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Magistrates Court of Fiji |
IN THE MAGISTRATES COURT AT NASINU
DVRO Case Nos. 266/12 and 364/2012
Family Court Case No: 12/NAS/354
L N
[Applicant]
- v -
S N
[Respondent]
Ms. Talei Kean (Legal Aid) appeared for the Applicant
The Respondent appeared in person
Ruling on Final Orders of DVRO and Maintenance
1] The Applicant filed this DVRO application against the respondent. She also filed form 5 Application for children's maintenance. On 02nd May 2013 DRVO application was listed for hearing. The Maintenance is listed for mention for fix a hearing date as hearing was vacated earlier on the application of the Applicant's counsel. By agreement, both cases were taken for hearing and evidence was led with regards to DVROs and Maintenance. With regards to DVRO, Being satisfied, the court granted following interim orders against the respondent.
2] These orders were served and the respondent filed Mitigating factors towards the DVRO (response) against these orders with documents. I am mindful of those facts.
3] The Respondent filed another DVRO against the applicant {364/2012}. In that he mentioned that the applicant filed first DVRO and now they have separated but the applicant swore at him, threw stones to his house and damaged louvers. To reduce the violence the court ordered following interim orders against the applicant.
4] The Applicant also filed form 5, separate case in the Nasinu Family Court for maintenance. In that she is claiming $100 per week as her husband chases her out of the house. This is a spousal maintenance application, in her application part F, she informs her weekly expenditure is $115. She then filed another form 5 for two children Marika and Mere as they return to school. In that she mentioned $827 expenditures ($105 for her and $722 for the children) weekly.
5] The respondent filed form 6 to the respective maintenance applications. In that Respondent seeks;
6] By consent these all files were taken for hearing on 02nd May 2013. The applicant gave evidence on oath first. In her evidence she said she got 6 children from this marriage. On 26th June 2012, the respondent went to Lautoka; before e went she asked money to support their kids. She is not working. When she went home, the respondent has already gone to Lautoka. She stayed in the house as sister in law informed her. Then, it transpired the respondent has gone not for work he had gone for his de facto's birth day. She said "He went to Lautoka he told the kids he's going under work, he's going to work in Lautoka. Before he left for Lautoka I went to him and I told him if you could give me some money to support me and the kids. To support me since I am not working. He told me after 1 week to come back to him. When I went on Friday the kids told met that he has left for Lautoka for work. They ask me to stay for a weekend. When I was staying with them the my sister in law called informing me not to leave the house because that is my marriage house. The reason because he didn't go to Lautoka for work but he went to see his to see the de facto's for her birthday" . The applicant said over this incident she was assaulted in a 4 x 2 timber and admitted to Army Camp Hospital. She said that his de facto's name is Wainikiti. She was chased out of the house. She told "he took a timber wooden timber 4 x 2 and then he hit me on the back. Hit me on the leg in the presence of my daughter -Seini.. I was admitted at the Army Camp Hospital. The witness gave evidence in detail how domestic violence had been done on her by the Respondent. She she was chased two kids Seini and Marika followed her. She said "He chased me today and the next day the 2 kids ran away. They stayed with me until the beginning of school term. I told them I am unemployed. It's better for you to go back to your dad because he is working and he is employed and he can support you." But she said "After 2 weeks the kids came back to me. They told me they didn't want to stay with their dad". The applicant said "25 years of marriage we have been together the hardship that I have faced with him stays within me. My children know what I go through each day." The title of the house tendered as AEX-1 and tile of the house where their names are both print. The Applicant said the Eparama is just a friend, he doesn't reside with them. She said that 4 to 5 months the respondent wasn't paying maintenance Eparama comes and gives money to her children to support. The Applicant said that the respondent lives with the d facto in their marital house. Therefore the applicant claims child maintenance claim and a spousal maintenance. She said she earns $40 per day by selling achaar, roti curry ane. The Applicant said the Respondent earned $749 per fortnight while they were living together. The applicant said she is having hardships at this moment she has been supported by other people and the respondent pays only $100 per week as urgent monetary reliefs.
7] The Respondent cross examined the applicant at length. The applicant said he did not know Mr. Mataitoga who works at PWD. The applicant said allegation for violation of DVRO orders "I went to his workplace to see his boss because the money hasn't been deducted for nearly a month. I went there he wasn't there. They called him and he said he is in Tamavua Hospital". E N doesn't come and stay with them in the house. He comes around and he goes. The respondent told the children not to come to the applicant because she does not have a house. The respondent suggested the applicant drinks yaqona and does night clubbing. But the applicant denied those allegations.
