UR v SN [2012] FJMC 164; Family Case 290.2010 (5 July 2012)

IN THE FAMILY DIVISION OF THE MAGISTRATE'S COURT
AT NASINU

Family Case No. 290/NAS/2010

BETWEEN:

U R
[Applicant]

AND:

S N
[Respondent]

Appearances:
Applicant appeared and represented by Mr. Rajendra Pal Chaudhry
Respondent was present and appeared by Mr. Julie Shah

Trial Details:
Date of Hearing: 28th March 2012
Date of written submissions filed: 10th May 2012
Date and Place of Judgment: 05th July 2012, at Nasinu, Fiji Islands
Judgment of: Resident Magistrate Sumudu Premachandra

Judgment on Children's Maintenance, Property Settlement and
Custody

Background

1. These applications are made by the Applicant-mother for order seeking children's Maintenance (Form 5), full custody of the children (form 9) and property settlement. The Children are Y D N (DOB: 26-09-1999) and Y K N (DOB: 12-08-2002). The Applicant is the natural mother and the Respondent is natural father of the children and parties are legally married on 04th October 1997 and later divorced on 20th October 2011. The Respondent did not deny the paternity of the children and it is presumed that he is the father of the children under section 131 of the Family Law Act 2003 as the children were born within the wedlock.
   
2. The Applicant on her form 5 (as amended on 22-09-2011) which was filed on 06th September 2010 seeks interim maintenance for $200 per month from the Respondent as children's maintenance. She also claims spousal maintenance and Part F indicates their weekly expenses are $933 ($471.50 for spouse and $471.50 for the children). In her form 9 she which was filed on same day 06th September 2010 seeks joint custody and full residence of the children and restraining order against the respondent as it relates to all forms of interference and/ or threat and/ or intimidation. She further sought shares from matrimonial property. As to the distribution of matrimonial property, the applicant only filed form 19 financial Statement. The respondent failed to file Form 19. Both have not filed bundle of documents. Pleadings are not completed for property issue. I therefore do not consider property distribution in my judgment. But I do consider issues of maintenance, child abuse and custody.
   
3. The Respondent had filed the response to the maintenance application (Form 6) and response to the form 9 (form 10) for final orders. In his form 6 the respondent asks that the respondent be allowed not to pay maintenance as he was unemployed, has no income and income of the house is solely being used by the applicant. The Respondent further in his response asked the applicant to pay maintenance to the respondent. The respondent in his form 10 says that no maintenance be backdated.
   
4. Apart from these responses, the respondent has filed form 15 that is child abuse or risk of child abuse and the transfer of house-matrimonial property cannot be done on existing terms as his share is greater than the applicant's. The applicant filed form 23 affidavit reply to the child abuse.
   
5. While this case was maturing, the applicant sought restraining orders against the Housing Authority to save their matrimonial house being put on mortgage sale. She made suggestions to settle this matter. The respondent too made suggestions. The court restrained the housing authority for three months not to sell or dispose otherwise the mortgage property. But parties could not sacrifice or iron out their differences in this issue and house went on mortgage sale and the children were thrown out to street.
   

Evidence

6. The case was heard before me on 28th March 2012. The applicant gave evidence on oath. Her evidence can be summarised as follows. The applicant said that she has filed affidavits along with her various applications and these could be considered as evidence and she can be cross examined on those. She reaffirmed those facts which are in affidavits are correct. She has sworn affidavits on 12th May 2011, on 14th October 2010; and on 1st September 2010. According to her evidence they were married at Suva on 04th October 1997. The copy of the marriage certificate was tendered as UR 1. By this marriage they got two children namely; Y D N (DOB: 26-09-1999), and Y K N (DOB: 12-08-2002). Children's birth certificates tendered as UR 2. The applicant says that her children do not want to go to the respondent father. She said at some occasions the children were unattended near the beach while access was given their life was being put at risk because the respondent was hanging on mobile. She said that the respondent was from broken family since his childhood. After their break up he went to live with his mother and then started living with his de facto partner shortly. The applicant said the respondent is harassing both children. One day he took daughter after school without her consent and child was told by the respondent that she is not pretty than his de facto's daughter because she is fat. The respondent compared both children. The child was upset. The respondent has admitted the de facto's children in the same school where her children are schooling. The respondent forced them to call his de facto's children brother and sister. Both children are mentally disturbed and it also affects their studies. Copy of head teacher's letter was filed as UR 1. The applicant in her affidavit said that the respondent and his step brother had come her doorsteps (gate) and swearing at her and this was reported to the police. She further said the respondent makes intimate call before their children and it is no good for her children. The applicant stressed that the respondent supports her de facto's children while his own children are left behind without support and his children are suffering lot. The applicant has filed and adduces evidence relating to mortgage property but since this court is not considering the distribution of property at this moment, I do not consider that part of evidence and documents. The court referred parties to the family counselling, but there was no favourable outcome.
   
