IN THE COURT OF APPEAL
Court of Appeal, Nuku'alofa

AC 09/2010

Sefesi

v

Fukofuka

Burchett, Salmon, and Moore JJ 
6 October 2010; 8 October 2010 

Divorce law – evidence needed for assessment of maintenance – maintenance order set aside – remitted to Supreme Court for assessment 
Divorce law – custody order made contrary to position in the pleadings – custody order set aside – remitted to Supreme Court 

The appellant was a 40 year old Tongan woman who married the respondent on 21 December 1996. There were three children of the marriage, two girls 13 and 10 years of age and one boy 9 years of age. Both the appellant and respondent were resident in Tonga. The respondent's most recent petition sought a decree on the basis of continuous separation for more than two years immediately preceding the presentation of the petition without both of them maintaining or intending to maintain or renew normal marital relations or cohabitation. Orders were made in the Supreme Court concerning the marriage together with custody and maintenance. The grounds of appeal concerned four principal issues. The first related to the lifting of the restraining order of 8 September 2008. The appellant claimed that his Honour had erred because the restraining order was based on arrears in payments and the respondent's proposal to reside in New Zealand. The appellant claimed that the respondent should be required to pay bond money as security before leaving Tonga. The second issue was whether the trial Judge erred in increasing the maintenance from $140 to $150 a fortnight. The appellant alleged this was insufficient to provide for the children's education. The third issue was whether the primary Judge erred in ordering joint custody of the three children given that the respondent deserted the appellant and lived with a new partner. The fourth issue was whether Section 2(b) of the Maintenance of Deserted Wives Act (Cap 31) was still effective law and whether the primary Judge should have disregarded the appellant's claim for a new dwelling house for her children. The appellant also sought an order requiring payment by the respondent of $988.63, the costs of the first petition which he had been ordered to pay in earlier proceedings in the Supreme Court. 

Held: 

1. No affidavits were filed in accordance with rule 16(4) of the Divorce Rules 2007 setting out the financial circumstances of the appellant and the respondent. There was insufficient material before the trial judge for any sensible assessment to be made about the amount of maintenance that should be paid by the respondent. Evidence needed could include the income of the person against whom the maintenance order was sought, details of what amounts that person might need to live including supporting a new partner (if any) and additional children (if any) and what other sources of income were available to that person (for example, income generated by the new partner). Equally important would be evidence about the financial needs of the person claiming maintenance and any children of the marriage. That would require evidence of the income (if any) of that person together with evidence of living costs of that person and the costs of rearing and educating the children. 

2. The maintenance order made by the trial judge should be set aside and the matter remitted to the Supreme Court for further hearing in which the parties can lead evidence to enable the Court to make a proper assessment of what is an appropriate amount of maintenance (if any) to be paid by the respondent. 

3. The custody order should be set aside and the matter remitted to the Supreme Court. The respective pleadings of the parties made clear there was agreement that the appellant only should have custody. The respondent gave evidence before the trial judge that he wanted custody, but for an issue to arise in that way and for an order to be made in terms contrary to the position agreed in the pleadings, was a procedure not to be encouraged. 

4. The court set aside orders 2 and 4 and remitted the matter for further hearing by the Supreme Court. The court also varied order 1 of the trial judge to provide that the order nisi for dissolution of the marriage not be made absolute unless and until the respondent paid the appellant her costs in FD 31/2008. The respondent should not expect to obtain the benefit of a court order dissolving the marriage when he failed to comply with the earlier order to pay the costs. 

Cases considered: 
'Ahio v Tilikini [2005] Tonga LR 22 
Vaotangi v Vaotangi [2000] Tonga LR 434 

Statutes considered:

Divorce Act (Cap 29) 
Maintenance of Deserted Wives Act (Cap 31) 

Rules considered: 

Divorce Rules 2007 

Counsel for the appellant : Mr Fakahua 
Counsel for the respondent : Mr Fifita 

Judgment 

[1] The appellant has been the respondent's wife. Their marriage has failed and various proceedings have been brought both in the Magistrates' Court and the Supreme Court. This is an appeal from orders of the Supreme Court of 18 June 2010 made in the most recent proceedings which were a petition by the respondent for the dissolution of the marriage. Orders were made concerning the marriage together with custody and maintenance.  

