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Consolidated Acts of Samoa 1996 |
LAWS OF WESTERN SAMOA
MAINTENANCE AND AFFILIATION
ANALYSIS
TITLE
PART I
PRELIMINARY
1. Short title
2. Interpretation
PART II
JURISDICTION
3. Powers to make maintenance and affiliation orders
4. Discretionary power
PART III
MAINTENANCE OF (DESTITUTE PERSONS BY NEAR RELATIVES
5. Liability of near relatives for maintenance of destitute person
6. Magistrate may make maintenance order against near relative
7. Recovery by near relative from parent or husband or wife
8. When money paid under the compulsion of a maintenance order
PART IV
AFFILIATION ORDERS
9. Magistrate may make affiliation order against father of illegitimate child
10. Evidence of mother
11. Maintenance and other payments
PART V
MAINTENANCE OF CHILDREN
12. Magistrate may make maintenance order against parent of child
13. Liability to cease when child attains 16 years
14. Maintenance of child over the age of 16 years
15. Part III and Part IV hereof not affected by this Part
PART VI
MAINTENANCE OF WIVES AND HUSBAND
16. Maintenance of wife
17. Maintenance of husband
PART VII
GENERAL PROVISIONS AS TO ORDERS
18. Amount and manner of payment of maintenance
19. Payment of future maintenance
20. Payment of past maintenance
21. Order notwithstanding residence overseas of parties
22. Liability as to maintenance not affected by agreement
23. Order re custody of child during currency of maintenance
24. Order against 2 or more persons in respect of the same person
25. Interim maintenance order
26. Powers of Magistrate as to maintenance orders when divorce suit pending
27. Dissolution of marriage not to affect maintenance order
28. Magistrate may make order as to costs
REHEARING AND VARIATION
29. Application for rehearing
30. Power to cancel, vary, or suspend order
31. Variation of order for a child so as to have effect after the age of 16 years
SECURITY FOR MAINTENANCE
32. Security for obedience for maintenance order
RECOVERY OF MAINTENANCE
33. Money payable under order to constitute a debt and be recovered by action
34. Money due under maintenance order to constitute debt payable in bankruptcy
35 Money due at death of person liable under maintenance order may be paid out of estate
36. Appointment of officer of Court to facilitate recovery of arrears due under maintenance order
37. Attachment orders
38. Charging orders
39. Receiving orders
40. Powers and duties of receiver
41. Mode of application for charging or receiving orders
42. Proceedings may be concurrent
REGISTRATION OF ORDERS AND AGREEMENTS
43. Orders of maintenance made by Supreme Court in divorce or other matrimonial proceedings
44. Registration and enforcement of maintenance agreement
PART VIII
PROCEDURE
45. Proceedings to be by way of application
46. Who may apply
47. Application to be treated as information for an offence
48. Issue of summons
49. Issue of warrant of arrest
50. Application to be treated as information for an offence
51. Services of summons where person against whom order sought is unsound mind
52. Order where defendant is absent from Western Samoa or cannot be found
53. Service of order not necessary
54. Restrictions on publicity of hearing
55. Who may be witnesses in application under Act
56. Evidence receivable in proceedings need not be strictly legal evidence
57. Evidence of maintenance order
58. Affiliation and maintenance order made outside Western Samoa may be used in evidence
59. Proof
60. Dismissal of application no bar to further application being made
61. Appeal from decision Magistrate
PART IX
OVERSEAS AS MAINTENANCE
Enforcement of overseas orders in Western Samoa
62. Registration of Commonwealth country orders
63. Registration of orders may be set aside
64. Confirmation of provisional Commonwealth country orders
65. Conformation of provisional orders affecting Western Samoa maintenance orders
66. Rehearing and appeal in respect of confirmation of order
67. Effect of registration or confirmation of overseas order in Western Samoa
68. Variation in Western Samoa of order registered or confirmed here
69. Proof of documents signed by officers of Court
70. Depositions to be evidenced
71. Extension of application of certain provisions of Act
Provision for Enforcement of Foreign Orders
72. Registration of foreign orders
Western Samoa Orders for Enforcement Overseas
73. Provisional orders for confirmation overseas
74. Effect in Western Samoa of confirmation overseas of provisional order
General
75. Certificate of Registrar or like officer
76. Conversion of currency
PART IX
OFFENCE
77. Failing to maintain wife, husband or children
78. Failing to pay money under order
79. Leaving Western Samoa while payments under maintenance order are in arrear
80. Leaving Western Samoa with intend to disobey a maintenance order
81. Leaving Western Samoa after application but before maintenance order made
82. Leaving Western Samoa while failing to make adequate provision for maintenance of wife or husband
83. Leaving Western Samoa while failing to provide for maintenance of child
84. Leaving Western Samoa without making provision for maintenance of wife, husband or child during absence
85. Person against whom affiliation order made leaving Western Samoa without permission
86. General provisions as to imprisonment
PART XI
MISCELLANEOUS
87. Exemption from stamp duty
88. This Act to apply to applications in respect of matters arising before its commencement
89. Regulations
90. Repeals
Schedule
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THE MAINTENANCE AND AFFILIATION ACT 1967
1967, No. 7
AN ACT to provide for the maintenance of destitute persons, illegitimate children, deserted wives and children, and to facilitate the enforcement of local and foreign maintenance orders.
[25 July 1967]
PART I
PRELIMINARY
1. Short title - This Act may be cited as the Maintenance and Affiliation Act 1967.
2. Interpretation - (1) In this Act, unless the context otherwise requires:
"Adequate maintenance" means maintenance reasonably sufficient for the necessities of the person to be maintained, irrespective of the means or ability of the person who is bound to afford such maintenance.
"Affiliation order" means an order made under this Act or under the Samoa Maintenance and Affiliation Order 1920 (N.Z.) adjudging any person to be the father of a child with whose mother such person has not inter-married.
"Certified copy" in relation to an order of a Court, means a copy of the order certified by the proper officer of the Court to be a true copy.
"Child" means a child under the age of 16 yeas.
"Commonwealth country" means a country that is a member of the Commonwealth of Nations; and includes every territory for whose international relations the Government of any such country is responsible, and also includes the Republic of Ireland and Western Samoa as if those countries were members of the Commonwealth of Nations.
"Country" includes any State, territory, province, or other part of a country.
"Court" means, in relation to a Court in Western Samoa, a Magistrate's Court.
"Defendant" means any person against whom a maintenance order or affiliation order (including a provisional maintenance order) has been made or is applied for under this Act.
"Destitute person" means any person unable, whether permanently or temporarily, to support himself by his own means or labour.
"Maintenance" includes lodging, feeding, clothing, teaching, training, attendance and medical and surgical relief.
"Maintenance Order" means an order made under this Act or under the Samoa Maintenance and Affiliation Order 1920 (N.Z.) or Part III of the Divorce and Matrimonial Causes Ordinance 1961 or Part XI of the Samoa Act 1921 (N.Z.) for the payment of money for or in respect of the past or future maintenance of any person, and includes a subsisting order for the payment by any person of money for or in respect of the maintenance of any person whom he is, according to the law in force in the place where the order is made, liable to maintain, and, where a maintenance order has been varied, means the order so varied and all orders by which it has been varied; and includes a maintenance order in or consequent upon an affiliation order.
"Mother" includes an unmarried mother.
"Near relative" means:
(a) With respect to a legitimate person, his father, mother, grandfather, grandmother, son, daughter, grandson, granddaughter, brother (of the whole or half blood), or sister (of the whole or half blood); and
(b) With respect to an illegitimate person, his mother, mother's father or mother, son, daughter, grandson, or granddaughter, or any person who has been adjudged under this Act or the Samoa Maintenance and Affiliation Order 1920 (N.Z.) to be the father of that illegitimate person, or the father or mother of the person so adjudged.
"Parent" means:
(a) In respect of any child other than a child which has been adopted by any person under an adoption order which remains in force:
(i) The father or mother or a legitimate child;
(ii) The mother of an illegitimate child;
(iii) The husband of the mother of any child, whether legitimate or illegitimate, if the child was born before the marriage of the mother with her said husband, and whether the mother is alive or dead;
(b) In respect of any child which has been adopted by any person under an adoption order which remains in force:
(i) The adoptive father or the adoptive mother of the child;
(ii) The husband of the adoptive mother of the child, whether the child was adopted before of after the marriage of the mother, to her said husband and whether the mother is alive or dead;
(iii) The widow of the adoptive father of the child whether the child was adopted before or after her marriage to the said father.
(2) Every illegitimate person shall for the purposes of this Act be deemed to be a near relative of all persons who are his near relatives under this Act.
PART II
JURISDICTION
3. Power to make maintenance and affiliation orders - A Court presided over by a Magistrate shall have power to make maintenance and affiliation orders in accordance with the provisions of this Act.
4. Discretionary power - The exercise by the Court of its jurisdiction to make a maintenance order shall in all cases be discretionary.
PART III
MAINTENANCE OF DESTITUTE PERSONS BY NEAR RELATIVES
5. Liability of near relatives for maintenance destitute person - Every near relative of a destitute person, if that relative is of sufficient ability, is liable for the maintenance of that destitute person in manner hereinafter provided.
6. Magistrate may make maintenance order against near relative - If, on application made by or on behalf of any person to a Court presided over by a Magistrate, the Magistrate is satisfied that that person is a destitute person and has a near relative of sufficient ability to contribute to his support, he may, if, having regard to all the circumstances of the case, he thinks fit so to do, make a maintenance order against the near relative in favour of the destitute person.
