Public Prosecutor v Benson [2002] VUSC 44; Criminal Case No 021 of 2002 (16 July 2002)

IN THE SUPREME COURT

OF THE REPUBLIC OF VANUATU

(Criminal Jurisdiction)

Criminal Case No. 21 of 2002

PUBLIC PROSECUTOR

–v-

WILLIE BENSON<

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OAugust 1989 the appellant’s principal witness, Lydia Benson, and the respondent WilliWillie Benson were married. They have two children, Mackenzie Benson born on 14^th September 1988 and Julie Benson born on 10^th July 1993. In January 2000 they split up.

Lydia Benson, through the Public Putor, brought proceedings under the Maintenance of Family Aily Act Cap 42 alleging Willie Benson had failed to make adequate provision for the maintenance of herself and the two children.

On 23^{rd> April 2002 he was convicted before the Senior MagisMagistrate and ordered to pay a fine of Vt5,000 and maintenance of Vt 2,000 per month for each child and Vt1,000 per month for Lydia Benson. The Public Prosecutor appeals on the grounds that the sentence was manifestly inadequate and the maintenance orders were grossly insufficient in all the circumstances, particularly the defendant’s means and his receipt of Vt1,380 per fortnight in his pay in child (family) allowance. The appeal is resisted.}

Both parties provided written submissions to turt.

Proceedings under the Maintenance of Family Act can be described as d. There is the criminal al element of a fine and/or imprisonment on proof of failure to maintain. If that is proved beyond reasonable doubt then the Court also has a power to order maintenance for the wife and children. This is essentially civil in nature.

class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1"> Any appeal must recognise these two elements. The rence must be kept in mind mind when applying the test to decide if an appeal is successful or not. Further, an appellant might not wish to challenge the fine yet wish to say the amounts awarded by way of maintenance are too high or too low. There might also be applications to vary if circumstances change at a later date.

class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1"> There is no cross- appeal in this case. I therefore look first at the fine. Sectioection 200 (3) Criminal Procedure Code gives the Public Prosecutor a right to appeal “on a point of law against any judgment of a Magistrates Court”. The well-known principles stated in Skinner v. Rex (1913) 16 CLR 336 at 340, as approved by the Vanuatu Court of Appeal in the Public Prosecutor v. Kevin Gideon, apply, namely the appellate Court will not interfere with the Magistrate’s exercise of his discretion in apportioning the sentence “unless it is seen that the sentence is manifestly excessive or manifestly inadequate”.

There is a potential anomaly in the Family Maintenance Unless the defendant is ofis of considerable means the net effect of a heavy fine is to take away money available for maintenance and pay it to the state. This runs contrary to the basic purpose of the Act, that is to ensure wives and children are maintained.

The maximum sentence available is a fine of upto Vt20,nd/or three months imprisonrisonment. The defendant is a serving police officer. He earns a small but regular salary. He now lives with another woman, and they have a child. Although the defendant/ respondent was suspended on half pay for a considerable time after January 2000 the Magistrate found the case proved. Indeed, any assessment of the period in question shews the respondent made little attempt to support his wife or children, particularly the latter.

Whilst this Court might well have fixed the fine at a higher level, given all the circumstances particularly the anomaly outlined above, I do not find the sentence was manifestly inadequate.

The central issue is what constitutes “adequate provision” for the appellant and the two children of the appellant and respondent. Counsel were invited to cite Vanuatu authorities on this point to the Court. Apparently there are none. This Court is invited to set out principles for the guidance of the Magistrate Court and parties.

There is a central, basic principle. Parents must support their children. This applies to fathers and mothers. It applies whether or not they are married or live together or live separately. It applies whether or not one or both have formed a new relationship with someone else. It applies whether or not either or both have children by another partner.

[The Act speaks of a ‘man’ porting his ‘wife’. Although it was not part of this case, ase, and it has not been argued, the construction of ‘man’ and ‘wife’ is open to the interpretation ‘woman’ and ‘husbandpectivectively. Such an interpretation would be in keeping with a society today].

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The Act does not set out an formula for making arng ard. The Court must take cake care not to usurp a legislative function. The only words prescribed are ‘adequate provision Sording invitinvites a focus more on what is ‘adequate’uate’ for the wife or child, rather than assessing matters purely asctor of income of the man. The two are, of course, necessarily intertwined. An ‘adequadequate’ award of Vt50,000 per month cannot be made for a wife and children if the man’s income is Vt55,000.

