IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCA 18/9

BETWEEN:

KAUTOA TIIRAE
Appellant

AND:

BATUBATUI TERIAO
Respondent

Appellant in person
Mr D Lambourne for the Respondent

Date of Hearing: 30 October 1998

JUDGMENT

This is an appeal against a maintenance order made by the London Magistrates' Court Kiritimati on the 5th December 1989 in case No. 32/89. The appellant also appeals against an enforcement order made by the Magistrates' Court on the 6th March 1990.

The order made in case No. 32/89 was that the appellant pay maintenance for his former wife and 3-year old child in the sum of $40 per fortnight. This was in reality a consent order because the appellant agreed that he was willing to pay the respondent half of his salary and half of the money he earned on overtime. In other words, the Magistrates' Court did no more than order the appellant to pay the amount that he had agreed to pay.

The matter came before the Court again on the 6th March 1990 because the appellant was in arrears of these payments. The Court ordered him to pay a total of $120 to bring the payments up to date, in default 6 months' imprisonment. Those decisions are appealed on the following grounds:

"1. I am not satisfied with the $40 I will pay to Batubatu every pay day.

"2. I am no longer her husband.

"3. The reason of her arrival was to collect all her belongings but not to settle at home as a wife.

"4. I expected her belongings to be all packed when the second ship arrived and should have left, yet she still stayed so I refused to pay for her maintenance as I don't have a child with her".

I reject Grounds 1 and 2 as not being arguable grounds of appeal.

In relation to Ground 3, the order made by the Magistrates' Court was to continue in force until the respondent left Christmas Island. The respondent left Christmas Island in November 1991 and only seeks payment of the maintenance up to that date. She is not seeking any on-going maintenance either for herself or for her child. The last payment which was made by the appellant was on 30th January 1990. The arrears between that date and the time that the respondent left Tarawa in November 1991 total $1,900, and that is all that the respondent is claiming from the appellant. Unfortunately, the respondent was given incorrect advice by the Court Clerk that there was no need for the appellant to continue with the maintenance payments while an appeal was pending. That was the reason why the respondent has made no further attempt to enforce the maintenance order.

In relation to Grounds 3 and 4, the order made by the Magistrates' Court quite clearly entitled the respondent to receive maintenance up until the time she left Christmas Island. There was no obligation on the respondent in the terms of that order to catch the first available ship. In fact, that order did not place any time limit on the respondent's stay on Christmas Island. The appellant attempted to say that a previous Chief Justice had ordered that the maintenance order would only be in force until the first ship arrived. Court staff have gone to a lot of trouble to investigate that claim. The result was that the present appeal has never before been mentioned in the High Court and there have been no other cases between the same parties filed in the High Court. Moreover, the last time the High Court sat on Christmas Island was in 1989, whereas this appeal was not filed until 20th March 1990. So it is not possible that any previous Chief Justice could have reviewed this case, and the appellant's claim in that regard is rejected.

As regards Ground 4, the appellant for the first time alleges that the child the subject of the maintenance order was not his child. When the case first came before the Magistrates' Court on 5th December 1989 the respondent gave sworn evidence that the 3 year old boy was a child of the appellant.

The appellant gave evidence at that hearing. He did not claim that the child was not his and, in fact, offered to pay half of his salary as maintenance for the child and the child's mother. The case again came before the Magistrates' Court on 6th March 1990 and again the appellant gave evidence. He once again made no mention of the child not being his child. That is such an important issue in a maintenance case that if a person is ordered to pay maintenance for a child which is not his, it would be the first thing he would mention to a court. In my view, the Magistrates' Court was entitled to make the maintenance order on the evidence that was before it. The appellant has not demonstrated that the magistrates fell into error in making that order.

It follows that the appeal cannot succeed and it is accordingly dismissed. It is noted that the outstanding arrears under the order total $1,900 and the case is remitted to the Magistrates' Court for the appropriate enforcement to recover that amount. The appellant is advised that he can appeal to the Court of Appeal within the next six weeks, but only on a point of law.

THE HON R B LUSSICK
Chief Justice
(30/10/98)