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Holameitinga v Holameitonga [2001] TongaLawRp 25; [2001] Tonga LR 147 (6 July 2001)

IN THE SUPREME COURT OF TONGA
Supreme Court, Nuku'alofa

C 21/00

Holameitinga

v

Holameitonga

Ford J
28 May 2001; 6 July 2001

Family law – maintenance payments - committal for non-payment – magistrate's discretion

The appellant and the respondent were married on 9 July 1998 and they had one child born on 24 January 1999. The couple separated on 4 November 1998 and were divorced on 8 December 2000. The appellant obtained a maintenance order in the Magistrates' Court against the respondent in the sum of $20 per week. No maintenance was paid under that order. The appellant issued proceedings in the Magistrates' Court to recover the sum of $463 which was claimed to be the amount of maintenance owing for the period 19 July 1999 to 14 February 2000. On 25 August 2000 the appellant issued a summons in the Magistrates' Court against the respondent requiring him to appear and show cause why he should not be committed to prison for non-payment. The respondent made a no case submission on two grounds: first, that the parties had entered into an agreement to stop maintenance payments whilst they attempted a reconciliation; and, secondly, that the wife was living with another man. The magistrate held that even though the parties had not reconciled, the wife had, in breach of this agreement, unilaterally decided not to write the letter to the court and she had failed to advise the husband that she had not done so. The magistrate, therefore, upheld the no case submission and dismissed the committal application. The two main grounds argued on appeal were, first, that only the court has the power to vary a maintenance order and, secondly, if the husband did not pay or satisfy in someway the warrant of distress then the law says that he should be taken to prison.

Held:

1. The statutory provisions that the respondent should be taken to prison for non-payment are discretionary, not mandatory, and the court would not interfere with a magistrate's exercise of his discretion unless it could be shown that the decision was wrong in principle or that there was some other exceptional reason requiring intervention.