SV v SV [2004] WSDC 11 (23 December 2004)

IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN:

SV
Applicant

AND:

SV
Respondent

Counsels: Drake & Co. for applicant
FM Vaai for respondent

Hearing: 12th August 2004
Decision: 23rd December 2004

DECISION OF NELSON, DCJ

This is an application for orders directing the respondent to pay the sum of $500 per week for the maintenance and support of the two children of the applicants and respondents marriage. The children are ALV, a male infant born on the 2^nd October 2001 at Medcen Hospital and LMV, a female infant born on the 26^th October 2003 at Medcen Hospital (“the children”).

To protect the privacy of the parties in particular the children involved in this matter, there will be an order prohibiting publication of the names, villages and occupations of the applicant, the respondent and the children. Consistent with this aim these proceedings shall hereinafter be referred to in accordance with the above substituted entitulements.

The grounds of the application are that the respondent as father of the children has failed without lawful excuse to provide the children with adequate maintenance. The application is brought pursuant to the Maintenance and Affiliation Act 1967 (“the Act”) in particular section 12 subsection (1) thereof. The parties are separated and a custody order has already been made awarding custody of the children to the applicant with access to the respondent at the applicants place of residence every Saturday from 9am to 12noon. An interim order for maintenance in the sum of $300 a fortnight was made following hearing of this application and pending a decision. The applicant also seeks the costs of the application.

The only witnesses at the hearing were the applicant and the respondent. Also tendered as part of their evidence were affidavits filed by both parties. It is clear from the evidence that the couple had a tumultuous albeit brief marital relationship which appears to now have irretrievably broken down. It would be counter-productive and of little assistance to the court to delve into the reasons for this failed marriage. However it is relevant for present purposes that the couple appeared to have over-committed themselves in the past and as a result, are today still engaged in paying off various loans. As the applicant candidly admitted in her evidence they lived beyond their means and at times were forced to rely on the assistance of relatives. This despite the fact that both spouses earned large five figure incomes.

The parties have been unable to agree on a figure for maintenance of the children. The respondent has offered through his lawyers the sum of $250 per fortnight plus payment of all the childrens' medical costs. Leaving medical costs to one side this amounts to an offer of $62.50 per child per week. This offer has been rejected by the applicant who seeks $250 per child per week or $1,000 per fortnight.

The weekly expenses for the children are set out in paragraph 8.1 of the applicants affidavit dated 25 May 2004. They in fact amount to $700 per week or $1,400 per fortnight. The applicant obviously intends by seeking only $1,000 per fortnight maintenance that she will provide the shortfall for these expenses as she too is a working parent.

The respondents affidavit filed in this matter does not challenge the quantum of these expenses. There were some questions by respondents counsel in cross examination concerning the expenses but these questions did not seriously challenge the quantum either. It appears therefore that the respondent accepts the cost of $700 per week or close to it as a reasonable figure for the childrens' weekly expenses. It also appears he accepts that these costs exclude medical costs. I agree with counsel for the applicant that in the main these costs do not encompass any luxury items and they represent costs that are continually on the rise. But I also observe that the applicant's evidence was less than substantial on particulars and supporting evidence for some items claimed in particular the last item of $198.80, which is a very specific sum.

No mention has been made by either party of educational costs. Clearly this is of no application at present but considering the ages of the children, it will become a factor shortly. Especially in relation to the eldest child who will attain pre-school age in October 2005, if not before. Notwithstanding this, the respondent did accept in his evidence that he would be liable for at least 50% of the childrens' future educational costs, including school uniform and other incidental expenses.

The application is, as are most applications of this nature, based on section 12(1) of the Maintenance and Affiliation Act. Section 12 (as amended by section 28 of the District Courts Amendment Act 1993) in its entirety provides as follows:

“District Court Judge may make maintenance order against parent of child –

(1) If, on application made on behalf of any child under the age of 16 years to a Court presided over by a District Court Judge, the District Court Judge is satisfied that a parent of that child has without lawful excuse failed or intends to fail to provide the child with adequate maintenance, he may make a maintenance order against the parent in favour of the child.

