clr/1988/1988_1_31.pdf

(1988)affidavit asserted that he was unemployed, having no income from any work or business Thesecond affidavit of A Constantinougave particulars of her actual monthly expenses At the trial, counsel for theappellant stated thathe would rely on the affidavits and would not call any evidence The respondent, however, gave oralevidence totheeffect thatheisunemployed and has no income, other thanan unemployment benefit of £140 - per month from Social Insurance,out of which £29 - were retained for his daughter With regard to the whereabouts of his daughter, he said that the mothertookheroutofCyprus withouthisconsentandthathedid not know what her needs were and where she was living The tnal Courtdismissed the application for lack of evidence and on the ground that the child was taken away without the respondent's consent and the respondent did not know her whereabouts 5 10 15 Having analysed the authonties relating to the obligation to provide maintenance, theCourt, Held,

(1)When thehusbandleavesthemantalhome,hehasaduty to provide reasonable maintenance for the support of those members of thefamily thataredependent upon himandthatitis for the Courts to decide whether the amountpaid by a husband for the maintenance of the family if he does so, is in the circumstances sufficient tor their reasonable maintenance and support It is not for thehusband tooecide theamount 20 25

(2)Considenng thattherewas no evidence regarding theincom·. of the husband and the wife at the time of the hearing of the application, and what the financial needs of the child were, the tnal Judge was absolutely nght in dismissing the application of thewife as naturalguardian and next fnend of the infant daughter 30

(3)Thefacts thatthefather did notknow of thewhereabouts of his child and that she was taken away without his consent, have no beanng incases of this sort Appeal dismissed No order as to costs Casesreferred to Papadopoulos ν Papadopoulos [1929] All ΕR Rep 310, 32 35 1C.L.R. Inre Constantinou Brannan v. Brannan [197311AllE.R.38; Grayv. Cray[1976]3AllE.R. 225; Weatherleyv. Weatherley, 142L.T. 163; Attwoodv. Attwood[1968]3AllE.R.385; 5 Constantinouv. Demosthenous

(1983)1 C.L.R. 250. Appeal. AppealbyapplicantagainstthejudgmentoftheDistrictCourtof Nicosia (Artemides, P.) dated the 16th May, 1985 (Appl.No. 40/ 84) whereby her application for a maintenance order against her 10 father was dismissed. N.Pelides, for the appellant. A Skordis withA. Sophocleous, forthe respondent. Cur.adv. vult. MALACHTOS J.: The judgment of the Court willbe delivered 15 byH.H. Mr.Justice Demetriades. DEMETRIADESJ.:Thisappealismadeagainstthejudgmentof H.H. Artemides, P.D.C., by which he dismissed the appellant' s application for a maintenance order against her father, the respondent! 20 Theperson who appearsinthetitleof the appeal asthe natural guardian and next friend of the applicant is married to the respondent andtheyhaveonedaughter,theappellant,whoatthe material time was 14 years old. The wife was originally a coapplicant for an order of maintance but during the hearing of the 25 application she withdrew her claim and her application was dismissed. InApril, 1984,theparties,forreasonsunknown tous,fell apart andthehusbandleftthemaritalhome.Asaresult,thewife,inJune 1984, filed, on behalf of herself and the infant daughter, a 30 maintenance application bywhich she claimed thesumof £300.per month as maintenance. The husband opposed the application. In the affidavit filed in support of the application, the wife claimed thatthe husband, sincethetimehe leftthemaritalhome, 33 Demetriades J. In re Constantinou

