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NP v MA [2015] FJMC 152; File No 0578 of 2005 (23 July 2015)

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

FILE No: 0578 of 2005

BETWEEN:

NP

Applicant

AND:

MA

Respondent

___________________________________________________________________________
APPEARANCES/REPRESENTATIONS

The Applicants- Ms Prakash S.

The Respondent- Present in person
___________________________________________________________________________

JUDGMENT OF THE COURT

BACKGROUND FACTS

1. The Applicant man filed a Form 5 Application dated 05, August 2014 seeking child maintenance Orders of $30 per week dated on the 15^th February 2007 to cease for the children namely NAP a male born on 13^th October 1992 and BSP a female born on 07^th June 1995.
   
2. The Respondent was duly served and the Respondent lady filed her Form 6 Response on the respondent in her Form 6 states that she is disagreeing with the application to cease the child maintenance orders.
   
3. The matter was set for Hearing on the 26, March 2015.
   
4. By consent, parties agreed to cease maintenance of NAP a male born on 13^th October 1992.

ISSUE

5. Whether the child maintenance should be ceased as sought by the Applicant? (Or to continue as sought by the respondent?)

THE EVIDENCE

Applicant’s Evidence

• The Applicant man in his evidence stated that he wished for the maintenance order for BSP to cease as she was born on 7^th June 1995 and is now over 18 years of age.
• He stated that he does not have a fixed income but roughly earns $150 to $200 per week.
• The Man gave evidence to the effect that he has now resettled in his second marriage and has been living with his current partner for approximately 15 years. He also has three children (aged 14, 10 and 3 years respectively) from his current partner.
• The Applicant man has stated that two of his children go to school and he has to cater for their expenses and he spends roughly $100 per week to cater for his family's expenses. In addition, he stated that his wife works with him and helps him out.
• The man disagreed in examination in chief that the child in question, BSP needs his support in the form of child maintenance for her tertiary education needs. In contrast, he stated that he does not agree to pay for child maintenance as BSP is working and she can pay for her own expenses.
  

Cross Examination

• The Applicant man in cross examination acknowledged that the child is attending the University of the South Pacific and her education at the University is costly.
• He agreed that apart from tuition fees, she would have been incurring expenses relating to her printing, photocopying, internet, meals and bus fare.
• The Applicant man also conceded on the basis that as the child's father he has a responsibility towards her education.
• However, the men stated that the child could have opted to study and pursue her education at some other institute which was cheaper.
• The Applicant man attempted to explain his view that since the child is working at "PNS" Supermarket she is in a position to support her education and does not require his contribution of child maintenance.
• The Applicant man acknowledged that if he pays child maintenance for BSP it would become easier for her as her educational expenses could be taken care of. However, he maintained that he has his own family and that the child can look after her expenses as she is working.
• The man did not have a pay slip or any documentation to substantiate that his income is $150.00 to $200.00 per week.
• The man did not have any documentation to justify his expenses.
• There was no evidence produced in relation to the man's assets except the assets disclosed in his Form 5 Application.
  

Re-Examination

• The man confirmed to his Counsel that there has been no application for continuation of child maintenance by the Respondent lady or the child.
• The Applicant man confirmed that he would have difficulties in supporting BSP with her educational expenses.

Respondent’s Evidence

Examination in Chief

• The Applicant lady stated that she caters expenses in relation to the child's food and bus fare from her social welfare allowance which is $70.00 per month. However, she stated that the $70.00 which she gets from Social Welfare per month is not enough for her to cater for herself and the child's expenses.
  
• She stated that she has expenses which are hefty when balanced out with the income she gets. She stated that her $25.00 per month in rent together with Electricity Bill, Water Bills, groceries and rubbish collection facilities accumulate to an amount which is hefty for her. This is mainly because she does not work but simply relies on Social Welfare grant
  ($70.00 per month) and food voucher ($50.00 per month).
  
• She stated that if the man pays child maintenance for the child, it will make things a lot easier for the child as her educational expenses will be taken care off.
  
