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Leong v Wong [1967] FJLawRp 40; [1967] 13 FLR 9 (7 February 1967)

[1967] 13 FLR 9

SUPREME COURT OF FIJI

Appellate Jurisdiction

GORDON JOSEPH LEONG

v.

ULAMILA WONG

[SUPREME COURT, 1967 (Hammett J.), 16th December 1966, 7th February 1967]

Bastardy-order for maintenance-invalid after child attains thirteen years-power to direct continuation of payments until child attains sixteen years exercisable only when original order made-Bastardy Ordinance (Cap 33) ss.6, 7(1), 8.

By section 8 of the Bastardy Ordinance an order made under section 6 for the maintenance of a child has no effect after the child attains thirteen years. Under the proviso to section 8 the magistrate may in the order for maintenance direct that the payments shall continue until the child attains sixteen years.

Held: The power given by the proviso can be exercised only when the original order is made; there is no provision in the Ordinance authorising the amendment of an order by extending its duration until the child attains sixteen years.

Appeal against variation of order for maintenance under the Bastardy Ordinance.

G. M. G. Johnson for the appellant.

M. V. Bhai for the respondent.

HAMMETT J.: [7th February 1967]

On the 1st March, 1963, the Respondent, Ulamila Wong, was granted by the Magistrate's Court at Suva an Affiliation Order against the Appellant, Gordon Joseph Leong, in respect of her two illegitimate children, namely, Lily, born on the 8th January, 1953, and Joseph, born on the 2nd January, 1956. The Defendant was ordered to pay maintenance in respect of these two children at the rate of £2 per week with effect from the 1st March, 1963. From the brief note of the Order it is clear that an order in respect of each child was intended at the rate of £1 each per week. The Court did not state in its Order up to what age this maintenance should be paid in respect of either child.

The Defendant fell in arrears with his payments from time to time. At one stage, on his application, the amount of the payments was reduced to 17/ 6 per week per child. On the 28th February, 1964, the Order was again varied by increasing the payments to £1 per week for each child.

On the 23rd September, 1964, the mother, Ulamila Wong, applied for a further variation of the Order in the following terms:-

"I, Ulamila Wong of Lami, Suva hereby apply under section 7 (1) of the Bastardy Ordinance Cap. 33 for Variation of Maintenance Order dated the 28th day of February, 1964 on the following grounds by increasing the said Order.

(1) That the children have grown up since the date of last Order.

(2) That the cost of living has increased.

(3) That both the children are attending School and their fees is £6 per term.

(4) That the present Maintenance is insufficient to meet their daily requirement.

The Summons to Vary was duly served on the Defendant-Appellant but he did not appear at the hearing. He first sent a telegram and then a letter seeking an adjournment. This was not granted and the application was heard in his absence. After hearing the mother the learned trial Magistrate granted her application and made the following order on the 11th December. 1964:-

"Order varied. Defendant to pay £1 per week for each child forth-with until the child reaches the age of 16 years."

The Defendant-Appellant fell in arrears under this Order and a warrant was issued to enforce payment. Later, Counsel on his behalf applied for, and obtained, leave to appeal out of time against the Order dated the l1th December, 1964.

The grounds of appeal upon which the Appellant relies are as follows:-

"(a) That on a proper construction of Section 8 of the Bastardy Ordinance, Cap. 33 the learned Magistrate had no jurisdiction to make such an Order.

(b) That the Defendant/Appellant had no notice that an application would be made to the Court seeking an Order whereunder he would become liable to pay maintenance in respect of the said child after the said child had attained the age of 13 years and that the said Order was made in his absence."

The provisions of Section 8 of the Bastardy Ordinance read as follows:-

"No order for the maintenance and education or for contribution towards the relief of any such child made in pursuance of this Ordinance shall, except for the purpose of recovering money previously due under such order, be of any force or validity after the child in respect of whom it was made has attained the age of thirteen years or after the death of such child: Provided that the magistrate may in the order direct that the payments to be made under it in respect of the child shall continue until the child attains the age of sixteen years, in which case such order shall be in force until that period."

It is clear that in the absence of any express directions by the learned trial Magistrate when he made the original Order on the 1st March, 1963, that payments should continue to be made until each child attained the age of sixteen years, the Order in respect of each child ceased to have any force or validity after that particular child attained the age of thirteen years. It is the contention of the Defendant-Appellant that on an Application to Vary under Section 7 (1) of the Ordinance the Court had no power to increase the age up to which the payments ordered should be made. The material part of Section 7 (1) reads as follows:-

"Where an order under section 6 of this Ordinance for the payment of a weekly sum is in force at the date of this Ordinance or is subsequently in force, either the court that made the order or any other magistrate's court for the district where the person who is entitled under the order to receive the payment resides, may from time to time, on the application of the person so entitled or of the putative father, by order vary the existing order by increasing the amount payable thereunder to such a sum not exceeding thirty shillings a week or by reducing the said amount as the court having regard to all the circumstances of the case thinks proper."

It would appear that it is only when the original Affiliation Order for the maintenance of illegitimate children is made that a Magistrate may direct that the payments shall continue until the child attains the age of sixteen years, instead of merely until the child attains the age of thirteen years as is otherwise the case under the express provisions of Section 8. There appear to be no other provisions in the Ordinance whereby the Order may be amended by extending its duration until the child has attained the age of sixteen years.

Quite apart from this, however, it is clear from the wording of the Application for Variation of this maintenance Order dated 23rd September, 1964, that all that was sought by the complainant was an increase in the amount payable in respect of each child. No application was made to the Court to extend the duration of the original Maintenance Order. Whilst it was perfectly proper for the learned trial Magistrate to hear the Application to Vary in the absence of the Defendant, because he had been served with a copy of the application, matters of which the Defendant-Appellant had been given no notice should not have been dealt with in his absence. The Defendant-Appellant had not been given any notice that the duration of the Order of Maintenance might be extended from the time when the children would attain the age of thirteen years until they reached the age of sixteen years. It was not, therefore, appropriate that any Order in this respect should have been made against the Defendant in his absence.

For these reasons the appeal must be allowed. The Order made by the Magistrate on the 11th December, 1964, that the Defendant-Appellant pay the sum of £1 per week for each child until the child reaches the age of sixteen years is amended by deleting the words therefrom -"until the child reaches the age of 16 years".

I observe that the child Lily, attained the age of thirteen years on the 8th January, 1966. In accordance with the provisions of Section 8 of the Bastardy Ordinance the Order in respect of the child Lily ceased to be of any force or validity after the 8th January, 1966, except for the purpose of recovering money then due under such Order. The Order in respect of the child Joseph amounting to £1 per week with effect from 11th December, 1964, will continue in force until he attains the age of 13 years, namely 2nd January, 1969, unless otherwise varied in the meantime.

Appeal allowed - Order of Magistrate varied.