[2] The appellant is a 40 year old Tongan woman who married the respondent on 21 December 1996. There are three children of the marriage, two girls 13 and 10 years of age and one boy 9 years of age. Both the appellant and respondent are presently resident in Tonga. The respondent's most recent petition sought a decree on the basis of continuous separation for more than two years immediately preceding the presentation of the petition without both of them maintaining or intending to maintain or renew normal marital relations or cohabitation: see s 3(1)(f) of the Divorce Act (Cap 29).  

[3] His Honour ordered that the marriage should be dissolved and the decree made absolute, unless sufficient cause was demonstrated within six weeks why this should not occur. A restraining order (preventing the respondent leaving the Kingdom) of 8 September 2008 made by a Magistrate was lifted. An order for maintenance of $140.00 per fortnight made by a Magistrate was increased to $150.00 per fortnight and joint custody of the three children was ordered. The children were to remain with the mother and reasonable access was granted to the father. The father was to have the children to stay for two nights per week.

[4] The grounds of appeal concern four principal issues. The first related to the lifting of the restraining order of 8 September 2008. The appellant claimed that his Honour had erred because the restraining order was based on arrears in payments and the respondent's proposal to reside in New Zealand. The appellant claimed that the respondent should be required to pay bond money as security before leaving Tonga. The second issue was whether the trial Judge erred in increasing the maintenance from $140.00 to $150.00 a fortnight. The appellant alleged this was insufficient to provide for the children's education. The third issue was whether the primary Judge erred in ordering joint custody of the three children given that the respondent deserted the appellant and lived with a new partner. The fourth issue was whether Section 2(b) of the Maintenance of Deserted Wives Act (Cap 31) was still effective law and whether the primary Judge should have disregarded the appellant's claim for a new dwelling house for her children. The appellant also sought in the appeal an order requiring payment by the respondent of $988.63, the costs of the first petition which he had been ordered to pay in earlier proceedings in the Supreme Court.

[5] At this point, it is appropriate to describe the legislative framework in which the rights of the parties before the primary judge should have been determined.  

[6] Section 2 of the Maintenance of Deserted Wives Act provides: 

"It shall be lawful for any married woman who shall have been deserted by her husband, to summon her husband before a Magistrate's Court and thereupon the Court if satisfied that the husband has wilfully refused or neglected to maintain his wife or his wife and children and has deserted his wife may – 

(a) order the husband to pay a weekly sum to his wife or to supply his wife or his wife and children with food, clothing and other necessaries in accordance with his means; and may in addition or as an alternative to such order,  

(b) order the husband to provide accommodation for his wife or his wife and children in accordance with his means; 

(c) order that either the wife or the husband shall have custody of the children; or  

(d) make any other order as in the circumstances of the case may seem just and proper; 

Provided that where the Court has made an order under this section, the Court may on the application of the married woman or of her husband and upon cause being shown upon fresh evidence to the satisfaction of the Court, at any time discharge or vary the order or suspend any provision thereof temporarily and revive the operation of any provision so suspended. In exercising such powers, the Court shall have regard to all the circumstances of the case, including any increase or decrease in the means of either of the parties to the marriage." (Emphasis added) 

[7] Three things should be noted about this Act. The first is that it confers certain powers on the Magistrates Court. It does not confer those powers on the Supreme Court, at least when that Court is exercising original jurisdiction. The second is that it concerns the circumstances of deserted wives. It is legislation enacted for the purpose of empowering the Magistrates Court to make orders to protect a wife who has been deserted and also orders to protect the children of the marriage. Such protective orders include orders to pay maintenance, orders about custody and other orders to deal with the circumstances which can arise when a wife and her children have been deserted by her husband. The Act does not expressly or impliedly concern similar orders which might be made for the benefit of a woman who is divorced from her husband.  

[8] The last thing to mention about this Act is that though it was enacted in 1919 it has been amended several times since and at least as recently as 1992. It is a law of the Kingdom which has full legal effect. It is wrong in principle to describe it as "an old law, a very old law" as the trial judge did, suggesting its antiquity compromised its legal effectiveness. These remarks were made in the context of the primary judge rejecting the appellant's application for an order requiring the respondent to build a house for her and her children. Of course in contemporary circumstances an order might infrequently be made ordering a husband of modest means who has deserted his wife to build her a house (though doubtless a range of orders could be made fitting the description of "providing accommodation") but the antiquity of the law is entirely irrelevant to whether such an order should be made.  

[9] In circumstances where one or both parties to a marriage are petitioning for its dissolution then the Divorce Act is the source of power to make orders in relation to custody, maintenance and other matters where those orders will operate in the period following the dissolution. They are powers conferred on the Supreme Court.  