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There is another broad consideration. When a couple splithere is almost always a dr a drop in their standard of living. Neither party can expect to live at the same standard when the same income has to support not one, but two households.

There are a numbefactors to take into account in fixing a figure, most most importantly what income, assets and outgoings are to be taken into account. There are four basic circumstances, namely

Case 2 if the man only is earning,

Case 3 if the woman only is earning,

Case 4 if both parties are earning,

There are added considerations if r both parties have formed a new partnership, the earnings,ings, if any, of the new partner and any children by the new partner. There might be children which the new partner brings with him or her.

Tpellant urged that any income of the respondent’s new partner should be taken into acto account. The respondent objected to this. The appellant accepted the respondent has to provide for his baby by the new partner but not at the expense of the children by his wife. The appellant argued that the respondent’s ‘family’ or ‘child’ allowance should go straight to the children before any calculations are made. It is an allowance in respect of them, paid for them and there is no basis on which he should retain that money. The respondent objected to this approach and said at best it should be part of overall income.

The problems set ouve are found iund in if not all countries. In maIn many there are sophisticated statutory regimes supported by case law. No Vanuatu authorities undes Act have been cited to me. There are the parallel clel considerations which are made in divorce proceedings. Uponrce or nuor nullity the Matrimonial Causes Act (Cap 192) at sections 14 and 15 refers to a husband making payment of lar sums “for the maintenance and support of the wife as the Court may think reasonabsonable” and making “such provision as appears just with respect to the custody, maintenance and education of the children of the ‘marriage”.

The Maintenance of Children Act (Cap 46) makes provision for “the maintenance of natural children”. It should be noted that at section 8 specific provision is made for garnishee and attachment of earnings orders. That is not present in the Maintenance of Family Act.

No authorities under tActs have been cited to me setting out how a figure iure is to be arrived at. The Acts themselves are silent.

lass="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1"> This is an area where it is difficult to set out clear, universally applicable rules. Emotions are often strong. A simple, easy to assess and easy to administer system is required for orders by Magistrates under this Act.

In the first case a nominal to small award shouldade. Some award should be m be made so if the man later finds employment the sum can be varied. There would be no need for fresh proceedings. The Court accepts that in Port Vila and in Vanuatu it is often very difficult to get a paid job. Nevertheless, a man should do his utmost to earn money to support his children or make other provision for them. This assumes a power of variation which appears to be present in the purpose of the Act particularly the fact that Orders may last for years and in the light of sections 19 and 20 Interpretation Act Cap 132.

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Counsel for the Public ecutor stated that in Australia in particular legislation tion there is a basic formula. An income is calculated according to various rules. There is then a table of percentages of the income payable depending upon the number of children –

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Number of Children &nnbsp; & &nnsp;&&nsp;; &nsp;  &nbs-; &/span>

bsp;& &bsp; nbss; &nbbsp&nnbsp;&nbs; &nbbsp; &nbbsp; &nbp; &nbp; &nbssp;&nnbsp;;pnbssbsp;;&np;;&nbssp; &nnbs;&&nbp;&nbs; &nsp;&nsp; &bsp; nbspp&nbs-; 2 -; 2 - &bsp; &nbbsp; 27%

an lang="ang="EN-GBEN-GB" sty" style="font-size: 12.0pt"> &nsp; &bspp;nbssp &nbs; &nbssp; &nbssp; &nbp; &nbs; &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; ;&nbnnbsp;&nbsss&nbssp;&nnb;&nnbsp;; &nb -&nbbsp;&nbs; &nbs; 3pan

&nbp; &nsp; &bspp&nbssp; &&nbp; &nbp; &nbbp;&nnbp;&&nbp;; &nsp; ;&nspp;&nssp;  p; &nbp; &nbp; ;&nbpp; &nnsp;&&nsp; &nbp; 4 p&nbsbb;&n& 34%

&nt"> &nbbsp; &nbbsp; &nbp; &nbp; &nbbp;&nnbsp; &nbbsp; &n &nsp; &nbssp;&nnbp; ;&sp;;&nbssp;&n5 or –&nbss6;&n36 %

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Counsel posed another option, that of adding up the total incomes of both parties, examining the assets and outgoings and making an apportionment.

