B v A [2011] FJMC 79; Family Action 338.2006 (21 July 2011)

IN THE FAMILY DIVISION OF THE MAGISTRATES COURT
AT NASINU

Family Action No. 338/06

BETWEEN:

B (name was suppressed)
Applicant

AND:

A (name was suppressed)
Respondent

Ms. Releshini Karan for the Applicant as Duty Solicitor of Legal Aid Commission-Fiji
Ms. Swastika Narayan for the Respondent (Diven Prasad Lawyers)

Ruling on Judgment Debtor Summons

1] The parties were married on the 30th October 2002 and were separated in 2006.The Applicant had sought an order for maintenance thereafter. Following that, a Consent Order for maintenance was made by the Court on the 23rd November 2006 whereby the Respondent was ordered to pay $60.00 per week to the Applicant.

2] The parties finally obtained an Order for Final Dissolution of Marriage on the 25th January 2008. According to the Respondent, the parties however, resumed cohabitation in or about May 2008, following which they were re-married on the 24th June 2008. After nearly 2 years of re-cohabitation and re-marriage, the parties again got separated in on about April 2010.

3] The Applicant filed a fresh maintenance application via Form 5 on the 22nd June 2010 seeking spousal and child maintenance. Based on that application, an Interim Order (second order) for maintenance was made by the Court on the 8th December 2010 requiring the Respondent to pay $50.00 per week to the Applicant. This Order was to take effect from the 17th December 2010.

4] The Applicant eventually filed a Judgment Debtor Summons (JDS) against the Respondent alleging the debt of $11,371.50. The JDS amount is based on the Consent Order for $60.00 per week that was made on 23rd November 2006 and the Interim Order made for $50.00 per week that was made on 8th December 2010, calculating up to the 5th January 2010.

5] The Respondent now disputes the debts on the grounds that the parties resumed cohabitation after the Consent Order for maintenance was made; therefore, the maintenance order made on 23rd November 2006 ought to be ceased. The Respondent says that the Respondent ought to be given a discount because he had resumed cohabitation with the Applicant when they married again in 2008.

6] The Applicant admits that the Applicant and the Respondent had initially been married on 30th October 2002. Due to their difference in marriage life, the parties were separated on 4th May 2006 and this is when the Applicant filed for maintenance and divorce. A Consent Order was entered on 23rd November 2006 where the Respondent agreed to pay maintenance of $60.00 per week with effect from that week to the Applicant. Divorce was granted on February 2008.

7] It is admitted that the parties remarried on 24th June 2008. The Respondent left for New Zealand on a work visa on 1st March 2009 for one year. He returned to Fiji on 18th April 2010. Subsequently the parties again separated on 19th May 2010 again.

8] It is to be noted, during the period between 23rd November 2006 to 19th May 2010, neither of the parties made any attempts to vary or cease the Maintenance Order of 23rd November 2006. Even after the parties remarried on the 24th June 2008, no attempt was made by either party to cancel the order of 23rd November 2006.

9] Court Record shows, both parties were present in Court on 23rd November 2006. The Applicant lady was in person while the man was represented by his lawyer Mr. Kofe. A Consent Order was entered whereby the Respondent agreed to pay $60.00 per week maintenance to the Applicant. Thus the Respondent cannot go back this order as he was duly represented and understood the repercussion of the order.

10] On the 8th December 2010, both parties were present in Court. This time, the Applicant lady was represented by Legal Aid lawyer, Mr. Vishwa Sharma whereas the Respondent appeared in person. On that date the Applicant asked maintenance for her child 1 year 8 months old and incidental expenses for unborn child. He was 8 moths advanced pregnancy. The Respondent invited to resume co habitation but The Applicant refused to go with him. The Respondent said that he is unemployed and looking two children of first marriage. Considering all these facts my predecessor ordered the Respondent to pay the sum of $50 per week as Child and unborn child's maintenance. This was not a consent order but under section 96 of the Family Law Act 2003 the court has power to grant interim maintenance as urgent monetary relief.