• The lady confirmed that the child works part time at "PNS" Supermarket. However, she stated that the child only works to support herself with educational expenses. For instance, BSP has purchased a laptop from Courts Fiji on hire purchase so that she can complete her school tasks and assignments.
  
• The lady stated in evidence that if the BSP did not purchase a laptop then she would have to stay late or possibly overnight at the University to complete her school tasks and assignments.
  
• She further stated that her son who is working only gives her money sometimes as he does not earn much and has to cater for his own expenses.
  

Cross Examination

• The Respondent lady confirmed that she has not filed any Form 5 application for Continuation of Child maintenance in support of BSP. (The main reason for this is that the man had promptly filed a Form 5 application for Cessation of Child Maintenance and if the lady was to file for Continuation of Child Maintenance this would have resulted in two Form 5 applications being on record. The Family Court registry had directed the lady that the Form 5 filed by the man was filed first and must be dealt with before any other Form 5 Application can be filed).
  
• The lady acknowledged that the man has his own family and has to cater for his own family as well.
  
• The lady confirmed that the son sometimes gives her money and that is the only support she gets.
  
• The lady maintained her position that BSP cannot solely look after her educational expenses even though she works at "PNS" Supermarket.
  
• She agreed that BSP's decision to attend the University of the South Pacific was her own decision.
  

Re-Examination

• The lady confirmed that her son supports her by giving her money sometimes but he doesn't get a lot of money that he can support her. She confirmed that her son gets about $150 per week and he takes care of his expenses such as bus fare and that he is saving for his future.
  • The lady confirmed BSP being over 18 years of age but confirmed that she needs support financial for her education from the man.
• She confirmed that man has his own three children to support. However, she stated that if the man supports BSP for her education than she would not be forced to work and will not face financial pressure in relation to her educational expenses.
  

Evidence of BSP (in support of the Respondent Lady's Case)

Examination in Chief of BSP

• The witness confirmed that she is a student and a part-time cashier at "PNS" supermarket.
  
• The witness confirmed that she is currently 19 years old and attending the University of the South Pacific.
  
• She stated that she is currently enrolled in four (4) units and these are both on campus mode and online/distance flexible learning mode.
  
• She stated that her tuition is paid for through a student loan which she has to repay after graduation when she finds a job for herself.
  
• She confirmed that apart from tuition fees, there are other educational expenses such as bus fare, printing and internet costs, and lunch and meal money.
  
• She stated that she has bought a laptop from Courts Fiji for her studies. If she did not purchase a laptop then she would have to stay back at the University to complete her assignments (typing her assignments). In addition, she stated that she pays $85.00 per week as repayments.
  
• She has stated that she does the repayments for the laptop and that is the reason why she has to work. If she does not work then she cannot do repayments of cater for some of her educational expenses.
  
• She stated that sometimes she makes up for her shortfalls by asking the Respondent lady for money. The Respondent lady gives her money when she has money on her; when she does not have money, BSP has to go without things.
  
• She stated that the Respondent lady catered for her bus fare (at $3.00 daily) up until second week of December 2014 (this was until she was attending USP last semester before the holidays).
  
• She stated that because she works, she cannot fully dedicate her time to her studies and attending classes at the University. As a result, she sometimes has to miss classes.
  
• She also mentioned that because she is facing pressure due to doing four (4) courses and also has to do her job; she was contemplating leaving her job. However, the only thing stopping her from leaving her job is that she has to make repayments at $85.00 per week towards the laptop she
  purchased.
  
• She stated that if her father pays maintenance for her educational needs, this will indeed make things easier for her as she could leave work and fully concentrate on her studies.

Cross Examination of BSP

• The witness confirmed that she is currently enrolled in four (4) courses.
  
• She confirmed that these courses requires her to attend classes even though two of the courses can be done online or from distance flexible learning mode. She stated that some sessions of classes for these courses require mandatory attendance so she cannot do online or home
  study.
  
• She agreed that she is above 18 but stated that she cannot solely meet her educational expenses on her own and that is the reason why she needs financial assistance from the Applicant man.
  
