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AKG v AM [2013] FJMC 431; File No 07-SUV-0967 (18 November 2013)

IN THE FAMILY DIVISION OF THE MAGISTRATE’S COURT AT SUVA

FILE No: 07/SUV/0967

BETWEEN:
AKG
Applicant

AND
AM
Respondent

___________________________________________________________________________

Ms. Naidu R (Sherani & Co.) for the Applicant
Respondent absent and unrepresented
Mr. Ajith Karunatilleke for the FNPF
___________________________________________________________________________

DECISION

BACKGROUND

1. The Applicant is seeking an order of the court “to include the Fiji National Provident Fund (FNPF) as a party and for FNPF to comply the court order made on 24^th July 2012” by a way of filing Form 12 and 23 dated 23^rd October 2013 alone with Form 21 and 22. The above mentioned Forms 12 and 23 was served to the Parshotam & Co counselor record for the respondent.
   
2. I note the court order made on 24^th July 2012, which was delivered by learned Resident Magistrate Ms. Makereta Hiagi Mua is as follows;
   

“BEFORE THE RESIDENT MAGISTRATE MS. MAKERETA HIAGI MUA

AT SUVA ON TUESDAY THE 24^TH DAY OF JULY, 2012

UPON READING the form 12 Application and Form 23 filed on 6^th June 2012.

AND UPON HEARING the Counsel for the Applicant/lady and there being no response or appearance by the Respondent/man.

IT IS HEREBY ORDERED:

1. That the Respondent be restrained from withdrawing his FNPF monies until the Contempt application (Form 7) filed on 26^th May 2010 is heard.
2. That the Order is to be served on the other party within 7 days before it is enforced.
3. That the other Orders are refused.
4. The matter has been adjourned to 23^rd August 2012 for mention only.”
   
3. The above stated order was endorsed by Registrar/Conciliator on 05^th September 2012 it appears that, upon perusing the verbal order by the learned sister Resident Magistrate Ms.Makereta Hiagi Mua on 24^th July 2013.
   
4. I also note accordintheo the Form 12 (affidavit) that Judgment was delivered on12^th April 2011 (written) by learned brother Resident Magistrate Mr.Tomasi Bainivalu. Paragraph 14 of the said Judgment states as follows; That;
   

“The Respondent to pay the Applicant lady 30% from sum $48,029.45 as per Respondent’s Fiji National Provident Statement as 29^th April 2009 that is the sum of $14,408.84 and this sum to be paid to the applicant within 6 months from the date of this order.”

5. The Applicant further submitted in the Form 12 (affidavit) that the Respondent sought the said orders to be set aside, but the Court on 6^th May 2013 dismissed the respondent’s man’s application. I note that in the said order learned sister Resident Magistrate Ms. Vandana Lal (Delivered by RM MS Mua H.) has stated in paragraph 34 and 35 that the order that the “Applicant (Respondent in this application) has failed to meet the terms of section 163 requiring to set aside the orders made on 29^th January 2010 and accordingly his application for setting aside the order and re hearing of the substantive application failed. Any order for stay is to be uplifted and court shall now proceed to hear the respondent on his plea on Form 7”
   
6. Thus, it is clear that there is a pending Form 7 against the respondent and it is also appears that the FNPF funds yet be release to set off the property distribution as per Resident Magistrate Mr.Tomasi Bainivalu’s judgment.
   
7. The affidavit also reveals in the paragraph 5 and 6 reads inter alia that on 20^th August 2013 the “matter was listed in court before Resident Magistrate Ms. Mua H. and the court ordered the applicant to file an application joining the FNPF as a party and on 18^th September 2013 learned Resident Magistrate Mr. V.D Sharma noted and directed inter alia that the Applicant at liberty to file an application to join the FNPF as a party.” Subsequently, under such circumstances’ the applicant seek “the FNPF for to include as a party and for FNPF to comply the court order made on 24^th July 2012”
   
8. On 31^st of October 2013 this case was called before me and counselor for the Applicant and the Manager Legal from FNPF appeared before the Court and the Manager Legal consented that the FNPF could appear before the court in future in relation to this matter and expressed the willingness to abide by a Court order. Subsequently, the court adjourned the matter to 14^th November 2013 and directed the Applicant to serve relevant copy of the orders/ judgment to the FNPF.
   