(2) When the parent and child are living apart from each other, and the District Court Judge is satisfied that there is reasonable cause for the child continuing so to live apart from the parent, the parent shall not be deemed to have made provision for the adequate maintenance of the child merely by reason of the fact that he or she is ready and willing to support the child if and so long as the child lives with him or her.”

The first point to be noted is that all applications under section 12(1) are applications brought “on behalf of a child under the age of 16 years”. In these proceedings the application has been brought by the applicant mother of the children. The applications can also be brought by a grandparent or by some other relative or even by a Child Welfare Officer appointed under Part IV of the Infants Ordinance 1961. But the real applicant in every case is the child who because of its legal status age and other obvious limitations, is unable to itself bring the application. Too often do parties misconstrue these applications as being an application by one parent against the other. In fact that is not the case. The application is only brought by one parent on behalf of the child or in this case on behalf of the children concerned. This is not the respondent's wife's application, it is his childrens' application. It is not to the respondent's credit that his children are compelled to come to court seeking maintenance money from their father.

In the application the children allege that the respondent has without lawful excuse failed or intends to fail to provide them with adequate maintenance. “Maintenance” is defined under section 2(1) of the Act as including

“lodging, feeding, clothing, teaching, training, attendance and medical and surgical relief”.

This is a wide definition and clearly includes educational as well as medical costs. The phrase “adequate maintenance” is also defined in section 2(1) as meaning –

“maintenance reasonably sufficient for the necessities of the person to be maintained, irrespective of the means or ability of the person who is bound to afford such maintenance”.

These considerations are subject however to what seems to be an over-riding test in section 18(1) of the Act which requires that every maintenance order “shall be for such sum as the (Court) thinks reasonable in all the circumstances”.

Counsel for the applicant is quite correct that there do not appear to be any decided cases on the meaning of these definitions and one may therefore assume that their interpretation has not occasioned any difficulty. Our section 12(1) is modelled upon the provisions and definitions of the Destitute Persons Act 1910 (NZ) and while there are no reported New Zealand decisions directly on point, the New Zealand courts have had this to say:

(a) Fodie v Fodie [1959 ] NZLR 721, at page 723:

So far as concerns the first two grounds, little need be said about the proof of the alleged failure to maintain. Adequate maintenance is defined in section 2 as meaning

maintenance reasonably sufficient for the necessities of the person to be maintained, irrespective of the means or ability of the person who is bound to afford such maintenance.

On the topic whether or not there was a failure to provide adequate maintenance, the appellant’s means are irrelevant; so are the earnings of the respondent. They may be relevant to the exercise of the discretion when it comes to a consideration of the questions whether an order should be made, and if so, the amount of the order.

(b) Sloan v Treadaway [1999] NZFLR 666:

I accept the phrase “adequate care” imports an objective test, namely, that care which is reasonably necessary in the circumstances of the case to provide for a child’s basic minimum needs... Subjective assessments or considerations as to what constitutes “adequate care” of a child are not relevant. Support for this approach may be found in the objective definition given to “adequate maintenance” in section 2 of the Destitute Persons Act.

Quite clearly what constitutes “adequate maintenance” is an objective test that requires an objective assessment of what is reasonably sufficient to meet “the necessities of the person to be maintained”.

The authors Webb and Caldwell of a Source Book of Family Law in discussing this issue express the view that “the necessities of the person to be maintained” will be “ a question of fact and may vary from case to case depending upon the circumstances and situations in life of the parties”. I agree completely for in the words of Sir Raymond Evershed M.R cited with approval by Chief Justice Spring in Ng Lam v. Ng Lam (No. 2) [1970-79] WSLR at page 49:

“It has so often been said that it is obvious, yet it is worth repeating that all cases that come before this Court must be determined upon their own particular facts, and I should imagine that in no class of case is that trite observation truer than in matrimonial cases. The circumstances vary infinitely from case to case.”

