Mathew v Mathew [2014] PGDC 10; DC2063 (10 September 2014)

DC2063

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

FC NO 68 OF 2014

BETWEEN
Maisuru Mathew
Complainant
V
Daniel Mathew
Defendant

Alotau: Magistrate L. Mesmin
2014: 10^th September

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

Cases Cited
Martha Aeava v Oa Ikupu [1986] PNGLR 65

Legislation
Deserted Wives & Children’s Act 1951 Ch. 277
District Court Act, Chapter 40
Counsel
Complainant in Person
No Appearance by the Defendant

L. MESMIN DCM:
INTRODUCTION

1. On 29^th April 2014 the Complainant filed a complaint in the District Court & Summons upon Complaint at Alotau under the Deserted Wives and Children Act (Chapter No 277) (the Act).
   
2. She seeks from this Court, orders for maintenance in terms of a regular allowance for herself and for the support of three of four children born to her and the defendant.
   
3. She further seeks to be given custody of all the children.
   
4. The basis of the claim was that the defendant unlawfully deserted his wife and children and left them without adequate means of support and should therefore pay maintenance for them and give up custody of the children.
   

BACKGROUND

5. Complainant had been married to the Defendant customarily for 19 years.
   
6. She could not effect service of the court documents on the Defendant personally in accordance with s.47 of the District Courts Act due to him now residing in Port Moresby.
   
7. An application was made pursuant to S.48 of the District Court Act for substituted service which was granted.
   
8. The defendant was served, as it seems, on the 27^th May 2014 by e-mail attaching the complaint, summons upon complaint and affidavit of Maisuru Mathew dated 20^th May 2014 being the originating documents for these proceedings.
   
9. Immediately after that the Defendant, at least on two occasions, had communicated to court seeking an adjournment.
10. On 15^th July 2014 he sent to court a fax seeking an adjournment for a period of a month on the basis that even though he intended to travel to Alotau to attend at the hearing, he states that had yet to obtain a loan to secure airline tickets.
    
11. On 16^th July 2014, I adjourned and the complainant did not object because she had recently received K200 from the Defendant. The case was adjourned to 6^th August 2014.
    
12. On 5^th August 2014 the Defendant again sent another fax seeking a further adjournment for another month relying basically on the same reason that he had yet to secure a loan.
    
13. The matter was stood over to 20^th August 2014 upon which this court proceeded to hear the Complaint exparte and reserved decision to 27^th August 2014 but due to the unavailability of the magistrate on that date due to duty travels, it was again further adjourned to 10^th September 2014 for decision.
    

LAW

14. The Deserted Wives and Children Act has two key provisions. Section 2 (power of Court to issue summons or warrant) states:
    

(1) Where—

(a) a husband has unlawfully deserted his wife or left her without means of support; or

(b) a father has deserted his child or left him without means of support; or

(c) a husband or father is about to leave the country without making adequate provision for the support of his wife or child,

a Court, on complaint on oath being made by the wife or by the mother of the child or by a reputable person on behalf of the wife or child, may—

(d) issue a summons requiring the husband or father to appear before it to show cause why he should not support his wife or child; or

(e) where it is satisfied that the circumstances justify it doing so, issue a warrant for the arrest of the husband or father.

(2) Where a warrant has been issued and the defendant cannot be found the Court, on proof of inquiry and search, may proceed in the case ex parte.

Section 3 (hearing and order) states:

(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.

(3) An order for the support of a child or an order committing custody of a child to a person does not continue in force after the child has attained the age of 16 years or died, except for the recovery of arrears then due under the order.

(4) On the hearing of a complaint under Section 2, where the Court is satisfied that reasonable cause has been shown for—

(a) the desertion; or

(b) the leaving without support; or

(c) leaving the country,

it may decline to make an order.

(5) An order shall not be made on the application of a wife or a person on her behalf if it is proved that she has committed adultery or is of drunken habits, unless the husband has condoned or connived at the adultery or, by his cruelty, wilful neglect or misconduct, conduced to the adultery or drunken habits.

ISSUES

15. Under the Act, a wife, but not a husband, may apply for maintenance for herself and the children, if she is deserted without adequate means of support.
    
16. There were two main issues which came to mind that are paramount to considering whether maintenance can be sought by the wife for herself and her children:
    
    1. Are the parties still legally married at the time the application was made?; and
    2. Did the Defendant desert the complainant and their children and left them without an adequate means of support?
       
17. An application for maintenance under the Deserted Wives and Children Act has to be made whilst the marriage is subsisting and not after it has been lawfully dissolved.
    
18. I rely and adopt what Barnett AJ, as he then was said in Martha Aeava v Oa Ikupu [1986] PNGLR 65:
    

“The Deserted Wives and Children Act is intended to oblige a husband to pay maintenance to a wife he had deserted during the continuance of that marriage. Once the marriage is dissolved no further payment can be enforced under that Act”.

19. I am of the opinion that this is a correct statement in law and I make this finding on the premise that, I am convinced upon research that Barnett AJ’s interpretation of the law has never been disturbed by a higher court to this day.
    
20. In order for the complainant/applicant to make a successful application for maintenance under this law, she must prove that:
    
    1. her husband had deserted her, as his wife and their children and /or is about to leave the country;
    2. her husband had left her, as his wife and their children without means of support or without making adequate provision for their support; and
    3. the leaving without support is without reasonable cause.
       

