Masima v Masima [2019] TOSC 2; AM 10 of 2019 (10 January 2019)

IN THE SUPREME COURT OF TONGA
APPELLATE JURISDICTION
NUKU’ALOFA REGISTRY

AM 10 of 2019
[FP 164 of 2018]

BETWEEN: JOE WHYTE MASIMA

Appellant

AND: HEUIFANGA MASIMA

Respondent

BEFORE HON. JUSTICE NIU

Counsel: Mr. Joe Masima, appellant, appeared for himself

Mrs. Fitilangi Fa’anunu for the respondent

Date of Hearing: 10 January 2019

Date of Ruling: 10 January 2019

RULING

Appeal

[1] This is an appeal by the appellant against a decision of the Magistrate’s court which was given on 11 May 2018 which ordered as follows:

“In the best interest of Jolene Masima aged 4 she is to be returned to her mother, Heuifanga Masima, until the Supreme Court decides the child’s custody.”

[2] The grounds of the appeal are:

1. the appellant was not afforded a hearing before the order was made;
2. the order was not based on fresh evidence produced to the Court;

100. the magistrate had no jurisdiction to make the order;

4. the appellant had submitted and filed evidence in Court which supported the fact that it is in the best interest of the child that she remains in the custody of the appellant.

Hearing

[3] On 31 July 2018, the hearing of the appeal was held before me, but before counsel for appellant, Mr Taione, completed his oral submissions in support of the appellant’s appeal, both counsel, that is Mr. Taione, and Mrs Fa’anunu for the respondent, agreed that both sides and their witnesses were to be called to give evidence before me so that I could properly decide the complaint of the respondent against the appellant for which she applied to the Magistrates’ Court for a protection order and the question of custody of the child and possession of the motor vehicle. By consent, the trial was then set to be held before me on 3 August 2018. Documents were produced and agreed for the purpose of reference at the trial.

Settlement

[4] On 3 August 2018, both parties attended and advised that the parties had agreed to settle the matter as follows:

1. custody of the child be held jointly by the parties but that the day to day care and control be with the respondent with reasonable access to the appellant from 6pm Friday to 6pm Sunday of every week, and
2. the motor vehicle C19987 be with the respondent and if she left Tongatapu, she must leave it with the appelant until she returned.

[5] I asked counsel, and the parties, what maintenance was to be paid for the respondent (and the child) to live on as she did not work while the appellant did. The parties and counsel asked to discuss the matter further while the Court recessed.

[6] About half an hour later the parties and counsel attended and advised that the parties had reconciled and agreed to resume cohabitation and to discontinue the trial. Whilst I was pleased that the parties had agreed to get back together I was not prepared to discontinue the proceeding until I was sure that things had settled between the parties. I therefore adjourned the matter for 3 months to see what transpired. I adjourned it to 5 November 2018.

Breach of settlement

[7] It turned out that the 5^th of November was public holiday and so the matter was called on 6 November 2018 but both counsel asked to adjourn it because they had not been able to contact their clients to see what the status was. The matter was adjourned to 8 November 2018.

[8] On 8 November 2018, both counsel attended as did the respondent and the child but the appellant did not. Mr. Taione advised that despite his repeated attempts to contact the appellant, he just could not get him. I asked and the respondent informed me that not long after they resumed cohabitation, the appellant began to do and had continued to do what he had been doing before this matter came to Court, that is, the appellant would go to work and return at the end of the day only to get ready and left again and only to return the following morning to get ready and went off to work everyday. She said that the only money that the appellant gave her for their maintenance was a sum of $100 which he would give her from time to time.

[9] After further discussion, and with the consent of both counsel I directed that

1. the hearing of the appeal be resumed on 5 December 2018 and
2. the appellant would pay interim maintenance to the respondent in the sum of $100 per week, the first payment to be made the next day, 9 November 2018.

Parties again resumed cohabitation

[10] On 5 December 2018, when this matter was called for the hearing of the appeal, Mrs Fa’anunu attended and advised me that the parties had resumed cohabitation again and she and Mr. Taione were asking if the matter be further adjourned to give the parties another chance. I agreed and adjourned the matter to 19 December 2018 to see if final orders could be made by consent or by hearing.

