Tonga v Tonga [2002] TOSC 2; C APP 0012 2001 (23 January 2002)

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

NO. C.A. 12/01

BETWEEN:

TEVITA LATU TONGA
Appellant

AND:

'OFEINA HE LOTU TONGA
Respondent

BEFORE THE HON MR JUSTICE WARD

COUNSEL: Mrs Vaihu for appellant
No appearance respondent

Date of Hearing: 23 January 2002
Date of Judgment: 23 January 2002

JUDGMENT

The parties are married to each other and the respondent wife sought an order in the Magistrates' Court for maintenance for the two children of the marriage. It appears that she did not seek any for herself. The magistrate ordered that the husband should pay maintenance of $25 per week for each of their two children together with court fees and costs.

The wife gave evidence at the Magistrates' court but the respondent did not and called no evidence. It appeared from the wife's evidence that the couple were separated and that had occurred because she had decided to leave the home after her husband told her he had had a sexual relationship with another woman. She agreed that her husband had tried a number of times to persuade her to get back together but she refused.

I can find nothing on the papers before me to indicate under which law the order was made. The evidence was that the parties to the marriage are currently separated. If the magistrate considered that the husband had deserted his wife, I presume the maintenance was ordered under section 2 of the Maintenance of Deserted Wives Act, Cap 31 which allows such an order if the court is satisfied that "the husband has wilfully refused or neglected to maintain his wife or his wife and children and has deserted his wife" (my emphasis).

I note the difference between the wording of that section and that of section 8 (f) of the Magistrates Act, Cap 11, which gives the magistrate jurisdiction "to make orders of maintenance against husbands who have deserted or omitted to maintain their wives" (my emphasis)

The magistrate should always make clear under which act he is making any order. If this was, indeed, made under Cap 31, he needed to find that the wife's admitted desertion of her husband was constructive desertion by him before a maintenance order could be made.

The wife's evidence was also that the husband had come to her home and taken the older child, a daughter, and never returned her. Counsel for the wife told the court (although there was no evidence of the fact) that the parties had agreed that the daughter "could go when she wants to". In her evidence, the wife had asked for the girl to be returned to her "as nowadays, girls to be with the mother".

The magistrate stated in his judgment that the parties "agree for free access to their daughter". It is hard to see how he came to that conclusion in view of the request by the mother for the girl to be returned. How he then went on to order that the wife should be paid maintenance for a child by the parent with whom that child was living is equally inexplicable.

I would also point out that section 2 (c) of Cap 31, gives the magistrate power to order that either the wife or the husband shall have custody of the children. In a case such as this where there is a dispute about the custody he should hear evidence on the matter and consider whether it is an appropriate case to include an order for custody.

The only evidence before the court was that of the wife. That, therefore, included the only evidence of income of the parties. The wife told the court that she earned enough to support herself by making taovala and selling them in the market. She said that her husband "gets money by buying kava here in Tonga and then sending it to the States to his parents" and added that he had no other source of income. When counsel for the wife addressed the court at the conclusion of the case he stated that the husband "has a lot of money from the States". It is clear that was an overstatement of the evidence but it would appear to have influenced the magistrate.

I consider the evidence upon which the magistrate was to determine the amount of maintenance was totally inadequate. At the same time, it must be said that it was an extraordinary decision by the husband not to give any evidence in such a case. In the absence of any evidence to the contrary, a magistrate is entitled to assume that the other party does not contest it. No doubt that is what the magistrate did here but her evidence of her husband's income, even if accepted, was insufficient to calculate any actual award. In such a case, the magistrate cannot simply pluck figures from the air. The defendant should be warned that, if he fails to give evidence of income or other assets, an award will be made based solely on an assessment of the children's needs. If he still declines to give the information, the magistrate must obtain evidence of those needs from the other party.

The appeal is allowed. The order of the magistrate is quashed and the case is remitted to the Magistrates Court for hearing de novo by a different magistrate.

NUKU'ALOFA: 23^rd January, 2002

CHIEF JUSTICE