7. Recovery by near relative from parent or husband or wife - (1) Subject to section 8 of this Act, when under the compulsion of a maintenance order any near relative, other than a parent, has paid any money in respect of the maintenance of any child, whether legitimate or illegitimate, the amount so paid shall constitute a debt due and payable to that near relative by any person who at the time when the money was so paid was the parent or one of the parents of the child, or had been theretofore adjudged under this or any other Act to be the father of the child; and where there are 2 or more persons so liable for the debt their liability shall be joint and several.
(2) Subject to section 8 of this Act, when under the compulsion of a maintenance order and near relative has paid any money in respect of the maintenance of a married woman or man, the amount so paid shall constitute a debt due and payable to that near relative by the husband or wife of the married woman or man, as the case may be.
8. When money paid under the compulsion of a maintenance order - (1) For the purpose of section 7 of this Act, no near relative shall be deemed to have paid any money "under the compulsion of a maintenance order" unless, prior to the making of such order, the Court making the order hears, in support of the application, sufficient evidence on oath as to the relationship between the parties and as to the financial circumstances of the persons in whose favour and against whom the order is made to enable the Court to determine the application on the basis of such evidence, and unless the court making the order issues its certificate to the effect that such order has been made on the basis of such evidence.
(2) No judgment shall be obtained by a near relative against a parent or married husband or wife, pursuant to section 7 of this Act, unless a certificate issued in accordance with subsection (1) of this section is first produced to the Registrar of the Court in which judgment is sought.
PART IV
AFFILIATION ORDERS
9. Magistrate may make affiliation order against father of illegitimate child - (1) If, on application made by or on behalf of any person to a Court presided over by a Magistrate, the Magistrate is satisfied that that person is a woman who is the mother of a child or who is with child and that the defendant not being the woman's husband is the father of that child, he may make an order (herein called an affiliation order) adjudging the defendant to be the father of that child accordingly.
(2) In the case of a child already born, no affiliation order shall be so made unless the application is made before or within 6 years after the birth of the child, unless the defendant since the birth of the child and within 2 years immediately preceding the application, has contributed to or made provision of the maintenance of the child, or has cohabited with the mother as man and wife, in which case the application may be made at any time after the expiration of the said period of 6 years.
(3) If at any time the defendant has been absent from Western Samoa the period of his absence shall not be counted in computing the respective periods of 6 years or 2 years.
(4) No such application shall be made unless the child is under 16 years of age at the time of the application or has before that time died under the age of 16 years.
10. Evidence of mother - (1) The evidence of any woman who is the mother of a child or who is with child as aforesaid shall not be necessary for the making of an affiliation order or maintenance order.
(2) No person shall be adjudged to be the father of a child upon the evidence of the mother, unless her evidence is corroborated in some material particular to the satisfaction of the Magistrate.
11. Maintenance and other payments - (1) When an affiliation order has been made under this Act, the Magistrate may at the same time or at any time thereafter make a maintenance order in favour of the child against the person adjudged to be the father thereof, and may, in addition to or instead of such maintenance order, order such person to pay such sum as the Magistrate thinks fit on account of the expenses of and incidental to:
(a) The birth of the child, whether born alive or dead;
(b) The funeral of the child, if it is dead before the making of the order.
(2) If an order for the payment of maintenance or other sum is made pursuant to this section before the child is born, no such maintenance or sum shall be payable until the child is born.
(3) Every order made pursuant to this section shall be subject to the provision of sections 13 and 14 of this Act, and may be made by the Magistrate who made the affiliation order, or by any other Magistrate, and the affiliation order, subject to sections 29 and 60 of this Act, shall be conclusive proof of the paternity of the child.
PART V
MAINTENANCE OF CHILDREN
12. Magistrate may make maintenance order against parent of child - (1) If, on application made on behalf of any child under the age of 16 yeas to a Court presided over by a Magistrate, the Magistrate is satisfied that a parent of that child has without lawful excuse failed or intends to fail to provide the child with adequate maintenance, he may make a maintenance order against the parent in favour of the child.
(2) When the parent and child are living apart from each other, and the Magistrate is satisfied that there is reasonable cause for the child continuing so to live apart from the parent, the parent shall not be deemed to have made provision for the adequate maintenance of the child merely by reason of the fact that he or she is ready and willing to support the child if and so long as the child lives with him or her.
13. Liability to cease when child attains 16 years - Except as provided in sections 14 and 31 of this Act, no maintenance order in favour of a child shall impose liability for payments first due after that child attains the age of 16 years, but this provision shall not affect the continuing liability of any person under the order in respect of payments becoming due before that time.
14. Maintenance of child over the age of 16 years - (1) Notwithstanding anything in this Act, but subject to the provisions of this section, a maintenance order may be made in accordance with this Act in respect of any child who at the time of the making of the order has attained the age of 16 years and has not attained the age of 19 years in any case where, apart from this section, a maintenance order could be made in respect of the child under Part IV or this Part of this Act if the child were under the age of 16 years.
(2) No order shall be made under this section unless it appears to the Magistrate:
(a) That the child is or will be engaged in a course of education or training; and
(b) That it is expedient that payments towards the maintenance of the child should be made while the child is so engaged.
(3) Any order under this section shall be for such period as may be specified in the order, being a period not exceeding one year from the date of the order and expiring not later than the date when the child attains the age of 19 years.
(4) The power of a Magistrate, under section 30 of this Act, to vary any maintenance order, or to substitute a new order therefor, shall be deemed to include power to extend from time to time the period specified in any order made under this section for any further period not exceeding one year and expiring not later than the date when the child attains the age of 19 years.
(5) Proceedings for an order under this section may be commenced in the same manner as if the child were under 16 years of age, and the provisions of this Act shall accordingly apply, with the necessary modifications, to the proceedings and to any such order.
15. Part III and Part IV hereof not affected by this Part - Except as expressly provide, nothing in this Part of this Act shall be so construed as to restrict or otherwise affect the provisions and operation of Part III or Part IV of this Act.
PART VI
MAINTENANCE OF WIVES AND HUSBANDS
16. Maintenance of wife - (1) If, on application made by or on behalf of a married woman, to a Court presided over by a Magistrate, the Magistrate is satisfied that her husband has failed or intends to fail to provide her with adequate maintenance, he may make a maintenance order against the husband in favour of the wife.
(2) Unless the Magistrate is satisfied that the wife is a destitute person, of maintenance order shall be made against the husband if it is proved that he is not of sufficient ability to contribute to her maintenance.
(3) Where the husband and wife are living apart from one another and the wife has, in the opinion of the Magistrate, reasonable cause for refusing or failing to live with her husband, the husband shall not be deemed to have provided herewith adequate maintenance merely by reason of the fact that he is ready and willing to support her if and so long as she lives with him.
17. Maintenance of husband - (1) Subject to the provisions of this section, section 16 of this Act shall apply so as to entitle a married man to the benefit thereof and to make his wife subject to the provisions thereof, and for the purposes of this section all references in that section to a married woman or a wife shall be deemed to be references to a married man or husband, and all references in that section to a married man or husband shall be deemed to be references to a married woman or a wife.
(2) No maintenance order shall be made against a wife in favour of her husband unless the Magistrate is satisfied that the husband is a destitute person, and that his wife is of sufficient ability by her own means or labour to contribute to his maintenance, and that the failure to provide adequate maintenance was wilful and without reasonable cause.
(3) Notwithstanding anything to the contrary in section 59 of this Act, the burden of proof for the purposes of subsection (2) of this section shall be on the husband.
PART VII
GENERAL PROVISIONS AT TO ORDERS
18. Amount and manner of payment of maintenance - (1) Every maintenance order shall be for such sum as the Magistrate thinks reasonable in all the circumstances.
(2) Subject to sections 19 and 20 of this Act, every maintenance order may provide for payment at such time or times and in such manner as the Magistrate thinks fit, and the Magistrate may direct payment to be made to the person in whose favour the order is made or to any other person on behalf of that person or to the Registrar of any Magistrate's Court specified in the order.
19. Payment of future maintenance - (1) Any maintenance order for future maintenance may provide for periodical payments but no maintenance order for future maintenance shall provide for payments at intervals exceeding one month.
(2) No money payable under a maintenance order shall, without the prior consent of a Magistrate, be paid more than one year in advance of the due date thereof.
(3) If any money is paid in breach of subsection (2) of this section, it shall not be taken into account in any proceedings for the enforcement of the maintenance order or for the punishment of any disobedience thereto and all such proceedings may be taken in the same manner as if that money had not been paid; but no money so paid in breach of subsection (2) of this section shall be recoverable by the person by whom it was paid.
20. Payment of past maintenance - (1) Any maintenance order may require the person liable thereunder, in addition to or instead of making future payments, to pay such sum as the Court thinks reasonable, not exceeding $100 on account of the past maintenance of the person in whose favour the order is made.
(2) Such an order in respect of past maintenance may be made although the person in whose favour the order is made is dead at the time of the application or at the time of the order.
21. Order notwithstanding residence overseas of parties - Any application or order may be made under this Act whether the applicant, or the person in whose favour or the person against whom the order is sought or made, is resident in Western Samoa or elsewhere:
PROVIDED THAT at the time when the application is made the person in whose favour or the person against whom the order is sought is resident or domiciled in Western Samoa.
22. Liability as to maintenance not affected by agreement - No agreement shall be effective to take away or restrict any liability imposed on any person by this Act to provide or contribute to the maintenance of any person or to pay money in respect of any person, and no agreement shall affect the operation of any maintenance or affiliation order, or the right of a Magistrate to make any such order; but a Magistrate may, in his discretion, having regard to the existence of the agreement and to all the circumstances of the case, refuse to make any such order.
23. Order re custody of child during currency of maintenance order - (1) Whenever a Magistrate has made under Part IV or Part V of this Act an order for the maintenance of any child, whether legitimate or illegitimate, the Magistrate may by that order, or he or any other Magistrate may at any subsequent time by any other order, on the application of any person, made ex part or otherwise, appoint, on such terms as he thinks proper, some fit person who, with his own consent, shall have the custody of the child so long as the maintenance order remains in force, and the person so appointed shall thereafter have the custody of the child accordingly to the exclusion of any other person, and shall have in respect of the child the same powers, rights, duties, and liabilities as if had been appointed the guardian of the child by the Supreme Court.
(2) Any Magistrate may at any time, on the application of any person, made ex parte or otherwise, evoke any such appointment and make any other appointment in lieu hereof.
24. Orders against 2 or more persons in respect of the same person - Where there are 2 or more persons liable under this Act for the maintenance of the same person, nothing in this Act shall be so construed as to prevent the making of distinct maintenance orders against any or all of the persons so liable, either by the same or by different Magistrates, and either at the same time or at different times, and either under the same or under different provisions of this Act; and any such order may be made and enforced in the same manner in all respects as if no order against any other person was in existence.
25. Interim maintenance order - Where the hearing of an application under Part V or Part VI of this Act is adjourned for any period exceeding one week, a Magistrate may, if he thinks fit, having regard to all the circumstances of the case, make an order directing that the defendant do pay a weekly sum towards the future maintenance of his or her wife or husband or of any of his or her children until the final determination of the case.
26. Powers of Magistrate as to maintenance orders when divorce suit pending - (1) Subject to the provisions of this section, the Jurisdiction conferred on a Magistrate by this Act to make an order for the maintenance by any person of that person's wife or husband or of any child of either of them shall be exercisable, and all the provisions of this Act, including the powers to cancel, vary, suspend, or enforce any order, shall apply to any order so made, including any order made before and in force at the passing of this Act, notwithstanding that a petition is or has been presented to the Supreme Court, whether before or after the passing of this Act, by that person or by that person's wife or husband for divorce, nullity of marriage or judicial separation.
(2) Nothing in this section shall affect the power of the Supreme Court to make an interim or a final order for maintenance or alimony.
(3) Any maintenance order to which subsection (1) of this section applies shall be deemed to be suspended while there is in force an interim order of the Supreme Court for alimony or maintenance relating to the same parties, and shall be deemed to be cancelled by a final order of the Supreme Court for maintenance or alimony relating to the same parties.
27. Dissolution of marriage not to affect maintenance order - No maintenance order made under this Act shall be deemed to be or to have been cancelled by reason only of the dissolution (whether before or after the commencement of this Act) of the marriage between the husband and the wife.
28. Magistrate may make order as to costs - On making any order or dismissing any application under this Act, the Magistrate may order the payment of such costs including witnesses' expenses and solicitor's fees as he thinks just and reasonable and any order so made as to costs shall be enforceable in the same manner as money ordered to be paid by a maintenance order under this Act, and all the provisions of this Act as to the recovery of such money shall apply and extend to the recovery of the costs.
REHEARING AND VARIATION
29. Application for rehearing - Where an order has been made on any application under this Act, any Magistrate may, if in his discretion he thinks fit, on the application of the applicant or defendant, grant a rehearing of the application and may upon the rehearing cancel, vary, or confirm the order.
(2) Notice of any such rehearing shall be given to such persons and in such manner as the Magistrate directs.
30. Power to cancel, vary, or suspend order - (1) Any Magistrate may at any time on application make an order cancelling, varying, or suspending any maintenance order made, whether before or after the commencement of this Act, or substituting a new maintenance order therefor, on the ground that since the making of the order the circumstances have so changed that the order ought to be so cancelled, varied, or suspended, or that a new order ought to be substituted therefor.
(2) The power hereby conferred to cancel or vary any maintenance order shall include the power to remit, wholly or in part, any arrears due under the order; and any such arrears may be remitted either on the ground hereinbefore in this section mentioned or, if the Magistrate in his discretion thinks fit, on the ground that the defendant is not of sufficient ability to pay the same.
31. Variation of order for child so as to have effect after the age of 16 years - (1) This section shall apply to any maintenance order made, whether before or after the commencement of this Act, in respect of any child under the age of 16 years.
(2) The power of a Magistrate under section 30 of this Act, to vary any maintenance order, or to substitute a new order therefor, shall include power to make an order varying any maintenance order to which this section applies, or substituting a new order therefor, in accordance with the provisions of this section.
(3) If in any proceedings for the variation of any maintenance order to which this section applies, or for the substitution of a new order therefor, it appears to the Magistrate:
(a) That the child for whose maintenance provision is made by the maintenance order will be or is engaged in a course of education or training after attaining or having attained the age of 16 years, and
(b) That it is expedient that payments towards the maintenance of the child should be made or continue to be made after the child attains or has attained that age,-
the Magistrate may, in the order of variation or, as the case may be, in the substituted order, direct that payments of a reasonable sum shall be made or continue to be made, at such times and in such manner as the Magistrate thinks fit, towards the future maintenance of the child for such period after the child attains or has attained the age of 16 years as may be specified in the order of variation or substituted order, being a period not exceeding one year from the date of that order and expiring not later than the date when the child attains the age of 19 years.
(4) The period specified in any order made under this section may from time to time be extended, by a subsequent order made under this section, for any further period not exceeding one year as aforesaid and expiring not later than the date when the child attains the age of 19 years.
(5) Proceedings for any order under this section may be commenced, and any such order may be made, in respect of any maintenance order to which this section applies, notwithstanding that the maintenance order may have ceased to have effect, whether before or after the passing of this Act, by reason of the fact that the child has attained the age of 16 years:
PROVIDED THAT in any such case the period specified in any order under this section shall be a period expiring not later than the date when the child attains the age of 19 years.
SECURITY FOR MAINTENANCE
32. Security for obedience to maintenance order - (1) Whenever a maintenance order is or has been made the Magistrate may, if he thinks fit, by the same order or on application by order made at any later time, direct the defendant to give security for his obedience to the maintenance order.
(2) Every such security shall, as the Magistrate determines, be either the deposit of such sum of money as he directs not exceeding $400 with the Public Trustee, or a bond to the Public Trustee, or a bond to the Public Trustee, with on or more sureties approved by the said Magistrate or by any other Magistrate, in such sum as the Magistrate requiring the security determines not exceeding $400, conditioned for due obedience to the maintenance order.
(3) The Magistrate requiring the security may, by warrant under his hand, commit the defendant to prison until the order requiring the security is complied with; but no person shall be imprisoned under any such warrant for a longer period than 3 months.
(4) If and as often as, after any such deposit has been made by way of security, any money payable under the maintenance order is in arrear and unpaid, the Public Trustee may, on the application of the person to whom the money so in arrear is payable in pursuance of the maintenance order, pay to that person out of the deposit the sum so in arrear.
(5) If and as often as, after any such bond has been given as aforesaid by way of security, any money payable under the maintenance order is in arrear and unpaid, the person to whom the arrears are payable in pursuance of the maintenance order, or any other person authorised by a Magistrate from time to time in that behalf, may in his own name recover the amount of the arrears from any person or persons liable on the bond, by action in a Magistrate's Court or in any other Court of competent jurisdiction, as if the arrears were a debt due by such person or persons to the plaintiff, provided that no money shall be so recovered in any such action or actions in excess of the penalty of the bond.
(6) Any Magistrate may, on the application of the person by whom any such deposit has been made, or of his executors, administrators, or assigns, and on being satisfied that the security is no longer required, make an order directing the deposit or the residue thereof to be repaid by the Public Trustee to the applicant, and the same shall be repaid accordingly.
RECOVERY OF MAINTENANCE
33. Money payable under order to constitute a debt and may be recovered by action - (1) All money payable under a maintenance order shall, so soon as it is in arrear and unpaid, constitute a debt due by the person against whom the order was made to the person to whom the money is payable in pursuance of the order, and that money may be recovered by action accordingly in any Magistrate's Court or in any other Court of competent jurisdiction.
(2) On any judgment so recovered the like proceedings by way of execution or otherwise may be taken as in the case of any other judgment for a debt, but no such judgment shall effect any merger of the debt in respect of which it has been recovered, nor shall any such action or judgment so operate as to preclude, restrict, or affect any other proceedings that might have been taken under this Act in pursuance of the order if no such judgment had been obtained; but all other proceedings under this Act may be taken concurrently or successively with proceedings in respect of the said action or judgment.
34. Money due under maintenance order to constitute a debt provable in bankruptcy - (1) If any person against whom a maintenance order has been made is thereafter adjudicated a bankrupt, or files a petition to be so adjudicated, all money due and unpaid at the date of the adjudication, or of the filing of the petition, as the case may be, shall constitute a debt provable in the bankruptcy.
(2) No such bankruptcy and no discharge thereunder shall release the bankrupt from any personal liability under the order, or from any proceedings for the enforcement thereof, or for the punishment of any breach thereof, whether in respect of money due at the time of the adjudication or of the filing of the petition or accruing due thereafter, or shall affect any bond or other security for the observance of the order, or the liability of any property to be made available in satisfaction of the order, other than property which is or becomes asset in the bankruptcy.