8] The Applicant called her daughter S N: She said she stays with her mother, the applicant. It is 1½ years. Before that she stayed in Kinoya with her father and with your other brothers and sisters. When they lived as a family in Kinoya there were incidences at home that cause your parents to fight most of the time. She did not have idea why they fought. She witnessed that the father tried to attack physically at her mother. She said in 2010 he assaulted mum and he dragged her outside of the house. The reason being is that because father doesn't want mum to be inside the house. Last year when he came back from Lautoka he assaulted mum with a wood, 4 x 4. They did not try to stop the father, they were afraid. Mother reported matter to the police station. She was chased out. After one month, they went back to mother's place. The witness said that she too was chased out of the house. There was no de facto was staying with the mother. The witness said she attends tertiary education and other 2 siblings are too schooling at Assemblies of God, sister in Form 4 and the brother is in Form 3. They live at auntie's house. Mother supports them to go to school. She said, she is 21 years old and she wants to complete her education and get a job.
9] In cross examination the child said that 19½ years she has been living with her auntie. Her mother is good a lot. She said "I know her. I know her a lot." She said the respondent was a good father from the time before all the problems started. She said the problem started "Because mum suspected him having extra marital affairs. I think that's just transpired very shortly few months ago." The child said she got to know that father is having extra marital affairs from her aunties. She said she did not pass form 6.
10] Then, the Respondent, S N, gave sworn evidence. In that he mentioned that he has lived 25 years with Loruama., the applicant. The respondent started "The whole 25 years was the most horrible time of my life living with a woman I thought would be a good partner but it was otherwise. I have never lived with a woman or I stayed with her. My life is different from any other life because the boss was to give me orders to follow and for that reason I have no choice. I have to live with her. When the bosses tell me you go back to her I'll have to go back to her. I have no choice." . He married her in 1986, when she was pregnant. He said "The whole years of my life with her she has never prepared a breakfast for me as a Soldier to go to work. A cup of tea." The respondent explained his role and work commitment in the Army and hardship of his marriage life. The witness said his work is stressful and he has to go around the country then she started allegation in June 2012. The Respondent explained how the incident happened. He said "I came on Tuesday. When I came on Tuesday the incident happened as she said. It happened because she made the allegations. I hit her. It's true I hit her. And I have a bound over sentence on that – 1 year. Was bound over 1 year by the Court. It happened because she used some vulgar words. It was not good to tell in front of the children the words she said. She told these words in front of the children. At the same time I hit her. It was not my intention to harm her, it was not." The respondent told the behavior of the applicant that "She sometimes cheats us. She cheats us. I gave her money to pay my son's school fees. She used half and the rest she use for my son's school fees. She's hungry for money, always. I used to give money to her. My bank card. I used to give bank card to her. I only put to a stop when I notice that the money the card was with one money lender which I don't want....Even the money for the children she buys things for her only not for us". He said the children were staying with him and the applicant took them. The school was just walking distance from the respondent's house.
11] Then, the respondent was cross examined. He admitted the assault on 26th June 2012, because the applicant swore at him. He said
the daughter saw the incident. He admitted that they have been counseled by Talatala (Pastor). This was before the assault.
He admitted that there were many other incidences prior to this assault. Children have been raised by her sister and not by the applicant.
Though he had horrible 25 years of marriage, he did not file divorce application. The applicant suggested the marriage was not so
bad that's why he did not leave the applicant. But the respondent said that it was bad but the Military he doesn't allow him to leave
her. He had no choice. The applicant suggested that everything was alright until this matter of extra marital affairs by the respondent
that's where the problem started. But he denied. The respondent said that he supported his children. He said "it is lack of her support not my support. My support was always there. Because I bought a house for her. I bought everything. A woman
wants I have it there for her. Even a garden for her she will want to go away". He admitted that the house was under both parties' name. The respondent said "I told her to go, I did not chase. I told her to go and look for another better husband". He said he did not invite her to come back because this is 8th time. The Respondent said he got DVRO against the applicant as she
threw stones to his house and his computer got damaged. He said "I am bringing this DVRO to put it against her because she was coming to me but it doesn't stop me coming to her. It only stops me
coming to her, 100 meters away but it doesn't stop her to come to me. The DVRO doesn't say. That's why I applied for this DVRO".
