Court increases child maintenance from £18 to £60 due to material change in needs and father's increased income.

[*437] 1984 Febr.2

(ELIADES, D.J.)

IN THE DISTRICT COURT OF LARNACA

In the matter of a maintenance application by Athinoulla A. Georghiou (lacovou) as natural guardian and nearest friend of her minor children Polymnia and lacovos Georghiou,

Applicant,

v.

Andreas Georghiou,

Respondent.

(Application No. 22/77).

Maintenance - Variation of an order for maintenance of the children of the marriage - Principles applicable - The question is whether there has been a material change of circumstances since the making of the order - Principles governing the quantum of maintenance - In the circumstances of this case the amount payable by the respondent for the maintenance of the two children of his first marriage should be increased from £18 per month to £60 per month.

G. Georghiou., for the Applicant

D. Koshiantis, for the Respondent.

JUDGMENT

The judgment of the Court was delivered by:-

ELIADES. D.J.:- The parties married on the 22.9.68. They have two children namely lacovos and Polymnia. As a result of disputes which arose during the early stages of the marriage, the applicant left the matrimonial home in July 1977 taking with her the two children and on the 2.12.77, an order was issued by consent, by which the respondent accepted to pay £18. - per month for the maintenance of his children, who at the time were 6 and 9 years [*438] of age respectively.

By virtue of the present proceedings the applicant seeks a variation of the said order, increasing the amount of £18. - to £100. - per month in order to cope with the increased needs for the maintenance of the two children who are now 12 and 15 years of age respectively.

In support of her application the applicant adopted the contents of her affidavit and testified that she pays for her daughter, who is now attending the fourth class of a Secondary School every month, £9.- for her transport expenses ( travelling to and from school), £5 - for private lessons in English, £10.- for guitar lessons and £19.- for her pocket money. At the beginning of the 1983-198U school year she has also spent some £150. - for the purchase of books and some £30. - for her clothing.

Young Iacovos needs £9. - per month for transport expenses and £19.- for her pocket-money. The boy is very keen on foot-ball and this tendency reflects heavily on the applicant who has to provide him with new shoes every 11/2 months at a cost of £6.50 each time. She has also spent an amount of £50. - for clothing for the new school-year.

Both children require an amount of £20. - per week for food.

The applicant cohabits with ‘a certain Andreas Kyriacou in Limassol, who is the owner of a small bakery. The amount of £30.- by way of rent for the premises where they live, is paid by her friend in exchange of the assistance she is offering him in the bakery. In addition [*439] to the above she said. Andreas Kyriacou contributes a negligible amount towards the expenses of the children, which however is not enought to cover even the transport expenses of the children.

On a consideration of the evidence before me I find that the needs of the children have greatly increased and that the applicant is earning an amount of £60.- per month for the services she is rendering to the man she is cohabiting with in his capacity as a baker.

The respondent adopted the contents of his affidavit and gave evidence as to his financial status. He stated that in 1977, when the first order was issued, he was earning £18.- per week whereas now he is earning £40.- per week as a silverer having no other source of income. He has contracted a second marriage and has two children aged 1 and 4. He lives in a house owned by his wife at Lefkara. Being cross-examined he admitted that he has sold a house belonging to him at Lefkara for £3,500.- although the purchaser had to pay transfer-fees assessed by the District Lands Office on £5,000.-. Out of the purchase money he bought a Volkswagen car under registration No. FU 262 for £1 ,600.- and an amount of £1,000.- was paid for the purchase of furniture for his new house.

His monthly expenses comprises of £140.- for food for his wife and children (out of which £100.- are spent for his two children), £5.- for petrol, £5.- for the service of his car, £3.- for the road-tax, £3.- for insurance, £10.- fcr cigarettes, £3.- for clothing and £10.- for pocket-money. Being asked as to how he managed to spend £194.- per month [*440] since he was only earning £160.- per month, he allged that he was covering ‘the difference with the proceeds from the sale of his house and that he had already spent the remaining, amount some 2-3 months ago.

