GBW v GM [2015] FJMC 151; File No 0451 of 2009 (30 January 2015)

IN THE FAMILY DIVISION OF THE MAGISTRATE’S COURT AT SUVA

FILE No: 0451 of 2009

BETWEEN:

G B W

Applicant

AND:

G M

Respondent

____________________________________________________________________________
APPEARANCES/REPRESENTATIONS

Ms.Taina Leweni (TL Lawyers) for the Applicant

The Respondent - Ms. Vani Filipe (Legal Aid Commission ).

___________________________________________________________________________

RULING

BACKGROUND FACTS

1. The Applicant mother had initially filed a Form 5 Application on the 09^th June 2013 seeking continuation of child maintenance for the children namely NJ, and JK, to which I quote in verbatim as follows:-
   

“That the maintenance order made on 28^th May 2010 whereof the Respondent was to pay $50 per week for each child namely; NJ, male, born on the 10^th of February 1995 and JK, male, born on the 06^th of September 1995, continue until the said children complete their tertiary education.

Any other orders that the Court deems fair and just under the circumstances.”

2. As per record, the Respondent was duly served. The Respondent father filed his Form 6 Response on the 28^th of October 2013. The respondent in his Form 6 states that he seeks orders that the Form 5 application filed by the Applicant on 9^th July 2013 be dismissed.
   
3. The Respondent filed his Affidavit of Evidence-in-Chief dated 03^rd of June 2014.
   
4. The Hearing of this Application proceeded on the 07^th of August 2014.
   

Issues

5. Whether the child maintenance should be continued as sought by the Applicant (or to dismiss as sought by the respondent)?
   

Evidence Brief Analysis

Applicant’s Evidence

6. The Applicant gave evidence that she works as a casual house keeper and is paid $100 per week. She stated that this $100 is what she uses to contribute to the children’s daily needs.
   
7. The Applicant stated that the children namely; NJ, and JK are both still enrolled at the Fiji National University and the University of the South Pacific respectively. She has tendered into evidence various documents proving it. This was not disputed in cross examination.
   
8. She further stated that she earns a very little money. She has also used up all her education eligibility with the Fiji National Provident Fund (hereinafter “FNPF”) in educating her children. She stated that due to this she has been left with no choice but to borrow money to pay for the contribution of the children’s tertiary education. She confirmed that the Respondent has not contributed to their daily needs.

Cross examination

9. On cross examination she produced her FNPF statements for the court which articulated her eligibility. She denied that she could get a better job to support her children due to her age.
   
10. That the Applicant was cross examined firstly on her qualification. The Applicant testified of her educational background, one of which she had a Diploma in Business with Telecom.
    
11. That she was cross examined on during the time she was granted maintenance, her children were not living with her as she was in Nadi, working, her children were with her father.
    
12. That she was asked whether she was aware that her and our client had bound themselves to one RM to pay a sum of $20,000 which was to pay off the house loan. It was put to her that she was aware but she did not make a financial contributions whatsoever to its payment.
    
13. That she was cross examined on her FNPF account and it was found there was more than $29,000 in her FNPF account.

Respondent’s Evidence

14. The Respondent adduced his Affidavit of Evidence in Chief as Exhibit one.
    
15. During examination in Chief, the Respondent was directed to paragraph 11 of the Affidavit where he stated that he together with the Applicant were indebted to his brother and the attached annexure #3 was an acknowledgment of Debt by both parties.
    
16. The Respondent’s affidavit indicates that he does not has any means of even supporting himself whereby he is living on the mercy of his family at Sigatoka doing household chores to earn his living with them.
    
17. The Respondent testified that he no longer is able to drive because of his deteriorating eye sight. It was noted that he had eye glasses on at the stand.
    
18. The Respondent testified that by the time he was served his Form 5 there was no money left in his bank account and all he was aware of that once the children turned 18 the maintenance would cease. He submitted his bank account statement that by 9^th June, 2013 when the applicant lodged for continuation of maintenance the respondent only had $2,030.95 which was only sufficient for his day to day living.
    
19. The Respondent testified that he also suffers from severe depression at times and is unable to sleep.
    
20. Also the Respondent testified that he no longer is able to financially care for his children because in all honest truth he has nothing at all to offer and that given his age (57) and health condition he cannot find a gainful employment.

Cross examination

21. In cross examination he was asked questions regarding his bank statements which had been disclosed in his Affidavit of Evidence. He confirmed all the various withdrawals as per the bank statement. He was unable to explain the purpose of the withdrawals. He confirmed that his weekly expenses were $76.00 as per Part D of his Form 6 Response. He confirmed giving money to his sister and travelling overseas after receiving his FNPF entitlement. He confirmed that none of his entitlement was ever given for the benefit of the children.
    

The Law

22. I now draw my attention to Section 45 of the Family Law Act 2003.Parental responsibility is defined under Section 45 of the Family Law Act 2003, which states:
    

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

23. Section 46 of the Act states that:
    
    • (1) Each of the parents of a child who is under 18 years has parental responsibility for the child.
    • (2) Subsection (1) has effect despite an changes in the nature of the relationships of the child’s parents such as becoming separated or either or both of them marrying or remarrying.
    • (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).
      
24. The Applicant made this application for educational purposes pursuant to Section 92 (1) (a) of the Family Law Act 2003 of Fiji.

Children who are aged 18 or over

92.-(1) A court must not make a child maintenance order in relation to a child who is aged 18 or over unless the court is satisfied that the provision of the maintenance is necessary-

(a) to enable the child to complete his or her education; or

(b...

(2) A court must not make a child maintenance order in relation to a child that extends beyond the day on which the child will turn 18 unless the court is satisfied that the provision of the maintenance beyond that day is necessary-

(a) to enable the child to complete his or her education; or

(b) ....

25. The Court also considered sec 97 of FLA provides the factors that a court has to consider discharge, suspend, revive, increase, decrease or vary a maintenance order which is in force. It is clear that some of the provisions are discretionary while some of the provisions are mandatory.
    
26. The Court also noted the provisions governing the modification of child maintenance orders is outlined in Division 7 of the Family Law Act No. 18 of 2003 and in particular Sections 97 (1), (2), (3) (c) (i), (ii), (iii) (b) (c) (d) and 5.
    
27. The Court also consider below mention sections for clarity.

Power of the Court

89.-(1) In proceedings for a child maintenance order, the court may, subject to this Division, make any child maintenance order it thinks proper. (2) The court must, in accordance with the following sections-

(a) consider the financial support necessary for the maintenance of the child; and

(b) determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of the child that should be made by a party, or by parties, to the proceedings.

Considering what financial support necessary

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 etc.

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.

(2) In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing, income.

(3) In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, the court must have regard to the income and earning capacity foregone by the parent or other person in providing that care. (4....

(5) In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must consider the capacity of the party, or each of those parties, to provide maintenance by way of periodic payments before considering the capacity of the party, or each of those parties, to provide maintenance-

(a) by way of lump sum payment;

(b) by way of transfer or settlement of property; or

(c) in any other way.

(6) Subsections (2) to (5) do not limit the matters to which the court may have regard in taking into account the matters referred to in subsection (1).

28. The respondent submits to consider that the children are above the age of 18 years and cannot asked to be maintained under the child maintenance, also submits that they are above the age of a child. The respondent also submits inter alia that the Applicant is now employed and receiving weekly salary and the children should be encouraged to take up part-time employment and to work to assist themselves rather than depending on others as the Respondent is now married again and he has his own family to support.
    
29. The respondent also submits that the three children during the school terms or semesters, lived and remain at school as boarders and are well looked after by the Government Education system.
    
30. He submitted that he also looks after his old parent and extended family who lives in his home and he is attached and required by his elders to take part in his village and Family commitments, and supporting his elderly mother and wife’s elderly parents;
    
31. According to 89(b) the respondent has priority over all commitments to maintain his children subjected to this proceeding.
    
32. Moreover, Fiji has ratified the Convention on the Rights of a Child and therefore the courts are duty bound to adhere to the covenants which are established therein.

Analysis of the Evidence

33. The Applicant and Respondent are married and the applicant submitted the marriage certificate together with birth certificates of the children, in which the respondent’s name is registered as the father of the children.
    
34. On the 28^th May 2010, before the learned Resident Magistrate Mr. Tomasi Bainivalu, it was ordered by consent that the Respondent man, is to pay the sum of $50.00 per child x2 children per week with effect from 04^th June 2010 (a total of $100.00 per week) until they each turn 18 years of age or complete their respective education.
    
35. The annexure marked GM6 of the Respondent’s Affidavit of Evidence-in-Chief was his Westpac Banking Corporation Statement for Account no. 9803546127. The statement showed that the amount of $34,845.51 was deposited into the account on the 8^th of April 2013. Thereafter, for the month of April 2013 alone, there was a total of approximately $21,300.00 which was withdrawn by the Respondent. The following month being May 2013, the Respondent withdrew a total of $6,400. Thereafter, in the month of June 2013, the Respondent withdrew a total of $6,093 which then left a balance of $44.99 as of 28^th June 2014.
    
36. In the month of October 2013, there was a refund made from the Court amounting to $4,250.00. This amount was deposited into the Respondent’s account on the 14^th of October 2013. For the remainder of the month of October 2013 and the 7^th of November 2013, the Respondent withdrew a total of $1,393.58 which left the balance of the account at $110.59 by 29^th November 2013.
    
37. The frequency of the withdrawals and the amount of withdrawals do not tally with the personal expenses of the Respondent as per Part D of his Form 6 Response which states his weekly expenses as being $76.00. There are days such as the 22^nd to 26^th April 2013 wherein the Respondent withdrew a total of $3,000 in a span of five (5) days. This unexplained spending and without any receipts to explain the spending, it becomes more plausible that the Respondent withdrew all his money with the precise intention of demonstrating that he does not have the means with the precise intention of demonstrating that he does not have the means to support his children in the completion of their tertiary education.
    
38. In cross examination he tried to explain that this was his spending before he filed his response in October 2014. However, a closer look at the bank statements shows that the Respondent in a span of eight (8) days being from the 31^st of October 2013 to the 7^th of November 2013 withdrew a total of $1,393.58. Considering the Part D of his Form 6 Response his spending for personal expenses was only $76.00. Again there was no explanation offered nor was there any document or receipts exhibited to explain the extravagant spending of the Respondent considering his meager needs amount of $76.00. I also note that the respondent stated that he also withdrew $ 16,000.00 from Westpac on 09 April 2014 and had given some money to his brother and sisters ( but not to his children who are studding to have a better future)
    
39. The Respondent in cross-examining the Applicant suggested that she should contribute to the education of the tertiary and not the Respondent. This assertion was misconceived as according to section 86 of the FLA provides “The parents of a child have, subject to this Division, the primary duty to maintain the child. It is submitted that both parents have the primary duty to maintain their children. The contributions being made by the Applicant to the daily needs of the children was not contested during cross-examination. From the manner in which the Respondent conducted the Hearing it becomes apparent that their position is basically if the Respondent does not have the means, then his circumstances absolutes him from his primary duty to maintain his children .But, it should also not forget the fact that the Respondent remains unemployed and had not shown any attempts on his part to secure gainful employment. There was no proof tendered in court as to his attempts to secure any form of gainful employment. The Respondent had asserted that he is unable to work due his weakened eye sight and his purported mental illness. Once again there was no evidence brought before the court to demonstrate that such eye sickness or mental illness is actually suffered by the Respondent. On the balance of probability without any evidence to prove his inability to work, Given that the only finding that the court can arrive at is that the Respondent does not want to contribute to the tertiary education of his children as opposed to being genuinely unable to do so.
    
40. In view of the above, it is submitted that the Respondent has failed to demonstrate to this court on the balance of probabilities that he is unable to carry out his primary duty towards the maintenance of his children who are now continuing their tertiary education.
    

Conclusion

41. Pursuant to sec.89, above all other commitments the Respondent has prime duty to maintain his children. The court also inter alia considered Sections 90 and 91 of the FLA the matters to be taken into account when the maintenance payment is ordered as above discussed. The court also considered sec.89 of FLA. I hold that the Respondent farther deems to have means to pay and capacity to earn and pay the maintenance. Moreover, the respondent failed to satisfy the court that the Respondent is unable to work due his weakened eye sight and his purported mental illness (depression) .Also failed to provide any medical report/s to support his claim. The Respondent has legal duty to maintain the children.
    
42. Pursuant to sec.89, above all other commitments the Respondent has prime duty to maintain his children. The court also inter alia considered Sections 90 and 91 of the FLA the matters to be taken into account when the maintenance payment is ordered as above discussed. The court also considered sec.89 of FLA.
    
43. The court notes his obligation to support his family. On the same token, I wish to highlight that the parents have a primary duty over the commitments to maintain his children. Section 86 of the Act defines the primary duty of the parents of a child:
    
    • (1) 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 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 that the parent has a duty to maintain; (Emphasis added)
      • (d) Furthermore, the children are all in tertiary institutions anticipating to complete their education.
      • (e) From the Applicant’s evidence in court, it is also clear that the Applicant’s financial status and circumstances to support and assist the children has changed, for example:
      • (f) The Applicant mother is now employed and earning;
        
44. Furthermore, the children are all in tertiary institutions anticipating completing their education.
    
45. From the Applicant’s evidence in court, it is also clear that the Applicant’s financial status and circumstances to support and assist the children has changed, for example: The Applicant mother is now employed and earning; On the same breath I wish to highlight that the Applicant mother has to struggle to make ends meet. Furthermore, I note that pursuant to Section 91 (d) the Applicant mother also has to incur indirect cost and other relevant expenses when she is caring for the children. I also note that she provides a shelter for the children and provides their other requirements and labours to up for the success of the children’s future.
    
46. I am also of the view that the application by the Applicant is well within the ambit of the enabling statute, therefore the application is meritorious pursuant to Section 92 (1) (a) of the Family Law Act 2003 of Fiji.
    
47. In the light of above paragraphs, Comparing the, earning capacity of the both parties, I make following orders;
    

THEREFORE, I MAKE FOLLOWING ORDERS:

48. The Application for Child maintenance to be continued.
    
49. The Respondent to pay $ 30.00 per week per child (Total $60.00) forthwith as Child maintenance to the maintenance section of Suva for the 02 children namely; NJ, male, born on the 10^th of February 1995 and JK, male, born on the 06^th of September 1995, continue until the said children complete their tertiary education.( Undergraduate)
    
50. The Child maintenance to continue until the hree children completes their tertiary education. In particular, JK – Foundation Studies and then Bachelor of Arts, at the USP and Niclolas – Trade Diploma in Culinary Art &#8211 and then the undergraduateduate programme.
    
51. Parties to bear their own costs.
    

LAKSHIKA FERNANDO
RESIDENT MAGISTRATE

On this 30th day of January 2015