7. In her evidence she said her matrimonial house has gone on mortgage sale. So she is renting and rent is $450 per month. Her landlord is Mr. Asvin Kumar. The children school fees were partly paid by her. She has to pay children's tuition fees and swimming fees. The affidavit was filed AE-1. The applicant said she is a civil servant earns $10412 per annum. After tax her fortnight salary is $368.46. The school bills were filed as AE-2. The applicant said the respondent father has run away with readymade family. His de facto has two kids, he supports them. Ever since he ran away she is looking after these children. The respondent did not visit the two kids since November 2011. The applicant described the weekly expenditures and the money she spent on the children. She said the respondent did not contribute the expenses towards children. When she asked the respondent used to fight with her. The applicant said they had two flat house, but the respondent did not consent to transfer it. She had made arrange to pay mortgage repayment through siblings but the respondent did not want to transfer and he made conditions. But the applicant could not hold the property, it went on mortgage sale. Those conditions were tendered AE-3.
   
8. The applicant was cross examined by the Respondent's counsel. In answering, the applicant said the respondent did not bring things to the children when he comes instead he used to fight with her and many times their daughter is used to come out and tell him not to fight. Since June 2010 the children were not with the father. The respondent did not have intention to see children but one or two times they went to see him. The applicant said when the respondent moved out there was no tenant in the property. The place was empty. But she admitted one Kamalesh was there but he did not pay any rent. Tenant was unemployed and he harassed the daughter so he was asked to quit. Then she gave house to one Robert. He paid the rent till property was seized by Housing Authority. But he paid rent only 3 or 4 months. Robert paid $200 per month. The applicant said she changed the gate lock because it was not working properly. But the respondent never came and asked a spare key. The applicant said the respondent's mother Mrs. Amara Wati never shopped with her to buy groceries. The applicant said she claims $50 per week for a child as they have brought up very luxurious way. The applicant said that the children themselves do not want their father. The applicant said she forced children to go with their father after that the father did not come to visit them. The applicant said she did not get any complain from consumer council for not issuing rent receipts for Kamalesh. She answered Kamalesh did not pay any receipt so she did not issue any receipt and he was unemployed. The applicant said when the respondent with them he was a good father and the daughter specially attracted to him. When he entangle with Sunitha he phoned in front of daughter. Although she wanted children to go to him, both children hate him. They refused to go with him. The applicant said she had issue with Kamalesh because he harassed her daughter, but she never fought with her baby sitter. The applicant said the respondent stole her things her father's suitcase and camera. But he did not take fridge, microwave and TV. The respondent suggested $35 per week per child, but the applicant said the respondent is CEO of Rewa Dairy and he can pay more. She asked that his pay slip to be tendered to the court to prove his income. She said she claims $40 per week per child. The respondent did not transfer the house to save it. The vehicle was under respondent's name, but she paid $250 per month. The welfare officer has taken the view of children. She said she has no problem that children be counselled. The Kamalesh abuse was verbal. The children now go by bus to the school she pays $10 per week. She said she does not mind weekend access if the children are OK with it.
   
9. In re examination the applicant said if she was Sunitha, she will not allow her partner's children to come their life. She said that's why she is still not married. The applicant said his de facto got two flats and her husband is deceased. She got $1, 00,000 from insurance. She agreed to give day time access if the children agree.
   
10. Thereafter the Applicant closed her case and the respondent gave evidence and called witnesses.
    
11. The respondent said the applicant did shopping with his brother in law and second time with his mother. Next time the gate was locked and he dropped the shopping at the gate and asked her son or daughter to get it. It was June, July and August until Raksha bandan 2010. He was given access. There after he was not given access. He said "I tried to see my kids and give gifts. My kids were told I am a bad person." So far he could not give lunch to them, he tried through friends but unsuccessful. Property was two flat house and one was renting. $200 rent per month was collected by the applicant. He assumed it used to provide for kids. He said he paid FNPF money to buy that property and car was sold well before the separation. Car was under his name and he was paying for it. The respondent further said "I have not been given access, my daughter called me twice; there was no father and daughter connection, which I was very unlucky". The respondent told that daughter walked to the school because she lost her purse. One time children were alone and he reported to the Social welfare officer of Nasinu. So, he applied for custody. He started new job in January 2012. He has moved on to a new relationship. He said once he moved out he stayed one month with his mother and got a new flat. Then he started new relationship. The respondent said he was forced to move out, he was punched by the applicant. He further said "If I have stayed there, it would have been detrimental for all of us, the new family is looking forward my children to receive at home, with my new family I have a son and daughter... I paid for the lodging, schooling and other expenses my two kids who are with me now. They are Swesta Raju and Anirudh Raju and also my de facto wife Sunitha Devi". The respondent said he is willing to pay $35 per week per child and if weekend access was given he his ready to bear those expenses. He explained "I am supporting my mother and brother. I am supporting my current family, for my current status, I need to be educated, next year I intent to do doctorate (PhD). I may be a bad husband, but I am not a bad father, I love my kids, in terms of better relationship, I can do the fullest"
    
12. In cross examination the respondent said he did not say good bye to the family he just moved out from house not from their lives. He admitted after he moved out he stated family with Sunitha within one week at Nakasi. The respondent said there was no extra marital affairs with Sunitha before get together. She was his class mate and met after 15 years. The applicant counsel suggested that he was caught in bed, but the respondent denied. Though he was shopping for them but he did not have receipts for that, but he can supply. The respondent said that his daughter was brain washed that's why she refused to come with him. The respondent said while he was working he got $40,000 per annum. He when he was unemployed he borrowed money from De facto partner for the house rent, was $550 per month, school fees and other expenses. She gave her $8000. But she stays at home. The respondent admitted last year he did not pay school fees and he did not ask loan from Sunitha. He also gave money to his mother no one keeps receipts for that. He said he paid school fess $550 for Sunitha's children. He said his kids are afraid to come to him but admitted that he has never made access application to this court. The respondent was asked why he did not transfer house property to the applicant. Then he answered he did not know about it and the applicant did not approach him there was no communication. Then, letter AE-3 showed to him, he admitted there was a communication. He also said he only paid one housing repayment after he left the matrimonial home. The respondent was questioned;
    

"Because of your refusal the house went on mortgage sale and your children are out on the street? No.

You persuaded to punish your children and you did this? No. I did make an offer, no one came back to us, the applicant did not ask personally"

13. The respondent admitted the daughter was 8 months old he left to India for 3 years but he said that the applicant did not beg not to go. But he came in 9 months. Answering to the applicant counsel's questions the respondent said "it is a duty of every parent support to the children, when I was not given access, I did not punish my children Q: Your daughter hates you? She wants counselling, and then they will come to me. They know I am supporting another woman's children not them but I was not given access"
    
14. The respondent called Mrs. Amara Mudaliar as witness. She is the mother of the respondent. She said the respondent came and stayed with her after broke up. He brought only his clothes. He left all stuff with matrimonial place. After he came he used to give $450 worth of groceries to his children. He gives $50 per month to her. She said "my son tried to get in touch with children on Fridays to Sundays. When the children go with him they were really happy, now we are not able to meet the children, the applicant did not allow us to go the children"
    
15. The witness said before separation his son did not give $50 per month, but now he is giving. The witness said she visited grand children when her daughter in law was ok and sometimes she stayed overnight with grandchildren and daughter in law when her so was in Western. The applicant said witness never looked after grand children there was a baby sitter, but she denied and said even though there was baby sitter, she looked after her grand children.
    
