[*540] 1986 June 30
(KALLIS, D.J.)
IN THE DISTRICT COURT OF NICOSIA
In the matter of section 40 of the Courts of Justice Law, 1960
(Law 14/60)
and
In the matter of an application by Theofano Koumettou by herself
and on behalf of her infant children lacovos Koumettou and losifina
Koumettou,
Applicant,
and
In the matter of Pavlos Koumettou,
Respondent.
(Application No. 23/80).
Husband and wife - Maintenance order - Variation – Principles applicable - Antoniou v. Antoniou (1969) 1 C.L.R. 307, distinguished.
A. Eftychiou, for the Applicant.
Respondent in person.
JUDGMENT
The following judjment was delivered by:-
KALLIS. D.J.:- Following an application by the applicant the Court, on October 29, 1981 fixed the "amount to be paid by the respondent for the maintenance of his wife and two children at £45 monthly, the first such monthly payment commencing on July 1, 1981". There followed on 31.1.1984 an application by the applicant- wife for the variation of the a bove order and by a consent order made on 5.4.1984 ("the consent order") the order dated 29.10.1981 was "varied as from 1.5.1984 so as the total amount of mainte- [*nance shall be increased from £45 per month to £65 per month". Out of the amount of £65 an amount of £10 per month was apportioned to the wife and £27.50 to each of the two children. Then on 20.9.1985 there was filed the present application by the applicant-wife for variation of the above consent order so that the said amount of £65 be increased to £130 per month that is £55 in respect of each of the two children and £20 for the applicant-wife.
In an affidavit in support of the application, which was sworn by the wife it was stated that since the making of the consent order her financial needs and those of her two children, who are aged 14 and 13, were substantially increased and in order to face such needs it is necessary that the said order be amended' by the increase of the amount of monthly maintenance.
The respondent opposed the application and in his affidavit in support of the opposition contended, inter alia, that his monthly salary after the various deductions is £173 and that If the application Is granted he will be deprived with the essential means for his own maintenance. Attached to his affidavit there was a photocopy of the cheque of his monthly salary, paid through the Cooperative Credit Society of Public Officers, wherefrom it appears that his net salary is £172.
According to the evidence of Demosthenis Mitilineos, the accounting officer of the L.R.O., where respondent is employed, the gross monthly salary of the respondent is now £544.24; and after making a deduction amounting to a total of £97.91 in respect of Social Insurance, Income Tax, Pension Fund, PASYDY and Defence, his net salary is £446.33. His gross salary on 1.5.84 - the time of making of the consent order - was the same as today but the witness could not say about his net salary then.
The applicant in her testimony said that her needs have been increased eversince the making of the consent order because of the [*following: The eldest child, who was then in the first class of the gymnasium, is now in the third. As he is weak in Mathematics she has now to pay £25 per month for special lessons in Mathematics. The fees for special lessons in English for both children have been increased from £20 to £25 monthly and the fees for piano lessons for the younger child have been Increased from £11 to £15 monthly and the fees for music have been increased from £7 to £14 yearly. She, also, incurs £10 monthly for the transport expenses of her younger child. There was, also, an increase of £10 monthly for clothing and footwear in respect of both children and an increase of £5-6 monthly for each child for pocket-money, such increase being attributed to their change of age. Lastly in view of the increase of the price of foodstuffs she needs £20 more per month for each child and £15 per month more for electricity, water and telephone charges.
She, works as a Time-keeper at Makarios Hospital and her net monthly salary is £190.
The respondent testified that out of his salary he pays a total of £326 monthly towards loans he has incurred in order to construct the matrimonial home; and towards loans he has incurred in order to meet his current needs. The latter loans became necessary because, after paying the instalments of the loans for the house and the monthly maintenance of £65, the balance of his salary was not sufficient for his daily elementary needs. He further said that in addition to the amount of £65 maintenance he pays £6 monthly to the school-canteen so as his child may be supplied with a sandwich and he, also, pays £20 monthly for meals when he takes out the child because he cannot cook himself. He, also, said that he needs about £20 per month for the medical treatment of his son.
Now what are the principles on which the Court acts when [*dealing with an application for variation of maintenance order? In Foster v. Foster (1964) 3 C.L.R. 541 the following were said at p. 545:
'Two things seem to me to emerge from that. The first is that the jurisdiction is a Jurisdiction to vary, and basically what the court has to do is to consider whether an order to vary should be made, and, If so, by how much the order should be varied. Prima facie, it is not a jurisdiction to re- flx de novo the amount of maintenance. Secondly, the court is specifically directed to take into consideration any increase or decrease in the means of either of the parties. In those circumstances, it seems to me that the Judge was right to take the order of Mr. Registrar FORBES as his starting point. Moreover, I think that he was entitled to proceed on the basis that that order was properly made at the time when it was made. All the more was he entitled to do so having regard to the fact that there never was any effective appeal against that order. If that be right, then, as it seems to me, the judge was approaching the matter in accordance with the correct principle by proceeding to consider to what extent the means of the parties had altered since the original order was made In 1958. I do not therefore accept the submission of counsel for the wife on that point".