I had the chance to watch the respondent testifying before me and having carefully considered his evidence I have come to the conclusion that he has not made a true disclosure of his earnings. He has limited during his examination-in-chief his net earnings to £120.- per month but as a result of a detailed cross-examination to which he has been subjected, it appears that he is -spending more than what he earns. He alleged that the difference was being covered by the remaining proceeds from the sale of his house. However he admitted that the above-mentioned proceeds were exhausted some 2-3 months ago affording no other explanation as to how he was able to make both ends meet, although he was prepared to increase the amount of £18.- to £25.- per month. In my mind the respondent has not disclosed his true earnings. It is my conclusion that from the totality of the evidence before me the earnings of the respondent exceed the amount of £240. - per month.

(B) THS LAW:

When the Court is faced with an application for the variation of a maintenance order, it has no power to examine the original order. The order stands as a fair adjudication of the respective rights of the parties and the question which has to be determined is whether there has been a material change of circumstances since the making of the order which would .justify the intervention [*441] of the Court. The new facts must be evaluated within the principles governing the award of maintenance and in particular the liability of the husband to maintain the wife and the children on a similar standard of living as they were enjoying during the existence of the marriage. More particularly in the case of infant children the unhappy consequences of separation must be reduced to the minimum level.

In this particular case the respondent has gone through a second marriage after the first order for the payment of the £18.- per month was made and he is now the father of two young children aged 1 and 4 years of age.

The principles governing the quantum of maintenance were examined in Wood v. Wood (1891-1894) All E.R. Rep. 506, where Lindley J. enumerated the following as having a bearing on the matter:

“(i) The conduct of the parties;

(ii) Their position in life, and their ages and their respective means;

(iii)The amount of the provision actually made;

(iv) The existence or non-existence of children, and who is to have the care and custody of them;

(v) Any other circumstances which may be important in any particular case.

The last category has been judicially explained as accomodating instances where the respondent goes through a second marriage or even contemplates a second marriage. (See Roberts v. Roberts (1968) 3 All S.R. 479). [*442]

As it was said by Barry J. in Davis v. Davis (1964 V.L.R. p.278:-

“If a husband of means irretrievably destroys the reality of a marriage, and it appears that he contemplates marriage with another woman whom he prefers to his wife, the court should ensure that he pays to the spouse he is repudiating whatever, having regard to his means and his conduct towards her, and her conduct towards him, is fair and reasonable, recognising that he is pursuing his own gratification in disregard of the obligations he undertook. “In doing so, the Court is not ‘punishing’ the “husband; it is merely insisting that before he shall have the gratification he desires, he shall make fair amends for breaking the promise which marriage involves.”

An authoritative guidance on the matter may be derived from the judgment of Hodson L. J. in Cockburn v. Cockburn (1957)

3 All E.R. p.263, where he said that:-

“...it is quite impossible for the Courts to ignore the just claims of the first wife because the man has taken on himself other obligations, although the Courts have to take into account those obligations as involving a reduction in the capacity of the man to pay for the upkeep of his first wife. [*443]

The above principles were later reviewed and adopted in Cyprus in Antoniou v. Antoniou (1969) 1 C.L.R. p. 307, where it was held that a child’s just claim for maintenance must rank together with the parallel claims of the father’s wife and their new-born child, the father being under an obligation to maintain himself and his family at a reasonable standard within his means.

In the present case I find as a fact that owing to the increased needs of the children and the considerable rise in cost of living there has been brought about a material change in the circumstances which justify the intervention of the Court. In the same respect I cannot loose sight of the fact that the earnings of the respondent were increased from £18. - per week to £40.- a week and that, in his own admission, he needs £100.- per month for the maintenance of his two young children of 1 and 4 years from his second marriage. In accordance with the decision in Antoniou v. Antoniou (supra) the needs of the newly-born children must ran parallel to the requirements of the children from his first marriage.

Considering all the above and taking into account that the applicant contributes to some extent for the maintenance of the children (see Re T. (An Infant) (1953) 2 All E.R. p. 830) the amount of £18.- is hereby increased to £60.- per month as from the 1.2.1984. The respondent is also ordered to pay the costs of these proceedings to be assessed by the Registrar.

Maintenance increased from £18.- to £60.- per month with costs against respondent.