16. Then, the respondent called Mrs. Aruna Radha. She said the respondent is her cousin. This witness also said the respondent left his things and he gave groceries to the children. The respondent used to treat the children well. He did not beat any children. The applicant-mother told me that father threw the daughter into water when they went picnic, but that is not true. The witness told that this story was told to him by the respondent. He further said but they did not discuss the evidence. But court notes this throwing issue did not rise by any party, but it shows the respondent party have well grouped and organised before giving evidence.
    
17. Next witness for the respondent was Mr. Kamalesh Narayan. He said he was tenant of Mrs. Nand. Mr Nand was not there. He said he paid $200 as advance and they stayed 8 months and they paid $200 per month for rent. The notice to vacate letter tender as RE-1. It was issued in the name of Renu, his wife. They complaint this matter to commerce commission. Letter tendered as RE-2.
    
18. In cross examination they said there was no written rent agreement. He was a taxi driver, but he cannot remember the taxi number. He said he did not harass the applicant's daughter. The RE-2 did not refer any non issuance of rent receipts. They did not stay free.
    
19. After that Mr. Mohommed Altaf Hussian called by the respondent. This witness said that the respondent was a good father he took care of his children. When they went to trip for Leuka, the respondent prepared the breakfast for the children while the applicant was sleeping. It was 10am.
    
20. In cross examination the witness said he did not Uma to cook his breakfast that day.
    
21. The respondent closed his case.
    

Law & Evaluation

22. I now consider that evidence which adduced before me by the parties. In this matter the applicant gave evidence and the respondent gave evidence and called several witnesses. The applicant has filed an affidavit and tendered it. It seems to me that the respondent party in their evidence tried to convince this court although the respondent left the matrimonial house he supported his family and the children. But the respondent was unreasonably denied access to the children. The children were brain washed by the applicant and they need counselling. It is noted that the respondent so far did not ask any access from the court by filing pertinent application; instead he tried to go to the school and meet his children. He only paid one mortgage repayment after he left house. It was eventually sold by Housing Authority and children were thrown out to street. The idea behind calling witnesses to prove that he supported them and he was a good father. Further the applicant generated income from flat. But the applicant denied that Kamalesh paid rent to him. By keeping those in my mind, I shall turn to law relating to this area.
    
23. Parental responsibility is defined in section 45 of the family Law Act. It says;
    

"parental responsibility", in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.

24. Section 46 postulates each parent has parental responsibility. It says;
    

"Each of the parents of a child who is under 18 years has parental responsibility for the child.

(2) Subsection (1) has effect despite any changes in the nature of the relationships of the child's parents such as becoming separated or either or both of them marrying or re-marrying.

(3) Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section)."

25. I would like to deal children's maintenance first. The applicant filed for form 5 application and asked maintenance. Pertinent section is section 86. It defined the primary duty of the parents. Section 86 of the Family Law Act 2003 says;
    

"The parents of a child have, subject to this Division, the primary duty to maintain the child.

(2) Without limiting subsection (1), the duty of a parent to maintain a child-

(a) is not of lower priority than the duty of the parent to maintain any other child or another person;

(b) has priority over all commitments of the parent other than commitments necessary to enable the parent to support-

(i) himself or herself; or

(ii) any other child or another person that the parent has a duty to maintain; and

(c) is not affected by the duty of any other person to maintain the child. (Emphasis added)"

26. Thus, above all other commitments the Respondent has prime duty to maintain his children and he has liability to pay maintenance to the applicant. I note he has other children's liabilities as well. But those children are not his children and law imposes only liability to maintain his children. It comes all over other commitments. Therefore, the Respondent cannot evade the payment of maintenance for his children. He is paying $40 per week as interim maintenance for the children. The question is whether it sufficient or not.
    
27. Sections 90 and 91 of the Family Law envisage the matters to be taken into account when maintenance payment is ordered. I reproduced those for clarity.
    

"90.-(1) In considering the financial support necessary for the maintenance of a child, the court must take into account the following (and no other) matters-

(a) the matters mentioned in section 91;

(b) the proper needs of the child;

(c) the income, earning capacity, property and financial resources of the child.

