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Turagavou v Lailai [2015] FJMC 78; Family Case 12LBS0189 (9 July 2015)

IN THE MAGISTRATE'S COURT AT LABASA
FAMILY JURISDICTION

Family Case No. 12LBS0189

BETWEEN:

SAIMONE TURAGAVOU
APPLICANT

AND:

MAKELESI LAILAI
RESPONDENT

Applicant : Mr Ratule. K
Respondent : No Appearance
Ruling : 9 July 2015

RULING

1. The Applicant filed form 5 application on 7 May 2014, where he sought for an order to vary the maintenance amount from $35.00 weekly to $10.00 weekly. The reason is that he is unemployed and farming the land in his village, and is willing to provide and send food like root crops from his farm to supplement and in addition to the $10.00 weekly maintenance.
   
2. The Respondent filed her response in form 6 on 14 August 2014, opposing the Application and for the maintenance of $35.00 per week to continue.
   
3. The Respondent fail to attend court on 4 February 2015 and on 4 March 2015, and the case was set for formal proof on the Applicant's Counsel Application.
   
4. The applications was set for formal proof on 30 April 2015, and proceed accordingly where the Applicant gave evidence and call two other witnesses where one is his father. All the witnesses gave evidence on oath. There was an appearance by the Respondent.
   
5. The Applicant in his evidence state;-
   
   1. He is planting yaqona and dalo;
      

ii. He is married with two adopted children;

iii. Second year at his current residence at Nadogo;

iv. Own a house;

v. Pay $19.00/month for solar and no water bill;

vi. Harvesting dalo and cassava for daily need at home;

vii. He looks for work in the village and if he works for 3 days he get $50.00; and

viii. He works to prepare food for his family and his court case.

6. The other two witnesses called by the Applicant were just confirming that the Applicant's is living at the current address and is a farmer.
   
7. While perusing the history of the proceeding, I have noted that the court had conducted a means test of the Applicant on 26 June 2014. The means test was conducted as a result of Judgment Debtor Summons issued on 26 May 2014, where the Applicant was in default in the total amount of $1,820.00.
   
8. At the end of the means test, the court suspended the child maintenance of $35.00 with effect from 26 June 2014. The court then make an order for the Applicant to first clear the maintenance arrears and to pay $40.00 per month with effect from 27 June 2014. The court further ordered if there is any default of any payment the whole sum become owed and due and committal warrant to be issued and Applicant to serve 3 weeks imprisonment.
   
9. I have noted that the circumstances of the Applicant at the time the means test was conducted on 26 June 2014 is not much difference or change from the current circumstance of the Applicant.
   
10. I find that form 5 application filed by the Applicant is misconceived as he is applying for an order that has been varied already on 26 June 2014. The current $10.00 per week as child maintenance he sought is consistent with the order of $40.00 per month.
    
11. In light of the above the Applicant's application for variation of child maintenance is allowed on the following conditions.
    

i. The order of the court made on 26 June 2014, to be continued and enforced until the total amount of $1,820.00 is fully paid.

ii. Once the arrears of $1,820.00 is fully paid, the Applicant to pay a child maintenance of $40.00 per month and to supplement the monetary maintenance by providing food to the child with food worth $20.00 every fortnight.

Cama M. Tuberi
RESIDENT MAGISTRATE