VDP v SL [2013] FJMC 238; Family Court Case 452.2010 (13 June 2013)

IN THE MAGISTRATES COURT AT NASINU

Family Court Case No. 452/2010

BETWEEN:

V D P
[Applicant]

AND:

S L
[Respondent]

Miss Miliana Tarai (LAC) appeared for the Applicant
Mr. Mukesh Nand appeared for the Respondent.

Ruling on Spousal Maintenance

1] The Applicant in this case filed form 5 seeking spousal maintenance. In her form 5 application, she has mention $185 per week as her weekly expenses.

2] The Respondent resisted by filing form 6. He seeks that Form 5 be dismissed with cost.

3] Parties were married on 27th February 2010 in Wellington, New Zealand and they were divorced on 03rd September 2012.

4] The Applicant filed affidavit evidence in chief and she was cross examined by the Respondent on that evidence. She elaborated how they met and what happened to her married life as follows;

1. That I am the Applicant in this proceeding and I make this Affidavit from the facts within my own knowledge.
   
2. That the Respondent and I are husband and wife.
   
3. That I graduated with a Diploma in Hotel Accommodation and a Trade Certificate in Accommodation in 2003 and a Certificate in Hospitality Operations in 2004 from the Fiji Institute of Technology. Attached hereto and annexed "VDP1" are my certificates respectively.
   
4. That I went to New Zealand for my brother-in-law's funeral in June 2009. While being in New Zealand, I sat for the English Aptitude test for the Wellington Institute of Technology in 2009. After pawing the test, I was then enrolled into Wellington Institute of Technology to study catering.
   
5. That I met the Respondent through an internet site called "Fijilive.com" at sometimes around September of 2009. We then later exchanged email, skype addresses and phone numbers as well.
   
6. That the Respondent came to New Zealand in December of 2009 with his uncle and one of the Company's Directors to ask for my hand in marriage and my family gave him their permission.
   
7. That the Respondent and I got married on the 27th day of February, 2010 at the Newlands Community Centre, Wellington, New Zealand. Annexed hereto and marked as Exhibit "VDP2" is a copy of our marriage certificate.
   
8. That after our marriage, the Respondent and I came to Fiji on the 9th of March 2010 and we were staying at Lot 6 Namaka Industrial Subdivision, Nadi.
   
9. That 2 months into our marriage, I conceived. It was a difficult time for me because I was having mood swings and I would ask the Respondent for cravings to eat in the middle of the night but he would never provide for me. It was at this time that we started facing difficulties as I was have random mood swings.
   
10. That when I was 4 months 2 weeks pregnant, I was informed by my doctor at Lautoka Hospital that the baby wasn't moving and as a result, I had to undergo a medical operation for the removal of the foetus.
    
11. That after being released from the Lautoka Hospital, I started developing pain in my stomach and I was again admitted in the Lautoka Hospital because the medical team diagnosed that I had gall bladder stone.
    
12. That whilst I was being admitted in the Hospital for my gall bladder stone, I did not undergo any operation, but I only received medication to help me with pain relief.
    
13. That during our marriage, the Respondent alone was working and he was employed as the Manager for Global Imports & Exports Limited which was based at Nadi.
    
14. That since we were residing in a flat above the Company's premises, I was not given a key due to the Company's security policies and reasons. As a result, I was often locked inside the flat until the Respondent returns from work.
    
15. That I had asked the Respondent if I could go and find employment in a hotel as I have a Diploma in Hospitality and Management. However the Respondent told me that I could only work from 8am to 5pm and not at night which was not possible considering the nature of work and the expectations which are attached. He often told me not to go to work but to stay home and remain a housewife.
    
16. That the Respondent would never tell me if his whereabouts and would never answer his phone when I would call him. He would often abuse me verbally and he would falsely accuse me of marrying him only for his money.
    
17. That when I became pregnant, I started asking him of his finance status as we were starting a family. That save as to admit that I was trying to prepare for our new family as any good wife would, at no stage of our marriage did I ever make any enquiries on becoming his beneficiary in regards to his property at Makoi, his FNPF and/or his insurance Policy.
    
18. That on 22nd November 2010, I had returned from a counseling session at the Social Welfare Office at Nadi when I found out that our flat was locked. I was surprised to be informed by one of the employees of Global Imports & Exports Limited namely Ritesh that the Respondent had left and had taken his things. I was further informed by this Rites that I was not allowed into the premises.
    
19. That I called the Police as soon as I was informed of this. Upon the arrival of the Police, I was then escorted into the premises and into the flat by one Policeman by the name of Kali and Ritesh.
    
20. That Policeman Kali and the above mentioned Ritesh were with me the entire time I was in the premises and the flat. Since I was escorted into the flat, I was only able to collect some of my clothes and some food items as I was prohibited to take any of my appliances since that flat was partly furnished.
    
21. That I left Nadi on the same day and I headed to the Respondent's family house at Makoi only to have the gates closed to my face and to be informed by the Respondent's mother that the Respondent has prohibited me from entering the compound.
    
22. That I left and went to my sister namely Mukeshla Devi who was renting at Laqere Street, 7 miles, Narere, Stage 1 and I have been residing on that address since 22nd November 2010 until September 2011.
    
23. That I filed for spousal maintenance on the 26th November 2010 as I was sickly and I knew I would not be able to support myself.
    
24. That I have been using my savings and interim maintenance of $50 per week to support myself every since I got separated from my husband. Further, I usually receive money from my brother and mother in New Zealand to help me with my expenses and further education which I began to pursue in early 2011. Attached hereto and annexed "VDP3" is a copy of my bank statement from the Bank of Baroda to confirm my savings account.
    
25. That I began to pursue a Certificate in Cookery Hospitality & Tourism at the Fiji National University early 2011 and I have not completed the course due to my gall bladder stones and my constant asthma attacks.
    
26. That I am currently residing with my above mentioned sister at Lot 42 Bal Ghovinda Road, Nadawa.
    
27. That our rent per month amounts to a total of $50. Therefore, I pay $250 per month because my sister pays the other half. Attached hereto and marked as "VDP4" are copies of my most recent rent receipts.
    
28. That my sister and I normally pay $50 each for our food expenses every week and we sometimes do our groceries on a monthly basis as we would buy food stock in bulk. Attached hereto and annexed "VDP5" are my most recent shopping receipts.
    
29. That our utility bills are registered under my above mentioned sister's name. I normally give $10 on a weekly basis to contribute to our electricity payments as we usually receive bills for $45 per month. Attached hereto and annexed as "VDP6" is a copy of our most recent electricity bill.
    
30. That my sister and I usually pay $55 for our water bills. As a result, I normally contribute $5 per week toward our water bill payments as we are billed for a period of 3 months. Attached hereto and annexed as "VDP7" is a copy of our most recent water bill.
    
31. That we usually spend $23 to pay for our telephone bills which we usually incur de to the reason that we normally call our relatives in Canada. As a result, I contribute $5 on a weekly basis in order to help pay for our telephone bills. Attached hereto and annexed as "VDP8" is a copy of our most recent telephone bills.
    
32. That I normally buy my clothes and shoes on a "need-to" basis and in the event that I finally have to buy these items, I normally spend $40 per month.
    
33. That during the time I had filed for maintenance, I had begun to undertake courses at the Fiji National University. In view of this, I usually spend $3.70 per day to my bus fare from home to the University campus and back home. Furthermore, I also spend most of my money on taxi fare to the hospital for my medical checkups. As a result, I would spend $30 per week on my travelling expenses.
    
34. That I usually suffer from excruciating abdominal pains due to my gall bladder stone. As a result, I have to constantly visit the hospitals at odd times of the day in order to receive injections for pain relief.
    
35. That I am still waiting to have my gall bladder problem finally resolved by way of operation, however, the public hospital is currently not able to accommodate my surgery.
    
36. That I also suffer from constant asthma attacks which causes for me to repeatedly visit the hospitals for treatments and medications. These asthma attacks started to worsen after my pregnancy and till date, it has drastically deteriorated my health. Attached hereto and annexed "VDP9" is a copy of my medical report from Suva Central Medical Centre to confirm my medical status.
    
37. That even though I have attained reasonable qualifications in the hotel industry, I still cannot work due to my life-threatening medical conditions.
    
38. That for the above reasons it is my prayer that this Honorable Court grant spousal maintenance orders.
    

5] In cross examination she admitted she worked more than 7 years and she was studying at that time. She said she did diploma in Hospitality. But she said because of her illness her condition got worsened. She said she is suffering from Asthma and goal bladder stones. She said when she was working, she got asthma then she got leave from work. She said she worked night shift but the Respondent did not allow her. She said that the asthma could come any time of the day and if illness is serious she has to be admitted to a hospital. Therefore she said she cannot work. She explained the medicine and but goal bladder stones. For that she is on antibiotics and waiting for surgery. She said she is renting with her sister and pays $250 per month.

6] The Applicant called Dr. Ami Chandra to prove her medical condition. He is qualified dDr of medicine and Holds Master of Public Health. The qualification of this doctor was not disputed by the respondent. Therefore he can be treated as expert witness and the witness explained the condition of the applicant. He said "Asthma is and unpredictable diseases. We can't predict when it will attack. Cold, Allergies can bring sudden attack. She was taking bit expensive medicine....people can die of Asthma, I know many people die. Cholecystitis is not fatal per se. But pain is unbearable. For Asthma there is no cure. It can only control. .In my professional experience, it will be difficult to engage meaningful occupation, non productive illness. Medication cause drowsiness and causing risks"

7] In cross examination, the witness explained the medication that the applicant was taking. He said that "no heavy job can be done. She may be able to do sitting job, if it is symptom free, at the moment she can take medicine"

8] Witness 3 – M D said that she is the Applicant's sister and she resides at Lot 42 Bal Ghovinda Road, Nadawa. She resides with her partner and the Applicant. The property at Lot 42 Bal Ghovinda Road is registered under her name. The Applicant has been living with her ever since she left her husband. The property at Lot 42 Bal Ghovinda Road is under mortgage at Housing Authority and she is making mortgage payments. She receives help from her partner and the Applicant. The Applicant pays $250 each month for rent because the property is on mortgage. She tendered the receipt which she issues to the Applicant and this was marked as Exhibit 4. She also tendered the mortgage payment statement that she deposits at Housing Authority to show she was paying $340 per month and this was marked as Exhibit 5.The Applicant whatever she can afford to give for their groceries. The Applicant also pays half the share of their utilities. The Applicant is very sickly and has had asthma from birth.

9] Under cross-examination, she stated that she had moved to her current address as her tenant had vacated the property. She had an agreement with the Applicant regarding the rent and responsibilities as she had thought that the Applicant would settle down and the Applicant is her sister. The witness said the applicant is a tenant although she has not signed agreement with her.

10] The Respondent had tendered his in Chief by affidavit. He said that he was the Sales Manager of his Company. The Applicant was pregnant however the fetus had to be removed as she had developed complications. After she was discharged from hospital, she was diagnosed with gall bladder stones as she was developing abdominal pains. The Applicant had wanted to work night hours however he had advised her that he preferred if she doesn't do any over night shifts. he is responsible for looking after his parents and he is also paying off the mortgage of his property. He said that after he married the Applicant. he got to know that she was suffering from asthma. He is unemployed at the moment as his company has gone into receivership. He hasn't found a new job at the moment but he can find the Applicant a job.

11] I cross examination the respondent admitted that he knew the Applicant has asthma and gall bladder stones during marriage. When the Applicant was admitted at the hospital, he was supporting her because he was her husband and he knew it was his responsibility. He has been without a job for 5 weeks because he couldn't find a job but he can find the Applicant a job. His brother is also living with him and his parents at his house and the brother is working. He is the only one buying food for his whole family who are residing with him. He can support his family. When it was put to him that he would rather support his brother then his own wife, he agreed to continue supporting his brother and his family.

12] The Spousal maintenance liability creates under Section 155 of the Family Law Act 2003 which states that:-

"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 capacity for appropriate gainful employment or (emphasis mine)

(c) For any other adequate reason.

Having regard to any relevant matter referred to in Section 157".

13] Section 157 illustrates the matters to be taken into consideration in relation to 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 wither 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 Fiji Islands or of another country; or
• (ii) Any superannuation fund or scheme, whether the fund or scheme was authorized 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 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".

14] It is seen that issue of liability in the sense that the liability of one spouse to maintain the other arises as soon as the parties enter into a marriage. To qualify for spousal maintenance;

1. The spouse seeking spousal maintenance should be "unable to adequately support herself" for one the reasons set out in Section 155; and
   
2. The Respondent must be reasonably able to maintain the Applicant spouse.
   

15] In RH-v- NN Fiji Family High Court Appeal Case Number 10/LBS/001, delivered on 20th January 2012, Her Ladyship Madam Justice Anjala Wati clearly enunciated above position as;

"There is no evidence to suggest that the wife qualifies for spousal maintenance under s 155 of the FLA. Since the wife was unemployed at the time of the hearing and had 2 children of the marriage under 18 years, the Magistrate assumed that she was entitled to maintenance. That assumption was wrong in law as there has to be evidence by the wife to meet the statutory test for her to qualify for an order for spousal maintenance. "(Emphasis added)

16] In this case the Respondent admits the applicant has two diseases namely;

1. Bronchial Asthma
2. Acute Cholecystitis
   

17] Both Dr Ami Chandra and CWM Drs Rachna Ram and Josese Vuki confirm these illnesses. REX-1 the respondent reports says that the applicant has Bronchial Asthma since childhood. Doctor notes "She had repeated documented attacks of Bronchial Asthma". (Medical report dated 16th April 2012). The second report says "She (the applicant) has been regularly in surgical clinic and is earmarked to have a cholecystectomy sometimes in future....has been noted to be complaining of persistent Epigastric pain"

18] The Dr Ami Chandra said that the Bronchial Asthma is a life threatening illness and it can attack any time. T is not curable but can be controlled by medication. The Applicant is having expensive medication. I hold that the Applicant is unable to adequately support herself in this situation as Acute Cholecystitis causes unbearable pain.

19] I now turn to second limb. That is Can the Respondent reasonably able to maintain the Applicant spouse? The Respondent in his evidence said that he is unemployed. It is seen that due to behavior of the applicant he lost his job. But both the applicant and respondent are qualified to engage gainful employment. But present scenario does not allow working the applicant. But the Respondent admitted that he is healthy and has capacity to earn.

20] If the Respondent unable to maintain the spouse reasonably, he is not liable to pay maintenance. The Respondent stated that he was a Manager at the Company he was working for and that he owns a property at Makoi where he is residing with his parents and his brother and sister in law. He further gave evidence that during the marriage, he was supporting and providing for the Applicant. In his Form 6 (Response) he has stated that he has FNPF worth $20,000 and that he had other assets such as insurance policies worth $20,000 and savings in his bank account. He also stated that he has been unemployed for 6 weeks and that he could not find any job. It seems even though he is unemployed he is still managing to support his parents and his brother and sister in law in spite of the fact that his brother is employed.

21] The Applicant acknowledges that the Respondent is unemployed. In the Marriage of Beck (No. 2) [1983] FamCA 7; [1983] FLC 91-318 which was referred to in the Rokobuli v Douglas FJMC Family Court Case Number 09/LTD/0082, the Court had specified that"...ability to pay...must be judged in the light of all circumstances, mental and physical resources, money of his disposal, capital position and current necessary expenditure..."

22} in the attended circumstance, I hold the respondent has ability to earn and pay. It is to be noted that the Respondent is paying interim maintenance as $50 per week.

23] In determination of the case, the court notes that the applicant has capacity to earn if her symptoms are well treated. To do that, she should get medicine daily and undergo cholecystectomy. At the moment the court did not know whether she had undergone cholecystectomy, but she was earmarked to do the surgery. In the annexure marked "VDP9" of the Applicant's Affidavit, the Applicant attaches a letter from the Suva Central Medical Centre of Dr. Chandra whose conclusion in regards to the Applicant is as follows:

"Currently both her medical conditions are chronic and incapacitating. As a result, she cannot engage in any meaningful physical employment".

24] But the Court notes that the Applicant has had asthma since childhood and has not previously hindered the Applicant from pursuing for example, her tertiary education. Paragraphs 3 & 4 of the applicant's Affidavit state:

"That I graduated with a Diploma in Hotel Accommodation and a Trade Certificate in Accommodation in 2003 and a Certificate in Hospitality Operations in 2004 from the Fiji Institute of Technology. Attached hereto and annexed "VDP1" are my certificates respectively.

That I went to New Zealand for my brother-in-law's funeral in June 2009. While being in New Zealand, I sat for the English Aptitude test for the Wellington Institute of Technology in 2009. After passing this test, I was then enrolled into Wellington Institute of Technology to study catering".

25] It is seen that her asthmatic condition has not hindered the Applicant's ability to pursue higher education. Rather, despite it, not only did the Applicant pursue studies here in Fiji, she continued to do so in New Zealand. However, Dr. Chandra stated that asthma was unpredictable and referred to cold environments. On the other hand Asthma is not curable but controllable. If the applicant is treated well she can be engage gainful employment. I hold that the applicant is therefore only entitled to get medical expenses. If her medical condition is stable, she can find a suitable job.

26] Now, the question arises, what is the quantum of maintenance. I note in her evidence she mentioned that the applicant uses steroids inhalers. But, the cost of medical expenses cannot be ascertained in her evidence. On the other hand the Respondent is unemployed, but paying $50 per week as interim payment. He has not accumulated arrears and regular payer. Thus, I hold the Respondent shall pay $50 per week as Spousal maintenance and if the applicant's medical goes beyond that she can apply to the court for enhancement of spousal maintenance.

27] Therefore, I make following orders:

1. The Respondent shall pay $50 per week as Spousal maintenance and interim order for that effect is hereby made permanent.
2. No Cost.

100. 30 days to appeal.
     

On 13th June 2013, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu