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Willy v George [2003] VUSC 13; Civil Case 020 of 2003 (21 March 2003)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 20 of 2003

BETWEEN:

SILAS WILLY
Appellant

AND:

LEWIA GEORGE
Respondent

JUDGMENT ON APPEAL

The appellant and respondent lived together. They have two children. They split up and the respondent obtained an order from the Island Court for payment of VT4,000 per month for each child. The appellant sought a variation of that order. He said it was too much. The respondent sought a warrant of commitment for non-payment. He paid VT6,000 in June and nothing else. It is not clear which came first the application for variation or the application for the warrant.

The Senior Magistrate, presumably using his powers under Section 21 of the Island Courts Act, revised the proceedings. He heard evidence. In his judgment dated 14th February 2003 at page 4 he saw as his two tasks the review of the level of maintenance and the failure to pay. He heard evidence from both parties and witnesses. He set out the assets and liabilities of the parties. He came to the conclusion the Island Court award was correct, and the evidence against the appellant “weighty”. He found there had been a failure to pay without reasonable excuse. There were arrears of VT58,000. The proceeding was adjourned. He was given a chance to pay and still did not do so. The appellant was imprisoned for six weeks. He was released after two weeks pending this appeal.

I will deal with the grounds of appeal as set out in the Notice in order.

1. The Island Court had no jurisdiction to determine an issue of child maintenance under the Maintenance of Children Act [CAP. 46].

This ground was abandoned. As the Senior Magistrate points out in his judgement on page 7 the Island Court’s warrant was specifically extended to cover such cases in 1994.

2. The Magistrates Court “merely confirmed the Island Court’s decision”.

This is not correct. On the face of the Senior Magistrate’s judgment he was exercising a power under section 21, he heard all the evidence, considered the Island Court order and found it was correct. He took into account proper matters. There is nothing to say he took into account anything he should not have done. The evidence was “weighty” in the respondent’s favour. It was a finding not only open to him but almost the only one open to him.

I dismiss this ground.

3. “The Maintenance of Children Act is the specific law enacted by Parliament with specific powers to deal specifically with child maintenance matters.

I dismiss this ground for the reasons set out in paragraph 1.

4, 5 & 6 are all based on the same mistaken premise as ground 1. They are dismissed accordingly.

7 & 8 “... the Magistrate’s Court merely confirmed those defunct orders of the Island Court as a result of which the Applicant is serving 6 weeks jail sentence for his failure to comply with the defunct orders ...”

This ground is dismissed for the reasons set out in paragraph 2. The appellant was gaoled for failure to comply with a Court order. The order was properly made. There were no grounds to vary it and the magistrate considered all the circumstances.

9. “The Applicant is not employed and has a little 4 months old child with his new fiancée whom he needs to take care of. The mother is also unemployed”. The appellant’s child would have been 1 – 2 months old when the Magistrate made his order. This is not a new or supervening factor. The appellant has obligations to his two older children as well as his new baby.

I can find no basis upon which this appeal can be successful. The point was not taken as to whether or not this Court was the correct forum for the hearing of this appeal. There is argument for saying it is, and the practicalities of this case dictated it should be heard here.

The appeal is dismissed.

The appellant must comply with the Order of the Island Court. There are arrears and these must be paid as well. I will not Order he is returned to gaol to serve the remainder of his sentence.

I will order that he pays VT9,000 on the last day of each month until the arrears are cleared and VT8,000 after that. If he fails without reasonable excuse to make any payment and make it on time then an order for return to prison should be made.

Dated at Port Vila, this 21st day of March 2003.

R. J. COVENTRY
Judge.