(1988)paid nothing for her and their daughter' s maintenance. She further claimed that the husband wasemployed byan international Telecommunications company, that he received a net monthly salary of £410.- and that he was, also, earning approximately another £500.-per month from a business enterprise ofhisown. 5 After thehusband filed hisopposition and inreplytoallegations made by him in his affidavit in support of it, in which he alleged that he was unemployed having retired from the international company due tobad health, and hisdenial that hewasthe owner of a businessenterprise, the wife filed asupplementary affidavit in 10 which, amongst other allegations she made, she gave particulars of her actual monthly expenses. After stating that she was employed by the Co-Operative Credit Society of Morphou at Limassol and receiving a monthly salaryof£229.-,she setdown a list of her expenses which related to transport of herself and her 15 daughter, rentand privatetuitionfees forherdaughterand which, she alleged, amounted to£176.50 cents per month. She claimed that she needed a further sum of £152.50 c. for the remaining needsof herself and her daughter, likefood, electricity, water etc. Inhersaid affidavit she mentioned nothing of how hersalary was 20 spent, nor did she mention what were the needs of the daughter for food, clothing and other necessaries. The application was set down for hearing and counsel for the applicants then withdrew the claim of the applicant mother and stated that he wasto proceed withthe claimofthe daughter only. 25 At the same time he stated that he was going to rely on the two affidavits filed by the wife and that he was not calling oral evidence. Counselfortherespondentthen informed theCourtthathe had given noticetothe othersidethathewanted tocross-examine the 30 wife but her counsel stated that she and the infant child were in Greece where they had permanently settled andthatthe wife had no intention of returning to Cyprus. In the light of this statement the Court proceeded to hear the evidence of the respondent. Ingiving evidence healleged thathe 35 was unemployed; that with the money he received as compensation on leaving his work he paid his debts;that he was on the dole; that he could not secureasyetanother work; that his unemployment allowance was £140.- per month, which he received for six months only, and that out of this amount £29.- 40 34 1 C.L.R. Inre Constantinou DemetHades J. were kept by the Social Insurance .for the maintenance'of his daughter. Thisamount, thatisthe£29.-,therespondent said, had never been collected by the mother although she was told about it.Hefurther saidthatashecouldnotmakeendsmeet,hisbrother 5 was helping him financially. With regard tothewhereabouts ofhisdaughter, hesaidthatthe mother took heroutofCypruswithouthisconsentand thathedid not know what herneeds were and where she wasliving. ThemakingofmaintenanceordersbyourCourtsisprovidedby 10 subsection 1ofsection40oftheCourtsofJusticeLaw, 1960(Law 14/60), which reads: 15 20 «IfanyecclesiasticaltribunaloftheGreekOrthodoxChurch or of a Church to which the provisions of paragraph 1 of Article111oftheConstitution apply(hereinafter referred toin thissection as 'the Church') would have power to entertain a matrimonial cause brought by a wife in respect of her marriage,and thehusband hasbeen guiltyofwilful neglectto providereasonable maintenanceforhiswifeorinfant children of the marriage, a President of a District Court or a District Judge, on application of the wife, may make a maintenance order directing the husband to make to her such periodical payments asmaybe just.» From the wording ofthissection itisclear that no maintenance order in favour of the wife and the infant children of the marriage 25 can be made unless the husband is guilty «of wilful neglect to provide reasonable maintenance to them.» What is meant by «wilful neglect» has not been given precise interpretation but useful guidance may be found in the English case lawsuch asinthe casesof Papadopoulos v. Papadopoulos, 30 [19291AllE.R. Rep. 310, Brannan v. Brannan, [1973] 1All E.R. 38, Gray v. Gray, [1976] 3 All E.R. 225, and Weatherley v. Weatherley, 142 L.T.163. InthePapadopoulos case,supra, HillJ.saidthefollowing (atp. 315):35 «Neglect means failure in a duty to provide maintenance. And the question iswhether he was under a duty to maintain the wife. Prima facie he was. That is the common law of England, and-it was for the husband to show that he was excused from that duty. A husband may show it in various 35 Demetriades Λ. In re Constantinou

(1988)ways. For instance, he may show that or that she hasdeserted himandwas continuingtodeserthim, » In the case of Gray,supra, PurchasJ. summed up the term as follows (atp. 229):«Wilful neglect toprovide reasonable maintenanceimports an existing duty to provide such maintenance. Under the common law the duty to provide maintenanceonly arose in respect of a wife who was notherself in default.» 5 SirGeorge Baker P., intheBrannan case, supra, hadthisto say (at p. 45):«There are two lines of cases in which wives have alleged that their husbands have been guilty of wilful neglect to provide reasonable maintenance although they have previously entered into agreements, whether by deed or otherwise, underwhich theamountof maintenance has been fixed. One line establishes that, where a husband is paying reasonable maintenance under an agreement, he cannot be found guilty. of wilful neglect to provide reasonable maintenance because he and his wife have already decided what they regard as reasonable and the husband has fulfilled his part of the agreement. Such a case is Morton v. Morton (No.2). On the other side there are cases to the effect that, if, owing to a change inthevalue of money orotherchanges in the circumstances, the maintenance payable under an agreement is not adequate provision for the wife, she can apply tothe courtfor an orderon theground of wilful neglect to provide reasonable maintenance.The observance of the agreement does notabsolvethehusbandbecause theamount of maintenance is insufficient in the changed circumstances which have arisen. Two such cases are Tulip v. Tulip and Dowell v. Doweli It is also clear on the authorities that the husband will not be held guilty of wilful neglect owing to changed circumstances unless the changes have been brought to his notice by some communication from the wife or her solicitors or otherwise. These cases suggestthat'wilfulness' inthiscontextdoesnot connote any malice or wickedness butthatthe misconduct, if itisappropriate touse thatword, consists only inthefailure to pay tothewife sums which, inthe opinionof the court,arein all the circumstances sufficient for her reasonable maintenance andsupport.Thewilfulness amountstonothing 36 15 20 25 30 35 40 1 C.L.R. InreConstantinou Demetriades J. more than this,thatthe husband knowswhat he isdoing and intendstodowhatheisdoing.» Finally, Iquote the words of Lord Merrivale in the Weatherley case,supra, where (atp. 165)he said:5 10 15 «Whatseemsrequisite,before ahusbandcanbefound guilty of a wilful breach of hisdutyto maintain hiswife, isthat there must be a refusal to maintain, which has no explanation reasonable in common sense and good faith. Iam not going totryanddefine thestateofthingsinwhich itmightarise, but Iwillsay that where, upon proved facts, the husband against whom the charge is maintained is shown to have done his dutytothebest of hisability,and neverwilfully tohave failed in his duty to discharge his marital obligations, taking them generally as the relations of husband and wife, there isvery great difficulty in conceiving a case where a woman can disclaim herproper obligations toher husband » Although thecasesreferred toabove do notdirectlyanswer the issuebefore us,becauseinthepresent casetheordersoughtisfor a maintenance order infavour ofthe infant childofthe marriage, 20 the conclusion which can be drawn from them isthat when the husband leaves the marital home, he has a duty to provide reasonable maintenance for the support ofthose members of the family that are dependant upon himand that itisfortheCourtsto decide whether the amount paid by a husband for the 25 maintenance of the family, if he does so, isin the circumstances sufficient fortheirreasonable maintenance and supportanditisnot for the husband to decide the amount. What are the considerations for a Court dealing with applications for maintenance have been set down bySir Jocelyn 30 Simon P. in delivering the judgment of the Court in the case of Attwood v.Attwood, [1968]3AHE.R.385,388.Theseguidelines • were adopted and applied in Constantinou v. Demosthenous,