She suggested for Vanuatu the best solutio a percentage range per numr number of children. The Magistrate could then consider all the circumstances and select where in the range the award should lie.

When it comes to the making of proviit is not the maintenance that has to be reduced to the stae standard of living, it is the standard of living that must be reduced to ensure adequate maintenance is paid.

If the man only is earning th it is necessary to ascertain his total income. He shoulshould then pay a percentage in respect of each child set by the Magistrate in the following brackets,

1 child – 15 - 2/span>

2 child – 20 – 25 %

3 child – 25 – 30 %

4 child – 30 – 35 %

5 child – 35 – 40 %

The magistrate in exceptional cases may go outside these limits. The magistrate should also consider provision in non- monetary ways, such as food and clothing, or for specific expenses, for example school fees. Combined orders can be made, for example so much per month and school fees.

In the third case where the wife only is earning then the guidelineslines set out for the first case should be followed.

In the fourth case both parties are earning. Counuggested that the incomes omes of the two parties should be combined to make an assessment and then their respective outgoings taken into account. Counsel for the respondent urged that the appellant’s income be taken into account.

ass="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1"> There is no reason why the table for case 2 should not apply when both parties are earning. The wife will necessarily be looking after the children as well and will have to pay or arrange for child care. If the wife earns considerably more than the husband then a figure at the lower and of the scale would be approp. Again the Magistrate can consider going outside the range but there should be be strong reasons for doing so.

ass="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1"> These formulae tend to focus more on the available money of the man, than the adequate provision for the child. However, the two are interdependent. There is always the risk of making unreal orders and provoking a respondent into making no payment, as opposed to one which is a little lower but will be paid.

I must now consider how the income is calculated. Should any outgoings be taken into account ? In this particular case the respondent is claiming as an outgoing repayments on a piece of land which he bought in April 2002. These proceedings were commenced in February, the respondent appeared in Court in March.

Respondents must expect little tympathy from a Court if they undertake commitments knowing there are proceedings such as this pending, especially if the commitment is to buy for himself a capital asset. <

ass="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1"> The respondent also has a vehicle which he says is valued at Vt 345,000. There is no statement as to why he needs the vehicle and further if there is income from it, e.g. if used as d as a taxi. If it is not used to generate income and is not necessary for his work then I must consider if it should be sold and the money used make adequate provision for the children. I find there here is no reason why a Court should not consider the sale of an asset in these circumstances.

Through his work as a police officer the respo had the benefit of low-renw-rent or rent fee accommodation.

He apparently lefs when he took up residence with his new partner. The. They are now building a house on the land recently purchased and hope to move into it.

lass="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1"> This is all indicative of an income well beyond whatrespondent receives from thom the police. He says his new partner is earning and her income contributes considerably. He says her income is not relevant for these purposes.

ass="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1"> The appellant earns money. says she has declared all her income. Her outgoings megs mean she can hardly make ends meet. She has to pay rent and everything for the two children. On top of that she says she has the fulltime care and expense of the children, has no car and is not purchasing a capital asset. She says the respondent should make a substantial contribution. Further, hin standard of living is attributable partly to that of the income of the new partner and that should be taken into at.

The permutations and possibilities are immense. I find the solution is as follows. It is necessarily somewhat broad in its approach, but is clear and easily workable.

The outgoings of the man should not alter the percentage range for each child. If there are outgoings which mean the applicable amount is not available then those outgoing must be reduced. It is not for a man to leave his children destitute because he will not reduce his outgoings. I say again I recognise that in most cases finances are tight and incomes are small. A sharp reduction in living standards nearly always follows when a husband and wife split up, especially if there are further children by a new partner. It is rarely a feature in consideration when a husband or wife decides to leave a spouse, but it is squarely there.

I find uld be too complicated an exercise to create a formula which took into account the he specific income of a new partner. However, when fixing a figure for the number of children concerned the magistrate should consider the upper end of the scale if a new partner has an income. If there are children by the new partner this can be taken into account in fixing the point in the range. The Magistrate, but only in exceptional circumstances, should consider a figure outside the limits of the range, either the upper or lower limit.

p class="MsoNoMsoNormal" style="text-align: justify; margin-top: 1; margin-bottom: 1"> As I have stated above,for those reasons, the percentage payable by the man man should be the same whatever the income of the wife, but subject to a discretion in exceptional cases.

