Kelly v Baleu [2003] PGDC 27; DC424 (13 January 2003)

DC424

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 31 OF 2002

BETWEEN

Rose Kelly
Complainant

V

Linus Baleu
Defendant

Mt. Hagen: M.M. Pupaka
2003: 08th January

Civil Claim – Maintenance Proceedings – Mother & Child – Claim Under The Deserted Wives & Children’s Act Ch. 277 – Defendant’s Default In Defending – Ex Parte Orders.

Maintenance Proceeding – Claim For Orders For Backdated Payments To The Actual Dates Of Desertion – Back /Retrospective Maintenance Payments Not Justified In Law.

Cases Cited
R –V- The Stipendi Ary Magistrate of Port Moresby & Hunnam Ex Parte Hunnam [1965-66] PNGLR 344

Counsel
Mr Sino for the Complainant
No Appearance by the Defendant

13th January 03

M. PUPAKA: By a set of Complaint & Summons upon Complaint dated 23rd May 2002 the complainant sued for backdated and future maintenance of herself and the male child McKenzie born to her and the defendant on 1st June 1999, on the bases that the defendant has left them without adequate means of support. She brings this action under the Deserted Wives & Children Act Ch. No. 277, (the DWCA). She also seeks consequential order for custody of the child of the marriage.

The defendant was served, as it seems, on the 3rd of June 2002 with the originating documents of this proceeding. At least on one occasion he appeared in court, (15/08/02). He seems to have acknowledged liability but wanted to reconcile with the complainant. Reconciliation may have been shelved or at least it seems not to have been progressed. Further the defendant has failed to file a Notice of Intention to Defend and or a Defence. He has simply failed to make any form of appearance. It does not seem he is ever likely to turn up in court soon.

In the circumstances the complainant is entitled to have her claim considered ex parte, and that is what this court must next do after judgement was reserved on the 08th of January 2003.

For that purpose, it must be noted that without any evidence to the contrary this court can only accept that the complainant is eligible to be maintained by the defendant, along with the child McKenzie. The complainant’s sworn evidence that she and the defendant were married according to custom, which seemingly has not been dissolved, remain untraversed. The court can only accept and rely on unchallenged evidence, as long as these are admissible and credible evidence, which is the case here.

The complainant has filed two affidavits which are dated 23rd May 2002 and 19th December 2002 respectively. Both affidavits further expound on her claim in the pleadings that she is married to the defendant and out of that marriage is the child McKenzie who is now about three and half years old. She further states that the defendant has failed to provide financial or other support for both herself and the child and has effectively abandoned them.

In her affidavit dated 23rd of May 2002 the complainant said she lived with the defendant after their marriage, but later, prior to the birth of the child of the marriage, he left to work in Lae. Soon after that he took another woman. No dates are given but the defendant seems to have failed to support the complainant and the child from about the time he left them.

Further (unsworn) evidence was obtained in court on the 8th of January 2003 from the complainant. She said that the defendant now works as heavy equipment fitter at Porgera, but she does not know how much he earns in a fortnight. She also said the defendant’s other woman lives and works as a sister at the Angau Memorial Hospital in Lae and that there are two children out of that relationship. It is not known as to whether the defendant currently supports that other woman and her children or has also deserted them. The complainant herself is currently employed as legal secretary with Kunai Lawyers, earning K300.00 a fortnight.

The complainant now seeks K70.00 and K50.00 as fortnightly maintenance payments for herself and the child respectively. Realistically, particularly considering current living cost, these are only modest sums. However the ability of the defendant to pay these sums is really not known. His other liabilities, particularly his financial obligations towards his other wife and children are also not known. No one can know the ability of the defendant to pay the sums sought, particularly as to whether it would be crushing on him, unless he testifies and provides relevant evidence, which he has not. Until he does, I can only think he is able to pay what essentially is a modest sum of K120.00 a fortnight. However the fact that he has not testified regarding his own financial circumstances is his own choice.

In the circumstances I would grant the orders as sought, which includes consequential custody of the child McKenzie. I would also grant reasonable excess by the defendant to the child.

The complainant has claimed and is seeking orders for back dated payments of both her and the child’s maintenance payments to 1st October 1998 and 1st June 1999 respectively, those given dates being the commencement of their respective desertions.

I have sighted many maintenance claims such as this in this jurisdiction, when all fresh civil claims come before me for signing, which I do in my capacity as Senior Provincial Magistrate (SPM). I have often noticed that back dated payments are routinely sought. However I normally do not preside over maintenance cases myself so I am unaware of how these claims are disposed off by other magistrates, especially as to whether or not orders for back dated maintenance payments are granted. Nevertheless I must state here, mostly for the present purposes but also for the general record, that District Courts can not grant orders for back dated payments to the dates of actual desertion. This has been the position since the case of R –v- THE STIPENDIARY MAGISTRATE OF PORT MORESBY & HUNNAM ex parte HUNNAM [1965-66] PNGLR 344 wherein Mann CJ held inter alia that:

"The jurisdiction to make an order for maintenance of deserted wives and children is entirely statutory so that the order must come within the terms of the Ordinance. The Deserted wives and Children Ordinance 1951 – 1961 does not confer power upon a magistrate to make a retrospective order and no such order can be made." [As stated in the headnote of the judgement].

This ruling by Mann CJ in the case cited above was the result of a careful consideration of section 6 of the Deserted Wives and Children Ordinance 1951 – 1961, which, being in the same terms is the equivalent of section 3 of the present Act (DWCA). Section 3 of the DWCA does not authorise retrospective orders, either expressly or by necessary implication.

However it may be possible to make orders for back dated payments to the date of registration of maintenance proceedings, the date at which the court became properly seized of the matter. In any event I am sure it still remains a discretionary relief very much depending on whether proper grounds are established to show why there ought to be backdated payments. For instance one such ground maybe evidence of extraordinary expenses that are distinguishable from ordinary living expenses, having been incurred. In the case before me now no such grounds or causes or reasons have been put forward. The DWCA, whilst conferring discretion on the court to decide what amount is reasonable, primarily contemplates a regular allowance to meet the daily needs and ordinary living expenses of deserted wives and children. That is for current expenses, in the present tense. I also note that the complainant has given no explanation as to why she waited a fairly long time to seek maintenance payments. She seems to have been content to live as she was until she felt in need of support. One can only assume she was not particularly in need of support prior to the time she lodged this claim. I would therefore also decline to make any orders for any back dated payments to the date of registration of this proceeding.

Court Orders

In the end, taking into account all of the foregoing discussions and the conclusions reached as a result, I consequently make the following orders.

Orders

1. The defendant Linus Baleu is ordered to pay maintenance for the use of the complainant Rose Kelly and the maintenance and support of the male child McKenzie in the sum of K120.00 per fortnight as follows:

(i) Complainant = K70.00

(ii) McKenzie = K50.00

2. Legal custody of the only child of the marriage, namely McKenzie, is committed to the complainant.

3. The defendant shall have reasonable access to the child.

4. The full terms of the order for maintenance of the complainant shall continue until the order is varied or is aside by a court of competent jurisdiction or the complainant’s marriage to the defendant is dissolved, except for the recovery of arrears then due under the order, or she dies, whichever occurs first.

5. The full terms of the order for maintenance of the child McKenzie shall continue and be in force until the order is varied or is set aside or the child reaches the age of 16 years, except for the recovery of arrears then due under the order, or the child dies, whichever occurs first.

6. All monies received or receivable shall be paid to the Cashier’s Office, BMS, Kapal Building, Mt. Hagen, for appropriation towards the support of the complainant and the child McKenzie, fortnightly.

Given under my hand at the Mt. Hagen District Court this 13th day of January 2003.

Kunai Lawyers: Complainant
In Person: Defendant