Sandra Ashong Vrs Zubair Wilhelm Hesse [2022] GHADC 363 (30 November 2022)

IN THE FAMILY AND JUVENILE COURT ‘B’, FORMER COMMERCIAL COURT BUILDING – ACCRA HELD ON WEDNESDAY, 30TH DAY OF NOVEMBER 2022. BEFORE HER HONOUR MRS. MATILDA RIBEIRO, CIRCUIT COURT JUDGE, SITTING AS ADITIONAL MAGISTRATE WITH MADAM GIFTY OKAI, AND MADAM REGINA TAGOE AS PANEL MEMBERS. Suit No: A6/161/23 SANDRA ASHONG ….. APPLICANT LA-WIRELESS ACCRA ZUBAIR WILHELM HESSE .…. RESPONDENT LA-WIRELESS ACCRA _____________________________________________________________________ Applicant: Present Respondent: Present Counsel for Respondent, Christian Lebrecht Malm-Hesse Esq. ABSENT No legal representation for Applicant. JUDGMENT The parties are the biological parents of the male child in issue aged two (2) years old. On the 6th day of October 2022, Applicant filed a maintenance application and prayed for: 1. An order for monthly maintenance of GHC1,200.00 1 | P a g e 2. An order for Respondent to pay the child’s school fees and medicals as and when the need arises. 3. Rent a single room self-contained for mother and child closer to the school and 4. Any other order(s) the Court may deem fit. Applicant’s case as contained in her affidavit in support of her application is that, she and Respondent are currently estranged as Respondent has moved out of the matrimonial home to live with his parents on the same premises. She alleged that Respondent’s parents have disconnected electricity and water supply to her apartment because they want to frustrate her to vacate the room, leaving her and the two-year-old child to live in darkness. According to Applicant Respondent offered her GHC6,000.00 to rent a new place and this she says is inadequate because she is currently unemployed. Wherefore she resorted to this Court for redress by filing the instant application. Respondent averred in his Affidavit in Opposition filed on the 19th day of October 2022 that his marriage to Applicant was contracted under the Mohammedan Laws on the 22nd day of February 2020 and same has been dissolved under Mohammedan laws on the 28th day of August 2022 by the La Moslem community in the presence of the families of the parties. He maintained that the marriage was dissolved after they failed to reconcile their differences as required by the ‘IDDAH’. He said the Imam instructed that he gave Applicant GHC6000.00 as alimony but Applicant did not accept it on the grounds that it is too small. He also maintained that he is a teacher with Ghana Education Service and earns about GHC1800.00 and so he cannot afford the fees at the school (Gloria Deo Pre-School) Applicant enrolled the issue in. That he discussed this with Applicant and went ahead to secure admission at the Airforce Creche and Nursery for the issue, but Applicant insists on keeping the issue in the Gloria Deo School. That during the deliberations at the Moslem community leading to the dissolution of the marriage, it was agreed that the child be kept in the current school giving the insistence of Applicant whilst he contributes the equivalent school fees payable at the Airforce school being GHC120.00 termly. Respondent also counterclaimed as follows; 2 | P a g e 1. An order directed at the parties to enrol the child in a school both parties can equally afford. 2. An order directed at the Respondent to pick up the child to his residence on Fridays at 4pm and return him on Sunday at 4pm at a known location. 3. An order directed at Applicant to make available to Respondent, her verifiable location address where she will be taking the child should the Court grant Respondent reasonable access to the child. 4. An order for Applicant to communicate to Respondent by text messages or telephone call any changes that may occur to Applicant’s said residential address prior to picking up the child to the said new location in the future. 5. An order directed at the parties to equally share in the child’s total monthly maintenance allowance payable on or before the first day of each month. 6. An order directed at the parties to equally share in all the general expenses of the child. 7. Any other order this Court would consider just in the best interest of the child. On the 25th day of October, 2022, Respondent filed a supplementary affidavit to which he annexed his payslips for the period June to September 2022 (Exhibit A Series), a Report on the Dissolution of the Marriage between the parties by the Office of the La-Dade-Kotopon Municipal Chief Imam (Exhibit B), pictures of the Airforce Nursery and Creche school he enrolled the issue in and some items purchased from the prospectus (Exhibit C series) and receipt of school fees payment at the Gloria Deo School (Exhibit D series) in support of his case. Applicant also filed a supplementary affidavit in support on the 27th day of October 2022 to which she annexed a CalBank Account Statement as at 24th October 2022, evidence of some correspondence between her and the father of her other child as regard the support she receives from him for the upkeep of that child (Exhibit 2), pictures showing alleged skin rashes on the child in issue( Exhibit 3) and pictures showing the room conditions in which the child is living (Exhibit 4) in support of her case. 3 | P a g e The Court, after hearing the parties on their affidavits before the Court referred them to the Court Connected Alternative Dispute Resolution (CC-ADR) to explore amicable settlement of the matter in the best interest of the child in issue. The ADR Terms of Agreement dated 27th October 2022 shows partial agreement between the parties as follows: Custody: That Applicant shall have custody of the child in issue. Access: That Respondent shall have access to the child on weekends from Friday after school to Sunday 4pm. Health: That Applicant shall renew the child’s health insurance anytime it falls due. That Respondent shall pay medical bills not covered by health insurance. The parties however could not agree on the issue’s maintenance, education and accommodation. These issues were therefore referred to the Court by the ADR unit for determination. The above terms of agreement reached between the parties on the 27th day of October, 2022 having been confirmed by them, is hereby adopted by the Court and incorporated in this judgment of the Court. For determination by the Court is whether or not Applicant is entitled to her maintenance claim of GHC1,200.00 