He said he put a rule in the house whereby they have to be home by 9pm, but it does not apply to him as he works late hours. Otherwise
he usually will be at home. He admitted according to form 6 part C his income is $1234 from Army and he also gets $52.45 from interest
dividend of tax fund and total is $1286.45 per fortnight. This is the gross income and he pays for FNPF, Nasinu Town Council, Water
Authority, Housing Authority and he is paying maintenance for her $100 per week. The respondent said this $100 is enough for children
and the applicant as she is supported by her partner. The Respondent said "To support my children if they are with me. If they are with me yes. To support my children if they are with me, yes. I cannot support
the children if they are away from me." . The applicant's counsel questioned being a Methodist Christian that he made an Affirmation today. The reply was "Why didn't you make a oath? It's my choice Sir. You didn't touch the Bible today? No I just want to use the Bible as to give evidence
on the Bible Sir. Because whatever I am going to say in Court Sir is the truth and nothing else. Yes anything to say."
12] Thereafter, parties have closed their respective cases.
13] This is dispute between husband and wife. There are 6 children some of them are grown up adults. In this matter there are two main cases. That is two DVROs and one children and spousal maintenance. I firstly consider law on domestic violence briefly.
14] The Domestic Violence is a law for protect vulnerable who are in domestic relationship. To get a domestic violence, there should be a violence or imminent violence and domestic relationship. Section 3(1) gives the Definition of Domestic Violence, that is;
"3. (1) "Domestic Violence" in relation to any person means violence against that person ("the victim") committed, directed or undertaken by a person ("The perpetrator") with whom the victim is, or has been, in a family or domestic relationship.
(2) In relation to subsection (1), "violence" means any of the following:
(a) Physically injury or threatening physical injury'
(b) Sexual abuse or threatened sexual abuse;
(c) Damaging or threatening to damage property of a victim;
(d) Threatening or intimidating or harassing;
(e) Persistently behaving in an abusive, cruel, inhumane, degrading, provocative or offensive manner;
(f) Causing the victim apprehension or fear by;
(g) Following the victim; or
(h) Loitering outside a workplace or other place frequented by the victim, or
(i) Entering or interfering with a home or place occupied by the victim, or
(j) Interfering with property of the victim; or
(k) Keeping the victim under surveillance;
(l) Causing or allowing a child to see or hear any of the violence referred to in paragraphs (a) to (f) inclusive;
(m) Causing another person to do any of the acts referred to in paragraphs (a) to (g) inclusive towards the victim."
15] The Decree also gives Grounds for making a domestic violence restraining order in section 23. Those are;
"23. –(1) A Court may make a domestic violence restraining order for the safety and wellbeing of a person if satisfied that the person is, or has been, in a family or domestic relationship with the Respondent, and-
(a) The Respondent has committed, is committing, or is likely to commit domestic violence against that person or against another person relevant to the application, and
(b) The making of the order is necessary for the safety and wellbeing of the person or another person relevant to the application, or both."
16] Unlike Criminal cases, the Standard of Proof is balance of probabilities. Section 46 confirms it. It says;
"46.-(1) Subject to subsection (2), every question of fact arising in any proceedings under this Decree must be decided on the balance of probabilities.
(2) Subsection (1) does not apply to criminal proceedings for the offence under section 77 of breach of a domestic violence restraining order."
17] In Miller v. Minister of Pensions 1947 2 All E.R. 372 Lord Denning said the standard of proof regarding balance of probabilities as;
"That degree is well settled. It must carry a reasonable degree of probability, not so high as is required in a criminal case. If the evidence is such that the tribunal can say: 'we think it more probable than not', the burden is discharged, but if the probabilities are equal it is not."
18] Parties have filed their response and had given evidence before this court. I consider in whole. The Applicant filed DVRO against the respondent over an assault. The assault took place on 26th June 2012. The respondent admitted that he assaulted the applicant. This was further proved by child's evidence. When assault confronted to the respondent, he did not want to elaborate it. However, the physical violence is proved in this case by admission of the respondent. As the respondent agreed, that the respondent was charged, convicted and sentenced. The respondent said that he had 25 years bitter marriage. But he did not apply for divorce and reason being that the Army did not allow them to fall apart. Ironically, the respondent claims that his work superiors force him not to leave the marriage. Parties themselves have been to counselling. Domestic Violence permanent order can be made when the violence occurred. In this case, it is proved physical violence was done on the applicant and she was hospitalised. The applicant proved her domestic violence case in balance of probabilities.