35. Money due at the death of person liable under maintenance order may be paid out of estate - On the death of any person against whom a maintenance order has been made, any money in arrear and unpaid under the order at the time of his death shall constitute a debt payable out of his estate, but no future payments shall be recovered under the order, whether out of the estate or otherwise.
36. Appointment of officer of Court to facilitate recovery of arrears due under maintenance order - (1) There may from time to time be appointed, in connection with any Magistrate's Court, an officer of the Court, hereinafter referred as the Maintenance Officer.
(2) The office of Maintenance Officer may be held in conjunction with any other office not deemed inconsistent therewith.
(3) The Maintenance Officer may institute any proceedings, and appear on the hearing of any proceedings, under Part III, Part V or Part VI of this Act.
(4) The Maintenance Officer may, on behalf of the applicant in the original proceedings or the person to whom or for whose benefit money is payable under any order under this Act, and on the written request of such person, appear in any of the following proceedings:
(a) An application for the rehearing, or the rehearing, of any application under Part III, Part V or Part VI of this Act;
(b) Proceedings for the cancellation, variation, or suspension of any order made under this Act for the payment of money in respect of the maintenance of any person.
(5) It shall be the duty of the Maintenance Officer, but not without the request in writing of the original applicant or the person in whose favour maintenance order is made, to take all such proceedings as may be necessary under this Act or any other Act for the recovery of money payable under any maintenance order made under this Act or under any maintenance order registered under section 43 or section 44 of this Act, or registered or confirmed in Western Samoa under Part IX of this Act, or otherwise for the enforcement of any such order.
(6) The fact that the Maintenance Officer takes any proceedings as aforesaid shall be conclusive evidence of his authority so to do; and no person shall be concerned to inquire whether or not there has been a request under the last preceding subsection to take proceedings, or shall question the authority of the Maintenance Officer on the ground that he may not be Maintenance Officer whose duty it is to take the proceedings.
(7) All proceedings for the recovery of maintenance money may be taken by a Maintenance Officer in his own name with the addition of the words "acting on behalf of (name and description of person entitled) pursuant to section 36 of the Maintenance and Affiliation Act 1967".
(8) In case of the absence from duty of the Maintenance Officer appointed in connection with any Magistrate's Court (from whatever cause such absence may arise) a deputy of that Maintenance Officer may be appointed to act for him while such absence may continue. Every person so appointed as the deputy of a Maintenance Officer shall while so acting have all the powers, duties, and functions of the Maintenance Officer shall be conclusive evidence of his authority so to do, and no person shall be concerned to inquire whether the occasion has arisen requiring or authorising him so to act.
(9) If a Maintenance Officer has not been appointed in connection with any Magistrate's Court, the Registrar or Deputy Registrar of that Court may, upon written request, take any proceedings for the recovery of money payable under any maintenance order or otherwise to enforce that order.
(10) Any Maintenance Officer, or his deputy, or any duly instructed solicitor may act in proceedings in any Magistrate's Court on behalf of the Maintenance Officer appointed in connection with any other Magistrate's Court.
(11) All money recovered by a Maintenance Officer acting under this section shall be applied:
(a) In payment of the legal and other expenses (if any) incident to the recovery of that money; and
(b) In payment of the balance to the person or persons entitled under the maintenance order.
37. Attachment orders - (1) When any maintenance order has been made either before or after the commencement of this Act, the Magistrate making the same, or any other Magistrate, may, at the same or any subsequent time, on the application of any persons, making an attachment order in pursuance of this section.
(2) Any such attachment order may be made against any person who is proved to the satisfaction of the Magistrate to be an employer of the defendant against whom the maintenance order is made.
(3) Any such attachment order may be made ex parte without notice to the defendant or his employer, but a duplicate thereof shall be served upon the employer either personally or by leaving the same at his place of abode, or at his place of business, or at any of his places of business.
(4) Any such attachment order may declare that the money due and payable, or at any time or from time to time to become due and payable, under the maintenance order shall, by way of periodic payments of such amount as the Magistrate thinks fit and specifies in the attachment order, be a charge on any salary or wages which from time to time, and at any time while the attachment order remains in force, become due and payable by the employer to the defendant.
(5) The charge so created shall be deemed to accrue from period to period, and on such day of the period as is specified in that behalf in the attachment order.
(6) The attachment order may be made either for a fixed period of time or so as to remain in force until cancelled in accordance with the provisions in that behalf hereinafter contained.
(7) The charge so imposed shall attach to all wages or salary which becomes due by the employer to the defendant at any time while the attachment order is in force, whether the contract of employment in respect of which the wages or salary so becomes due existed at the date of the attachment order or not.
(8) Any such attachment order may at any time varied, suspended, or cancelled, on the application ex parte of any person, by the Magistrate making the same, or by any other Magistrate, on good cause being shown to the satisfaction of the Magistrate why the order should be so varied, suspended, or cancelled; and every such variation, suspension, or cancellation shall take effect on notice thereof being served on the employer in manner aforesaid.
(9) Every such attachment order shall take effect on the service of a duplicate thereof on the employer in manner hereinbefore provided.
(10) So long as the attachment order remains in force the employers shall from time to time, so often as any money becomes due and payable by him to the defendant by way of salary or wages, deduct therefrom such sum as is sufficient to satisfy the charge thereon so far as the same has accrued before the day on which the said wages and salary so becomes due and payable, and shall pay the amount so deducted to the person specified in that behalf in the attachment order, who may, as the Magistrate thinks fit, be either the Registrar for the time being of a Magistrate's Court or any other person.
(11) All sums so deducted and paid shall be deemed, extent thereof, to have been paid by the employer in satisfaction of the wages or salary payable by him to the defendant and to have been paid by the defendant in satisfaction of his liability under the maintenance order.
(12) If and as often the employer makes default in the payment of any money in satisfaction of any such charge, that money shall become a debt due by him to whom the person is payable in accordance with the terms of the attachment order, and may be recovered by that person by action in any Court of competent jurisdiction.
(13) If the person to whom that money is so payable in accordance with the terms of the attachment order is the Registrar for the time being of a Magistrate's Court, he may, on any such default as aforesaid, assign the said debt, by writing under his hand, with the leave of any Magistrate, to such other person as the Magistrate thinks fit; and that person may thereupon, in his own name, demand, sue for, and receive the said sum as if it was payable to him in accordance with the order.
(14) The charge created by any such attachment order shall prevail over and have priority to any assignment made or charge created by the defendant, whether before or after the making of the attachment order against him, and the order shall have the same effect as if no such assignment or charge had been so made or created.
(15) The employer, in making any deduction or payment in pursuance of the attachment order and in accordance with the terms thereof, shall not be concerned to make inquiry as to whether any money is due and payable under the maintenance order or be affected by any notice to the contrary.
(16) An attachment order may be made in respect of wages or salary earned by an employee of the State of Western Samoa and this section shall bind the State.
38. Charging orders - (1) When any maintenance order has been made, whether before or after the commencement of this Act, the Magistrate making the same, or any other Magistrate, may, if he thinks fit, at the same or at any subsequent time, order and declare that the money payable or to become payable under the maintenance order shall be a charge upon any real or personal property to which the defendant is entitled, and thereupon the said property shall become subject to an equitable charge accordingly in favour of the person to whom for the time being and from time to time that money is or becomes payable.
(2) Every such charging order shall specify, in such manner as to identify the same, the property on which the charge is imposed.
(3) Any such charging order may be at any time varied or cancelled by the Magistrate making the same, or by any other Magistrate.
(4) Nothing in section 24 of the Worker's Compensation Ordinance 1960 shall apply to any charge constituted under this section.
(5) When any such charging order is made in respect of the registered estate or interest of the defendant in any land, a duplicate or copy of the order under the hand of a Magistrate, having endorsed or otherwise written thereon a direction by that Magistrate to register the same, may be delivered for registration to the Registrar of Land, and the Registrar of Land shall thereupon without fee register the same.
(6) Any order cancelling or varying any charging order may be registered in like manner.
(7) On the registration of any charging order in manner aforesaid, the charge thereby constituted shall become a legal charge upon the estate or interest of which it is so registered.
39. Receiving orders - (1) When a charging order is so made in respect of any real or personal property, the Magistrate making the same, or any other Magistrate, may, at the same or at any subsequent time, if ally money is in arrear arid unpaid under the maintenance order, make, if he thinks tit, an order appointing the Public Trustee or any other person to be the receiver of the rents, profits, or income of the property so charged, or of any part of that property.
(2) A receiving order so made may be at any time thereafter varied or cancelled by the same or any other Magistrate, and every such order shall be so cancelled as of right on the payment by the defendant of all arrears due under the maintenance order together with payment by him in advance of all money become payable under the maintenance order during, the period of one year from the date of the cancellation of the receiving order.
40. Powers and duties of receiver - (1) The receiver so appointed shall be entitled to take and recover by action or otherwise the possession and receipt of the land or other property to respect of which he has been appointed, and of the rents, profits, and income thereof; so lone as the receiving order remains in force.
(2) He may also in his own name, grant lease of any such land on such conditions as he thinks fit, and for any term not exceeding 3 years or from year to year or for a weekly, monthly, or other like tenancy, at the best rent that can reasonably be obtained, payable uniformly, quarterly or oftener, without taking any fine or other benefit in the nature of a fine, and every such lease shall remain valid notwithstanding any subsequent cancellation of the charging order or receiving order.