(2) In taking into account the proper needs of the child the court-

(a) must have regard to-

(i) the age of the child;

(ii) the manner in which the child is being, and in which the parents expect the child to be, educated or trained; and

(iii) any special needs of the child; and

(b) may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.

(3) In taking into account the income, earning capacity, property and financial resources of the child, the court must-

(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and

(b) disregard the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.

(4) Subsection (2) and (3) do not limit the matters to which the court may have regard in taking into account the matters referred to in subsection (1).

Matters to be taken into account in determining contributions that should be made by party are;

91.-(1) In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account the following (and no other) matters-

(a) the matters mentioned in section 90;

(b) the income, earning capacity, property and financial resources of the party or each of the parties;

(c) the commitments of the party, or each of the parties, that are necessary to enable the party to support-

(i) himself or herself; or

(ii) any other child or another person that the person has a duty to maintain;

(e) the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child;

(f) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person."

28. I note the Respondent has capacity to earn. He has no other lawful commitments. He is the CEO of the REWA Dairies and highly qualified man. He can support his de facto's children and family while supporting his own children. He can pay his mother as well. But priority is as law clearly mentioned previously is to maintain his children first. Therefore, He must work hard and support the children and fulfil his legal responsibilities and obligations. Of course, the respondent can create more burdens but he has to fulfil his obligations. The court was surprised that he did not tender his payslip in his evidence to the court. Since he is disputing the applicant's claim he should show his inability, which he failed to do so. The applicant asked $40 per child per week. The respondent is willing to pay $35 per child per week. I hold he has capacity to pay $40 per week per child.
    
29. The next issue is that the applicant asked full custody of the children. The respondent did not make any formal application for the custody. But he indicated that the applicant brain washed his child therefore the children be counselled. When court makes parenting order the court must look at best interest of the children. In Family Law Act section 120 says;
    

"120.-(1) This subdivision applies to any proceedings under this Part in which the best interests of a child are the paramount consideration. (Underlining is mine).

30. I consider the evidence regarding this issue before me It is to be note that both children are living with the applicant mother and the respondent father since there birth. After separation the children live with the applicant mother and the respondent did not make any formal application at least for access. Matters are to be considered in section 121 when parenting order made as follows;
    

Section "(121)- (1) Subject to subsection (3), in determining what is in the child's best interests, the court may consider the matters set out in subsection (2).

(2) The court must consider-

(a) any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

(b) the nature of the relationship of the child with each of the child's parents and with other persons;

(c) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from-

(i) either of his or her parents; or

(ii) any other child, or other person, with whom the child has been living;

(d) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(e) the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;

(f)the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of the child) and any other characteristics of the child that the court thinks are relevant;

(g) the need to protect the child from physical or psychological harm caused, or that may be caused, by-

(i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or

(ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;

(h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(i) any family violence involving the child or a member of the child's family;

(j) any family violence order that applies to a child or a member of the child's family;

(k) any other fact or circumstances that the court thinks is relevant."

31. In view of the above governing law the best interest of the child should be the paramount consideration. It is needless to say that the Children are attached to the Applicant mother. The applicant mother is only possible shelter for them. She is the promising one for the children. Therefore the children need not be brain washed as they trust their mother than their father who shattered their world unexpected way. The children in this case are not toddlers they knew what happened. As evidence revealed the respondent started new life within short period after he left them with his de facto. Though the respondent denied the Sunitha's extra marital affair started before he left Uma, but he did not contest that he made intimate phone calls in front of his daughter. If the respondent says that he paid maintenance and the children are being brain washed, he has burden to prove those mere assertion on oath is not sufficient to decide these factors.
    
32. When parenting order is made the children wish to be taken. I consider Social welfare's officer's report in this regard. In that it says;
    

"It was noted that the applicant and the children are living in a rented flat which consists of two bed rooms. It is a concrete house, spacious, and party furnished... their landlord is living beside them and they are very friendly and socialize with them well"

"During the interview, Y stated that she prefer to stay with her mother. She stated that she does not like her father because she does not trust him for what he did to them. She shared that she hates her father for totally neglecting them. She stated when he left them, he did not even bother to talk to them again...She said that her father is more concern and paid a lot of attention to her current partner's children whom they also attended the same school"

