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Kiribati Consolidated Legislation |
LAWS
OF THE GILBERT
ISLANDS
REVISED
EDITION 1977
CHAPTER 53
MAINTENANCE (MISCELLANEOUS PROVISIONS)
ARRANGEMENT OF SECTIONS
Section
PART
I
PRELIMINARY
1. Short
title
PART
II
MAINTENANCE OF
NEGLECTED PERSONS
2. Interpretation of Part
II
3. Power of court to make a
maintenance declaration
4. Power of
court to make a maintenance enforcement
order
5. Penalties for failure to
comply with maintenance enforcement
order
6. Powers of court to discharge
and vary orders
7.
Venue
8. Jurisdiction of courts under
Part II
9. Power to make
regulations
PART
III
ENFORCEMENT OF
CERTAIN MAINTENANCE ORDERS MADE OUTSIDE THE GILBERT ISLANDS
10. Interpretation of Part
III
11. Enforcement of maintenance
orders made in England or Ireland
12.
Transmission of maintenance orders made in the Gilbert
Islands
13. Power to make provisional
orders of maintenance against persons resident in England or
Ireland
14. Power of the court to
confirm maintenance order made in England or
Ireland
15. Power of Governor to make
rules for facilitating communications between
courts
16. Mode of enforcing
order
17. Proof of documents signed by
officers of court
18. Depositions to
be evidence
19.
Procedure
20. Power to extend Part III
to other countries
------------------------------------------
An
Ordinance to provide for the maintenance of neglected persons in the Gilbert
Islands and to facilitate the enforcement in the Gilbert
Islands of maintenance
orders made in England, Ireland and other countries
12 of 1921, 6 of 1929, (Cap. 5 of
1952),
3 of 1959, L.N. 16/72, 3 of 1973, (Cap. 4 of 1973),
7 of 1973 (Cap.
96 of 1973),
10 of 1977, 26 of 1977
Commencement:
Parts I and III-13th December
1921
Part II-1st
November 1973
PART
I
PRELIMINARY
Short
title
1.
This Ordinance may be cited as the Maintenance (Miscellaneous Provisions)
Ordinance.
PART
II
MAINTENANCE OF
NEGLECTED PERSONS
Interpretation
of Part II
2.
In this Part-
"maintenance declaration" means a declaration under section 3;
"maintenance enforcement order" means an order under section 4;
"order" means a maintenance declaration, a maintenance enforcement order or an order under section 6.
Power
of court to make a maintenance
declaration
3.
(1) A court may on application by or on behalf of any person make a declaration
that another person or other persons shall be liable
to maintain that person
where it is satisfied that there is a legal or customary obligation to do
so.
(2) Before making a
maintenance declaration the court shall make a full enquiry into all the
circumstances and in particular shall
take into consideration-
(a) the age of the person for whose benefit the application is made; and
(b) the personal circumstances of every person concerned in the application.
(3)
In the performance of the duty imposed on it by subsection (2) the court shall
call for any evidence or report it may in the interests
of justice consider
necessary.
Power
of court to make a maintenance enforcement
order
4.
(1) An application to a court may be made
by or on behalf of any person for whose benefit a maintenance declaration has
been made
(hereinafter referred to as the applicant) for an order under this
Ordinance against any person who by virtue of that declaration
is liable to
maintain him (hereinafter referred to as the defendant) on the ground that the
defendant has wilfully neglected to provide
or to make proper contribution
towards reasonable maintenance for the
applicant.
(2) On an application
under this section the court shall have regard to all the circumstances and in
particular to the resources of
the defendant and may order-
(a) payment by the defendant to the applicant or to any other person on the applicant's behalf or to the court of such sums of money as the court considers reasonable at such times as the court may direct;
(b) provision by the defendant for the applicant of such shelter and care as the court may direct;
(c) any reasonable combination of the matters specified in paragraphs (a) and (b).
(3)
Payment of any sum of money due under a maintenance enforcement order may be
enforced as if judgment for the payment of that amount
to the applicant had been
given against the defendant by any magistrates'
court.
Penalties
for failure to comply with maintenance enforcement
order
5.
(1) Without prejudice to section 4 (3) any person who wilfully fails to comply
with a maintenance enforcement order shall be liable
to a fine of $50 and to
imprisonment for 6 months.