(3) Subject to any directions that may be given by a Magistrate, the receiver may also pay in respect of any such land all rates, taxes, interest, insurance premiums, and other outgoings (including all instalments of principal and interest under any mortgage secured over the land) that are due at the time of his appointment or may fall due while the receiving, order continues in force, and the cost of repairing and keeping in good repair and condition all buildings and other improvements on am such land, but he shall not be bound to make any such payment or to repair or keep in good repair and condition any such buildings and improvements:
PROVIDED THAT the amount to be expended by the receiver in any year, being a year commencing from the date of his appointment or any subsequent year, in repairing and keeping in good repair and condition all buildings and other improvements on the land shall not exceed the sum of $100, unless expenditure is first authorised by a Magistrate
(4) All payments made by the receiver pursuant to subsection (3) of this section shall be made from the rents, profits and income of the land received or to be received by the receiver, except in so far as any such payments are made pursuant to subsection (5) of this section.
(5) A Magistrate may, on application by the receiver, authorise the receiver:
(a) To make the whole or any part of any such payments as aforesaid from any capital money which may be held by the receiver pursuant to the receiving order; or
(b) To borrow money, in the name and on behalf of the defendant, upon the security of any such land, to enable the whole or any part of any such payments as aforesaid to be made. Repayment of money so borrowed, and interest thereon, may be secured by mortgage or charge over the land, with or without a power of sale and subject to such covenants, provisions, and agreements as may be agreed upon between the receiver and the lender, and every such mortgage or charge shall have the same operation and effect in all respects as if executed or given by the defendant personally, and shall remain valid and effectual notwithstanding any subsequent cancellation of the charging order or receiving order.
(6) Where the receiver is the Public Trustee and he is authorised pursuant to subsection (5) of this section to borrow money, he may instead advance such money in accordance with section 32 of the Public Trust Office Act 1975 as if the land were ere property to the credit of an estate under that section, and all the provisions of that section shall, as far as they are applicable and with the necessary modifications, apply to any such advance.
(7) Subject to the foregoing provisions of this section, all money received by the receiver in the exercise of his powers shall, after payment thereout of all expenses incurred by him, and of such remuneration (if any) as may be allowed by a Magistrate for his services in that behalf, be held by the receiver in trust:
(a) To pay and satisfy thereout all money from time to time accruing due under the maintenance order;
(b) To pay from time to time the residue of the money so received by him to the person who would be entitled to that money if no such charging order or receiving order was in force:
PROVIDED THAT where the receiver is the Public Trustee his remuneration shall be as fixed under the regulations under the Public Trust Office Act 1975.
(8) Subject to this Act, the appointment of a receiver by a Magistrate under this Act shall have the same effect and the receiver shall have the same powers, duties, and liabilities, as if he had been appointed by the Supreme Court in the exercise of its jurisdiction in that behalf, and a Magistrate may give to the receiver any directions, and confer upon him any powers, which the Supreme Court could give to or confer upon any receiver so appointed by him.
41. Mode of application for charging or receiving orders - The jurisdiction of a Magistrate to make, cancel, or vary a charging or receiving order under this Act may be exercised on the application of any person made ex parte or otherwise, but the Magistrate may on any such application direct that notice of the application shall be given to such person as he thinks fit.
42. Proceedings may be concurrent - All proceedings authorised by this Act to be taken in enforcement or execution of any order or otherwise in pursuance of any order, may be taken concurrently or successively with any other proceedings so authorised.
REGISTRATION OF ORDERS AND AGREEMENTS
43. Orders for maintenance made by the Supreme Court in divorce or other matrimonial proceedings - (1) Where the Supreme Court in the exercise of its jurisdiction in divorce or other causes and matters matrimonial has, whether before or after the passing of this Act made am order for the periodic payment of any amount to or the benefit of any wife husband, or any child or children, such order may be registered in the Magistrate's Court most convenient for the enforcement of the order by entering the terms of such order in the Civil Record Book of such Court.
(2) Subject to the provisions of this section, the provisions of this Act shall apply with respect to every such order as if it were a maintenance order of a Magistrate made under this Act.
PROVIDED THAT nothing in this section shall be deemed to take away or affect the jurisdiction of the Supreme Court in relation to an order of that Court.
(3) No application shall be made under this Act for the cancellation, variation, or suspension of any order to which this section applies, or for the substitution of a new order therefor, in any case where the Supreme Court has ordered security to be given for the performance of the order, or while any proceedings for the cancellation, variation, or suspension of the order are pending or in progress in the Supreme Court.
(4) A copy of every order made by a Magistrate cancelling, varying, or suspending any order to which this section applies, or substituting a new order therefor, shall be forwarded by the Registrar of the Court in which the order is made to the Registrar of the Supreme Court and shall be recorded by that Registrar.
(5) Where an order to which this section applies is varied or otherwise affected by a subsequent order of the Supreme Court, the subsequent order shall be registered in the Magistrate's Court in which the earlier order of the Supreme Court is registered by entering the terms of such order in the Civil Record Book of such Magistrate's Court.
44. Registration and enforcement of maintenance agreements - (1) Where any agreement has been entered into in writing, whether before or after the commencement of this Act, and the agreement provides for the periodical payment by one party of sums of money towards the maintenance of any other party or of any child to whom Part V of this Act is applicable, and on an application under this Act the Court would have had jurisdiction to make an order in similar terms, either or any party may register the agreement of a copy thereof in the office of a Magistrate's Court.
(2) Where any agreement or copy thereof is registered under subsection (1) of this section the provisions of the agreement relating to maintenance shall, while it continues in force, have the same force and effect as if the agreement were a maintenance order made under this Act or the date of the registration, and the provisions of this Act relating to maintenance orders shall apply accordingly, with the necessary modifications:
PROVIDED THAT where any person makes an application under section 30 of this Act in respect of any such registered agreement on the ground set out in subsection (1) of that section, the application shall be dealt with as if the agreement were a maintenance order made under this Act on the date when the agreement was entered into.
(3) Where any Magistrate is satisfied that any registered agreement was not in force on the date of registration of the agreement or copy under this section, he may make an order cancelling the registration.
(4) The provision of this section shall apply to any such agreement as aforesaid whether or not the agreement provides for the separation of the parties or the custody of any child.
PART VIII
PROCEDURE
45. Proceedings to be by way of application - All proceedings brought under this Act except proceedings alleging an offence shall be commenced by the filing of an application.
46. Who may apply - Any application to the Court under this Act may except where otherwise expressly provided, be made either by a person in whose hose favour the order is sought or has been made or by any other person on behalf of that person.
47. Application may comprise more than one matter - Any application under this Act may comprise more than one matter of application against the same person whether under the same or different Parts of this Act and any order, summons, warrant or other process in respect of such application may relate to more than one matter accordingly.
48. Issue of summons - When an application is filed, Magistrate, Fa'amasino Fesoasoani or Registrar may issue a summons to the defendant.
49. Issue of warrant of arrest - When an application has been made and whether or not a summons has been issued or served:
(a) A Magistrate may, if he thinks fit, issue a warrant to arrest the defendant and have him brought before the Court; or
(b) A Fa'amasino Fesoasoani or Registrar may issue a warrant to arrest the defendant and have him brought before Court if, in the opinion of the Fa'amasino Fesoasoani or Registrar after hearing evidence substantiated on oath, a warrant is necessary to compel the attendance of the defendant at Court.
50. Application to be treated as information for an offence - Every application under this Act shall be received by the Court and shall be proceeded with in all respects as if it were an information laid against the defendant for an offence and as if the ground of the application were the alleged offence, and all proceedings under this Act shall be subject to the provisions of the law for the being relating to the filing, issuing and executing of informations, summonses and warrants so far as those provisions are consistent with this Act.
51. Service of summons where person against whom order sought is of unsound mind - (1) When any person against whom an order is sought under this Act is a person of unsound mind, of whose estate a committee has been appointed, or whose estate is administered by the Public Trustee in the exercise of his powers over the estates of persons of unsound mind, the summons on any application under this Act shall be served on the committee or on the Public Trustee, as the case may be, instead of on the person of unsound mind; and the committee or Public Trustee shall thereupon represent and act for the person of unsound mind in all proceedings thereunder, and the like proceedings may be taken and the like order made as if that person were of unsound mind and had been duly served with the summons.
(2) All money payable under any order so made shall be paid by the committee or Public Trustee out of the estate of the person of unsound mind according to the tenor of the order, subject, however, to all other debts and liabilities of the person of unsound mind so far as the committee or Public Trustee has notice thereof.
52. Order where defendant is absent from Western Samoa or cannot be found - (1) Where any application is made under this Act, not being an application under Part III or Part IV of this Act, and it is proved to the satisfaction of a Magistrate that the defendant is absent from Western Samoa or cannot be found, the Magistrate may, in his discretion, either hear and determine the application ex parte and make an order accordingly, or deal with the application under subsections (2) and (4) or (3) and (4), as the case may be, of this section as it were an application under Part III or Part IV of this Act.
(2) Where any application is made under Part III or Part IV of this Act and it is proved to the satisfaction of a Magistrate that the defendant is absent from Western Samoa but that his whereabouts is known, the Magistrate may order that notice of the proceedings be served on the defendant.