Any allowance paid to the man in rt of the wife and children should go to them. Such allowancowances are a recognition of the obligations of a man to maintain his wife and children and cannot be considered part of joint income or, as was suggested in this case, his money purely because he had a wife and children.

Those allowances should go straigh the benefit of the wife and/or children. The calculation oion of his income for the purposes of the percentage range for each child should exclude any such sums.

It happens that when a married e split some of the children go with the husband and some wome with the wife. If the man is required to pay maintenance under the Act then the percentage range applicable will equate to the number of children who are looked after by the wife. If both parties are earning and income is roughly equal then nominal orders should be made if each is looking after the same number of children.

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How should the Court approach questions of a of the man ? If an asset pset produces an income, such as a car used as a taxi, that should be taken into account when calculating the man’s total income. If it produces no income and is not essential in some other way to the income or accommodation of the man then consideration should be given to its sale for the purposes of making provision for the children and wife. It would be absurd if a man had his own car for private use when the provision made for his children was inadequate.

This is a difficult area in a subject which is fraught with diffies. However, even a fairlyairly old car could be sold and the proceeds placed in a bank to pay for school fees for a few years, or other expenses such as clothing.

Uptil now I have focused on pion for the children. The Act requires the Court also to loto look at provision for the wife. There are the same four cases.

1. &nnbsp;;&nspp;&nsp; &nsp; &&nbp;; &nnsp;& If neither party is earning money. nomirder should be made. Ide. If thef the husb husband later finds a job then a variation can be sought. If the wife forms a long term relationship with another man then consideration should be given to extinguishing the order.

2. &nnsp;&&nsp;;&nspp;&nssp;&nsp; If the husband is earning and the wife is not. The Court should make an O first consideratderation wion will be whether payment is to be made for the children. If the are no children being supported then a figure in the range of 20-40 % of the man’s gross earnings should be considered. If the man is paying for children then a figure should be considered of 20% -30 % of the total gross income.

For example, if the man is to pay 20 % of his income in respect of two children, and 20 % in respect of his wife, then he will be paying a total of 40 % of his total gross income in respect of his wife and two children.

ass="MsoNoMsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> 3. ;&nspp;&nssp;  p; &nbp; &nbp; pu>If the wife is earning and the husband is not.an>A al orhould be made. If If the hthe husbanusband latd later finds a job then the Court can consider the matter as set out at 4 below. If the wife forms a long term relationship with another man then consideration should be given to extinguishing the order.

class="MsoNoMsoNormal" style="text-align: justify; text-indent: -36.0pt; margin-left: 72.0pt; margin-top: 1; margin-bottom: 1"> 4. &nbbsp; &nbbsp; &nbp; &nbp; &nb p; /span>If both the husband and wife are earning.

The Court should certainly, make a nominal order to preserve the pon if circumstances change. nge. It there are no children being supported and the incomes are roughly equal then a nominal order should be made. The same applies if the wife’s income is greater than that of the husband. If the husband’s income is substantially greater than that of the wife then an Order should be considered ranging between 10 % and 30 %.

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All references to income here refer to the income received by a party after expenses for earning the income have been deducted (e.g. the costs of running a taxi) but before living expenses are deducted (e.g. rent, electricity etc) and before any deduction for sums ordered to be paid to maintain a child or children.

In this kind of case there are a multitude of variables. These are broad guidelines and not rigid rules. The Magistrate must exercise his/her discretion carefully and on the facts of each individual case.

Practicable and workable orders should be made. The Court shouldjust make an Order, but loot look to including the means by which the Order can be made to work and the keeping of an indisputable record of what is paid, (e.g. if possible by the opening of a saving account and a direction that all payments are made into that). Payment periods should coincide with the respondents pay periods, if possible.

In the particular case before me I have applied the guidelines set out above. I Order Vt6,240 per fortnight to be paid in total for the two children and Vt 500 per fortnight for the wife. Payments are to commence on 5^th July. All sums are to be paid directly into the bank account of the wife. The husband is also to keep a record of sums paid. The husband must pay the school fees of both children until they reach 18 years. The first fees are to be paid for the term starting in August 2002.

There will be no for costs.

Dated 16^th July 2002.

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R.J. COVENTRY

Judge