• She confirmed that she is aware that the Applicant man has his own family.
  
• She also agreed that there is no application by her mother (the Respondent lady) or herself for continuation of child maintenance.
  
• When she was asked that she could do online or home study to minimize some of her educational costs such as bus fare, she efficiently explained that not all courses in her program of study are available on online or distance learning mode each semester. She further explained that she has to complete all the course requirements in a set term as the tuition fees are only covered for a set term (i. e she has to complete studies in 4 years or tuition after 4th year would not be paid). She explained why it is essential for her to study four courses per semester like she is doing at present.

Re-Examination of BSP

• She confirmed that the term of her loan is 4 years and she has to complete all her courses in the 4 years or else her loan scheme does not cover her tuition after the 4 year period.
  
• She confirmed that apart from tuition fees, studying at the University is costly as she requires other things.
  
  • She confirmed that she has shortfalls and she has to ask the Respondent lady for money to make up for the shortfalls. She mentioned that her mother can only give money if she has money on her (as the lady is not in employment).
    
  • She stated that she supports herself from her wages and tries to cover her own educational expenses but sometimes it becomes hard to manage finances as things are expensive.
    

Upon the Court's request to clarify some issues- the Respondent and BSP gave the following evidence:

• The respondent has been receiving maintenance of approximately $37.50. (Applicant man used to pay $75.00 per fortnight as maintenance arrears.
  
• Her mother gave her $3.00 daily for her bus fare until second week of December last year (when her studying semester finished).
  
• Her mother is not giving her money on a daily basis now as she has started working and her mother cannot work due to her medical issue with her hands (medical report was tendered in Court to substantiate the same as per Court's request). She also stated that her mother is 46 years of age.
  
• When her father used to pay maintenance, her mother sometimes used that money for household expenses (which included her expenses such as food). She stated she did not fuss with her mother about this because her mother was already doing a lot for her.

THE LAW

6. The Applicant made this application for educational purposes pursuant to Section 92 (1) (a) of the Family Law Act 2003 of Fiji.

Children who are aged 18 or over

92.-(1) A court must not make a child maintenance order in relation to a child who is aged 18 or over unless the court is satisfied that the provision of the maintenance is necessary-

(a) to enable the child to complete his or her education; or

(b...

(2) A court must not make a child maintenance order in relation to a child that extends beyond the day on which the child will turn 18 unless the court is satisfied that the provision of the maintenance beyond that day is necessary-

(a) to enable the child to complete his or her education; or

(b) ....

7. The Court also considered sec 97 of FLA provides the factors that a court has to consider discharge, suspend, revive, increase, decrease or vary a maintenance order which is in force. It is clear that some of the provisions are discretionary while some of the provisions are mandatory.
   
8. The Court also noted the provisions governing the modification of child maintenance orders is outlined in Division 7 of the Family Law Act No. 18 of 2003 and in particular Sections 97 (1), (2), (3) (c) (i), (ii), (iii) (b) (c) (d) and 5.
   
9. The Court also consider below mention sections for clarity.

Power of the Court

89.-(1) in proceedings for a child maintenance order, the court may, subject to this Division, make any child maintenance order it thinks proper. (2) The court must, in accordance with the following sections-

(a) consider the financial support necessary for the maintenance of the child; and

(b) determine the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of the child that should be made by a party, or by parties, to the proceedings.

Considering what financial support necessary

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).

Matters to be taken into account in determining contributions that should be made by party etc.

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.

(2) In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing, income. (3) In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, the court must have regard to the income and earning capacity foregone by the parent or other person in providing that care. (4....

(5) In determining the financial contribution, or respective financial contributions, that should be made by a party, or by parties, to the proceedings, the court must consider the capacity of the party, or each of those parties, to provide maintenance by way of periodic payments before considering the capacity of the party, or each of those parties, to provide maintenance-

(a) by way of lump sum payment;

(b) by way of transfer or settlement of property; or

(c) in any other way.

(6) Subsections (2) to (5) do not limit the matters to which the court may have

BRIEF ANALYSIS:

10. Substantiate that BSP is attending tertiary education after she has attained 18 years of age.
    
11. In this matter the applicant rely on the fact that the child is engaged in an employment in a supermarket. The Applicant man attempted to explain his view that since the child is working at "PNS" Supermarket she is in a position to support her education and does not require his contribution of child maintenance.
12. However, the man stated that the child could have opted to study and pursues her education at some other institute which was cheaper than the USP. he maintained that he has his own family and that the child can look after her expenses as she is working. The Applicant man confirmed that he would have difficulties in supporting BSP with her educational expenses. The man has three other children from his second marriage and has to cater for expenses.
    
13. The respondent stated that she receives assistance from social welfare office also from the eldest son which is not enough to cater for the expenses of BSP and that amount is not adequate to meet her necessities.
    
14. It is also a duty of the court taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the Court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for. In this present case, neither party adduced evidence in respect to the property and financial resources.
    
    15. It is prudent to note that the applicant farther assisted BSP to find a job to assist with her studies. She stated that she is currently enrolled in four (4) units and these are
        both on campus mode and online/distance flexible learning mode.
        
    16. It was also revealed that the She stated that her evidence tuition is paid for through a student loan which she has to repay after graduation when she finds a job for herself.Also revealed that the mother used to give her $3.00 per day as bus fare other than feeding her.
        
    17. BSP is earning $123.00 per week by her part time job. It also important to identify that BSP’s study hours 4-6 hours per day. She also confirmed that she learning 3 courses online.( distance learning method)
        
    18. Also stated that the loan utilized for tuition fees and thus the major expense for her studies catered by the loan scheme.
        
    19. The Court also noted that BSP bought a laptop and yet to pay arrears of $599.00 as to the hearing date.
        
    20. For the interest of justice, I wish to consider that there is an order granted on 30, June 2014 ordering the farther to pay $75.00 per fortnight, $37.50 per week towards the maintenance arrears. The farther stated that he is consistent with the payments and the court notes that the total arrears were $5381.00 as to the said date. The respondent mother did not dispute and also there is no any pending committal warrant before this court to suggest otherwise.
        
    21. My concern is, the respondent has been receiving areas payment since July 2014 and yet the child is doing part time work. It was also revealed her mother gave her $3.00 daily for her bus fare until second week of December last year (when her studying semester finished)
        
    22. Now, a question arises as to why the respondent failed to utilize the maintenance arrears for the child’s study related expenses? The other question is whether she will utilize any maintenance moneys, if the court granted an order to continue maintenance payments?
        
    23. On one hand BSP is doing a part time job and so far she managed both, work and studies. Her tuition fees also covered by the loan. On the other hand, BSP also not disputed that her farther does not has a permanent job, and only a self-employed person. The applicant also has 4 dependents including his unemployed wife.
        
    24. In these circumstances’, I am of the view that the child maintained to be ceased as BSP Could manage both her studies and the part time job. I also suggest that to utilize the maintenance arrears (JDS) for BSP’s educational expenses. The respondent also may utilize some money to clear off BSP’s hire purchase arrears. ( Lap Top)
        
    25. I note that the applicant has to pay JDS arrears April 2017 and by this time, BSP could finish her other units. Any failure to pay the mother is at liberty to apply for a committal warrant and as I have noted these arrears also maintenance areas and hence the mother could utilise the same for BSP’s educational expenses to support the young child who is thriving to study hard to achieve a successful future.
        
    26. On the same token, I also suggest that the farther, to give his support by purchasing school related stationary when he is in a position to do so. I also wish to repeat that the above are only suggestions, not orders by the court.
        
    27. Comparing the income, earning capacity of the both parties and the child, I am of the view that the applicant is unable to support the child adequately and the child is reasonably able to support herself.

THEREFORE, I MAKE FOLLOWING ORDERS:

28. The Application for Child maintenance to be ceased forthwith.
    
29. Parties to bear their own costs.
    

30 days to appeal.

LAKSHIKA FERNANDO

RESIDENT MAGISTRATE

On this 23^rd day of July 2015