11] The question is to be resolved is WHETHER THE RESPONDENT OUGHT TO BE GIVEN A DISCOUNT AND IF SO HOW MUCH DISCOUNT SHOULD BE GIVEN FOR THE COHABITATION AND IF PARIES REMARRIED, SHOULD THE PAYMENT OF MAINTENANCE BE CEASED? The Applicant filed Judgment Debtor Summons (JDS) against the Respondent alleging the debt of $11,371.50. The JDS amount is based on the Consent Order for $60.00 per week that was made on 23rd November 2006 and latter order which is made on 08th December 2010. It is to be noted the Applicant filed new JDS for $12291.50 on 17th June 2011despite of these objections by the Respondent. That JDS amount is based on the Consent Order for $60.00 per week that was made on 23rd November 2006 and the Interim Order made for $50.00 per week that was made on 8th December 2010, calculating up to the 17th June 2011 for the sum of $12291.50.

12] The Respondent disputes the debts on the grounds that the parties resumed cohabitation after the Consent Order for maintenance was made; therefore, the maintenance order made on 23rd November 2006 ought to be ceased.

13] I now address the matter. There is no doubt a cohabitation of 1 year 9 months between the parties exists. As they agreed, the parties have cohabitated (After remarrying) from 24th June 2008 till 19th May 2010. The question then arises whether to allow any discount to the Respondent as he claims to be maintaining the Applicant during the cohabitation period.

14] The Applicant relies on an Australian case of De Sales – v – Ingrilli (2002) HCA 52. This case was tendered and opposed by the Respondent. The Applicant says that there are very few cases which discuss whether discount ought to be given to payments if a party remarries. In De Sales – v – Ingrilli (supra) Gleeson CJ held as follows:-

"If there has been a remarriage, or if there is in prospect a marriage to a particular person, the Court will be in a position to examine the circumstances of the particular case, and these may, or may not, call for a specific, and perhaps significant, discount in a proper case.....It may be reasonable to assume that, as a general rule, marriage brings certain benefits of pecuniary value, in the form of financial support or assistance, or services. But the Court is usually unable to predict what will occur in a particular case. It would be impossible to calculate the actual likelihood of financial support or assistance, or services. But the Court is usually unable to predict what will occur in a particular case. It would be impossible to calculate the actual likelihood of financial benefit by reference to any available statistics. A subjective assessment of the particular probability would again be dangerous, as there is no basis on which the Court can predict whether a particular plaintiff will marry "well".

The fact that these contingencies cannot be predicted with any certainty does not relieve the Court of the task of taking account of them. There are many uncertainties that attend the contingency of a financial beneficial remarriage: when it occurs, whether it will last for how long, and whether it is or continues to be financially advantageous",

15] In De Sales – v – Ingrilli (supra) the court held that there should reflect a discount for remarriage of five per cent and a discount for general Vicissitudes of five per cent. But this case pertains to assessment of damages that may be awarded to a surviving spouse upon death of other spouse in a fatal accident case. The facts are totally difference to this case and I hold that there is no precedence can be drawn to this case.

16] The current Family Law Act and Rules are silent on whether maintenance ceases automatically upon cohabitation. Section 165 of the Family Law Act 2003 states that spousal maintenance ceases upon remarriage to another person. I reproduce this section for clarity.

165.-(1) An order with respect to the maintenance of a party to a marriage ceases to have effect-

(a) upon the death of the party;

(b) upon the death of the person liable to make payments under the order.

(2) An order with respect to the maintenance of a party to a marriage ceases to have effect upon the re-marriage of the party or the party cohabitating with another person in a domestic relationship unless in special circumstances a court which has jurisdiction under this Act otherwise orders.

(3) Where a re-marriage or the cohabitation referred to in subsection (2) takes place, it is the duty of the person for whose benefit the order was made to inform without delay the person liable to make payments under the order of the date of the re-marriage or cohabitation.

(4) Any moneys paid in respect of a period after the event referred to in subsection (2) may be recovered in a court which has jurisdiction under this Act.

