Supreme Court
Civil Appeal No. 10 of 2000
21st November, 2000.
Conteh, C.J.

Ms. Sharon Pitts, for the Appellant.
Ms. Merlene Moody, for the Respondent.

Inferior Court Appeal - Appeal against decision of Family Court ordering Appellant to pay maintenance for his children and wife - Laws regulating maintenance applications in Belize - Married Persons (Protection) Act, Chapter 141 and Families and Children Act (No. 17 of 1998) - Married woman may apply under the Married Persons (Protection) Act for a maintenance order on the ground that the husband has been guilty of wilful neglect to provide reasonable maintenance to his family.

J U D G M E N T

This is an appeal against the decision of the Belize Family Court made on 27th May, 1999 by which the Appellant was ordered to pay $600 monthly for the maintenance of his children and the further sum of $200 monthly for the maintenance of his wife.

Against this decision the Appellant, on 20th April, 2000 through his attorneys, filed in total four grounds of appeal as follows:

(1) The decision was unreasonable and could not be supported having regard to the evidence. In particular, there was no evidence with regard to the means of the Respondent, nor that the Appellant neglected or refused to maintain the Respondent and 3 children of the Respondent.

(2) The decision was erroneous in point of law. The Court took into consideration hearsay evidence in arriving at its decision.

(3) There was no application before the court for an order of attachment of the Appellant's income (salary).

(4) Under the circumstances the amounts ordered to be paid as maintenance for the wife and children are excessive and could not be supported having regard to the evidence.

The upshot of these grounds was essentially to impugn the decision of the Magistrate against the Appellant to pay the sum of $800 per month in respect of the maintenance of his family. Although it is not exactly easy to subsume the several grounds of appeal under the various grounds of appeal permitted by section 110 of The Supreme Court of Judicature Act - Chapter 82, the Appellant's attorney valiantly argued the several grounds but had to abandon Ground 2 in the attempt.

In support of Ground 1, the learned attorney for the Appellant urged that the decision of the Magistrate was unreasonable and could not be supported by the evidence. She submitted that this was so because the Magistrate failed to undertake a means test and relied instead on the Financial Report on the Appellant submitted by the Intake/Welfare Officer of the court.

With respect to the learned attorney, this argument is unsustainable in the light of the evidence in this case and from the record of the case. When the matter first came up before the Magistrate, the complainant gave her testimony as to why she was applying for the court to make a Maintenance Order. At the conclusion of her testimony, the Appellant stated that he had nothing to ask in cross-examination and also that he had nothing to say. The matter was then adjourned to 27th May, 1999 for a Financial Report. On 27th May, 1999, the Financial Report on the Appellant was presented and both the Appellant and the complainant stated that they had no questions regarding the report.

The Magistrate evidently based her order on the information contained in the Financial Report and she stated, "From the Financial Report received by the court it appeared that Mr. Lord (the Appellant) can afford what is ordered and have a surplus." I therefore find no merit in this ground and the Appellant's case fails.

With respect to Ground 3, at the hearing of this appeal, the learned attorney for the Appellant sought leave to amend this ground to read as follows:

"The decision was based on a wrong principle of law and/or the court below reasonably viewing the circumstances could not reasonably have so decided."

In support of this ground, the Appellant's attorney submitted that the Magistrate in dealing with the application for family maintenance ought to have been guided by the applicable principles that in the breaking up of a family, no party should be made worse off having regard to the means of the family.

The learned attorney however did not furnish any authority for this proposition.

I must state here that maintenance under the law falls to be considered under two statutes in Belize today namely, the Married Persons (Protection) Act - Chapter 141 of the Laws of Belize 1980-1990 Edition; and the Families and Children Act - No. 17 of 1998. Under the former, any married woman may apply to a court of summary jurisdiction for a maintenance order on the ground that the husband has been guilty of wilful neglect to provide reasonable maintenance for her or her infant children whom the husband is legally liable to maintain. Part VI of the Families and Children Act deals with maintenance rights and duties of members of the family. In none of these statutes however, is to be found the proposition contended for by the learned attorney for the Appellant. I am afraid this ground therefore fails.

The Appellant's attorney adapted her arguments in respect of Ground 4 of the appeal to the effect that the amounts ordered to be paid as maintenance for the wife and children were excessive and could not be supported having regard to the evidence.

As I have mentioned earlier, the court based its order on the Financial Report submitted to it and both the Appellant and Complainant were given the opportunity to say something. It is safe therefore to conclude that the Magistrate based her order on the evidence before her.

In reply by the learned attorney for the Respondent, it was pointed out that the Appellant was already making voluntary payment of the sums the Magistrate ordered, and that a formal application for a court order was only necessitated to avoid the children going to collect the money, an exercise they did not evidently relish.

In the circumstances of this appeal I therefore consider that the amount ordered by the Magistrate was proper in the light of the evidence, and it only confirmed that which the Appellant was already paying for the maintenance of his family.

I was also informed at the tail end of hearing of this appeal that the sum of $500 stated in the Financial Report to be the monthly payment of mortgage by the Appellant has been paid off. This will of course increase the amount of what is left with the Appellant after paying the sum of $800 ordered by the Magistrate.

In the result, I am therefore satisfied that this appeal should fail. I affirm the order of the Magistrate in this matter.

The Respondent's costs to be taxed if not agreed.

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