9. On the 14^th November 2013 the applicant’s counselor Ms. Naidu K and Manager Legal from the FNPF appeared before the court and the applicant said that “the FNPF has no issues to release funds and they need an order from the court and sought a court order seeking the “Respondent pay the Applicant lady 30% from sum $48,029.45 as per Respondent’s Fiji National Provident Statement as 29^th April 2009 and to transfer to the lady’s account. The manager legal for the FNPF said that there is no objections to the submission and briefly addressed the court stating sec.136(1) of the FNPF Decree No 52 of 2011 which provides that a FNPF member's fund cannot be directly transferred to , the funds can only be transferred account within the FNPF. In the event of a party to the matrimonial proceedings is not a member, the court can issue an order to the FNPF to admit said party as a member and therefore sought an order from the court
   
10. Then the court did adjourn to15th November 2013 to proceed with the matter. On 15^th Ms. Rakai for the applicant appeared and sought the matter to be stand down enabling the manager legal for FNPF to be present but the court dispensed with the appearance of the FNPF and directed the applicant to submit relevant documents to the senior court officer in order to deliver a decision in writing and then matter was adjourned to 18th November 2013 enabling the officer in carriage of this case (of the applicant) to appear before the court to clarify minor issues and to deliver the ruling in writing.
    
11. This Court carefully perused the order dated 24^th Day Of July, 2012 which was ordered inter alia that the “Respondent be restrained from withdrawing his FNPF monies until the Contempt application (Form 7) filed on 26^th May 2010 is heard.”
    
    12. The court also mindful that the FNPF Decree No 52 of 2011 section 141(2) amended the Section 154 of the Family Law Act 2003by changing the definition of "property" and amongst others substituting the following definition—
        

"'property', of a party, without limiting its definition in section 2, does not include—

1. Amounts standing to the credit of the party's accounts in the Fiji National Provident Fund;”.
   

13. Thus, after the said amendment; FNPF contribution cannot be included or considered as matrimonial property. But this court wish to highlight the fact that the judgment was delivered on 12^th April 2011 and the order delivered on 24^th July 2012was related to the said judgment. On the same token this Court note that the FNPF Decree No 52 of 2011 did come to effect on 25^th November 2011 after the said judgment was delivered.
    
14. I am also mindful of the general principle that this Court is functus officio once it has handed downJudg Judgment. In general terms the dictionary meaning of the concept of functus officio would so suggest that to vato varyward or Judgment means that the same is to undergo some modification or alteration due to t to the introduction or intrusion of some e. But, I may say that, whatever the merits of the applicanlicant's application(form 12 and 23) in these proceedings, I do not consider that the concept of functus officio enters into the matter at all as this Is not an expression apt to describe the position where a court or tribunal revisits a dispute which it has already finally decided. And also this court does not wish to anyhow modify, alter due to the introduction or intrusion of the order which was delivered on 24^th July 2012.

CONCLUSION

15. Considering all these facts and upon reading the form 12 application and form 23 filed on considering the form 12 application and form 23 filed on 23^rd October 2013 and form 21 and 22 filed on 29^th October 2013 and upon hearing the Counsel for the Applicant/lady and there being no response or appearance by the Respondent/ man. I make following orders;
    
    • (a) The Fiji National Provident Fund (FNPF) to be included as a party for these proceedings and the FNPF to comply the court order made on 24^th July 2012. Accordingly, “the Respondent be restrained from withdrawing his FNPF monies until the Contempt application (Form 7) filed on 26^th May 2010 is heard.”
      
    • (b) This Order to be served on the Fiji National Provident Fund alone with a copy of Form 12 and 23 dated 23^rd October 2013 by the Applicant and Affidavit of Service to be filed thereafter.
      
    • (c) The Senior Court Officer to serve a copy of the Order dated 24^th July 2012, a copy of the Judgment delivered on 12^th April 2011 and judgment delivered on 6^th May 2013 to the FNPF for their perusal and necessary action and to file the acknowledgement thereafter.
      
    • (d) This Order to be served on the Respondent also by the Applicant and Affidavit of Service to be filed thereafter.
      
    • (e) The FNPF at liberty to file any legal submissions.
      

Order Accordingly.

30 days to appeal.

LAKSHIKA FERNANDO

RESIDENT MAGISTRATE

Dated at Suva this 18^th day of November 2013