[10] Under that Act the Court may make "such orders as appear just with respect to the custody, maintenance and education of the children of the family" (s 19 Divorce Act). The term the "children of the family" includes any legitimate children under the age of 18 years who are dependent on the parties to the marriage for their support" (s 2 Divorce Act). Section 18 confers a power to make a range of orders against one party for the maintenance of the other party.  

[11] In the proceedings before the trial judge, the respondent sought, in his petition, three orders. The first was that the marriage be dissolved. The second was that the appellant have custody of the children and he have access during the weekends. The third was that the maintenance order of "$140.00 per pay day" be lifted. In her reply to the petition, the appellant sought that the marriage be dissolved subject to the respondent paying the costs he was ordered to pay in his earlier unsuccessful dissolution petition. The appellant also sought orders that the respondent build and furnish a dwelling house for her and the children, that she have custody of the children and the maintenance she was to be paid, be increased from $140 per fortnight to $140 per week. It appears from the orders sought by each party, that it was common ground that an order should be made giving the appellant custody of the children. All that was in issue was whether the respondent should have access at weekends.

[12] It is unnecessary to describe in detail the evidence before the trial judge or to summarize his reasons which were very brief. It is sufficient to note that no affidavits were filed in accordance with rule 16(4) of the Divorce Rules 2007 setting out the financial circumstances of the appellant and the respondent. The oral evidence at the hearing of their financial circumstances, was extremely superficial and generalized. The trial judge's reasons to increase the maintenance by only $10 per fortnight focussed only on the income of the respondent and involved, it appears, his Honour making a range of assumptions about how much the respondent needed to live on and support his new partner and their three children. These assumptions were made without evidence to support them.

[13] In our opinion, there was insufficient material before the trial judge for any sensible assessment to be made about the amount of maintenance that should be paid by the respondent. Without exhaustively describing what evidence might be needed to undertake the task, it would, in many cases, require the judge to know the income of the person against whom the maintenance order was sought, details of what amounts that person might need to live including supporting a new partner (if any) and additional children (if any) and what other sources of income were available to that person (for example, income generated by the new partner). Equally important would be evidence about the financial needs of the person claiming maintenance and any children of the marriage. That again would require evidence of the income (if any) of that person together with evidence of living costs of that person and the costs of rearing and educating the children.  

[14] The need for evidence of this type was referred to by Ward CJ in Vaotangi v Vaotangi [2000] Tonga LR 434 at 436. It was again referred to by Ward CJ in 'Ahio v Tilikini [2005] Tonga LR 22 at 24. The maintenance order made by the trial judge should be set aside and the matter remitted to the Supreme Court for further hearing in which the parties can lead evidence to enable the Court to make a proper assessment of what is an appropriate amount of maintenance (if any) to be paid by the respondent.  

[15] The same should happen in relation to the custody order. That is, the order should be set aside and the matter be remitted to the Supreme Court. The respective pleadings of the parties made clear there was agreement that the appellant only should have custody. It is true that the respondent gave evidence before the trial judge that he wanted custody. But for an issue to arise in that way and for an order to be made in terms contrary to the position agreed in the pleadings, is a procedure not to be encouraged.  

[16] We should emphasize that we are not suggesting that the parties to a failed marriage should be required to engage in expensive litigation in which significant legal costs are incurred in preparing for trial. In many jurisdictions the emphasis now is on resolving matrimonial disputes by processes which do not involve litigation. Litigation is now seen as a process of last resort. So ideally it would also be in the Kingdom of Tonga. Even if there are not formal mediation services provided by a Court in matrimonial disputes, parties to these disputes should always be encouraged to try and resolve the disputes by discussion and agreement. But if there has to be litigation, it should not be determined arbitrarily. It should be resolved on a principled basis by reference to sufficient material to enable that to occur.  

[17] We propose to set aside orders 2 and 4 of the primary judge and remit the matter for further hearing by the Supreme Court. We so order. We also vary order 1 of the trial judge to provide that the order nisi for dissolution of the marriage not be made absolute unless and until the respondent pays the appellant her costs in FD 31/2008. We so order. A litigant, in this case the respondent, should not expect to obtain the benefit of a court order (dissolving the marriage) when he has failed to comply with an earlier order (to pay the costs).  

[18] We should add that the conclusion reached by the trial judge about the restraining order was correct. In the result, the matter will return to the Supreme Court to resolve issues of custody and maintenance unless the parties reach agreement.  

[19] The appeal is allowed, in part, with costs.