Warki v Konts [2004] PGDC 3; DC88 (2 April 2004)

DC88

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

BETWEEN

PAPUAN WARKI
Complainant

AND

JAMES KONTS
Defendant

Mt. Hagen

B. Jacobs
2 April 2004

Maintenance Orders Enforcement Act Section 6, 8 & 61 Thereof – Application To Send Defendant To Imprisonment.

Deserted Wives And Children Act Chapter 277, Section 8 - Disobedience Of Maintenance Orders.

02nd April, 2004

B JACOBS. The brief facts of this matter are these, the District Court did on the 25th October, 1990 ordered defendant to pay the sum of K15.00 as maintenance fortnightly towards the child. Defendant has thus defaulted in making the payment from Pay Period Endings 22/02/02 to 20/02/04 amounting to K795.00 and a previous outstanding arrears of K1,575.00 total up to K2,370.00, remains due and payable.

A Certificate of Arrears was issued together with an Application to Commit Defendant to Prison was served on the defendant, and the defendant through his lawyer of Gendua and Associates Lawyers of Goroka, acknowledged receipt and admitted liability but asked for physical presence of the child namely Claven Konts to be produced in court too, he was not allowed access to the child.

The defendant is employed with the Health Department as a Health Extension Officer at Goroka Base Hospital EHP. Complainant resides with the child at her own village and child Claren Konts is doing grade 6 at Mala Community School Dei District, WHP.

The proceedings was taken out against the defendant after he defaulted from pay period endings 22/02/02 to 20/02/04. The Court did on the 07th March, 2002 ordered James Konts to pay the sum of K1,575.00, arrears from 25/02/00 to 08/02/02. The defendant has disobeyed this court order and did not make any payments to the complainant.

The records from the files shows that since the court order dated 25th October, 1990, defendant has been defaulting and upon enforcement proceedings, defendant has paid the arrears. The defendant is on paid employment. The child is in grade six (6) and the court ordered him to pay K15.00 fortnightly towards the child is not a financial burden on the defendant.

The child was physically taken to court and also a letter from the child's class teacher was tendered to court to prove that the child is in school. This evidence is accepted pursuant to Section 70 of Maintenance Orders Enforcement Act. The defendant stated that child has been kept hidden is not proven, and the child who is 14 years appeared in person in court and told the court that she tries to make contact with the defendant but defendant does not reply and too child feels not wanted, so even if the complainant tries to send the child to defendant, child refuses to go.

In all affiliation proceedings the child's welfare is paramount and evidence from the court records shows that defendant does not pay K15.00 fortnightly allowance. When Enforcement proceedings are taken out against the defendant and when a warrant of commitment is made against him for default defendant always pays. Defendant has got a habit of defaulting in making payment and a latest court order dated 7th March 2002, has not been executed by the defendant too. If the defendant complied with the order, there wouldn't be this huge outstanding figures.

I find that the defendant has defaulted in paying the fortnightly allowance towards child Claren Konts and the sum of K2370.00 remains due and payable.

Findings for the complainant.

Defendant is hereby ordered to pay in the sum of K2370.00 being arrears for maintenance. Defendant is given until the 30th April, 2004 to comply with the order, if defendant defaults in making the payments a jail term of six (6) months with hard labour shall be imposed.

All payments shall be paid to the Clerk of Court, P.O. Box 379 Mt. Hagen, WHP.

This order shall remain enforce unless it is:-

(a) Varied by a Court of competent jurisdiction,

(b) Child or father becomes deceased,

whichever occurs first.

Ordered and directed under my hand this 02nd day of April, 2004.

BETTY JACOBS

Magistrate - Juvenile/Family Court