19] The respondent too obtained DVROs against the applicant. He merely said because he was put on DVROs, to be on the safe side he obtained this. He said the applicant always comes to him and grumbles. His house was stoned and computer was damaged. It is seen this factor was not contested by the applicant. She says there is no one to support when she needs money she approached him or goes to his work place. Therefore, apparent breach of violence is there. I consider, it is fair to grant non molestation order against the applicant as well to keep the peace.
20] The Applicant seeks spousal maintenance and children maintenance. At the moment, the respondent is paying $100 per week as urgent monetary relief. The respondent claims the applicant is having extra marital affairs with Eparama Navainivalu. She admits the Eparama Navainivalu comes around, supports them, but he did not stay with her. In her evidence, it is proved that she can earn herself by selling foods and vegetables.
21] The Spousal maintenance liability creates under Section 155 of the Family Law Act 2003 which states that:-
"155. A party to a marriage is liable to maintain the other party, to the extent that the first-mentioned party if reasonably able to do so, if, and only if, that other party is unable to support herself or himself adequately, whether.
(a) By reason of having the care and control of a child of the marriage who has not attained the age of 18 years:
(b) By reason of age or physical or mental capacity for appropriate gainful employment or (emphasis mine)
(c) For any other adequate reason.
Having regard to any relevant matter referred to in Section 157".
22] Section 157 illustrates the matters to be taken into consideration in relation to spousal maintenance.
157. in exercising jurisdiction under Section 155, the Court may take into account only the following matters:-
(a) The age and state of health of each of the parties;
(b) The income, property and financial resources (including any interest in leasehold or real estate which is inalienable) of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
(c) Where wither party has the care or control of a child of the marriage who had not attained the age of 18 years;
(d) Commitments of each of the parties that are necessary to enable the party to support-
(i) Himself or herself; and
(ii) A child or another person that the party has a duty to maintain;
(e) The responsibilities of either party to support any other person;
(f) The eligibility of either party for a pension, allowance or benefit under.
(i) Any law of Fiji Islands or of another country; or
(ii) Any superannuation fund or scheme, whether the fund or scheme was authorized or operates within or outside of the Fiji Islands.
(g) The rate of any such pension, allowance or benefit being paid to either party;
(h) A standard of living that in all circumstances is reasonable;
(i) The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earnings capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
(j) The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity property and financial resources of the other party;
(k) The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
(l) If either party is cohabitating with another person, the financial circumstances relating to the cohabitation;
(m) The terms of any order made or proposed to be made under Section 161 in relation to the property of the parties".
23] It is seen that issue of liability in the sense that the liability of one spouse to maintain the other arises as soon as the parties enter into a marriage. To qualify for spousal maintenance;
24] In RH-v- NN Fiji Family High Court Appeal Case Number 10/LBS/001, delivered on 20th January 2012, Her Ladyship Madam Justice Anjala Wati clearly enunciated above position as;
"There is no evidence to suggest that the wife qualifies for spousal maintenance under s 155 of the FLA. Since the wife was unemployed at the time of the hearing and had 2 children of the marriage under 18 years, the Magistrate assumed that she was entitled to maintenance. That assumption was wrong in law as there has to be evidence by the wife to meet the statutory test for her to qualify for an order for spousal maintenance. " ( Emphasis added)
25] In this case, the applicant can support herself, therefore the applicant did not satisfy the court that she meets the statutory test. I therefore dismiss the spousal maintenance application.
26] The next question is the children maintenance. She seeks child maintenance for Marika and Mere. In her form 5 application the applicant asked $722 per week including education expenses and fees. The respondent asked the child maintenance application be cancelled and children to be returned and come back to him then he will fully support them. Otherwise he did not want to maintain them.
27]I would like to deal children's maintenance now. The applicant filed for form 5 application and asked maintenance. Pertinent section is section 86. It defined the primary duty of the parents. Section 86 of the Family Law Act 2003 says;
"The parents of a child have, subject to this Division, the primary duty to maintain the child.