It is clear from the definition of “adequate maintenance” that the means or ability of the respondent to pay are not the guiding criteria for determining adequate maintenance. The guiding consideration is what is reasonably sufficient for the necessities of the person to be maintained. In this case, it means what is reasonably required for the necessities of the children of the marriage.

As stated infra, these necessities are set out in paragraph 8.1 of the applicants affidavit dated 25 May 2004. They have generally been accepted by default as it were by the respondent whose case focussed on other issues rather than this core issue. The law clearly is that his means and ability to pay are not the test for determining what is an adequate amount that he must pay. The legal test to be applied revolves around what would be reasonably sufficient for the childrens' needs, subject to the over-riding requirement of section 18(1) that the maintenance order be for a sum that is “reasonable in all the circumstances” of the case. In my view, this does not mean the respondent must necessarily be made liable for all the necessities of the children or even all the reasonable necessities of the children. It means however that he must bear a reasonable proportion thereof.

As to what is reasonably sufficient for the needs of the children, I accept these are adequately addressed by paragraph 8.1 of the applicants affidavit except in relation to the last two items, viz:

(i) two baby sitters at $190 per week; and

(ii) transport, rent, etc. and miscellaneous at $198.80 per week.

As to (i), the applicants evidence was that during their marriage, the couple employed only one baby sitter and that it was only post-separation that she modified this arrangement. She testified the modified arrangement worked better for her but did not elaborate as to why or what was wrong with the previous arrangement. Even allowing for the ages of the children and the sometime illness of the younger of the two she did not make out a strong case for the necessary employment of two baby sitters. In this country there are also many other ways of reducing and even eliminating such costs. As to item (ii), again the evidence was less than satisfactory. No documentary evidence was produced for claimed rent and electricity expenses or for transportation costs and what this entailed. I accept there are always incidental miscellaneous expenses but bearing in mind the applicable legal tests good and reliable evidence must be adduced for the court to be satisfied that such items are a reasonable and necessary expense and more importantly what proportion can be held to be attributable to the children.

I am well satisfied that the other expenses listed in paragraph 8.1 are reasonable necessities for the children and were I to deduct 50% of the last two items from the applicants claim it would reduce the expenses claimed to approximately $500 per week. Taking all factors into consideration in particular the fact that the applicant herself is a working mother who earns a salary greater than the respondent I consider that half of this or the sum of $250 per week is a fair and reasonable figure within the legal tests I have referred to that the court is bound to apply for the respondent to pay.

As for past maintenance, this was not actively pursued by the applicant probably because the statutory maximum is the princely sum of $100 – see section 20(1) of the Act. That may have been a significant sum in 1967 when this legislation came into being but such a sum is grossly antiquated now and serious consideration should be given to reviewing same. Especially for cases such as the present one where the respondent failed to make any consistent provision for maintenance of the children after the couple separated in March this year. No relief was available to the applicant wife until an interim order was made by this court some five months later when the matter proceeded to a hearing.

Accordingly, there will be a final maintenance order to issue as follows:

(i) for payment by the respondent as maintenance for the two children ALV and LMV the sum of $500 per fortnight;

(ii) because this represents a substantial increase on the figure currently payable by the respondent the court will allow him 30 days to re-organise his affairs – maintenance payments to therefore commence 30 days from the date of this judgment – interim order to continue up until then;

(iii) the respondent shall continue to be responsible for the medical costs of the children as per paragraph 9 of his affidavit filed in this matter;

(iv) as to the costs of this application this will be dealt with in accordance with section 28 of the Act – applicants counsel to file and serve submission as to costs within seven (7) days hereof.

DISTRICT COURT JUDGE