(3) Where any application is made under Part III or Part IV of this Act, and it is proved to the satisfaction of a Magistrate that the defendant cannot be found, the Magistrate, whether the defendant is believe to be in Western Samoa or elsewhere, may order any steps to be taken to bring the proceedings to the notice of the defendant, and may from time to time amend such order. Any order under this subsection may direct that notice of the proceedings be given by advertisement in any newspaper, or by the service of a notice on any solicitor or agent of the defendant or on any other person, or in any manner whatsoever.
(4) Where a Magistrate is satisfied that any order made under subsection (2) or subsection (3) of this section has been complied with and that a reasonable time has elapsed since the steps directed by the order were taken, he may if he thinks fit, hear and determine the application ex parte and make an order accordingly.
(5) The provisions of this section shall apply whether a summons or warrant has been issued on the application or not.
53. Service of order not necessary - It shall not been necessary that any order made under this Act, or any minute thereof, shall be served upon the person against whom the order is made.
54. Restrictions on publicity of hearing - (1) Where in any proceedings under this Act the Court is of opinion that the interests of public morality require that all or any persons should be excluded from the Court it may exclude such persons therefrom accordingly:
PROVIDED THAT such powers shall not be exercised for the purpose of excluding the applicant or defendant, or any counsel or solicitor, or any constable, or any accredited newspaper reporter.
(2) The Court in any such case may also, by order, forbid the publication of any report of the proceedings of any account of the evidence therein, either as to the whole or any portion thereof; and the breach of any such order, or any colourable or attempted evasion thereof, may be dealt with as contempt of Court.
55. Who may be witnesses in applications under Act - In all applications under this Act whether by way of hearing in the first instance or by way of appeal, or otherwise howsoever, the applicant and defendant, and the husband or wife of the applicant or defendant, shall be admissible and compellable witnesses, and no such witness shall be excused from answering any question on the ground that the answer thereto may tend to criminate the witness, or the husband or wife of the witness, in respect of any offence against this Act.
56. Evidence receivable in proceedings not to be strictly legal evidence - In all proceedings under this Act, whether by way of information, application, or otherwise, and whether by way of hearing in the first instance or by way of appeal, or otherwise however, the Magistrate or Court may receive any evidence that he thinks fit, whether the same is otherwise admissible in a Court of law or not.
57. Evidence of maintenance order - In all proceedings under this Act, whether by way of information application or otherwise, and whether by way of hearing in the first instance or by way of appeal, or otherwise howsoever, any document purporting to be all order, or a copy or duplicate of an order, made under this Act or under the Samoa Maintenance and Affiliation Order 1920 (N.Z.) and purporting to be signed by any Magistrate or Judge or to be certified as a true copy by the Registrar of any Magistrate's Court or the Supreme Court or by any Magistrate or Judge, shall be received as sufficient evidence of the existence, validity, and purport of that order, unless the contrary is proved.
58. Affiliation and maintenance orders made outside Western Samoa may be used in evidence – (1) Where order has been made out of Western Samoa, whether before of after the commencement of this Act, by any Court or by Judge, Magistrate, justice of the peace or other judicial officer, by which any person is adjudged to be the father of an illegitimate child, or by which any person is ordered to pay any sum of money towards or in respect of the maintenance of the husband, wife, child, or other near relative of that person the order so made shall, on any application under this Act whereby any affiliation or maintenance order is sought against that person, be sufficient evidence, unless the contrary is proved to the satisfaction of the Magistrate, of the following facts so far as they are alleged in the order or appear by necessary or reasonable implication therefrom:
(a) The paternity, maternity, and age of any child, whether legitimate or illegitimate;
(b) The fact that the person against whom the order has been made is the husband or wife of any other person;
(c) The relationship existing, whether by birth or adoption, and whether legitimate or illegitimate, between the person against whom the order has been made and any other person;
(d) The ability of the person against whom the order has been made to contribute to the maintenance of any other person;
(e) The fact that any person is a destitute person, or has been deserted or left without adequate means of support by the person against whom the order has made.
(2) Any such order as aforesaid may be sufficiently proved by the production of a document purporting to be a copy thereof under the seal of the Court by which the order was made, or under the hand of any Judge, Magistrate, Justice of the Peace, or other judicial officer by whom or, by whose Court the order was made, or under the hand of any Clerk, or other officer of that Court; and on the making or hearing of any application under this Act the Magistrate by whom the same is taken or heard may take judicial notice of any such seal or signature.
59. Proof - (1) In all proceedings under this Act, whether by way of application or prosecution for an offence, the burden of proving so far as that proof is material, that the defendant is not the near relative, or husband, or whether or parent of any person, as alleged in the application or information, or that the defendant is not of sufficient ability to contribute to the maintenance of any person, or that the defendant had reasonable cause to make default in the payment of any money payable under a maintenance order, or had reasonable cause for failing to provide any person with adequate maintenance, shall be upon the defendant:
PROVIDED THAT nothing in this subsection shall apply to any proceedings under Part IV of this Act, or to the proof that any person is or is not, or has or has not been adjudged to be, the father of an illegitimate child.
(2) In any prosecution for an offence against this Act:-
(a) The fact that the defendant has at any time within 3 years after leaving Western Samoa habitually made default in obeying an order of maintenance or in providing his wife or her husband or his or her child with adequate maintenance shall be sufficient evidence, unless the contrary is proved, that the defendant left Western Samoa with intent so to make default;
(b) Every person shall be deemed to attempt to leave Western Samoa within the meaning of this Act who does any act with intent to leave Western Samoa;
(c) The burden of proving that the permission in writing of a Magistrate was given to the defendant to leave Western Samoa shall be upon the defendant.
60. Dismissal of application no bar to further application being made - The dismissal of an application for a maintenance order or affiliation order or the refusal of a to make such an order or any other order under this Act shall not be a bar to the making of a further application in the same matter against the same defendant by the same applicant.
61. Appeal from decision of Magistrate - (1) When any order has been made on an application under this Act, or when any such application has been dismissed, or when a Magistrate has refused to make an order on any such application, or when any other order has been made or refused under this Act by a Magistrate, the applicant or defendant, or any other person prejudicially affected, may appeal to the Supreme Court against such order, dismissal, or refusal in the same manner as if the appeal was from a conviction in the Magistrate's Court for an offence.
(2) The operation of an order made under this Act shall not be suspended by any such appeal, and every such order may be enforced in the same manner in all respects as if no such appeal was pending.
PART IX
OVERSEAS MAINTENANCE
Enforcement of Orders in Western Samoa
62. Registration of Commonwealth country orders - Where a maintenance order has been made against any person by any Court in any Commonwealth country outside Western Samoa or where a maintenance order (other than an order in an affiliation order) made provisionally only against any person by any such Court has been, confirmed in a Commonwealth country outside Western Samoa it may, either case, whether the order was made or confirmed before or after the commencement of this Act, be registered in Western Samoa by filing a certified copy thereof in the office of a Court in Western Samoa in the prescribed manner.
63. Registration of order may be set aside - (1) The registration of an order under section 62 of this Act shall be set aside if the Court in which the order has been registered, whether before or after the commencement of this Act, is satisfied, on application by the defendant, that the order registration, no are registration order to which section 62 of this Act applies.
(2) In the case of an order made in or consequent upon an affiliation order, that registration may also be set aside if that Court is satisfied, application by the defendant, that the defendant neither appeared in the proceedings in which the affiliation order was made nor was duly served with affiliation order summons to appear in those proceedings.
64. Confirmation of provisional Commonwealth country orders - (1) This section shall apply:-
(a) To any maintenance order (other than an order in an affiliation order); and
(b) To any order varying any maintenance order where that maintenance order has, whether before or after the commencement of this Act been either registered or confirmed in Western Samoa,-
in any case where the maintenance order or the order varying the maintenance order, as the case may be, has been made provisionally only by affiliation order Court in any Commonwealth country outside Western Samoa and has no effect unless and until confirmed elsewhere.
(2) Where affiliation order certified copy of any order to which this section applies, together with the depositions of witnesses and affiliation order statement of the grounds on which the order might have been opposed, has been transmitted to the Secretary for Justice, those documents shall be sent to a Court for the hearing of proceedings for confirmation of the order.
(3) On receipt of such documents as aforesaid by a Court:
(a) Any Magistrate or any Registrar may issue a summons to the defendant;
(b) Any Magistrate may issue warrant to arrest the defendant and bring him before Court in any case where the defendant's address in unknown or where a summons has been issued but cannot be served because the defendant cannot be found.
(4) At the hearing it shall be open for the defendant to raise any defence which he might have raised in the original proceedings had he been present, but no other defence, and the statement from the Court which made the provisional order stating the grounds on which the making of the order might have been opposed shall be conclusive evidence that those grounds are grounds and the only grounds on which objection may be taken:
PROVIDED THAT where the provisional order is consequent upon an affiliation order it shall be affiliation order defence that the defendant neither appeared in the proceedings in which the affiliation order was made nor was duly served with a summons to appear in those proceedings.
(5) If the defendant appears at the hearing and it appears to the Court to be necessary for the purpose of any defence to remit the case to the Court which made the provisional order for the taking of any further evidence, the Court of hearing may so remit the case, and may adjourn the proceedings for the purpose.
(6) If at the hearing (whether following an adjournment or otherwise) the defendant does not appear, or on appearing fails to satisfy the Court that the order ought not to be confirmed, the Court may confirm the order either without modification or with such modification as it deems just. An order which has been confirmed with modifications shall for all the purposes of this Act have effect in the form in which it is confirmed.