(2) Without limiting subsection (1), the duty of a parent to maintain a child-
(a) is not of lower priority than the duty of the parent to maintain any other child or another person;
(b) has priority over all commitments of the parent other than commitments necessary to enable the parent to support-
(i) himself or herself; or
(ii) any other child or another person that the parent has a duty to maintain; and
(c) is not affected by the duty of any other person to maintain the child. (Emphasis added)"
28] Thus, above all other commitments the Respondent has prime duty to maintain his children and he has liability to pay maintenance to the applicant. The respondent is willing to support them, but he needs the custody and full control of them. At final stage the court called Home Environment Report. The welfare officer confirmed that the children are schooling. The applicant stays with 11 members with her cousin's family. But according to the AEX-1, title report, the applicant is a joint owner of said property, but she has no say to it.
29] The Welfare Officer recommends;
"Respondent is involved in another relationship which the children did not accept as this caused the respondent to lose focus on providing for the children.
It would be acceptable if the children are placed with the applicant as they felt much safer with her"
30] The Welfare Officer notes that marriage had been broken due to extra marital affairs of the respondent. The children are at the ages of 13 and 15 and they need to be educated and supported. As I note parents have shared responsibility. Thus, the respondent cannot escape his legal responsibility to maintain his own children.
31] Sections 90 and 91 of the Family Law envisage the matters to be taken into account when maintenance payment is ordered. I reproduced those for clarity.
"90.-(1) In considering the financial support necessary for the maintenance of a child, the court must take into account the following (and no other) matters-
(a) the matters mentioned in section 91;
(b) the proper needs of the child;
(c) the income, earning capacity, property and financial resources of the child.
(2) In taking into account the proper needs of the child the court-
(a) must have regard to-
(i) the age of the child;
(ii) the manner in which the child is being, and in which the parents expect the child to be, educated or trained; and
(iii) any special needs of the child; and
(b) may have regard, to the extent to which the court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.
(3) In taking into account the income, earning capacity, property and financial resources of the child, the court must-
(a) have regard to the capacity of the child to earn or derive income, including any assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and
(b) disregard the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the court considers it appropriate to have regard to them.
(4) Subsection (2) and (3) do not limit the matters to which the court may have regard in taking into account the matters referred to in subsection (1).
32] Matters to be taken into account in determining contributions that should be made by party are;
91.-(1) In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the court must take into account the following (and no other) matters-
(a) the matters mentioned in section 90;
(b) the income, earning capacity, property and financial resources of the party or each of the parties;
(c) the commitments of the party, or each of the parties, that are necessary to enable the party to support-
(i) himself or herself; or
(ii) any other child or another person that the person has a duty to maintain;
(e) the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child;
(f) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person."
32] The Respondent in his form 6, response part C states weekly income as $1363. He said that he is having other commitments. However, he failed to produced his salary slip and prove his commitments. The respondent is a warrant officer of Army and he has capacity to earn. The Respondent total expenditures are $696.60 according to his response, part F. Therefore the court has to make general assessment.
33] Considering facts before me, I make following final Orders;
a) Interim DVR order No 1, standard non molestation order against the Respondent is hereby made permanent.
b) All other interim DVROs are hereby discharged (Including urgent monetary relief). Parties are advised to go family counseling forthwith.
c) Standard non molestation Order is granted against the Applicant (Counter order) to keep the peace and protected persons are the family of the Respondent.
d) The Respondent shall pay $100 per week as children maintenance. Maintenance to be deducted from the salary and employer to be informed forthwith by the Senior Court Officer.
e) The Respondent should pay all educational fees, stationeries and clothing to the school going children (Marika and Mere)
f) As there is no custody application, based on Welfare Officer's Report, Interim Custody of the children is grated to the Applicant mother.
g) The Applicant may file property settlement application for house and marital property. (if need be)
h) Breach of Domestic Violence Restraining Order or Interim Order is guilty of a criminal offence and is liable on conviction to a fine of $1,000 and a term of imprisonment of 12 months (Section 77 of Domestic Violence Decree 2009).
There is no statutory right to bail for this offence.
i) No cost in this application.
j) Orders with effect from today.
k) 30 days to appeal
Orders accordingly,
On this date 11th July 2013 at Nasinu, Fiji Islands
Sumudu Premachandra [Mr.]
Resident Magistrate-Nasinu
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