Bruce v Ratulevu [2004] FJHC 439; HBM0024.2004L (29 July 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBM0024 OF 2004

MARIA SENIMILI BRUCE
Complainant/Respondent

V

NEUMI RATULEVU
Respondent/Petitioner

RULING ON REFERENCE PURSUANT TO SECTION 37 OF THE MAGISTRATES’ COURT ACT

This matter comes before the court pursuant to section 37 of the Magistrates Courts Act, where the Learned Magistrate at Nadi Magistrate’s Court has reserved for the consideration of this court a question of law, which has arisen in the above proceedings. The proceedings commenced in the Magistrate’s Court, Nadi and numbered 56 of 1996 were proceedings pursuant to the Maintenance and Affiliation Act – Cap. 52.

As will become apparent from the chronology below, proceedings were also commenced in the Labasa Magistrate’s Court and numbered 6 of 2000. These proceedings were pursuant to the Matrimonial Causes Act – Cap. 51.

Chronology

21 February 1981 - Parties married.

June/July 1996 - Parties separated.

26 July 1996 - Complainant files complaint for an order pursuant

to the Maintenance and Affiliation Act at Nadi Magistrate’s Court.

9 January 1997 - Order made in favour of the complainant in the sum of $140 per week by way of maintenance.

6 March 1997 - The respondent sought a variation of the order by way of reduction.

15 May 1997 - The maintenance order was reduced to $45.00 per week.

16 June 1997 - Maintenance arrears were $2,270.00 and the respondent was ordered to pay $45.00 plus $20.00 towards the arrears per week.

13 February 1998 - The respondent made variation application.

20 January 2000 - The petitioner filed for divorce in the Labasa Magistrate’s Court seeking in addition to the divorce an order cancelling the Nadi Maintenance Order.

21 September 2000 - Decree Nisi granted and order made cancelling Nadi Maintenance Order.

22 August 2001 - Variation application filed on 13 February 1998 at Nadi Magistrate’s Court struck out for non-appearance of the respondent.

20 September 2001 - Respondent appeared in Nadi Magistrate’s Court on warrant for arrears of maintenance.

31 October 2001 - Argument before Nadi Magistrate’s Court on the competing Orders made at Nadi Magistrate’s Court and Labasa Magistrate’s Court.

14 November 2001 - The Learned Magistrate at Nadi ruled but made no orders with respect to the dichotomy between the Nadi and Labasa proceedings.

16 January 2002 - Settlement proposal with respect to maintenance arrears and property are put before the Nadi Magistrate’s Court by the parties.

13 February 2002 - Settlement noted by Nadi Magistrate’s Court but no orders appear to have been made.

8 April 2004 - Arrears of maintenance of $8,051.25 and warrant suspended.

The Issues for Determination

The Learned Magistrate asks this court to determine the following issues: -

(i) What is the status of the maintenance order in Nadi Case 56 of 1996 as against the decree nisi orders of Labasa Divorce Case No. 6 of 2000?

(ii) Given the current status of the parties, is it fair to uphold the orders in the decree nisi?

(iii) If the decree nisi orders take precedent over the maintenance orders then what is the effect of the orders of the Nadi Court pertaining to property settlement?

The Facts

I have had the benefit of perusing the Nadi Magistrate’s Court file and the Labasa Magistrate’s Court file together with a summary of those proceedings prepared by the Learned Magistrate at Nadi.

At the time the proceedings were commenced at Nadi, pursuant to the Maintenance and Affiliation Act, the parties were resident there. The respondent/petitioner subsequently moved to Savusavu and the Labasa file indicates that he was a resident of Savusavu at the time of the filing of the petition at Labasa.

Service of the petition was purportedly affected by registered post on the complainant/respondent at her place of employment, that is Dominion International Hotel, Nadi. There is no record of the provisions of Rule 70 of the Matrimonial Causes Rules with respect to the proof of service of documents having been complied with. There is no acknowledgment of service.

The petition sought in addition to the dissolution of the marriage “that the maintenance order made in Maintenance Case No: 656 of 1996 be cancelled.” The petition earlier referred to Maintenance Case No: 656 of 1996 being at Magistrate’s Court, Nadi. The number is incorrect and the correct number is 56 of 1996.

