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RVC v NCS [2013] FJMC 341; Family Case 179.2010 (18 July 2013)

IN THE MAGISTRATES COURT AT NASINU

Family Case No. 179/2010

R V C
[Applicant]

-v-

N C S
[Respondent]

Ms. Priya Lal (LAC) for the Applicant
Ms. Talei Kean (LAC) for the Respondent

Ruling on Means Test

1] The Applicant initially filed form 5 application for child maintenance and spousal maintenance.

2] On 16th 06 2010, the court ordered the Respondent to pay interim maintenance at $45 per week.
On 18th August 2010 the parties have reconciled before court and interim order was cancelled.

3] The matter was reinstated on 01st November 2012 and by consent the respondent was ordered to pay $70 per week. ( $20 per each child and $10 for spouse per week).

4] The Respondent accumulated arrears on that order. He admits he has to pay $711.50.

5] On 11th February 2013, the Applicant filed JDS against the Respondent. The JDS amount is $711.50. He agreed the amount but, the Respondent said that he cannot pay maintenance.

6] His means were tested on 16th May 2013. The Respondent gave sworn evidence. In his evidence the Respondent, N C S, said that he is working at Kumar's Earthmoving as a laborer and earns $90 per week. They were not given pay slips. The respondent explained from that he has to pay $150 rent per month. He has to look after his second wife and 2 children. He is paying $20. Earlier he used to work in Chinese company and earned$110 per week. But now he is not doing overtime. He said he can pay $20 and remaining $70 will be kept for his family expenditures.

7] In cross examination he admitted he could do some carpentry works. The Applicant counsel showed that the respondent is lying initially he said that he does not know the $70 order but know he is denying. The court notes it was a consent order and the respondent was present on that date. He said that he is separated and he is giving support for first child of the second wife, but he is not the biological father. He said in the weekend he stays at home. He said he did carpentry works with the applicant's uncle now that they were separated. He said he filed variation application for decrease maintenance.

8] This case the maintenance was increased by consent. But the respondent did not honor the order. The Respondent says that he can only pay $20 per week. He is not working in the weekends. It seems he is skilled person in carpentry. The respondents also maintain his second wife's first child. It is a meritorious thing but he has no legal obligation to do that.

9] The Respondent is the natural father of these children. He has primary duty to maintain these children. I now draw my attention to the Section 86 of the Family Law Act 2003.

"86.- (1) 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. (Underlining is mine)

10] The Respondent did not get any letter from the employer to satisfy his earnings. He did not say that he is a sickly person, therefore he cannot earn money. In evidence, it revealed that the Respondent has capacity to earn. If he has created more obligations and he should work hard and support his both wives. Therefore, I hold the respondent has means to pay this maintenance and he has deliberately neglected to pay the maintenance. I make following orders;

1. The Respondent shall pay JDS arrears within 3 months.
   
2. Maintenance is suspended only for next 3 months. Thereafter the applicant to file fresh JDS.
   
3. If not paid, JDS to be calculated and in default the Respondent to be imprisoned 10days for every $100(One Penalty Unit).
   
4. The Respondent's variation application will be heard in due course.
   

Orders Accordingly.

SUMUDU PREMACHANDRA
RESIDENT MAGISTRATE
18-07-2013

Copies1. Ms. T Kean of LAC.
2. Ms. P.Lal
3. File 2010/NAS/179.