'Ahio v Tilini [2004] TOLawRp 62; [2005] Tonga LR 22 (5 March 2004)

IN THE SUPREME COURT OF TONGA

'Ahio

v

Tilini

Supreme Court, Nuku'alofa
Ward CJ
CApp 13/00

4 March 2004; 5 March 2004

Family proceedings – maintenance assessment – insufficient evidence to determine appeal in full – remitted to Magistrates' Court

In February 2000, the respondent brought an action in the Magistrates' Court and sought $50 per week maintenance for her illegitimate son. The child was born on 8 July 1998 and both parties had attended at the registration of the birth. The case was heard on 19 May 2000 and a maintenance order was made. An appeal was lodged by the father on 30 May 2000. After the appeal was filed in the Supreme Court, the court file was mislaid in the registry and only came to light three months later. There had been no communication with counsel in the case and so it was ordered that the file should be held until the Court heard from the parties or counsel. Nothing happened until the respondent mother came to the registry on 23 January 2004 and asked what had happened to the case. A date was set for chambers and the case proceeded. The appellant submitted that the maintenance was too high because he was unemployed. There was no evidence as to the means of the parties.

Held:

1. The Court was not willing to set aside the order for payment of maintenance for three months but considered the case must proceed as it should have done three months later. The case was remitted to the magistrate to hear evidence of the means of both parties and then to determine the level of maintenance for the future. If the arrears of $180 were not paid by the time of the hearing, the magistrate should also determine and order the appropriate means of enforcement.

2. The Court had a responsibility to 'drive' the case. The previous practice of leaving it entirely to the parties or their lawyers to take any necessary initiative frequently denied the parties justice, as clearly occurred in the present case. It would certainly leave the public with the unfortunate impression that court orders meant little and could be ignored without any serious consequence.

3. The appeal was allowed in part. The case was remitted to the Magistrate to hear evidence of the means of both parties, to determine and order appropriate maintenance, and to order enforcement of any arrears of the $180 ordered at the previous hearing.

Counsel for plaintiff: Mr Fakahua
Counsel for second defendant: Mr Niu

Judgment

In February 2000, the respondent brought an action in the Magistrates' Court seeking $50.00 per week maintenance for her illegitimate son. The child had been born on 8 July 1998 and both parties had attended at the registration of the birth. The case was heard on 19 May 2000 and a maintenance order was made. An appeal was lodged on 30 May 2000.

After the appeal was filed in the Supreme Court, the court file was mislaid in the registry and only came to light three months later. There had been no communication with counsel in the case and so it was ordered that the file should be held until the Court heard from the parties or counsel.

Nothing happened until the respondent came to the registry on 23 January 2004 and asked what had happened to the case. A date was set for chambers and the case proceeded.

Although the original claim appeared to be seeking to establish the paternity of the child, it was clear at the hearing that the appellant accepted he was the father. The evidence was that he had initially assisted but stopped giving anything to support the child following rumours that it was not his. Thus, the whole issue at the trial was whether he should pay maintenance and how much that should be.

The appellant's occupation had been a tractor driver but he told the court he had been in involved in an accident and he produced to the court a doctor's letter dated 8 March 2000 stating that he was unfit for that occupation. The letter concluded:

"He has therefore been advised to refrain from operating tractors to assess the effect of this on his lower back pain.

He will be reviewed in three months time and further recommendations made then".

In his judgment, the learned magistrate confirmed that the appellant was the father and continued:

"The court accepts that there was an accident but the letter does not have any weight because the doctor did not appear in court to be cross-examined. The court believes that a little work could be done to maintain this son.

Therefore the past maintenance is not accepted. $15 per week to be paid for three months starting Friday (26/5/2000) and to be reviewed."

The sole ground pursued at the appeal was that the maintenance was too high because the appellant was unemployed.

It must be stated at the outset that the parties in this case have not been well served by their lawyers. The evidence called at the Magistrates Court was inadequate for the claim being made and both counsel gave the impression at the appeal that they had given the papers no more than a cursory glance in preparation for the hearing.

At the Magistrates' Court the respondent gave no evidence of her personal circumstances or those of the child. The respondent produced the doctor's letter but gave no further evidence of the respondent's circumstances except to state that he had married shortly after the birth of this child and had other children.

Since the hearing, the appellant has simply ignored the maintenance order and the respondent has clearly not been advised how to enforce it. Neither party has sought to have the case listed for the review mentioned in the judgment.

At the appeal, neither counsel referred to the means of their clients in their initial submissions. It was only on questioning of counsel by the court that it was ascertained that the maintenance had not been paid, that the respondent has other children and is paying for their schooling and that the child in this case is largely being supported by her parents. Similarly, it only appeared from that questioning that the appellant has not returned to driving a tractor (although it is not known whether that is following further medical review), that he has not attempted to obtain any other employment and that his wife now runs a business exporting mats to American Samoa. As I have pointed out, the trial magistrate was faced with a similar paucity of evidence. With respect, he should either have rejected the claim for that reason or adjourned it with a direction that the parties provide evidence of means. Having rejected the doctor's letter, he was not entitled simply to hazard a guess that the appellant was fit enough for some form of work.

I do not understand his admission of the letter and then his apparent rejection of its contents especially as the terms of his order would suggest the review after three months was based on the doctor's intention to have a medical review after a similar period. However, the letter had been written more than two months before the hearing and so the choice of three months may have arisen for some other undisclosed cause.

I am not willing to set aside the order for payment of maintenance for three months but I consider the case must proceed as it should have done three months later. I remit the case to the magistrate to hear evidence of the means of both parties and then to determine the level of maintenance for the future. If the arrears of $180.00 are not paid by the time of the hearing, the magistrate should also determine and order the appropriate means of enforcement.

Finally I would remind all magistrates that in all such cases where an order is made which requires a subsequent hearing, such as the review in this case, he should fix the date of the adjourned hearing at the same time. Experience shows that, all too often, the lawyers fail to follow up the order if it is left to them to make the arrangements.

It is increasingly recognised that the court has a responsibility to 'drive' the case. The previous practice of leaving it entirely to the parties or their lawyers to take any necessary initiative frequently denies the parties justice, as clearly occurred in the present case. It will certainly leave the public with the unfortunate impression that court orders mean little and can be ignored without any serious consequence.

Appeal allowed in part. Case remitted to the Magistrate to hear evidence of the means of both parties, to determine and order appropriate maintenance and to order enforcement of any arrears of the $180.00 ordered at the previous hearing.

I make no order for the costs of this appeal but I order that the lawyers shall charge no further fees for the hearing of the remitted case or its preparation.