Tunama v Tunama [2009] PGDC 16; DC862 (26 March 2009)

DC862

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

FCCi 299 of 2008

BETWEEN

MILIX YAUKO TUNAMA
Complainant

AND

AKAME TUNAMA
Defendant

Goroka: F MANUE

2008: September 24
2009: January 05
March 26

CIVIL - Child and maintenance claim – S. 3 (i) (iii) and S. 3 (i)(b)(iii) of Deserted Wives and Children’s Act 1951.

- Issues are whether the defendant has deserted his wife and children.

- If so, whether he has been maintaining them between January 2005 to date.

- Whether maintenance of claims is the responsibility of the defendant.

- Maintenance defined.

Cases Cited:
References:

Counsel:

Complainant: In Person
Defendant: In Person

26 March, 2009

REASONS FOR DECISION

F Manue Magistrate: This is a child maintenance claim by the complainant for herself and on behalf of the parties three named children. The claim is made pursuant to Sections 3 (i)(a) (iii) and 3 (i)(b)(iii) of the Deserted Wives and Children’s Act.

2. The issues at hand are:

- whether the defendant has deserted them, without adequate means of support or maintenance

- whether the child clams is the responsibility in terms of maintenance of the defendant.

3. I have heard from both the complainant and the defendant and have considered what they have said.

4. There is no dispute that the parties are legally married. And from their marriage, the named children, Ernest, born on 19th May 1992, Lois born on 8th February 1996 and Glenis born on 8th February 1996, were born.

5. Facts.

In brief, the complainant alleges that the defendant had deserted her and the three (3) children commencing in 2005 to date. She was in Port Moresby with the children in 2005 and later came up to Goroka, as the defendant secured employment with the Provincial Government in around 2005.

6. Since coming up from Port Moresby , she has been living in the defendant’s house in his village.

7. Complainants Evidence.

There is evidence that the complainant has been living in the defendant’s village. She stated that, while in the village, the defendant did not support them in terms of finance etc..

8. In 2007, the defendant took up a position in Port Moresby and was transferred there. While in Port Moresby, the complainant stated that he did not send them any money, even when she rang and enquired from him.

9. She admitted in her evidence that the defendant does pay his children’s school fees. She also admitted that the defendant did give financial support to the child Ernest in 2007, while he was in Goroka.

10. Rose Tunama gave evidence. Her evidence supports the complainant’s version, in that the defendant does not support them financially.

11. Ernest Tunama also gave evidence. His evidence was similar to the complainant’s evidence.

12. Defendant’s Evidence.

Defendant gave evidence on his own behalf. His evidence was really an account of what transpired between himself and the complainant from 2005. He highlighted some of the problems which have restrained him from contacting or communicating with the complainant.

13. He also explained certain issues. He explained why he has not been supporting them when he came up to Goroka and when later he was transferred back to Port Moresby.

14. He also explained that he has been meeting some obligations towards his children, particularly paying for their school fees and for his brother’s children’s school fees.

15. He also explained of the fact that his going to Port Moresby in 2007 was to take up a Senior Audit inspector’s position with the Department of Provincial affairs, but that he was on Probation for a period of time, from July 2007 to December 2007, during which he was not paid. When he was eventually paid, he received K8,000.00 which he used about K4.600.00 in goods and cash to pay off for a piece of land at Asaroufa. K1,000.00 was given to his second wife as assistance to build her house. In his evidence, he explained that he solely paid of Ernest school fee and their other son Obed, attending Della Sale Secondary School in Port Moresby.

15. He also stated that their child Glenis, a subject to this proceedings was adopted customarily by his cousin, who was not named.

16. As alluded, earlier, the parties marriage is current and subsisting, although they are living a part, since possibly 2005 when they left Port Moresby and came up to the Eastern Highlands Province. They have been living apart because the defendant had created a new relationship with another woman.

17. Has the Defendant been giving adequate support to the complainant and the children Ernest Lois and Glenis.

18. Before I address the issue as paused above, I would like to first consider the time period from which the defendant is allegedly said to have deserted the complainant and the children.

19. The complainant states that desertion allegedly took place from January 2005 to date.

20. The date which is stated on the complaint from which desertion took place seems to be the date on which the defendant took up work in Eastern Highlands Province while the complainant and the children were left in Port Moresby.

21. The complaint was registered on the 11th July 2008. So desertion, technically, if in fact there was desertion, commence to take place in Port Moresby and continued on until they came up to Eastern Highlands Province and they were living in the defendant’s village and house.

22. With these analysis, I am satisfied that the complaint of desertion is not only that allegedly done in Goroka, but commenced from Port Moresby and continued while they have been living in Eastern Highlands Province and this gives jurisdiction to Goroka District Court.

23. I now turn to the element of whether the complainant and the named children have been adequately and lawfully supported since 2005.

24. The evidence by the complainant and her witnesses, who are their own teen age children bluntly told the court that the defendant has not financially or otherwise supported them.

25. Although the evidence of the two children of the parties did not specify which period of time there was lack of adequate support from the defendant, they bluntly told the court that the defendant has not supported them in terms of food and their basic needs.

26. The evidence generally from the complainant is that there was lack of any means of support.

27. The defendant’s evidence, on this point only goes to paying school fees for the children , and his brother’s children and giving some financial support to Ernest while in Goroka until July 2007.

28. The Deserted Wives and Children’s Act does not define maintenance. Under a similar legislation, the Child Welfare Act;

Maintenance is defined under Section 1 as – “maintenance” includes the provision of food, clothing, lodging, nursing, medical treatment, necessities, training and eduction.”

29. Maintenance as defined is family care of another for their livelihood and survival. Basic needs such as food, clothing, lodging, medical expenses, education and other necessities are essential for living.

30. Support is said to be completed when all dimension or aspect of living are meet. If one dimension or aspect is lacking then support is not complete, especially of a child’s growth and development.

31. There is evidence that the defendant did pay for Ernest’s school fees. There is also evidence, Ernest was being supported financially while the defendant was working and living in Goroka in 2007. This was disclosed by Ernest in his evidence.

32. That form of support did not continue when the defendant moved to Port Moresby in around July 2007. There is evidence that Ernest was taken care of in terms of clothing and other necessities by the complainant. Food and lodging during the academic period was being provided by Rintebe High School to which he attended.

33. This was indirectly meet by the defendant through the school fees he paid. So far as maintaining Ernest is concerned. I find that although, some form of support was given by the defendant, the support was inadequate. It was inadequate, because the child still needed other necessities, such as money for medical purposes, clothes, PMV fares to travel to his mother for week-ends and school holidays etc.

34. As for the child Lois, I find that there is no evidence at all that the defendant gave maintenance in any manner or form since 2005.

35. I also find that the complainant has not been supported financially by the defendant.

36. I appreciate that they have their on resolved differences which were raised by the defendant. However, those differences should be left aside and some financial support should have been given. It is undisputed that lodging is being by the defendant through his own house in his village. However, the house alone, cannot sustain her day to day life, she needs food, clothing, medical expenses etc and other necessities. Those were not forthcoming from the defendant.

37. I now turn to the child Glenis. There is no dispute that the child, biologically belongs to the parties in court. However, there is also evidence that the child was adopted by custom by the defendant’s cousin.

38. I agree that the defendant has no legal obligation to maintain a child that has been adopted by custom. These facts and analysis, I find that the defendant has not supported the complainant and Lois from the year 2005 to the present time.

39. I also find that although Ernest has been supported to an extend in terms of school fees, the support in my view is inadequate.

40. Accordingly, I find that although the complainant still remains a legal spouse to the defendant, he has not meet his moral and legal obligation to give maintenance to her and the two children (Ernest and Lois) he has not adequately meet his obligations.

41. Order

It is hereby ordered that the defendant pays as child maintenance to the complainant and the two children in the following:

1. Milix Yauko Tunama	- K50.00
Ernest Tunama	- K30.00
Lois Tunama	- K20.00

2. Payment to Yauko and Lois be paid to the Clerk of Court, P.O. Box 447, Goroka E.H.P., PH. 732 1755

3. Ernest be paid to his BSP account No. 54673 – Goroka Branch.

4. Such payment to commence as of 10/4/09 and thereafter every fortnight.

5. It is further ordered that the defendant shall pay as one off payment to the complainant and the two children in the sum of K1, 500.00 within 6 months in the following proportion.

Milix - K500.00

Ernest - K500.00

Lois - K500.00

In default the order may be enforced.

_______________________

Counsel:
Defendant/Applicant: In Person.
Complainant/Respondent: In Person.