Pickering v Pickering [1957] FJLawRp 14; [1956-1957] 5 FLR 90 (7 October 1957)

[1956-1957] 5 FLR 90

IN THE SUPREME COURT OF FIJI

Revisional Jurisdiction No. 15 of 1957

SHIRLEY LOIS PICKERING

v.

ARTHUR JAMES PICKERING

Maintenance Orders (Facilities for Enforcement) Ordinance, Cap. 32-order of New South Wales Court-cannot be varied by Magistrate's Court in Fiji.

The defendant was ordered to pay £7 per week maintenance for his wife and child by the Children's Court of Balmain, New South Wales. The defendant having come to Fiji, the order was transmitted to the Governor of Fiji for enforcement in the Colony under the Maintenance Orders (Facilities for Enforcement) Ordinance, Cap. 21. The Magistrate's Court, Suva, was, however, incorrectly directed to confirm the order instead of being directed to register and enforce it. The defendant was found by the Magistrate's Court, Suva, to be earning much less in Fiji than he had been earning in New South Wales. The order was not, therefore, confirmed. Subsequently the Magistrate's Court, Suva, varied the order to £3 per week.

Held.-(On revision by the Supreme Court):-

1. The Magistrate's Court in Fiji had no jurisdiction to vary the order made by the Court in Balmain, New South Wales.

2. The order of the Balmain Court as it stood must be registered and enforced by the Magistrate's Court, Suva, under the Maintenance Orders (Facilities for Enforcement) Rules and the Maintenance Orders (Facilities for Enforcement) Regulations.

3. The Magistrate's Court, Suva, must enforce payment by the defendant of such sums as he had the means to pay.

HAMMETT, J. [7th October, 1957]-

Revisional Order:

On 14th April, 1954, an order was made against the defendant Arthur James Pickering in the Children's Court at Balmain in the State of New South Wales for the payment of £7 per week for the maintenance of his wife, Shirley Lois Pickering, and child, Leslie James Pickering.

The defendant then came to Fiji and the order was transmitted to the Governor of Fiji for enforcement in Fiji under the provisions of the Maintenance Orders (Facilities for Enforcement) Ordinance, Cap. 32.

The order was forwarded to the Magistrate's Court at Suva by command of the Governor on 9th November, 1954.

Unfortunately the order to the Magistrate's Court incorrectly referred to the order of the Children's Court at Balmain as a " provisional order" whereas it was in fact a final order, and the Magistrate's Court at Suva was directed to proceed to confirm the order instead of being directed to register the order and to enforce it.

On 8th December, 1954, the matter came before the Magistrate's Court, Suva, for confirmation. Evidence was given to the effect that the defendant earned £19 a week when the order of £7 a week of maintenance was made against him in New South-Wales, whereas he was in December, 1954, only earning £3 5s. 2d. per week in Fiji. In these circumstances the order was not confirmed.

The defendant then left Fiji for Samoa. After his return to Fiji the matter was again brought before the Magistrate's Court, Suva, on 25th July, 1957, when an order was made that the defendant pay maintenance of £2 per week for his wife and £1 per week for the child out of his present total income of £28 per month.

The Magistrate's Court in Fiji had no power to vary the order made by the Children's Court at Balmain and its purported variation thereof is made without jurisdictions and must therefore be set aside.

I direct that the certified copy of the order be remitted again to the Magistrate's Court, Suva, and that it be registered there under the provisions of section 3 of the Maintenance Orders (Facilities for Enforcement) Ordinance, Cap. 32.

The order must then be enforced by the Court in accordance with the provisions of the Maintenance Orders (Facilities for Enforcement) Rules, and the Maintenance Orders (Facilities for Enforcement) Regulations.

If the Magistrate's Court is not satisfied that the defendant has had the means to satisfy the order in full, then it must enforce payment of such sum as it is satisfied he has the means to pay and in default of payment thereof issue the appropriate warrants of distress or committal as if this was an order made originally by the Magistrate's Court, Suva.

The Magistrate's Court, Suva, having no power to vary this order, any variation must be made by the Children's Court at Balmain.