Cohabitation breached again

[11] On 19 December 2018, both Mr. Taione and Mrs Fa’anunu attended, together with the respondent and child. The appellant did not attend. Mr. Taione advised me that he could not contact the appellant despite his efforts and applied for leave to withdraw as counsel for appellant. I granted him leave and he left. Mrs. Fa’anunu then advised that the appellant had again breached the cohabitation as before and asked for an order that the appellant be restrained from evicting or forcing the respondent to vacate their house. She said that the town allotment was the appellant’s and the house was built by them during their married life and that the respondent and the child were living in it, but that she was fearful that the appellant might evict or force them out of it.

[12] In view of the circumstances, I made an interim order restraining the appellant from evicting the respondent or the child from the house, and directed that the hearing of the appeal be resumed on 10 January 2019. I was however, due to continuation of a civil trial until close of work for the year 2018 on that day, (19 December 2018), unable to and I overlooked to issue that order or notice of hearing that day.

[13] It was not until yesterday 9 January 2019, that I discovered my oversight and I issued a notice to the appellant and it was served upon the appellant that day for him to come for the hearing of his appeal today.

The hearing

[14] Today, the appellant attended without counsel. The respondent and child also attended with counsel Fa’anunu. I explained to the appellant my oversight in failing to issue to him the notice of this hearing which was given on 19 December 2018 and asked him whether he wanted an adjournment for him to engage another counsel or for him to prepare for the hearing. He replied that he did not want an adjournment and that he could deal with the matter himself. He said that he had already talked with the respondent prior to 19 December 2018 that she would inform the court on 19 December 2018 to cancel the case.

[15] I told him that neither party could do that because the Court had to be sure that the child was properly provided for. I told him that I was concerned that the custody of the child be decided and that the maintenance of the respondent and the child be also decided, and asked him if he was prepared to deal with them then or adjourn it to another day. He replied that he could deal with them then because he was already agreed that the respondent have the custody of the child and that he was already providing the house and food for the respondent and child and he was also paying for the electricity and water.

[16] Mrs. Fa’anunu advised that because of the pitiful situation in which the respondent and child were in, the Church of Jesus Christ of Latter Day Saints, of whom they were members, was giving them rice, flour, sugar, etc for their food once a month, but they still needed the other necessaries like milk, meat, etc and household groceries in each week. She said they needed at least the $100 per week which I had ordered as interim maintenance, in addition to payment of electricity and water bills.

[17] I asked the appellant what he thought of that and he replied that he did not agree to it. I asked him how much he earned a week and he thought about it and then said, about $300 or so in a month. I asked him what work he did and he said he was a builder, that he did every work in construction and he contracted with the house owner and that he had no laborers working for him _ he did everything himself with the help of the owner or people at the place. I asked how often he was paid and he said it was from time to time as the owner was able to do. He said he was doing a job at the time for the Mormon bishop of Ha’ateiho. I put to him that as the builder he could set his price for his work and the time or times at which he should be paid, and he agreed. I then said to him that he could arrange with the owner that he be paid so that he could pay $100 per week for maintenance of his wife and child. He replied that if he was to do that then the respondent would have to move out of his house. I said to him that if they moved out, he would have to pay the rent of another place for them to live in as well as the $100 per week plus electricity and water. He replied that in that case he would file to divorce the respondent. I said to him that he could do that but the Court would still order him to provide accommodation and maintenance when they were divorced. He then said that he had already gifted his house to his brother. I asked him if his brother was already registered on the allotment and he replied no, he said they were still waiting for the 1 year to finish. I then said to him that in that case any subsequent arrangement with the house and the land would have to be subject to any order that may be made in respect of this hearing. He was then silent.

[18] I asked him if he understood what I had said and he said yes. I asked him if there was anything else he wanted to say and he said no.

[19] I then said to him that as I saw it he could pay $100 as maintenance per week as well as the costs of electricity and water and for the respondent and child to remain in their house on the allotment as at present, and that he should pay the $100 by 5pm on Friday of every week. He did not say anything. I then said to him: Can you make that payment by 5pm tomorrow? He replied by asking if he could make the payment by Friday next week because he would need to ask the owner to arrange his payment to enable him to do it by then. I asked the respondent if that was alright with her and she said yes.