The record does not show that any evidence was placed before the Magistrate to ground an order being made under section 8 of the Maintenance and Affiliation Act. That section requires there to be evidence of a change in circumstances not occasioned by the default or neglect of the applicant. The only evidence that appears to have been put before the Learned Magistrate at Labasa was oral hearsay evidence given by the petitioner as to the respondent’s employment.

Subsequent to the making of the orders at the Labasa Magistrate’s Court, it would appear that the petitioner has acted on the basis that the order cancelling the Nadi Magistrate’s Court’s Order had taken effect. The respondent however has taken enforcement action from time to time.

Whilst the proceedings in the Nadi Magistrate’s Court, have in recent years lurched along whilst the parties, or at least the complainant/respondent sought to raise funds from the Fiji National Provident Fund to facilitate implementation of the proposed settlement. No orders appear to have been made in that regard but merely the settlement proposal seems to have been noted.

The Law

The files indicate that the order made in the Nadi Magistrate’s Court pursuant to the Maintenance and Affiliation Act was an order regularly made. The parties were resident in the jurisdiction of that court at the time the application was filed and at the time the order was made.

The orders made at the Labasa Magistrate’s Court, would appear to have been regularly made with respect to the dissolution of marriage but would appear to have been most irregular with respect to the purported cancellation of the Nadi Magistrate’s Maintenance Order. As detailed above, the petitioner claimed to be resident at Savusavu at the time the petition was filed thus giving jurisdiction to the Labasa Magistrate’s Court.

The Supreme Court of Fiji in Chiman Lal v Pan Bai – 24 FLR 121 held that an undischarged order for maintenance made by the Magistrate’s Court prior to the commencement of divorce proceedings continues in force for all purposes including enforcement notwithstanding dissolution of the marriage. The court did this dominantly in reliance of Bragg v Bragg [1920] P. 20.

It is clear therefore that the orders made by the Learned Magistrate at Labasa pursuant to the Matrimonial Causes Act, do not effectively discharge the Nadi Magistrate’s Court’s Maintenance Order.

Section 8 of the Maintenance and Affiliation Act provides: -

“A magistrate having jurisdiction in the place in which an order under the provisions of this Part has been made may, upon the application of either spouse and upon cause being shown upon evidence of a change in circumstances not occasioned by the default or neglect of the applicant, to the satisfaction of the magistrate, at any time alter, vary or discharge any such order and may upon any such application from time to time increase or diminish the amount of any weekly payment order to be made.”

The maintenance order was made at the Nadi Magistrate’s Court in the Western Division.

The purported cancellation of the order was made at the Labasa Magistrate’s Court in the Northern Division.

Section 8 of the Maintenance and Affiliation Act requires any alteration to the order to be made by a magistrate having jurisdiction in the place in which the order has been made.

Section 4 of the Magistrate’s Court’s Act – Cap. 14 provides: -

“(1) Subject to any express provisions of this or any other Act, every magistrates’ court shall exercise jurisdiction within the limits of the division within which is situated.”

The Learned Magistrate at Labasa had no jurisdiction to make any order pursuant to section 8 of the Maintenance and Affiliation Act.

Conclusion

It would appear from the above that the order made by the Learned Magistrate at Labasa had no effect on the maintenance order at the Nadi Magistrate’s Court. It had no effect due to: -

(i) service on the respondent was defective;

(ii) no evidence was placed before the court as required by section 8 of the Maintenance and Affiliation Act as to the change in circumstances;

(iii) the Learned Magistrate at Labasa had no jurisdiction as required by section 8 of the Maintenance and Affiliation Act to alter or vary the order.

(iv) any order made under the Matrimonial Causes Act had no effect on the maintenance order.

1. What is the status of the Maintenance Order in Nadi Case 56 of 1996 as against the decree nisi orders of Labasa Divorce Case No. 6 of 2000?
   

The Magistrate’s Maintenance Order is unaffected by the purported orders made at the Labasa Magistrate’s Court.

2. Given the current status of the parties, is it fair to uphold the orders in the decree nisi?
   

It is not necessary to answer this question in the light of the answer to I. above.

3. If the decree nisi orders take precedent over the maintenance orders then what is the effect of the orders of the Nadi Court pertaining to property settlement?
   

It is not necessary to answer this question in the light of the answer given to 1. above.

JOHN CONNORS
JUDGE

AT LAUTOKA
29 JULY 2004