The Foster case was cited with approval in McEwan v McEwan (1972) 3 All E.R. 708 at p. 712. Further in Pepper v. Pepper (1960) 1 All E.R. 529, Lord Merrlman P. said at p.533:
"On any ordinary application to vary either up or down, assuming the application to be supported by a proper complaint on proper grounds, the basic, though not the only, thing that has to be ascertained is what the means of the [* parties are. Now that the words ‘upon fresh evidence' are no longer applicable in connection with mere variations of amount, whether up or down, that is all that has to be ascertained. There is ample authority for that, which I do not propose to repeat. What is to be taken into account in the magistrates' court is, what the husband's earnings are, what his responsibilities are, whether the wife is earning money, and so forth, balancing one thing against another and arriving at a right figure".
In Miller v Miller (1960) 3 All E.R. 115 the following were said at p. 117:
"It is neither possible nor advisable to set out all the 'circumstances' which have moved the High Court or should move it to vary maintenance orders. These are many and sometimes they are unusual and unexpected. Always the relative financial resources and the capacity and opportunity to earn of the parties must be taken into account".
Lastly in Attwood v. Attwood (1968) 3 All E.R. 385, Sir Jocelyn Simon, P. in dealing with the general considerations which should be borne in mind in Maintenance Applications, named, inter alia, the following considerations at p.388:
"Although the standard of living of all parties may have to be lower than before there was a breach of cohabitation, in general the wife and children should not be relegated to a significantly lower standard of living than that which the husband enjoys... Subject to what follows, neither should the standard of living of the wife be put significantly higher than that of the husband, since so to do would in effect amount to imposing a fine on him for his matrimonial offence, and that is not justified by the modern law. In determining the relevant standard of 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. . . .... At the end of the case, the court must ensure that the result of its order is not to depress the husband below subsistence level".
Dealing now with the facts of this application, in the light of the above case-law and by having regard to the evidence before me which I accept in toto, I find that there was no increase at all in the means of the respondent, but there was a decrease in the means of the applicant, albeit in an indirect way, because the needs of the children have increased. Regarding the increased amounts spent for special lessons in music, English and Mathematics, I must observe that special lessons are not amongst the necessaries for which a father must be expected to contribute and they are rather a luxury. I think that the two children in view of the change of their age by two years, since the making of the consent order, have increased needs in respect of food, clothing and footwear. And the question arises whether the respondent must be made to contribute towards these increased needs and if yes, by what amount. In considering this question I must bear in mind the following:
(a) That there was no increase in the means of the respondent;
(b) That the wife is earning money;
(c) That the children’s needs in respect of the items referred to above have increased and there was, thus, a decrease in the means of the applicant;
(d) That the respondent, heavily indebted as he is, voluntarily spends £46- monthly for one of his children - £20 for meals, £6 for the canteen and £20 for medical treatment; and [*this means that he has some margin of financial capacity;
(e) That this is not a jurisdiction to re-fix de novo the amount of maintenance; that I have to take the consent order as my starting point; and that I am entitled to proceed on the basis, that the order was properly made at the time when it was made (see the Foster case, supra).
Taking into consideration all the above matters along with the elementary principle that a father, notwithstanding his desperate financial position, has a moral duty and obliglation, which ranks in priority to other creditor’s claims, to contribute towards the increased needs of his children; and balancing one thing against another and giving particular weight to the making of voluntary payments something which, as already indicated, signifies that respondent has some margin of financial capacity which permits him to contribute more than the amount of the consent order for the needs of his children, I think that the respondent must be made to contribute towards the increased needs of his children in respect of food, clothing and foot-wear, by an amount of £25 for both children. It is, therefore, hereby ordered that the consent maintenance order be varied by increasing the amount therein specified, in respect of each of the two children, from £27.50 to £40, thus making the total amount of monthly maintenance which by virtue of this order the respondent has to pay £90 i.e. £40 for each child and £10 for the wife for whom no increase can be allowed, because I have not been satisfied that her own needs have been increased since the making of the consent order.
In concluding as above I would add that if I were to make an order as per application, I would have depressed the husband beyond subsistence level, a course which is not permitted by the Law. Regarding the amounts spent for medical treatment for one of the children, I would observe that the respondent being a public officer [*he can conveniently and freely obtain free medical treatment for such child.
I would, also, add that I have taken the above course notwithstanding the absence of any increase in the means of the respondent mainly because of the voluntary payments because I think that it is only fair and reasonable and in the best interests of the two children if part of the voluntary payments is channelled to the family budget, under the control of the applicant, by means of this order, and be used for the benefit and welfare of both children, rather than, as hitherto, for one of the children; and if part of the voluntary payments be left to the respondent thus leaving him with the amenity to entertain his children whenever he has access to them.
Finally I would add that in concluding as above I had duly in mind Antoniou v. Antoniou (1969) 1 C.L.R. 307.
My approach, however, has not been based on the Antoniou case but was mainly based on the principles enunciated in the Foster and Pepper cases because in the Antoniou case, contrary to what is the position in this case, there was "a change in the father's pay which is now considerably higher than that shown at the time of the original order" and thus the Antoniou case can be distinguished; and because the Roberts case on which Vassiliades P. relied to formulate the principles he did formulate in the Antoniou case was a case of fixing the amount of maintenance and not a case of variation and is, therefore, of little assistance in cases of variation.
In the result the application is partly granted as above stated with £20 towards costs in favour of the applicant.
Regarding the time from which the consent order, as varied [*by this judgment, will take effect having regard to all the circumstances of this case I think it should take effect as from 1.7.86.
Application partly granted.