"Y stated during his interview that he wants to stay with his mother. He said that he does not want his father because he does not have a heart for him"

"While interviewing the children's class teacher (Mrs Chand and Mr Dayal) as well as the head teacher (Mr Suliano), they stated that they only noted the children's mother following up on the children's performance in school"

In head teacher Mrs. Sera Cavakilagi's letter Yashna was counselled by her trice. She wrote;

"I'm Y's class teacher and have found out in the class that Y has been disturbed in the class. She seems to be day dreaming and not 100% focussed in her studies. She is not Y I knew at the beginning of the year. Her mother came to tell me later of what happened in her family"

"I had also spoken to Yh who is in class 2. He told me that his dad came to school on Friday and wanted to talk to him but he ran away. He said he ran away because he did not want to speak to him or see him"

"I had also spoken to their dad about his children's feeling and the situation here in school and the seriousness of it. He said he would keep away from them"

33. These are independent assessments and the respondent never challenged this. This show the children distrust the respondent thoroughly. How can children trust their father when they were thrown out to street? The respondent said he made suggestion to save the mortgage property but the applicant did not agree to it. The respondent made certain conditions to transfer his share. Those are stated in AE-3.
    
    1. S N's FNPF contribution in the property are returned to FNPF ( That is to pay $15,000)
       
    2. S N has no maintenance obligations payble in respect of both children till they attain the age of eighteen years and this transfer of the property in the name of U R solely is full settlement on maintenance and property.
       
34. These conditions mean the respondent wants scot free situation in this marriage. He bears no liability and he wanted to have all invested money on housing and escape paying maintenance. The applicant party to pay $855.85, which is unreasonable. In common law jurisdiction the wife and children are entitled to have matrimonial house as a right (Decided in Sri Lankan Supreme Court Dais V Koddikuwakku[ 1999] 3 Sri Lanka Law Reports 354, Alwis v Kulatunge 73 New Law Reports 337 and Canakeratne v Canakeratne 71 New Law Reports 522) .
    
35. Assessment of social welfare officer and head teacher is independent and the respondent's witnesses are all related or bias, in the sense has no weight. It is to be noted the evidence must not be counted it is to be valued and evaluated. A single act of preparing breakfast in a trip cannot say that the respondent was a caring father. It should be drawn by cumulative actions of the respondent, which is very bitter.
    
36. The Social welfare officer's recommendation is as follows;
    

"Based on above assessment, it is in the best interest of the children that the custody be granted in favour of the applicant and financial contribution be sought from the respondent to assist in the daily needs of the children. It is also advisable that the access be granted to the respondent upon children's wish"

37. I hold though the Applicant is supporting the child, but she is unable to meet the expenses of the children. I admit that the current cost of living is high. The Respondent's other commitments cannot be taken as valid reasons for reduce or deny maintenance. Meantime, the applicant has claimed spousal maintenance. Sections 155 and provide for spousal maintenance, it says;
    

"155. A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party if reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately, whether-

(a) by reason of having the care and control of a child of the marriage who has not attained the age of 18 years;

(b) by reason of age or physical or mental incapacity for appropriate gainful employment; or

(c) for any other adequate reason,"

Section 157 is matters to be taken when ordering spousal maintenance.

157. In exercising jurisdiction under section 155, the court may take into account only the following matters-

(a) the age and state of health of each of the parties;

(b) the income, property and financial resources (including any interest in leasehold or real estate which is inalienable) of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

(c) where either party has the care or control of a child of the marriage who had not attained the age of 18 years;

(d) commitments of each of the parties that are necessary to enable the party to support -

(i) himself or herself; and

(ii) a child or another person that the party has a duty to maintain;

(e) the responsibilities of either party to support any other person;

(f) the eligibility of either party for a pension, allowance or benefit under-

(i) any law of the Fiji Islands or of another country; or

(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside of the Fiji Islands;

(g) the rate of any such pension, allowance or benefit being paid to either party;

(h) a standard of living that in all the circumstances is reasonable;

(i) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earnings capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;

(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;

(l) if either party is cohabitating with another person - the financial circumstances relating to the cohabitation;

(m) the terms of any order made or proposed to be made under section 161 in relation to the property of the parties.

