Kumar v Kumar [2005] FJHC 223; HBA0011.2005 (15 August 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CIVIL APPEAL NO.: HAA0011 OF 2005

BETWEEN:

HEMANT KUMAR
APPELLANT

AND:

ROSYLN ROSHINI KUMAR
RESPONDENT

Mr. G. O’Driscoll for Plaintiff
Ms A. Lata for Legal Aid for Respondent

Date of Hearing: 28th July 2005
Date of Judgment: 15th August 2005

JUDGMENT

Domestic cases have the peculiar habit of raising their heads for many years after they have been ruled upon. This is one such case.

The appellant was the husband of the respondent. A decree Nisi in respect of their marriage was granted on 11th June 1999 and decree absolute on 25th June 1999. The parties had two children – Clarissa Ashwini Kumar born on 5th October 1983 and Clement Adhitya Kumar born on 26th January 1987. The custody of Clement Adhitya Kumar was granted to the respondent with reasonable access to the appellant. The appellant was ordered to pay $25.00 per week maintenance for this child.

On 22nd February 2001 certain consent orders were made by the Resident Magistrate whereby the court ordered:

“1. Custody of two children be granted to the Respondent with reasonable access to the petitioner.

2. Petitioner to pay $20.00 maintenance per child x 2 = $40.00 maintenance per week with effect from today till further order of the court.
   
3. Defendant to pay for : (A) School fees

(B) School stationery

(C) Parties to share 50% each for school uniform with effect from today.”

The copy of the Order was not in the records supplied on appeal but is on the original Magistrate’s Court file.

If I may say, this order is rather confusing. While it is obvious that the present appellant is the petitioner, the present respondent was respondent in those proceedings, I could not say who the word “Defendant” in Clause 3 referred to.

Mr. O’Driscoll in a frank and forthright concession agreed that it was his client who was ordered to pay school fees etc. so the word “defendant” refers to the present appellant.

By notice of motion dated 7th December 2004 the appellant made an application for variation of maintenance in that he only wanted to pay reasonable school fees and not exorbitant fees. It appears the appellant had become aware that the son had skipped two school terms during form 5 and had enrolled at South Pacific Education College where the fees was $4,2000.00 per annum.

The upshot of this application was that the Magistrate seised of the file on 22nd December 2004 treated $4,2000.00 school fees as part of arrears of maintenance and ordered the appellant to pay. The order of 22nd December 2004 reads :

“Existing order to continue i.e. $20.00 maintenance plus $5.00 = $25.00 per week till all arrears is paid off - $4,200.00. Attachment of Earnings Order to continue.”

The above order allows the appellant to pay arrears which the court calculated to be $4,200.00 at the rate of $5.00 per week which would take him 840 weeks to pay, an alarmingly long time granted to pay arrears.

The grounds of appeal are as follows:

(1) That the learned Magistrate erred in law and in fact by ordering that the Petitioner pay maintenance being school fees of an amount that is unreasonable given that the Respondent had not consulted the Petitioner before sending their son Clement Kumar to an expensive institution.

(2) That the learned Magistrate erred in law in not considering the Petitioner’s argument regarding the fact that it had been arranged for Clement Kumar to return to High school to complete Forms 5 and 6.

Both grounds were argued together.

The appellant submits he was paying $25.00 per week maintenance and also school fees. The school fees was in the region of $385.00 whether it was for one term or whole year I am not told. Regardless of whether this sum represented fees for a term or whole year, an increase from $385.00 to $4,200.00 per annum meant a very significant increase in what the appellant had to pay. Despite this, neither the appellant nor his counsel was given an opportunity to address the court. He should have been allowed to submit on whether the words “school fees” could encompass fees payable to a specialised institution.

Variations of orders are made under Section 84 of the Matrimonial Causes Act. The section requires a court to be satisfied that the circumstances of the person for whose benefit an order has been made have changed. Satisfaction means reasonable satisfaction – Section 93(2) of the Act.

From the records supplied, it is apparent that the respondent was not even ordered to file any affidavit. It appears that a letter dated 15th February 2005 addressed to the son by South Pacific Education College and which stated the fee was $4,200.00 for semester 3 and 4 was passed to the Magistrate from the floor of the court. On the basis of this highly irregular procedure, the order was made.

While there may be need for expedition in matters dealing with a child’s education, it does not deviate from the need to hear the views of the appellant of what he considered was good for his son or what he had to say about the increase burden of payments he had to meet.

Under Rule 21(2) of Matrimonial Causes (Magistrates Courts) Rules sets out the requirements of contents of judgments in a matrimonial cause. It requires setting out of “matters for determination in the cause, decision on those matters and reasons for those decision”. These requirements were not met.

In matrimonial matters be they divorce, property settlements or maintenance, the court is not there to merely rubber stamp the wishes of the parties or one of them. The court must comply with the requirements of the Matrimonial Causes Act and the Rules. Failure to comply with the provisions of the Act and the Rules will lead to orders being set aside on appeal – Ivan Harold Gibson v. Salaseini Nakaba – HBA0017 of 2001S where Justice Scott set aside property adjustment orders for failure of the Magistrate to comply with the provisions of the Act.

This application must succeed. The appeal is allowed. The learned Magistrate’s order that the appellant pays $4,200.00 fees is set aside.

The file is sent back to the Magistrate Court for another Magistrate to dispose of the notice of motion dated 7th December 2004 and filed on 8th December 2004.

[ Jiten Singh ]
JUDGE

At Suva
15th August 2005