(5) Nothing in this section affects the recovery of arrears due under an order at the time when the order ceased to have effect. (Emphasis is mine)

17] It is crystal clear if a party enter a re-marriage, is not entitled to get maintenance under previous order. In this instance case, the Applicant lady did not marry a third person. She remarried the Respondent himself. Therefore the Applicant says the maintenance order of 23rd November 2006 should not cease automatically. She further said that the Respondent left the Applicant lady just a few months after their marriage and went to New Zealand. They did not cohabit together during their second marriage.

18] In the light of section 165(2), it is clear if a benefitted party enters a re-marriage or cohabit, thus Maintenance should be ceased. The Section 165(3) provides if re-marriage or cohabitation took place benefitted party is bound to inform such incident. In this case the Applicant remarried 24th June 2008 and her maintenance ought to be ceased on that particular day. But the Applicant failed to inform the remarriage. The Court notes that the Consent Order for $60.00 per week that was made on 23rd November 2006 for Spousal Maintenance only. The Interim Order made for $50.00 per week that was made on 8th December 2010 for one child and unborn child.

19] Under section 165(5) it is clear any arrears due under an order at the time when the order ceased to have effect can be recovered. Therefore it is clear that the maintenance arrears for the period between 23rd November 2006 to 24th June 2008 (If any) should be paid by the Respondent. The Respondent has not proved that they had cohabited before re-marriage, therefore he is liable to pay maintenance up to re-marriage date 24th June 2008.

20] I now deal the issue of the maintenance order is ceased as there are special circumstances in this case for the Applicant. The Applicant contention is that the Respondent had not been paying the maintenance and later married the Applicant. She further stated that the Respondent stayed in New Zealand throughout this period of his second marriage and within days of returning back from New Zealand, the parties separated again. The Applicant stressed that this also creates much doubt as to whether the Respondent was genuine in their second marriage and asked that the Court's exercise its powers of discretion in this case.

21] The Applicant said that she was not paid maintenance after the second marriage. But The Applicant did not inform this to court this issue until this objection raised by the Respondent. If the Respondent dodged maintenance she could have informed to the court but she slept over her rights. I draw my attention to legal maxim of "Law assists the wakeful, not the sleeping- Lex Vigilantibus, non Dormientibus, Subveinit". Therefore the Applicant has no relief for her negligence or ignorance. I therefore hold there are on special reasons to exercise court's discretion under section 165(1) of the Family Law Act 2003.

22] I now deal with Second order which was made on 08th December 2010 to pay maintenance for child and unborn child at the rate of $50 per week. As Court Record indicates the First Form 5 Application for maintenance was filed on 22-09-2006. For that Application, on 23-11-2006, court made order that the Respondent to pay maintenance to the Applicant at the rate of $60 per week. As I above considered that order has to be ceased on 24-06-2008 when parties re-married. On the same day, the Form 5 was filed by the Applicant; she filed Form 9 and form 12 for claiming her movable and immovable properties and Restraining Order asking not to be removed from the marital house. The parties have not addressed this issue at this moment. Thus, I am not going to deal with it at this juncture. On 10—07-2010 the Applicant filed another form 9 Application and sought Restraining Order for Non Molestation and Non Contact. Those Restraining Orders were granted on 18-07-2007. The Applicant then filed Form 1 application for divorce for first marriage on 04-12-2007. The divorced granted on 24-01-2008. Then the Applicant filed Form 7 contempt Application for violation of Restraining Orders on 27-02-2008. Then they have remarried on 24-06-2008. Moreover, I note there is Form 12 Application again filed on 29-06-2010 for Interim Spousal Maintenance and Child maintenance and further sought absconding warrant against the Respondent. The Absconding Warrant was issued against the Respondent on 07-07-2010 is still in force. Then Finally the Applicant filed Form 5 Application on 22-06-2010. It is to be noted in that application the Applicant seeks maintenance as $80 per week for her child, $50 per week for unborn child and Apart from the child maintenance she claimed $70 per week as Spousal Maintenance. This indicates that the Applicant herself has accepted that pervious order for maintenance which was made on 23-11-2006 has died down and she claimed new Spousal Maintenance in her current application. Apart from that, there are Forms in the court record that the Applicant has recently filed form 9 for property settlement on 19-10-2010 for matrimonial house, Vehicle and FNPF. The matters for property settlement were proceeded before Deputy Registrar and yet to be finalized.

23] For above Applications of the Applicant, the Respondent filed Form 6, the Response for current (Second) maintenance application on 11-02-2011. In that Order the respondent averred that he invites the Applicant to resume the marriage. He said that he maintains his two children from first marriage and supports her disabled sister. As I gathered from the court record that the Respondent had previously married to the Applicant's elder sister who had died in an explosion of kerosene oil burner. From that marriage he got two children. He said he was working as a Chef in New Zealand and he has lost his job because of absconding warrant which he could not resume the job. Therefore he is unemployed and is supported by his mother. The Respondent prayed that application for maintenance be dismissed. Apart from that the respondent has filed Form 10 Application that is to Response of property settlement and opposed the Applicant's Form 9 Application. This is the current progress of this case and I note parties were referred to the Senior Welfare Officer and Family Counselor for their recommendation those are still waiting to come.

24] Under the sections 97 and 167 the maintenance orders for children and spousal can be discharged on sufficient and reasonable grounds. In the instant issue the Family Law Act 2003 direct to the notion that the maintenance order should cease to take effect from the time the parties resume cohabitation or remarriage. This is a clear case of re-marriage; regardless of who the Applicant re-marries, the fact that the cohabitation was resumed, is sufficient to indicate to this Court that the maintenance order affecting the same parties ought to be ceased. And in the present case, since the parties had resumed cohabitation and remarried and the fact that there were no complaints that the Applicant and the children were not maintained by the Respondent for the entire period, should be deemed reasonable ground for the Maintenance Order dated 23rd November 2006 to cease to take effect. As I earlier noted that there is no evidence whatsoever provided by the Applicant to show that she has suffered financially in the past 5 years, due to the non-payment by the Respondent.

25] The Respondent has drawn this court's attention to the section 27 (3) of the Family Law. It provides;

"27 (3) Where a final order for dissolution of marriage or of nullity of marriage has been of the definition made, proceedings of a kind referred to in sub-paragraph (c) or (d) of the definition of "matrimonial cause" in section 2(1) (not being proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) cannot be instituted before the expiration of 2 years after the date of the making of the order or the date of commencement of this Act, whichever is the later, except by leave of the court in which the proceedings are to be instituted."

26] The sub-paragraph (c) or (d) of the definition of "matrimonial cause" in section 2(1) provides;

"c) proceedings between the parties to a marriage with respect to the maintenance of one of the parties to the marriage;

(d) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings-

(i) arising out of the marital relationship;

(ii) in relation to concurrent, pending or complete proceedings between those parties for principal relief; or

(iii) in relation to the dissolution or annulment of that marriage or the legal separation of the parties to that marriage, being a dissolution, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that dissolution, annulment or legal separation is recognized as valid in the Fiji Islands under Part XI;"

27] I think this section is meant for transitional provision of the new Family Law Act 2003 and which relates to previous orders which were made before the Act come in to force. Otherwise every Order which cannot be instituted before the expiration of 2 years has no legal effect without the leave of the court, is lead to maze and unacceptable. I hold these sections have no application to instant application.

28] Considering all these facts, I hold that previous Spousal Maintenance Order ought to be ceased from 24th June 2008 (The Date of Remarriage). Therefore there is no valid Spousal Maintenance Order After that date till 17-12-2010.

29] I therefore make following Orders;

a) The applicant is entitled to get spousal maintenance for period of 23-11-2006 to 23-06-2008.

b) No spousal maintenance can be recovered for period of 24-06-2008 to 16-12-2010.

c) The Children's' maintenance Order which was made on 08-12-2010 is in force and any arrears of maintenance of this order can be recovered with effect from 17-12-2010 up to date.

d) Maintenance to be decided on Second Form 5 Application, which was filed on 22-06-2010.

e) Trial will be proceeded to decide property settlement and permanent orders for Children and Spousal maintenance.

f) JDS to be calculated accordingly.

On 21st July 2011, at Nasinu,
Fiji Islands

Sumudu Premachandra
Resident Magistrate- Nasinu