(2) Any
failure to comply with a maintenance enforcement order shall be deemed to be
wilful unless the contrary is
proved.
(3) Conviction of an
offence under this section shall not affect any existing obligations under a
maintenance enforcement order.
(4)
Conviction or acquittal of an offence under this section shall in no way operate
as a bar to a prosecution for an offence under
section 226 of the Penal
Code.
Cap. 67
Powers
of court to discharge and vary
orders
6.
(1) A court may at any time on application by any person make an order
discharging or varying a maintenance declaration or a maintenance
enforcement
order or remitting any payments then due
thereunder.
(2) Before making an
order under this section the court shall perform the duties imposed on it by
section 3 or 4 as the case may be
so that in every case the order of the court
shall be and shall continue to be reasonable and fair in all the
circumstances.
Venue
7.
(1) Subject to the provisions of this
section-
(a) an application under section 3 shall be made to a court within the ordinary limits of whose jurisdiction the person for whose benefit the application is made normally resides;
(b) an application under section 4 or 6 shall be made to the court by whom an order was last made.
(2)
A magistrate on being satisfied that it is in the interests of justice to do so
may in any case give leave for an application
under this Part to be made to a
court, within or without the limits of his jurisdiction, other than that
prescribed by subsection
(1) and shall specify the
court.
(3) On leave being granted
by a magistrate under subsection (2) the record or a copy of the record of any
previous proceedings shall
be forthwith transmitted by the court in which those
proceedings took place to the court specified by the
magistrate.
Jurisdiction
of courts under Part
II
8.
Notwithstanding any other law to the contrary but subject to sections 4 and 7
every court shall for the purpose of proceedings under
this Part exercise
jurisdiction throughout the Gilbert
Islands.
Power
to make
regulations
9.
Without prejudice to any powers conferred by other laws to make rules of court
or regulations governing magistrates' courts the Chief
Justice may make
regulations for those courts in respect of proceedings under this
Part-
(a) regulating the practice and procedure:
(b) regulating the forms to be used and all matters connected therewith;
(c) regulating the receipt of moneys paid to a court under a maintenance enforcement order and the payment of such moneys out of court to persons entitled thereto;
(d) prescribing rules of evidence to be observed;
(e) generally for the better carrying into effect of the provisions, objects and intentions of this Part.
PART
III
ENFORCEMENT OF
CERTAIN MAINTENANCE ORDERS MADE OUTSIDE THE GILBERT ISLANDS
Interpretation
of Part
III
10.
For the purposes of this Part-
"maintenance order" means an order other than an order for affiliation for the periodical payment of sums of money towards the maintenance of the wife or other dependants of the person against whom the order is made;
"dependants" means such persons as a person against whom a maintenance order is made is liable to maintain according to the law in force in the place where such maintenance order is made;
"certified copy" in relation to an order of a court means a copy of the order certified by the proper officer of the court to be a true copy;
"prescribed" means prescribed by rules of court.
Enforcement
of maintenance orders made in England or
Ireland
11.
Where a maintenance order has, whether before or after the commencement of this
Part, been made against any person by any court in
England or Ireland and a
certified copy of the order has been transmitted by the Secretary of State to
the Governor, the Governor
shall send a copy of the order to an appropriate
court for registration, and on receipt thereof the order shall be registered in
the prescribed manner and shall from the date of such registration be of the
same force and effect, and, subject to this Part, all
proceedings may be taken
on such order, as if it had been an order originally obtained in the court in
which it is so registered,
and the court shall have power to enforce the order
accordingly.
Transmission
of maintenance orders made in the Gilbert
Islands
12.
Where the court has, whether before or after the commencement of this Part, made
a maintenance order against any person and it is
proved to the court that the
person is resident in England or Ireland, the court shall send to the Governor
for transmission to the
Secretary of State a certified copy of the
order.
Power to
make provisional orders of maintenance against persons resident in England or
Ireland
13.
(1) Where an application is made to the court for a maintenance order against
any person and it is proved that that person is resident
in England or Ireland,
the court may in the absence of that person, if, after hearing the evidence, it
is satisfied of the justice
of the application, make any such order as it might
have made if a summons had been duly served on that person and he had failed
to
appear at the hearing, but in such case the order shall be provisional only and
shall have no effect unless and until confirmed
by a competent court in England
or Ireland.