(1983)1C.L.R. 250, where the following are stated (at pp. 254, 255):35 40 «(

1. i)Inco-habitation a wife and the children share with the husband a standard of livingappropriate to hisincome, or,if the wife is also working, their joint incomes, (
2. ii)Where cohabitationhasbeendisruptedbyamatrimonialoffence on the part of the husband, the wife's and children's maintenance should be so assessed that their standard of living does not 37 Demetriades J . In re Constantinou

(1988)suffer more than is inherent in the circumstances of separation, though the standard may be lower than theretofore (since the income or incomes may now have to support two households in place of the former one where household expenses were shared), (iii) Therefore, although 5 the standard of livingofallpartiesmayhavetobe lowerthan before therewasabreach ofco-habitation, ingeneral thewife and children should not be relegated to a significantly lower standard of living than that which the husband enjoys. As to the foregoing, seeKershaw v.Kershaw [1964]3AllE.R. 635, 10 at pp. 636, 637, and Ashley v.Ashley [1965]3 AllE.R. 554. (

1. iv)Subject to what follows, neither should the standard of living of the wife be put significantly higher than that of the husband, sincesotodo would in effect amount toimposinga fineonhimforhismatrimonialoffence, andthatisnotjustified 15 bythemodern law.(v)Indeterminingtherelevantstandardof living of each party, the court should take into account the inescapable expenses of each party, especially, though not exclusively, expenses of earning an income and of maintaining any relevant child, (
2. vi)If the wife is earning an 20 income, or ifshe has what should inallthe circumstances be considered asapotential earningcapacity,thatmustbe taken into account in determining the relevant standards of living: see Rose v. Rose [1950] 2 All E.R. 311,per Denning, L.J., [1950] 2 AllE.R. at p. 313,and Levett-Yeats v. Levett-Yeats 25 [1967], 111 Sol. Jo. 475. (vii) Where a wife is earning an income, that ought generally to be brought into account, unless it would be reasonable to expect her to give up the source of the income: Levett-Yeats v. Levett-Yeats

(1967), 111 Sol.Jo. 475. (viii)Where the wife isearning an income, 30 the whole of this need not, and should not ordinarily, be brought intoaccount soastoensure tothehusband's benefit: Ward v. Ward [1947] 2 All E.R. 713 at p. 715, and J. v. J. [1955] 2 AllE.R. 617, per Sachs,J. [1955]2AllE.R. atp. 91, and per Hodson, L.J. [1955] 2 All E.R. at p. 621. (

1. ix)This 35 consideration isparticularly potent where the wife only takes up employment in consequence of the disruption of the marriage by thehusband, orwhere she would not reasonably be expected to be working if the marriage had not been so disrupted, (x)At the end of the case, the Court must ensure 40 thatthe resultof itsorder isnottodepressthehusband below subsistence level:Ashley v.Ashley [1965]3AL1E.R.554.(
2. xi)38 1 C.L.R. 5 I n re Constantinou Demetrlades J . An appellate court will not interfere with an award of maintenance unless, to use the words used in Wardv. Ward [1948]P. at p. 65, 'it isunreasonable or indiscreet'; that isto saythatthejusticesareshowntohavegonewronginprinciple ortheir final award isotherwise clearly wrong.» Consideringthattherewasnoevidenceregardingtheincomeof the husband and the wife at the time of the hearing of the application, and whatthe financial needs ofthechildwere before the trialJudge, he was,we find, absolutely right in dismissing the 10 application of the wife as natural guardian and next friend of the infant daughter. Before concluding, however, we would like to say that the finding of the trialcourt that one of the reasons for dismissing the application of the child of the marriage wasthatthefather did not 15 knowofthewhereaboutsofhischildand thatshewastaken away without his consent, has no bearing in cases of this sort. For an order of maintenance tobe made there must be evidence before the court of the financial needs of the child and the ability of the father toprovide reasonable maintenance and support for it. 20 For the above reasons, the appeal is dismissed but, in the circumstances, wemake no order as tocosts. Appeal dismissed. No order astocosts. 39