[20] I then said that that is what had to be done: That the custody of the child is to be with the respondent with reasonable access to the appellant, that the respondent and child continue to occupy the house on the allotment as they presently do and for the appellant to pay the electricity and water bill, and that the appellant to pay maintenance to the respondent in the sum of $100 for herself and the child by 5pm of every Friday, the payment to be made directly to the respondent and that the respondent and the first payment to be made by 5 pm next Friday 18 January 2019, and the parties to each keep a record of every such payment.

[21] I then asked the appellant if he had anything else to say and he said no. I then told counsel and the parties that I would have the orders and my decision written up so that they would all have it in writing.

The law

[22] The appellant has appealled that he was not afforded a hearing before the Magistrate made her order. By consent, the matter was agreed to be heard afresh before me. And I have now given the appellant his hearing and I have heard his side. He also appealled that there was no fresh evidence before the Magistrate. I now have that fresh evidence before me and the appellant has given his own evidence. Finally the appellant appealled that the Magistrate had no jurisdiction to make the order she made, namely, to grant interim custody of the child to the respondent.

[23] When the respondent made her complaint to the Magistrate, she made it under the Family Protection Act 2013. She complained (in her form 1 application for temporary protection order dated 18 December 2017) that the appellant had brought another woman, namely Vanila ‘Akau’ola, to live together with them as a defacto wife of the appellant and she asked that that woman be ordered to leave their home. If that was true, that the appellant had brought that other woman to their house, that may be mental abuse to the respondent because it caused her mental suffering, for the purpose of s.4 (b)(i) and it endangered the well-being of the respondent for the purpose of s.4(b)(ii), which provide as follows:

“4. Meaning of domestic violence

For the purposes of this Act, a person (the “perpetrator”) cause domestic violence to another person (the “victim”) if-

(a) the perpetrator and the victim are in a domestic relationship; and
(b) beyond the reasonable expectations and acceptances of family and domestic life, an act or omission or threat thereof by the perpetrator-

• (i) causes physical abuse, sexual abuse or mental abuse to the victim or other person at risk; or
• (ii) or otherwise harms or endangers the health, safety or well-being of the victim or other person at risk.”

[24] S.12 of the Act grants the Magistrate the power to make a protection order if he is satisfied, inter alia, that the perpetrator has committed or is a risk to commit domestic violence against the victim. And s.18 grants to the Magistrate the power to make, where appropriate, a custody order granting temporary or final custody of any dependent child, and an access order by the perpetrator as well as a maintenance order for the victim and the child. It provides as follows:

“18. Custody, access and maintenance orders

A protection order may include, where appropriate, all or any of the following conditions-

(a) a custody order grating temporary or final custody of any dependent child to the complainant or to another appropriate person if the Court is satisfied that it is in the best interest of the child and for the safety and welfare of the child in question;

• (b) an access order to the respondent under such terms and conditions the Court considers appropriate and in the best interests of the child;
• (c) a maintenance order directing the respondent to pay maintenance in cash or kind or both to the complainant and any dependent child.”

[25] The power of a Magistrate to make a custody order or maintenance order or access order in respect of a married couple and their children is not exclusively given by this s.18 of the Family Protection Act. It is also given by s.2 of the Maintenance of Deserted Wives Act (chapter 31). So that the Magistrate does not have to make a protection order in order that he can make a custody order, access order or maintenance order as s.18 appears to provide by its words: “a protection order may include...” The magistrate may do so if he grants a protection and he may also do it even though he does not grant a protection order, if the couple are married to each other, like it is in the present case.

[26] Accordingly, I make the following orders:

(a) Custody of the child, Jolene Masima, aged 4, is granted to the respondent mother, Heuifanga Masima, with reasonable access to the appellant, Joe Masima.

(b) The respondent and the child shall continue to occupy the matrimonial home, that is, the house of the parties on the town allotment of the appellant.

(c) The appellant shall pay the costs of the electricity and water of the house and shall also pay maintenance to the respondent for herself and the child in the sum of $100 by 5:00pm of every Friday, the first payment to be made by 5:00pm of Friday 18 January 2019.

(d) The parties shall each keep a record of such maintenance payment.

L. M. Niu
NUKU’ALOFA: 10 January 2019 J U D G E