(2) The evidence of
any witness who is examined on any such application shall be put into writing
and such deposition shall be read
over to and signed by
him.
(3) Where such an order is
made the court shall send to the Governor, for transmission to the Secretary of
State, the depositions
so taken and a certified copy of the order, together with
a statement of the grounds on which the making of the order might have
been
opposed if the person against whom the order is made had been duly served with a
summons and had appeared at the hearing, and
such information as the court
possesses for facilitating the identification of that person and ascertaining
his whereabouts.
(4) Where any
such provisional order has come before a court in England or Ireland for
confirmation and the order has by that court
been remitted to the court for the
purpose of taking further evidence, the court shall, after giving the prescribed
notice, proceed
to take evidence in like manner and subject to the like
conditions as the evidence in support of the original application, and if
upon
the hearing of such evidence it appears to the court that the order ought not to
have been made, the court may rescind the order
but in any other case the
depositions shall be sent to the Governor and dealt with in like manner as the
original depositions.
(5) The
confirmation of an order made under this section shall not affect any power of
the court to vary or rescind that
order:
Provided that on the making
of a varying or rescinding order the court shall send a certified copy thereof
to the Governor for transmission
to the Secretary of State and that, in the case
of an order varying the original order, the order shall not have any effect
unless
and until confirmed in like manner as the original
order.
(6) The applicant shall
have the same right of appeal if any against a refusal to make a provisional
order as he would have had against
a refusal to make the order had a summons
been duly served on the person against whom the order is sought to be
made.
Power of
the court to confirm maintenance order made in England or
Ireland
14.
(1) Where a maintenance order has been made by a court in England or Ireland and
the order is provisional only and has no effect
unless and until confirmed by
the court, and a certified copy of the order together with the depositions of
witnesses and a statement
of the grounds on which the order might have been
opposed has been transmitted to the Governor, and it appears to the Governor
that
the person against whom the order was made is resident in the Gilbert
Islands, the Governor may send the said documents to the prescribed
officer of
the court with a requisition that a summons be issued calling upon the person to
show cause why that order should not
be confirmed, and upon receipt of such
documents and requisition the court shall issue such a summons and cause it to
be served on
such person.
(2) A
summons so issued may be served in the same manner as if it had been originally
issued by the court.
(3) At the
hearing it shall be open to the person on whom the summons was served to raise
any defence which he might have raised in
the original proceedings had he been a
party thereto but no other defence, and the certificate from the court which
made the provisional
order stating the grounds on which the making of the order
might have been opposed, if the person against whom the order was made
had been
a party to the proceedings, shall be conclusive evidence that those grounds are
grounds on which objection may be
taken.
(4) If at the hearing the
person served with the summons does not appear or on appearing fails to satisfy
the court that the order
ought not to be confirmed, the court may confirm the
order either without modification or with such modifications as to the court
after hearing the evidence may seem
just.
(5) If the person against
whom the summons was issued appears at the hearing and satisfies the court that
for the purpose of any defence
it is necessary to remit the case to the court
which made the provisional order for the taking of any further evidence the
court
may so remit the case and adjourn the proceedings for the
purpose.
(6) Where a provisional
order has been confirmed under this section it may be varied or rescinded in
like manner as if it had originally
been made by the confirming court, and where
on an application for rescission or variation they court is satisfied that it is
necessary
to remit the case to the court which made the order for the purpose of
taking any further evidence, the court may so remit the case
and adjourn the
proceedings for the purpose.
(7)
Where an order has been so confirmed the person bound thereby shall have the
same right of appeal if any against the confirmation
of the order as he would
have had against the making of the order had the order been an order made by the
court confirming the
order.
Power of
Governor to make rules for facilitating communications between
courts
15.
The Governor may make rules as to the manner in which a case can be remitted by
a court authorised to confirm a provisional order
to the court which made the
provisional order, and generally for facilitating communications between such
courts.
Mode of
enforcing
order
16.
(1) Where an order has been registered or confirmed under this Part the court
and its officers shall take all such steps for enforcing
the order as may be
necessary.
