Vaka v Vaka [2013] TOSC 39; AM 19 of 2013 (5 December 2013)

IN THE SUPREME COURT OF TONGA
NUKU'ALOFA REGISTRY

AM 19 of 2013

BETWEEN:

FRANCIS VAKA
APPLELLANT

AND:

PAEA 'I TONGA HIGH VAKA
RESPONDENT'

BEFORE THE HON JUSTICE CATO

Mr Piukala for the Appellant
Mrs Kioa for the Respondent

JUDGMENT OF THE COURT

[1] After what appears to be a short hearing, the appellant was ordered to pay maintenance in the sum of $175 per week for future maintenance to the appellant, $1000 for arrears to be paid within a month, and $900 to be deposited to the respondent's lawyers as fees.

[2] Mr Pikuala, who appeared for the appellant, shortly after the orders were made, filed on his behalf an appeal arguing that the orders should be set aside. He contended that his client had requested an adjournment because Mr Pikuala had been unable to attend due to ill health, and the adjournment had been wrongly denied.

[3] The record is unclear about this, and Mrs Koia said that no such application was made. Mr Pikuala confirmed, however, that the appellant had shortly prior to the hearing requested him to act, and he had explained his situation. It is a matter of common knowledge that around that time, Mr Pikuala had had to have engagements adjourned in this Court because of ill health. The record, although not untypically brief, does record Mrs Koia as saying we do not wish to further adjourn this case. Mr Pikuala filed the appeal very shortly after this hearing.

[3] I have considered the record. The respondent claims that she was effectively deserted by the appellant after she had chased him out of the house because of his infidelity which he appeared to admit. The appellant, for his part, alleged that the respondent had a previous affair and they had reconciled thereafter. He offered to have the children. He alleged he had given money to the children.

The Magistrates decision was brief. He said;

"For the arrears, maintenance, food was given in exchange but that needs to be confirmed. And for $100 court fee. It is the respondents' responsibility to maintain his children despite his problems. There are 7 children. The order of the Court is as follows...."

Then follows the orders referred to above.

[4] I consider that there is sufficient to suggest to me that the appellant did seek an adjournment, although the record is silent on the intended involvement of Mr Pikuala. However, what convinces me to set aside the orders is not only was the appellant unrepresented and likely, in my view, to have sought an adjournment, but the record and, indeed the judgment, is singularly lacking in any evidence or reasoning involving the means of the appellant to pay either arrears that is the original interim amount whatever that may have been or the amount ordered of $175.00 per week. I have emphasized already the obligation on issues involving maintenance for a Magistrate to explore the means of the defendant to pay and be satisfied before making orders that a defendant is in a position to be able to pay such amounts as are ordered. Otherwise orders are futile and may be oppressive. Lemoto v Lemoto, S Ct, September, 2013, and Madden v Madden, S Ct, 2013.

[5] The means to pay, a requirement in section 2 of the Maintenance of Deserted Wives Act, must be considered as a matter of law, before maintenance orders are made. This requires that Magistrates' receive evidence of net weekly earnings, and also the reasonable expenses that the defendant has to pay to live reasonably himself. The Court of Appeal in Sefesi v Fukofuka [2010] Tonga LR 171 has said;

"Without exhaustively describing what evidence might be needed to undertake the task, it would in many cases, require the judge to know the income of the person against whom the maintenance order was sought, details of what amounts that person might need to live including supporting a new partner (if any) and additional children (if any) and what other sources of income were available to that person (for example, income generated by the new partner). Equally important, would be evidence about the financial needs of the person claiming maintenance and any children of the marriage. That again would require evidence of the income (if any) of that person and the costs of rearing and educating the children."

[5] Here, I am not satisfied from the record that any such consideration was given as to the defendants' means. Accordingly, I set aside the orders made and remit the matter to the Magistrate's Court so that a proper evaluation of the appellant's means may be made before orders are made. I also set aside such interim orders as were originally made for the same reason. The net effect of these orders is that the question of maintenance will have to be considered afresh this time taking into consideration the appellant's means to pay.

[6] I consider, however, an interim order pending final hearing in the Magistrate's court of this matter is required, in this case. At the hearing, of the appeal, Mr Pikuala said that the appellant was working as an engineer or mechanic for a car firm. He was said by Mrs Koia to be earning about $200 a week, and Mr Pikuala did not reject this. I am uncertain as to what he does in fact earn, but because these orders were made on 28th June, 2013, I consider he should be paying some maintenance on a weekly basis for his large family and children. I am careful, however, to order a conservative amount bearing in mind I do not have a clear picture of what he is earning or his means to pay. I consider it not unreasonable on an interim basis for him to pay $75.00 per week to the respondent for his family of 7 children and former spouse commencing on the 13th December, 2013. He is to obtain a receipt for payment, if directly paid to the respondent, or if payment is into her bank account then retain proof that deposit and payment has been made. This evidence can be presented as proof that he has complied with the order of this Court, at the hearing in the Magistrates' Court which should promptly rehear this matter in the New Year.

[7] I make no order as to costs. Each party bears their own costs of this Appeal.

JUDGE

Dated: 5 December 2013.