38. The rent receipts shows that she pays $450 per month for the house. They are entitled to have matrimonial house. The applicant only earns $354.64 fortnightly. The respondent said to the social welfare officer that he is self employed and earn about $30,000 per annum. That is $2500 per month and $1250 fortnightly. There is no burden cast upon the respondent by the law apart from maintaining his lawful children. They were brought up in luxurious manner when they together and putting them in high demanding school. The children's needs are demanding than others and the applicant cannot meet and I hold the applicant cannot hold support herself in the current circumstances. The respondent hid his salary particulars to the welfare officer and to the court. The common law rule is that evidence which could be and is not produced would if produced, be unfavourable to the person who withholds it (Section 114 of the Evidence Ordinance, Sri Lanka). I therefore hold the respondent has more income than the applicant and the applicant unable to support herself, is entitled to get spousal maintenance from the respondent.
    
39. The respondent tried to show that he gave groceries. But he did not mention what was the value of groceries. It is unclear. In contract the applicant said the respondent had failed to provide necessary support. So, this court cannot calculate or evaluate how much support was given by the respondent. Thus, court cannot deduct any payment for that effect.
    
40. In the case of child abuse, I could not find any substantive evidence to decide it. The respondent did not pursue this application. Even social welfare officer interviewed the children and they made no comment on that, the social welfare officer did not find any element of child abuse. I hold form 15 cannot be sustained.
    
41. The applicant asked that maintenance orders be backdated. Normally, common law jurisdiction orders that maintenance orders to be paid with effect from the date of application. For example, In Sri Lanka, Maintenance Act, No. 37 of 1999 section 2(5) says "Where an order is made by a Magistrate for the payment of an allowance pursuant to an application made under subsection (I) or (2) or (3) or (4), such allowance shall be payable from the date on which the application for maintenance was made to such court, unless the Magistrate, for good reasons to be recorded, orders payment from any other date. Therefore this law is persuasive for me to decide the effective date of this order and I do not think it is unfair since the Applicant waited to get maintenance through cumbersome inquiry. Maintenance means day to day living expenses and they waited to get this order by starving or tighten their belts. Further common law rule is every procedure which is not expressly prohibited shall be deemed to be permitted (Held in David Kannangara v Central Finance Limited [2004] 2 Sri Lanka Law Reports 311, Amaratunge J in the Court of Appeal, Liyanage v Gampaha Urban Council [1991] 1 Sri Lanka Law Reports 01). This is a lacuna in our family law and the family law does not provide the effective date for maintenance nor prohibit that maintenance orders be backdated. It is a discretionary power of court. Therefore this court has power to grant backdated maintenance orders. I have no good reasons to refuse the applicant's backdated application. Therefore this maintenance order to be backdated.
    
42. Considering all these facts, on balance, I make following orders;
    
    1. The Respondent to pay $40 per week, per child ($80 per week altogether) as child's maintenance with effect from the sealed date of original Form 5.
       
    2. In addition that the Respondent to pay 50% of school fees and all books, school clothes and stationeries of the children.
       
    3. The applicant to calculate JDS for backdated maintenance and be served to the respondent. (All interim payments must be deducted).
       
    4. If the Respondent failed to pay, after JDS, there will be 10 days imprisonment for every $100 (One penalty unit each)
       
    5. The respondent to pay Spousal maintenance $20 per week with effect from the date of this judgment. .
       
    6. The full custody of the children to be with the applicant mother.
       
    7. The respondent to have reasonable access if children want to see him (father), with prior arrangement and notification by both parties. The respondent must not contact without children's wish and the supervision of the applicant mother.
       
    8. Children are to be counselled together with the parties and senior court officer is advised to arrange the counselling.
       
    9. Form 15, child abused is dismissed.
       
    10. In relation to property distribution pool of assets cannot be ascertained, the respondent to file Form 19- financial statement and parties to file bundle of documents before Deputy Registrar and get instructions on that issue. Property issue is therefore adjourned.
        
    11. Parties to bear their own costs.
        
    12. 30 days to appeal.
        

Orders Accordingly.

SUMUDU PREMACHANDRA
RESIDENT MAGISTRATE-NASINU
05-07-2012