(7) The Court confirming any maintenance order to which paragraph (a) of subsection (1) of this section applies may also, in its discretion, if it is satisfied that the defendant is of sufficient ability, at the same time order the defendant to pay, at such time or times and in such manner as the Court thinks fit, any sum not exceeding $100 on account of the maintenance of the person or persons in whose favour the provisional order was made between the date of the making of that order and its confirmation. An order made under this subsection shall be maintenance order for the purposes of this Act.
65. Confirmation of provisional orders affecting Western Samoa maintenance orders - (1) This section applies to any order that has been made provisionally only by affiliation order Court in any Commonwealth country outside Western Samoa and has no effect unless and until confirmed in Western Samoa, cancelling, varying, or suspending affiliation order maintenance order made in Western Samoa and registered or confirmed in that Commonwealth country.
(2) Where a certified copy of any order to which this section applies, together with the depositions of witnesses, has been transmitted to the Secretary for Justice, those documents shall be sent to a Court for the hearing of proceeding for confirmation of the order.
(3) On receipt of those documents as aforesaid by a Court summonses shall be issued to such persons as the Magistrate directs.
(4) If any person summoned under subsection (3) of this section appears at the hearing and it appears to the Court to be necessary to remit the case to the Court which made the provisional order the taking of any further evidence, the Court of hearing may so remit the case, and may adjourn the proceedings for the purpose.
(5) Subject to subsection (6) of this section, if at the hearing (whether following an adjournment or otherwise) none of the persons summoned under subsection (3) of this section appear, or if those who do appear fail to satisfy the Court that the order ought not to be confirmed, the Court may confirm the order either without modification or with such modification as it deems just. An order which has been confirmed with modification shall for all the purposes of this Act have effect in the form in which it is confirmed.
(6) No order shall be confirmed under subsection (5) of this section unless the Court is satisfied that an order similar to the order as confirmed could have been made in Western Samoa under this Act.
(7) Every order shall be confirmed under subsection (5) of this section shall have effect for all the purposes of Western Samoa law as if it had been made under this Act.
66. Rehearing and appeal in respect of confirmation of order - The provisions of sections 29 and 61 of this Act (which relate to rehearings and appeals) shall apply to the confirmation of any order or the refusal to confirm any order under section 64 or section 65 of this Act as if the confirmation or the refusal were an order made on an application under this Act or the dismissal of such an application respectively.
67. Effect of registration or confirmation of overseas order in Western Samoa - (1) Any order which has been registered in Western Samoa, and any order (including an order of variation) which has been confirmed in Western Samoa (other than an order confirmed under section 65 of this Act) shall remain an order of the Court of the country in which the order was made.
(2) Notwithstanding the provisions of subsection (1) of this section, every such order while it remains in force shall be enforceable as if made under this Act and the provisions of Part X of the Act shall apply to the defendant under any such order.
68. Variation in Western Samoa of order registered or confirmed here - (1) Where maintenance order has been either registered or confirmed in Western Samoa, whether before or after the commencement of this Act, any Court may at any time, on the application of any person, make an order under section 30 or under section 31 of this Act cancelling, varying, or suspending the operation of the maintenance order for the purposes of Western Samoa law; or for the purposes of Western Samoa law remitting, wholly or in part, any arrears due under the maintenance order:
PROVIDED THAT where it appears to the Court that the order it proposes to make is one which, if made provisionally, may be confirmed under the law of the country in which the maintenance order was made, the Court may, instead of making the proposed order, make provisional order that shall have no effect unless and until confirmed by competent Court in that country and the provisions of subsections (4) to (8) of section 73 of this Act shall apply accordingly, except that, instead of being accompanied by a statement of the grounds on which the order might have been opposed, the certified copy of the order shall be accompanied by a statement of the grounds on which the provisional order has been made.
(2) Where any person makes an application under subsection (1) of this section, in respect of a maintenance order registered in Western Samoa, on the ground set out in subsection (1) of section 30 of this Act, the application shall be dealt with as if the maintenance order had been made under this Act on the date when it was made outside Western Samoa.
(3) Where on the hearing of any application under subsection (1) of this section it appears to the Court to be necessary to remit the case to the Court which made the maintenance order for the purpose of taking any further evidence the Court may so remit the case and adjourn the proceedings for the purpose.
(4) For the purposes of the hearing of any application under subsection (1) of this section the evidence of any person beyond Western Samoa may be taken on commission in accordance with regulations made under this Act.
(5) Where a maintenance order has been either registered or confirmed in Western Samoa, whether before or after the commencement of this Act, and at any time thereafter the person in whose favour the order was made and the defendant are resident in Western Samoa any Court may, on the application of any person, make an order under section 30 of this Act substituting a new order for the registered or confirmed order.
(6) Any order under subsection (5) of this section may be made in any case where the Court considers it just, whether or not there would be jurisdiction to make an order on the bound set out in subsection (1) of the said section 30.
(7) On any application under this section a summons shall be issued to such persons as the Court directs.
69. Proof of documents signed by officers of Court - (1) For the purposes of this Part of this Act any document purporting to be signed by any Judge, Magistrate, or officer of a Court in any Commonwealth country outside Western Samoa shall, until the contrary is proved, be deemed to have been so signed without proof of the signature or judicial or official character of the person appearing to have signed it; and the officer of a Court by whom a document purports to be signed shall, until the contrary is proved, be deemed to have been the proper officer of the Court to sign the document.
(2) Every document purporting to be signed, certified, or verified by any of the persons mentioned in subsection (1) of this section shall be admitted in evidence in proceedings under this Part of this Act if it appears to be relevant to those proceedings.
70. Depositions to be evidence - Depositions taken for the purposes of this Part of this Act in a Court in any Commonwealth country outside Western Samoa may be received in evidence in proceedings under this Part of Act.
71. Extension of application of certain provisions of Act - The Head of State, acting on the advice of Cabinet, may from time to time, by Order, declare that the provisions of sections 62 to 70 of this Act, or any of the provisions of those sections, shall apply to orders made, whether before or after the commencement of this Act, in any country specified in the Order as if they were orders made in affiliation order Commonwealth country.
Provisions for Enforcement of Foreign Orders
72. Registration of foreign orders - (1) For the purposes of this section the expression "maintenance order" does not include any order in or consequent upon an affiliation order.
(2) The Head of State, acting on the advice of Cabinet, may from time to time, by Order, apply the provisions of this section to maintenance orders made in any country (not being affiliation order Commonwealth country) specified in the Order.
(3) Where affiliation order maintenance order to which this section applies has been made against any person by any Court or judicial officer, whether before or after the commencement of this Act, it may be registered in Western Samoa by filing a certified copy thereof in the office of a Court in Western Samoa in the prescribed manner.
(4) Where a maintenance order is registered under this section the Registrar of the Court in which it is registered shall cause notice of the registration in the prescribed form to be served on the defendant.
(5) The Court in which the order is registered shall, on application by the Defendant, set aside the registration if the Court is satisfied:
(a) That the order is not an order to which this section applies; or
(b) That if the parties were domiciled and resident in Western Samoa at the time when the application is heard the Court would not make an order requiring the defendant to contribute to, the maintenance of the person in whose favour the order was made (whether or not such an order might have been made at the date when the registered order was made).
(6) Any order which has been registered in Western Samoa under this section shall be enforceable as if made under this Act, and the provisions of Part X of this Act shall apply to the defendant under any such order.
(7) For the purposes of this section the provisions of section 68 (except subsection (3)) and section 69 of this Act shall apply to maintenance orders and documents which originated in any country specified for the time being in an order made under subsection (2) of this section as if they were maintenance orders and documents which originated in a Commonwealth Country.
(8) In any proceedings taken under this section (including proceedings for the cancellation, variation, or suspension of any order, or for the remission of arrears), the evidence of any person beyond Western Samoa may be taken on commission in accordance with regulations made under this Act
(9) Where any Order under subsection (2) of this section is revoked the Head of State may provide in the order by which it is revoked that all maintenance orders then registered under this section pursuant to the revoked Order shall be deemed to be registered under section 62 of this Act so long as an Order which applies to orders made in the country in which they were made is in force under section 71 of this Act, and that all matters and proceedings commenced while the Order under subsection (2) of this section was in force and pending or in progress at the time of its revocation may be continued, completed, and enforced under section 63 and sections 67 to 70 of this Act so long as an Order which applies to orders made in that country is in force under section 71 of this Act.
WESTERN SAMOAN ORDERS FOR
ENFORCEMENT OVERSEAS
73. Provisional orders for confirmation overseas - (1) On any application in Western Samoa for a maintenance order (other than an order in an affiliation order) against any person who is proved to be resident in affiliation order country outside Western Samoa or who is proved to have left Western Samoa with the intention of residing in a country outside Western Samoa, the Court may, in the absence of that person, if after hearing the evidence it is satisfied of the truth of the allegations in the application, make provisional order which shall have no effect unless and until confirmed by a competent Court in affiliation order place outside Western Samoa.
(2) Where a Court in Western Samoa has notice that a maintenance order made in Western Samoa has registered in a country outside Western Samoa and it appears that the defendant is not resident in Western Samoa, the Court may, in any case where it has ground to make an order varying the maintenance order, make instead a provisional order which shall have no effect unless and until confirmed by a competent Court in a place outside Western Samoa.
(3) No provisional order shall be made under this section unless:
(a) It appears to the Court that the order is one which may be confirmed under the law of the country in which the defendant resides or intends to reside; and
(b) The order could have been made as a final order if a summons had been duly served on the defendant and he had failed to appear at the hearing.