STANDARD OF PROOF

21. The standard of proof that this District Court in its civil jurisdiction accepts, that litigants need to prove is on the balance of probabilities.
    

COMPLAINANTS EVIDENCE

22. The complainant had filed one affidavit which is dated 20^th May 2014 and a statutory declaration dated 2^nd October 2013 respectively.
    
23. Both documents further expound on her claim in the pleadings that she is married to the defendant and out of that marriage are the children Jnr Daniel Mathew, Shekinah Mathew, Naomi Mathew and Vinita Mathew.
    
24. She further states that the defendant had failed to provide financial or other support for both herself and the child and has effectively abandoned them.
    
25. In her affidavit the complainant said she began living with the defendant at his parents’ house in 1997 after his parents accepted her as family in 1996 and they had been together for 19 years and that customary marriage has never been challenged or disturbed by a formal village court order for divorce at any time since after they were married.
    
26. She gave further evidence in court stating that “it was difficult and a heavy task to put food on the table, provide bus fares, pay for clothes and uniforms, hospital bills and other basic necessities, in Alotau town and just because he is with another woman now is not a good enough excuse to think that I as the children’s mother should be the only one responsible for those needs to be met.”
    
27. She said, she came to court to get assistance to enable and empower her to protect and promote the rights of her children and to prevent the neglect and abuse that she saw them suffering and going through.
    
28. She submitted that she needed to provide care and protection for her children who she saw were reacting badly to the absence of their father and because they were at a tender age, she feared that they may not have the psychological capacity to cope with their current situation and she did not want to see it prolong any further.
    

ASSESSMENT

29. On the hearing of this complaint under Section 2 and 3 of the Act, the Court inquired into the following matters:
    • If the defendant was married to the complaint;
    • If so, how where they married;
    • If they were married was it lawful;
    • If it was lawful has it been dissolved by a court of competent jurisdiction;
    • If the wife was left;
    • If the wife is left without means of support or without making adequate provision for her support;
    • If the children of the defendant were left;
    • If the children of the defendant were left without means of support.
      
30. The onus is on the Complainant to support its pleading by evidence, on the balance of probabilities.
    
31. The proceedings were dully served on the Defendant by way of substituted service.
    
32. The defendant had failed to file a Notice of Intention to Defend and/or a Defence and he had never appeared at any time, in court on any of the mention dates to defend himself and therefore it seemed it’s highly unlikely he would turn up in court at all.
    
33. On that basis, the complainant was directed to file affidavit evidence for an expedited ex parte hearing and consequently the complainant filed her affidavit regarding the circumstances of the marriage still not dissolved and her testimony clarifying the defendant’s act of deserting her and the children without any means of adequate support.
    

ISSUE 1 - ARE THE PARTIES STILL LEGALLY MARRIED AT THE TIME THE APPLICATION WAS MADE?

34. The Complainant produced sworn evidence that she married the Defendant by custom that was accepted by both their families after she had fallen pregnant, given birth to their first child and moved in with him and his family on Samarai Island in 1997.
    
35. She set out the time and place and what was exchanged between the two families before she moved in with her in laws.
    
36. She says that their customary marriage union has never been dissolved by the Village Court to this day.
    
37. The complainant, in my view, was entitled to have her complaint considered ex parte, in the circumstances, so I proceeded to hear it in the absence of the Defendant from that point on.
    
38. The law requires the applicant to either produce direct evidence of her marriage to the defendant and if she is unable to do that she can file an affidavit in that regard.
    
39. Section of the Act provides for the production of evidence of the existence of a marriage and states:
    

“19. PROOF OF MARRIAGE.

(1) On the hearing, a woman who complains that she has been deserted by her husband or left by him without means of support shall produce direct evidence of her marriage to the defendant or, if she is unable to produce direct evidence to the satisfaction of the Court, shall make and produce an affidavit setting out the time, place and circumstances of the marriage.

(2) An order made in a case referred to in Subsection (1) may be rescinded by a Court on proof of the falsity of the statements made in the evidence or in the affidavit.”

40. In the present case, I accept that the existence of the custom relied on by the District Court to base the declaration of a customary marriage was successfully pleaded and supported by credible evidence that was not challenged and is therefore admissible.
    
41. The Complainant in her affidavit further produced evidence to show that the Defendant worked as a deck hand on different cargo liners and had left for Port Moresby in two years earlier in 2012 to be with another woman and had never returned or communicated his whereabouts until 2 weeks prior to this application being made in the District Court.
    
42. It was at that time that the Complainant had found out that he was living in Port Moresby and that he was in a new relationship with another woman.
    
43. From her records he has supported the complainant and their children in the following manner:
    • January 2013 – K70.00
    • March 2013 – K50.00
    • Between August – December 2013 – K150.00 only on 2 occasions.
      
44. The Complainant had time and time again attempted to get in touch with her husband to assist her in maintaining their children after that but no response had been forthcoming.
    
45. She stated that the only time her husband had given any response was after he had been served with the court documents that she had e-mailed to him.
    
46. Further (unsworn) evidence was obtained in court from the complainant saying that she was aware that the defendant was now employed by the PNG Maritime & Transport Workers Union but she did not know how much he earned in a fortnight.
    
47. She also said the even though she knows he is with another women she doesn’t know whether he has other children with her or whether he is supporting them.
    
48. