Holameitinga v Holameitonga [2001] TOSC 26; C APP 0021 2000 (6 July 2001)

IN THE SUPREME COURT OF TONGA
CIVIL APPEAL
NUKU'ALOFA REGISTRY

NO.C.APP.21/00

BETWEEN:

SENISIA HOLAMEITONGA
Appellant

AND:

SIONE HOLAMEITONGA
Respondent.

BEFORE THE HON. JUSTICE FORD

Counsel: Mr Veikoso for the appellant and
Mr Tu'utafaiva for the respondent

Date of hearing: 28 May 2001
Date of judgment: 6 July 2001

JUDGMENT

The appellant and the respondent were married on 9 July 1998 and there was one child of the family born on 24 January 1999. The couple separated on 4 November 1998 and were divorced on 8 December last year.

The appellant obtained a maintenance order in the Magistrates' Court against the respondent in the sum of $20 per week. The order was not produced and the court was not told exactly when it was made but counsel for the respondent did not dispute the fact that the order existed and that no maintenance had been paid under it. The order apparently related to maintenance in respect of the appellant only - not the child.

The appellant issued proceedings in the Magistrates' Court to recover the sum of $463 which was claimed to be the amount of maintenance owing for the period 19 July 1999 to 14 February 2000, although just how the figure of $463 was calculated if the sum owing for the 30 week period between 19 July 1999 and 14 February 2000 was the total of $20 per week, is not clear. In all events, that was the amount the appellant sought to recover in the Magistrates' Court.

In March 2000 the appellant took out a distress warrant in respect of the arrears owing but the bailiff reported back that the respondent had no property which could be distrained. On 25 Aug 2000 the appellant issued a summons in the Magistrates' Court against the respondent requiring him to appear and show cause why he should not be committed to prison for non-payment. The application was made pursuant to the proviso to section 6 of the Maintenance of Deserted Wives Act (CAP. 31) which states:

"Provided that, if upon the return of a warrant of distress issued for failure to pay money ordered to be paid, it appears that no sufficient distress can be had, or if the magistrate is satisfied that the husband has wilfully failed to comply with an order made under 2 (b) or (c) hereof, then the magistrate may commit the husband to prison for a period not exceeding three month."

A committal order made pursuant to this proviso is the sanction for non-payment of the sum owing under the maintenance order. The provision may appear to be draconian in that there is no onus on the court before ordering committal to ascertain whether or not the defendant in default has had the means or wherewithal to satisfy the judgment debt. By contrast, in England, the equivalent statutory provision, namely section 4 of the Bastardy Act 1872 was amended by section 74 (6) of the Magistrates' Courts Act 1952 and now a husband may be imprisoned only if the default was due to his wilful refusal or culpable neglect.

No such requirement has been introduced into the Tongan legislation but whether or not a magistrate commits the husband to prison pursuant to the proviso to section 6 of the Maintenance of Deserted Wives Act is still a discretionary matter.

In Grocock v Grocock [1920] 1 K.B. 1, a question arose as to the extent of the magistrate's discretion. Could the magistrate order payment of a portion only of the arrears but not of the whole? The court held that the magistrate has no discretion to say that he will make an order to enforce payment of a portion only of the arrears of maintenance; his only discretion was to say either the whole amount is to be paid or that no portion of it is to be paid. As Salter J. said (p 15):

"With regard to enforcement of the order, the justices may issue a distress warrant, and may imprison the father or hold him to bail pending the result of a levy, and if no sufficient distress is disclosed then they may, if they think fit, commit the father to prison for three months. It is clear that the powers to commit, and to enforce, the order are discretionary. The justices have a discretion as to whether they will make an order and as to whether they will enforce it. But the justices have no discretion enabling them to enforce the order partially. They must either enforce it as it stands or not at all."

In the Magistrates' Court at the end of the plaintiff's case, counsel for the defendant (respondent) made a no case submission. The application was made on two grounds: first, that the parties had entered into an agreement to stop maintenance payments whilst they attempted a reconciliation and, secondly, that the wife was living with another man. Under section 3 of the Maintenance of Deserted Wives Act a proven act of adultery is sufficient to discharge the maintenance order unless there has been condonation.

The evidence in relation to the "other man" was insufficient to establish adultery but the magistrate found that there had been an agreement entered into between the parties under which the wife undertook to write a letter to the court stopping maintenance payments so that they could get back together again. There was evidence about the various attempts at reconciliation. The magistrate held that even though the parties had not reconciled, the wife had, in breach of this agreement, unilaterally decided not to write the letter to the court and she had failed to advise the husband that she had not done so. The husband, in other words, was proceeding on the basis that pursuant to the agreement, maintenance payments had been stopped. The magistrate, therefore, upheld the no case submission and dismissed the committal application.

The two main grounds argued on appeal were, first, that only the court has the power to vary a maintenance order and, secondly, section 6 is mandatory and if the husband does not pay or satisfy in someway the warrant of distress then, as counsel submitted, "the law says that he should be taken to prison."

I have already disposed of the second ground. The statutory provisions are discretionary - not mandatory, and this court will not interfere with a magistrate's exercise of his discretion unless it can be shown that the decision is wrong in principle or that there is some other exceptional reason requiring intervention.

In relation to the other ground of appeal, the Maintenance of Deserted Wives Act provides that the court may vary, discharge or suspend a maintenance order at any time on the application of the parties. Indeed, a court must give effect to any agreement reached between the parties to vary or revoke a maintenance agreement if it appears just to do so. In the context of this case, it was certainly open to the Magistrate to hold that the husband was entitled to act on the assumption that, pursuant to the agreement reached with his wife, he was not liable for maintenance payments during the relevant period. The important point, which has particular relevance in relation to the present case, is that an order for committal is a very serious step in any proceeding. It is a power to be exercised with great care and the power should be exercised only in the clearest of cases. If the facts upon which the committal application is based are in dispute or are ambiguous then the court should not order committal unless it is satisfied to the criminal standard of beyond reasonable doubt that the grounds for committal have been made out.

Given the magistrate's factual findings regarding the agreement to stop maintenance payments and the points of principle I have referred to, I am not disposed to interfere with the exercise of the magistrate's discretion and hold that committal to prison should have been ordered.

Although the appeal has not succeeded and is dismissed, I am not persuaded that the justice of the case requires the making of any order as to costs and none is made.

NUKU'ALOFA: 6 July 2001.

JUDGE