Heni v Virobo [2008] PGDC 28; DC709 (22 May 2008)

DC709

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS FAMILY JURISDICTION]

FC 182 OF 2008

BETWEEN:

THERESA HENI
Complainant

AND:

BAE VIROBO
Defendant

Port Moresby: Ms. Nerrie Eliakim
2008, 22nd May

REASON FOR DECISION

1. The Complainant has filed a summons against the Defendant for Maintenance for herself and her two (2) Children namely Margaret born 03rd April, 2000, and Sylvia born 02nd October, 2004.

Her application is made pursuant to s. 3 of the Deserted Wives and Children Act Chapter 277.

In support of her application, she has sworn and filed her affidavit on 24th April, 2008. The Complainant is unemployed whilst the Defendant works with Inchcape Shipping Services PNG Limited as an Equipment Controller.

2. It is not disputed that parties have an existing statutory marriage. The Court notes that the Complainant earlier this year was successful in her Adultery claim against the Defendant and his current partner. It is also disputed that the Defendant since January, 2008, has lived separately from the Complainant and their two (2) Children.

3. The Complainant in her affidavit depose that they had a happy marriage until the Defendant began having extra marital affairs. Apart from that, the Complainant does not deliberate further. She has also filed a brief summary of funds given to her and the Children since he deserted them in January this year. It show irregular amounts from K100.00 to K250.00 made within the past four (4) to five (5) months, with the latest being K250.00 given to her on or about 09th May, 2008.

4. The Defendant on the hand has filed a statement stating that his marriage with the Complainant has been very unstable. He states further that although they were living in a rent free accommodation at seven (7) mile, she was hardly home when returned from home and that she spent most of her time with her family at Tatana. The Defendant himself is from Rigo District. On top of that, the Defendant states that the Complainant held onto his bank card and managed his fortnightly pay. He however found out later that she had been misusing the money on going out partying.

The Complainant in her statement in response, denied the allegations raised by the Defendant.

5. In considering the circumstance of this case, the Court finds that the Defendant did lawfully desert his wife and Children without regular means and support.

6. Mediation was attempted on 20th May, 2008 but was unsuccessful. Parties, especially the Defendant, indicated that there was no possibility at all for reconciliation. The Court informed parties that this Court does not have the jurisdiction and or power to dissolve a statutory marriage. Hence, should they intend to dissolve the marriage, then appropriate application has to be made to the National Court for a divorce. As it is, parties still have a an existing legal marriage.

7. The Defendant furnished his payslip dated 07th May, 2008 which shows net of K484.77 per fortnight. After his loan deduction to the bank of K108.92 and some company contributions of K85.99 he normally ends up with about K399.00

8. Generally, the Court takes in to consideration the Complainant’s position that the is unemployed, living with her parents and has a child that is already in school meaning that lunch and bus fare expenses is the norm. The Court also takes into consideration the Defendant’s ability to pay maintenance as well the fact that he has a new partner who on the other hand is employed, the Court now makes the following orders:-

1. The Defendant is hereby ordered to pay a total sum of K140.00 per fortnight being maintenance in the following terms:-
   

(a) Theresa Heni ( Complainant ) at	K30.00
(b) Margaret Virobo born 03/04/00 at	K60.00
(c) Sylvia Virobo born 02/10/04 at	K50.00
	K140.00

2. Order No. 1 is to be attached to the Defendant’s salary with Inchcape Shipping Services Limited.
   
3. Custody of the children remains with the Complainant and the Defendant is allowed reasonable access under the following terms:-
   
   • (a) The Complainant is to drop off the above two (2) children with the Defendant at his work place between 3:00 pm and 4:45 pm every Fridays;
     
   • (b) The children are to be dropped off at the Complainant’s house at Tatana on between 12:00 pm and 5: 30 pm every Sundays.
     
   • (c) In the event that there is a need for a temporary change to (a) and or (b), then parties must give reasonable notice on ach other.
     
4. The Defendant meet all medical and educational expenses of the child’s whenever they fall due.
   
5. This order, except Order 1 (a), is effective until either:-
   
   • (i) the child dies, or
     
   • (ii) the child reaches the age of sixteen (16) years, or
     
   • (iii) the order is discharged by a Court of competent jurisdiction, which ever occurs first.
     

Complainant: In Person
Defendant: In Person