Rapuna v Peri [2002] PGDC 41; DC484 (28 November 2002)

DC484

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 31 OF 2001

BETWEEN

Wendy Rapuna
Plaintiff

V

Koeya Peri
Defendant

Mt Hagen: Appa - PM
2002: 30th August, 28th November

RULING

Affiliation proceeding - Notice of Motion to set aside ex parte orders – functions of Child Welfare and Deserted Wives and Children Act distinguished.

Case cited
Martha Aeava v. Oa Ikupu [1986] PNGLR 65

Counsel
Wendy Rapura for herself
J. Koeya Peri for himself

28th November, 2002

APPA - PM.: The complainant is seeking maintenance orders for her daughter Georgina James. Wendy Rapura’s application for her maintenance order under the Deserted Wives and Children Act was refused because her customary marriage with the defendant was already dissolved.

The maintenance order for the child Georgina James were made ex parte defendant on 23rd May, 2002. The defendant/applicant has filed this Notice of Motion to either set aside the orders or alternatively dismiss the whole proceeding on the basis that the orders were made under the wrong legislation.

There was no dispute as to paternity. The parties were customarily married and begotten the child but were apparently divorced through this custom. Village Court Magistrates and leaders filed affidavits to this effect. That was why the affiliation court ruled that the complainant was not entitled to any maintenance from the defendant but the child was entitled to it and ordered the defendant to pay K100.00 a fortnight towards the child and K500.00 by way of compensation for past maintenance. It was apparent that the defendant did not question the legality of the K500.00 in past maintenance so its not my business to touch on it but only to mention that such order should have retrospective effect from the date of summons. Confinement expenses applies to unborn child and the amount cannot exceed K150.00 Child Welfare Act, Section 53.

The Child Welfare Act applies to single mother and illegitimate child or children who have been left without means of support. Married women or legitimate children are not entitled to relief under pt 1x of the Act. The Deserted Wives and Children Act provides a means for dealing with the maintenance of wives and legitimate children who have been left without support by the husband or father as the case may be.

What happened in this case was that the affiliation proceeding was taken out under the Deserted Wives and Children Act seeking maintenance orders for the complainant and her child. There was not dispute that the complainant was married to the defendant and the child was born during the marriage so child was thus legitimate and both were qualified persons under the Deserted Wives and Children’s Act. The Child Welfare Act doesn’t apply here.

The complainant was refused maintenance orders because their marriage was then dissolved in accordance with the custom. That decision was in line with the decision in the case of Martha Aequa v. Oa Ikupa [1986] PNGLR 65.

In my view, the defendant/applicant had shown no cause or defence for setting aside the ex parte order or for the whole proceeding to be dismissed. Although their marriage had been dissolved accordance with custom and until such time, permanent custody of the child was decided by the National Court, the child was at no fault for the parent’s marriage problems and the welfare of the child being the paramount consideration, I have to find in favour of the child.

I therefore, make the following orders;

1. The application to set aside the orders of 23rd May 2002 is refused.

2. The application to dismiss the whole proceeding is also refused.

3. The ex parte orders of 23rd May 2002 are reinstated and affirmed and enforceable retrospectively.

4. The temporary custody of the child has awarded to the mother remains and defendant to have access until permanent custody was decided.

5. Cost of this proceeding is awarded to the complainant/respondent.

Dated this 28th day of November 2002 at Mt. Hagen.

..........................
RAPHAEL APPA
By the Court.