spousal maintenance orders.
   
3. The matter was set for Hearing on the 19^th of March, 2014.
   

Issue

4. Whether the spousal maintenance should be ceased as sought by the Applicant (or to continue as sought by the respondent) ?
   

The Evidence

Applicant’s Evidence

5. The Applicant man gave sworn evidence on the 19^th March 2014. In Examination-in-chief applicant man stated that he was married to the Respondent since year 1994 and got devoiced on year 2013. They didn’t have any children during their relationship. He also stated that he cannot pay spousal maintenance to the Respondent as she is working as a house girl, therefore she could maintain herself.
   
6. On cross-examination the applicant stated that his gross salary per annum is $12,000.00 and his fortnight income is $280.00. The applicant also stated on cross-examination that the respondent resides in Togalevu village and it’s not expensive to travel from the village to Suva. He also denied that the Respondent brought in her FNPF contribution to the family.
   

Respondent’s Evidence

7. The respondent gave evidence on oath. She stated that she is currently working as a House maid and resides at Togalevu village.
   
8. She further stated that she needs to travel in 02 buses or a taxi to reach work at Suva. The bus fares cost her $1.60 both ways or taxi transport cost $10.00 for both ways. She works 05 days a week and earns $100.00 a week. She also stated that even though she works her wages alone cannot support her. The Respondent Lady also stated that her job is not secured and could be terminated at any time.
   
9. She stated that after she got married she used the FNPF funds ($2000.00) for family matters.
   

The Law

10. I now draw my attention to Section 155 of the Family Law Act 2003 which reads as follows under the heading of the “Right of spouse to maintenance”
    

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,

(d). having regard to any relevant matter referred to in section 157.

11. The above mentioned sec 155 referred to in section 157 and retrieve to consider any relevant mattes referred to the section.
    

Matters to be taken into consideration in relation to spousal maintenance

157. 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 wither 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 Fiji Islands or of another country; or
• (ii). Any superannuation fund or scheme, whether the fund or scheme was authorized 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 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”.

12. In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that also shoulder by the wife alone, to the proceedings, the Court must take into account the above mentioned sec.157 of FLA.
    
13. In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the Court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for.

Brief Analysis:

14. In this matter the applicant rely on the fact that the respondent lady is engaged in an employment as a house maid. He is of the opinion that the respondent has the capacity for appropriate gainful employment. This was not disputed by the respondent.
15. Now, the court to consider whether the other party ( respondent) is unable to support herself or himself adequately pursuant to section 155 of the FLA.
    
16. The respondent stated that she only earns $100.00 a week and that amount is not adequate to meet her necessities.
17. She also stated that should she take a taxi to work it would cost her $10.00.In this scenario, I cannot resist to say that one should cut their coat according to their cloth. Should the respondent not in a position to cater for taxi fare, she would have opted to travel by bus rather than spending 50% of her wages for taxi fare.

It is also a duty of the court taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the Court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for. In this present case, neither party adduced evidence in respect to the age of the parties or their property and financial resources, The responsibilities of either party to support any other person; The eligibility of either party for a pension, allowance or benefit under any law of Fiji Islands or of another country; or any superannuation fund or scheme.

18. The evidence before me is very narrow to show to the capacity of the party to earn and derive income of the parties. Accordingly, the applicant’s weekly income is $140.00 (fortnight income $ 280/2 and the respondent’s income $100.00 a week. But according to his annual income, his weekly salary deems to be $250.00. The applicant also failed to adduced any evidence as to his financial commitments to support himself or another person or failed to submit any pay advising slip. The applicant’s form 5 also shows that he earns $280.00 a week.
    
19. The parties do not have any children from their marriage.
    
20. Comparing the income, earning capacity of the both parties, I am of the view that (respondent) is unable to support herself or himself adequately and the applicant if reasonably able to support the respondent to cater for (with limiting to) her travelling expenses by bus in order to assist her to save some money for her basic needs.
    

THEREFORE, I MAKE FOLLOWING ORDERS:

21. The Application for Spousal maintenance to be reduced forthwith.
    
22. The Applicant to pay $15.00 per fortnight as Spousal maintenance to the maintenance section of Suva.
    
23. Parties to bear their own costs.

Ordered accordingly.

30 days to appeal.

LAKSHIKA FERNANDO

RESIDENT MAGISTRATE

On this 26^th day of June 2014