Yalong v Yalong [2009] PGDC 121; DC4052 (25 May 2009)

DC4052

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY COURT JURISDICTION]

FC. 14 OF 2009

BETWEEN

Pinana Yalong
Complainant

AND

Male Yalong
Defendant

Kundiawa: Lavutul .S

2009: 20^th, 27^th, April, 18^th, 20^th, 25^th May

FAMILY – Deserted Wives and Children’s Act- Claim for maintenance for mother and Children- Adequate Means of Support - District Court Act – Section 22- Ancillary Jurisdiction.

Cases Cited
Kiruhia –v- Kiruhia [1992] PNGLR 30

References
Deserted Wives and Children’s Act- S.3 (1) (a) (111).
Section 3(1) (b) (111).

District Court Act- Section 22

Appearance
Complainant Appeared In Person.
Defendant Non Appearance.

Reasons for Decision

29^th May 2008

Samuel Lavutul; Magistrate, The matter came before me by way of complaint alleging the defendant did desert the complainant and their two children ages, Evelyn Yalong (f/c) 11years and Wari Yalong (f/c) 14 years respectively, leaving them without adequate means of support on or about the month of September 2008 at Kundiawa, Simbu Province, Papua New Guinea.

2. The defendant totally failed to adhere to the summons which was served on him by the complainant, in order to appear in court and defend himself. On record there is a proof of service filed. Thus then enabled this court to proceed exparte.

Facts

3. The complainant and the defendant were married by custom in about 1978 and have eight (8) children of the marriage. Six (6) of those eight (8) children are over the age of 16 years whilst two (2) are under the age of 16 years. Ms. Evelyn Yalong f/c 11years old and Ms. Wari Yalong 14 years old

4. It all started after the defendant was having an extra- marital affair with another woman by the name of Gisuka from Karamui; Simbu Province in about the month of July 2008 in the absence of the complainant.

5. In the month of September 2008 it came to light the defendant decided he would also take the other woman in as second wife with consent from the complainant. They came to an understanding with the defendant that he was going to share his fortnightly salaries between her and the 2^nd wife (for use of better word).

6. However, the defendant did not keep his undertaking to the complainant and their children which then resulted in this proceeding.

Issues

7. Whether the complainant was married to the defendant.

8. Whether the defendant deserted the complainant and their children and failed to provide adequate means of support to his wife and the two (2) who are under the age of 16 years.

Law

9. Section 3. Hearing and order.
(1) On the hearing of a complaint under Section 2, the Court shall inquire into the matter and—
(a) where it is satisfied that—
(i) the wife is left without means of support; or
(ii) the defendant is about to leave the country without making adequate provision for her support,
the Court may—
(iii) order the defendant to pay such allowance as it considers reasonable for the use of the wife; and
(iv) commit the legal custody of a child of the marriage to a wife or some other person; and
(v) order the defendant to pay such allowance as it considers reasonable for the support of the child; and
(b) where it is satisfied that—
(i) a child of the defendant is left without means of support; or
(ii) the defendant is about to leave the country without making adequate provision for
the support of the child,
the Court may—
(iii) order the defendant to pay such allowance as it considers reasonable for the support of the child; and
(iv) commit the legal custody of the child to the mother or some other person.
(2) An allowance ordered to be paid under Subsection (1) shall be paid weekly, fortnightly, or monthly, and to such person and in such manner as the Court orders.

Deliberations

10. In relation to the 1^st issue, it is established by the evidence of the complainant, she was married to the defendant by customary matrimony in 1978. Out of that marriage they had eight (8) children, 1. Debra Yalong -f/a, 2. Konelius Yalong -m/a, 3. Lennal Yalong, 4. Parens Yalong- m/a, 5. Barbra Yalong –f/a, 6. Evelyn Yalong - 11 years old,
7. Wari Yalong- 14 years old.

.11. The second issue is settled by the fact that defendant did desert his wife and children since the month of September 2008. The complainant revealed in her evidence the defendant and their father has not provided nor makes any provision for adequate means of support towards her and her children upon deserting them. He is now remarried and living with another woman in Karimui District of Simbu Province.

12. In my view the above revelation by the complainant thus settles the issues of marriage, desertion and non-provision of adequate means of support to the complainant and her two (2) younger children on the balance of probabilities.

13. The defendant is liable for desertion and his failure to provide adequately for his wife and two (2) younger children.

Assessment

14. Prior to deciding quantum, I adopt the view in Kiruhia –v- Kiruhia by his Honor Los. J, in relation to the maintenance orders. The two (2) children are of school age whilst their mother is not employed and all reside within Kundiawa town. I also give consideration to the high cost of living as now a general trend in Papua New Guinea today and Kundiawa is no exception.

15. The defendant is a public servant, employed under the Simbu Provincial Administration and on a fortnightly salary. The defendant earns a net of K839.93 as the original copy of his pay slip was tendered in court by the complainant/wife in support of her claim.

Orders entered accordingly

Exparte Orders entered in favor of the complainant in the following;

1. That the defendant Male Yalong pays to the complainant the sum of K80.00 per fortnight as maintenance for her upkeep, unless she remarries or dies maintenance will cease.
2. That the defendant pays a sum of K80.00 each towards children, Evelyn Yalong and Wari Yalong per fortnight for their upkeep, unless each child attains the age of 16 years or dies, whichever that may occur first to each child.
3. That the defendant meets 60% of annual school fees for both children until they finish grade 12 or into any two (2) years of training towards employment.
4. This order shall remain in force unless it is discharge by a court of competent jurisdiction.
5. Custody of the two (2) children is awarded to the mother with liberal access to the father.
6. The orders for fortnightly maintenance shall be backdated to 08^th of April 2009 and to commence forthwith.
7. The Officer In charge of the Salaries Section within the Simbu Provincial Administration is hereby ordered to commence fortnightly deductions from the defendant’s salary to the sum of K240.00 towards maintenance for the mother and the two (2) children.
   

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