monthly, accommodation and education for the issue. Applicant later reduced her demand for GHC1,200.00 to GHC500.00 monthly. On monthly maintenance, Respondent says he can afford GHC300.00 monthly. He said aside the maintenance, he buys diapers, wipes and snacks for school plus other necessaries of life for the issue. For the determination of maintenance, the Court will defer to sections 47 and 49 of the Children’s Act 1998 (Act 560) which states as follows: Section 47: “A parent or any other person who is legally liable to maintain a child or contribute towards the maintenance of the child is under a duty to supply the necessaries of health, life, education and reasonable shelter for the child.” Section 49: A Family Tribunal shall consider the following when making a maintenance order— 4 | P a g e (a) the income and wealth of both parents of the child or of the person legally liable to maintain the child; (b) any impairment of the earning capacity of the person with a duty to maintain the child; (c) the financial responsibility of the person with respect to the maintenance of other children; (d) the cost of living in the area where the child is resident; (e) the rights of the child under this Act; and (f) any other matter which the Family Tribunal considers relevant.” As can be deduced from section 47 of Act 560 supra, the responsibility for the care and maintenance of a child(ren) is the joint responsibility of both parties being parents. Also under section 47 of Act 560, the responsibility for the maintenance of a child is not only limited to monthly maintenance but also includes “a duty to supply the necessaries of health, life, education and reasonable shelter for the child” The Court however has to consider the circumstances of the parties before deciding on the quantum of support or level of support by each party (see section 49 of Act 560 above). The court observed upon enquiry and the evidence on the record that, Applicant has been unemployed for some time now and is now undergoing training as a Security Officer with G4 Security Services. She currently receives an allowance of GHC500.00 monthly pending a formal appointment in a few months. Respondent is a teacher with the Ghana Education Service. He earns a gross pay of GHC3,744.98 (including COLA of 432.11) with a net pay of GHC1,810.10 after some statutory and loan deductions. Both parties came into the marriage with a child each. Applicant came into the marriage with an about eight-year-old male child whilst Respondent came with an about fourteen-year-old female child. Applicant is currently living in the matrimonial home which has been abandoned by Respondent in Respondent’s family house. Respondent offered her GHC6,000.00 when their marriage was dissolved by the Muslim Community to enable her secure alternative accommodation, but Applicant refused to accept same when they met on the 2nd day of October 2022 because to her, it was 5 | P a g e inadequate. She indicated upon enquiry that the monthly rent for a single room self- contained accommodation is about GHC450.00 a month and GHC10,800.00 for two years. On the issue’s school, Respondent said he cannot afford the fees paid at the Gloria Deo school, which is GHC1,800.00 per term for which reason he sought admission at the Airforce Nursery and Creche at the beginning of the second term, but Applicant refused to allow the child to attend the new school. The fee at the new school is GHC 120.00 termly but the initial enrolment cost was about GHC 400.00. Applicant said her reason for kicking against the Airforce school was because the issue had just been enrolled in the Gloria Deo school and she didn’t want to move the child to a new school and then possibly change again after the divorce when she relocates. For which reason, she pleaded with Respondent to hold on with the new school till she relocates after the divorce, so they enrol him in a school near her new residence. The evidence also shows that the father of Applicant’s child from a previous relationship provides for the needs of the Applicant’s other child as confirmed by Applicant. So whereas Respondent is responsible for his other female child, Applicant’s responsibility for the upkeep of her other son may be low as that child’s father provides for most of his needs including snacks for school. The Court upon considering all the evidence on the record including the parties’ earning capacity, their responsibilities towards their other children and the needs and rights of the child in issue, orders as follows; Respondent shall maintain the issue with GHC350.00 monthly and this is subject to periodic review. This shall be paid into Court or Applicant’s bank account latest by the first day of each month for the month in issue. The parties shall secure a single room apartment with relevant amenities by the end of this year 2022 for Applicant for the benefit of the child in issue. Since Applicant’s child from the previous relationship will also benefit from the said accommodation, the cost of same shall be shared between the parties equally. Applicant shall bear 50% of the cost whilst Respondent takes up the other 50%. Pending the relocation of Applicant and the issue, Respondent and his family shall reconnect water and electricity supply to the facility Applicant occupies with the issue until an alternative accommodation is secured in order to secure the best interest of the issue. Upon relocation, the parties shall agree on a choice of school of reasonable standard, the cost 6 | P a g e of which is within their means and enrol the issue in at the beginning of the 2023 academic year. This is because, it is the considered view of the court that the school fees at the Gloria Deo school where the issue currently is, is beyond the means of the parties. Should the issue be enrolled in the Airforce Creche and Nursery as proposed by Respondent, then he shall be responsible for all educational needs of the issue including school feeding fee. If he is however enrolled in a different school with a relatively higher fees, then Applicant shall pay for the school feeding fee. Parties to keep open the channels of communication for the sake of the issue and they shall both notify and keep each other informed of their residence and any future changes to same in order to facility the access to the child. SGD. H/H MATILDA RIBEIRO (MRS.) CIRCUIT COURT JUDGE 7 | P a g e