(4) Notwithstanding that an agreement has been registered under section 44 of this Act provisional order may be made under this section, unless it appears to the Court that there is provision in the country in which the defendant resides to enable the agreement to be enforced as an order. Where any such provisional order is confirmed the registration of the agreement under the said section 44 shall be deemed to be cancelled.
(5) The evidence of any witness who is examined on any application under this section shall be put into writing, and the deposition shall be read over to and signed by him.
(6) Where an order is made under this section the Court shall sent to the Secretary for Justice, for transmission to the country in which the defendant resides, the depositions so taken and affiliation order certified copy of the order together with a statement of the grounds on which the making of the order aright have been opposed if the defendant had been duly served with a summons and had appeared at the hearing, and also such information as the Court possesses for facilitating the identification of the defendant and ascertaining his whereabouts.
(7) Where any order under this section has been remitted by the Court before which it has come for confirmation to the Court which made the order for the purpose of taking further evidence, the last-mentioned Court or any other Court may proceed to take the evidence in the same manner and subject to the same conditions as the evidence in support of the original application was taken.
(8) If on the hearing of such evidence it appears to the Court that the provisional order ought not to have been made or that different provisional order should have been made, the Court may rescind the provisional order or may discharge the provisional order and make a fresh provisional order in its stead respectively. Except where the Court rescinds the order, the depositions shall be dealt with in the same manner as the original depositions.
(9) The provisions of section 61 of this Act (which relates to appeals) shall apply to the refusal to make a provisional order under this section or the rescission of such an order under subsection (8) of this section.
(10) Nothing in this section shall restrict the authority of affiliation order Magistrate to make an order under section 52 of this Act in any case where the defendant is absent from Western Samoa.
74. Effect in Western Samoa of confirmation overseas of provisional order - (1) On the confirmation of an order made under section 73 of this Act, the order shall, in the form in which it is confirmed, for all the purposes of Western Samoa law, become an order of the Court which made the provisional order as if the order had been made under this Act.
(2) Every order of variation made in Western Samoa relating to any such confirmed maintenance order shall be provisional only and of no effect unless and until confirmed in the same manner as the, original order:
PROVIDED that this subsection shall not apply:
(a) Where the defendant is residing in Western Samoa at the time of the variation; or
(b) Where the order of variation is only an order remitting arrears.
(3) The provisions of subsections (5) to (9) of section 73 of this Act shall apply to every provisional order of variation made in Western Samoa.
(4) A certified copy of any order cancelling or suspending the original order or varying it, where the only variation is the remission of arrears, shall be sent by the Court to the Secretary for Justice for transmission to the country in which the original order was confirmed.
75. Certificate of Registrar or like officer - In any proceedings under or for the purposes of this Part of this Act a certificate purporting to be signed by the Registrar of a Court or any like officer of a country in which a maintenance order is being enforced stating that a specified amount has been paid into Court or to that Registrar or officer under a maintenance order shall be evidence, until the contrary is proved, of the facts therein.
76. Conversion of currency - (1) Where the sum or sums ordered to be paid under maintenance order which is registered or confirmed in Western Samoa under this Part of this Act are expressed in currency other than the currency of Western Samoa, the Order shall be registered or confirmed, as the case may require, as if it were an order for the payment of such sum or sums in the currency of Western Samoa as, on the basis of rates of exchange prevailing at the date of the original order, is equivalent to the sum or sums so ordered to be paid.
(2) For the purposes of this section written certificate purporting to be signed by an officer of any bank in Western Samoa that a specified rate of exchange prevailed between currencies on a specified day and that at such rate a specified sum in one currency is equivalent to a specified sum in terms of the currency of Western Samoa shall be sufficient evidence of the rate of exchange so prevailing and of the equivalent sums in terms of the respective currencies.
PART X
OFFENCES
77. Failing to maintain wife, husband or children - (1) Every person who without reasonable cause fails to provide his wife or either husband with adequate maintenance and every parent who without reasonable cause fails to provide any of his or either children with adequate maintenance, shall be guilty of an offence punishable by imprisonment for a term not exceeding 6 months.
(2) If, on the hearing of any application under Part V or Part VI of this Act alleging that the defendant has failed to make adequate provision for the maintenance of his wife or either husband or his or either child, it is proved to the satisfaction of the Magistrate (whether the defendant is present before him or not) that the defendant has so failed and in respect of such failure has committed an offence against this section, the Magistrate may, if he thinks fit in the exercise of his discretion, and either in addition to or in lieu of making a maintenance order against the defendant, convict him of that offence in the same manner as it the hearing of the application was the hearing of an information for that offence.
(3) Save where the defendant has been, so convicted, no such application shall be any bar to a prosecution by way of information for the same offence.
78. Failing to pay money under order - Every person who without reasonable cause makes default for 14 days in the payment of any money payable by him under a maintenance order shall be guilty of an offence and shall be liable to imprisonment for a term not exceeding 3 months or to a fine not exceeding $100 or to both.
79. Leaving Western Samoa while payments under maintenance order are in arrears - Every person against whom a maintenance order has been made, either before or after the commencement of this Act, while any money payable under the order is in arrear and unpaid, leaves or attempts to leave Western Samoa without the permission in writing of a Magistrate shall be guilty of an offence punishable by imprisonment for a term not exceeding one year.
80. Leaving Western Samoa with intent to disobey a maintenance order - Every person against whom a maintenance order has been made, either before or after the commencement of this Act, and who at any time thereafter leaves or attempts to leave Western Samoa with intent to make default in obeying that order, shall be guilty of an offence punishable by imprisonment for a term not exceeding one year.
81. Leaving Western Samoa after application but before maintenance order made - Every person against whom any application has been made under this Act, and who has been served with a summons issued in pursuance of the application, or knows that an application has been so made against him, and who thereafter and before the application has been heard and determined leaves or attempts to leave Western Samoa, with intent to make default in obeying any order that may thereafter be made against him in respect of the matter of the application, shall be guilty or an offence punishable by imprisonment for a term not exceeding one year.
82. Leaving Western Samoa while failing to make adequate provision for maintenance of wife or husband - Every person who without reasonable cause fails to provide his wife or her husband with adequate maintenance, and who at any time while failing so to do leaves or attempts to leave Western Samoa without the permission in writing of a Magistrate shall be guilty of an offence punishable by imprisonment for a term not exceeding one year.
83. Leaving Western Samoa while failing to provide for maintenance of child - Every parent of a child who without reasonable cause fails to provide that child with adequate maintenance, and who at any time while failing so to do leaves or attempts to leave Western Samoa without the permission in writing of a Magistrate, shall be guilty of an offence punishable by imprisonment for a term not exceeding one year.
84. Leaving Western Samoa without making provision for maintenance of wife, husband or child during absence - Every person who is the husband of any woman or the wife of any man or the parent of any child and who leaves or attempts to leave Western Samoa with the intention of failing without reasonable cause to make adequate provision for the maintenance of that wife, husband or child during his or her absence, shall be guilty of an offence punishable by imprisonment for a term not exceeding one year.
85. Person against whom affiliation order made leaving Western Samoa without permission - Every person against whom an affiliation order is made prior to the birth of the child, and who leaves or attempts to leave Western Samoa without the permission in writing of a Magistrate at any time within 12 months after the making of the order, shall be guilty of an offence punishable by imprisonment for a term not exceeding one year.
86. General provisions as to imprisonment - (1) Any warrant of commitment to prison issued to give effect to any sentences of imprisonment under this Act may be suspended on such terms as the Magistrate thinks proper.
(2) When any person has been sentenced to imprisonment under this Act the Magistrate by whom he has been sentenced may if he thinks fit at the time of sentence or the same or any other Magistrate may at any time thereafter, notwithstanding that any direction or directions may already have been made under this subsection fixing a larger sum, by warrant under his hand, direct that the prisoner shall be released on payment of the fine (if any) and of such sum (if any) as the Magistrate thinks fit on account of the arrears due by him under the maintenance order on the date of his release and the expenses of conveying the prisoner to and from the place of the hearing of the information and in any such case the prisoner shall, on payment of the amount so stated in the warrant, be released accordingly.
(3) No imprisonment for an offence under this Act shall operate so as to extinguish or affect the liability of the defendant under any maintenance order.
PART XI
MISCELLANEOUS
87. Exemption from stamp duty - No stamp duty shall be chargeable on any document required for the purposes of this Act.
88. This Act to apply to application in respect of matters arising before its commencement - This Act shall apply to all applications made after the commencement thereof, whether the matter of the application arose before or after the commencement of this Act.
89. Regulations - The Head of State, acting on the advice of Cabinet, may from time to time, by Order, make all such regulations as may be required for the purposes of giving full effect to the provisions of this Act and for the due administration thereof.
90. Repeals - The enactments specified in the Schedule to this Act are hereby repealed and revoked as part of the law of Western Samoa.
SCHEDULE
Section 90
ENACTMENTS NO LONGER FORMING PART OF THE LAW OF
WESTERN SAMOA
Samoa Maintenance and Affiliation Order 1920 (NZ Gazette May 20 1920 Vol. II No. 51, Pages 1684 - 1688)
Samoa Maintenance and Affiliation Amendment Order 1929 (NZ Gazette December 12, 1929 Vol. III, No. 83, Pages 3222 - 3226).
Law Reform Ordinance 1948 No. 6, Section 5.
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The Maintenance and Affiliation Act 1967
is administered in the Department of Justice
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