(2) Every such order
shall be enforceable in like manner as if the order were for the payment of a
civil debt:
Provided that if the
order is of such a nature that if made by the court it would be enforceable in
like manner as an order of affiliation
the order shall be so
enforceable.
Proof
of documents signed by officers of
court
17.
Any document purporting to be signed by a judge or officer of a court in England
or Ireland shall until the contrary is proved be
deemed to have been so signed
without proof of the signature or judicial or official character of the person
appearing to have signed
it, and the officer of a court by whom a document is
signed shall until the contrary is proved be deemed to have been the proper
officer of the court to sign the
document.
Depositions
to be
evidence
18.
Depositions taken in a court in England or Ireland for the purposes of this Part
may be received in evidence in proceedings before
the court under this
Part.
Procedure
19.
All proceedings under this Part shall be deemed to be civil proceedings and the
rules relating to civil cases shall apply with such
adaptations as may be
necessary.
Power
to extend Ordinance to other
countries
20.
The Governor, if satisfied that reciprocal provisions have been made by the
legislature of any country or territory outside the Gilbert
Islands for the
enforcement within such country or territory of maintenance orders made by the
courts of the Gilbert Islands, may
by order extend this Ordinance to such
country or territory and this Ordinance shall thereupon apply in respect of such
country or
territory as though the references to England or Ireland were
references to such country or territory and the references to a Secretary
of
State were references to the person responsible for administering the courts of
that country or territory.
------------------------------------------------
SUBSIDIARY LEGISLATION
Rules
under section 15
MAINTENANCE ORDERS (FACILITIES FOR ENFORCEMENT) RULES
Rev. 1952, p. 541
L.N.
16/72
3 of 1972
Citation
1.
These Rules may be cited as the Maintenance Orders (Facilities for Enforcement)
Rules.
Copy of
order
2. The copy of an order made
by a court in England or Ireland and received by the Governor under section 11
shall be sent to a magistrates'
court appropriate for the place in which the
defendant is alleged to be
living.
Copy of
provisional order
3. The copy of a
provisional order made by a court in England or Ireland and received by the
Governor under section 14 shall be sent
with the accompanying documents to a
magistrates' court appropriate for the place in which the defendant is alleged
to be living
with a requisition for the issue of a
summons.
Order
to be entered in cause book
4. The
magistrate presiding over the court to which an order is sent in accordance with
the preceding rules shall enter it in the
records of the court on the date on
which he receives it in the same manner as though the order had been made by
that court, distinguishing
it from other entries in such manner as he may find
most convenient so as to show that it is entered in pursuance of the
Ordinance.
Notice
of confirmation etc.
5. When an
order provisionally made in England or Ireland has been confirmed with or
without modification under section 14 or the
court has decided not to confirm
it, the court shall send notice thereof to the Governor for transmission to the
court from which
it
issued.
Payments
to be made through court
6. When
an order has been registered under section 3 or a provisional order has been
confirmed under section 14, the court shall direct
that all payments due
thereunder shall be made through the
court.
Collection
of moneys
7. The court through
whom payments are directed to be made shall collect the moneys due under the
orders and shall take all necessary
proceedings for enforcing payment as
provided in section 16(2), and shall send the moneys when so collected through
the Governor
for transmission to the Crown Agents for Overseas Governments and
Administrations to be remitted by them to the person to whom they
are
due.
Further
evidence
8. When a provisional
order made under section 13 has been remitted under subsection (4) of that
section to the court for the purpose
of taking further evidence, notice
specifying the further evidence required and the time and place fixed for taking
it shall be sent
by the court to the person on whose application the provisional
order was
made.
Territories
to which this Part has been extended by order under section
20
Proclamation
Nos. 4/1924, 3/1925, 1/1927, 5/1930, 1/1929, 5/1927, 13/1927, G.N. 29/54,
L.N.
25/65, L.N.
16/66, L.N.
17/78
New South Wales
New Zealand
Fiji
Queensland
Western Australia
Norfolk Island
Northern Territory
Solomon Islands
Victoria
South Australia
Tasmania
The Australian Capital Territory
Independent State of Western Samoa
Island of Jersey
Bailiwick of Guernsey
Independent State of Papua New Guinea
Nauru
---------------------------------------------
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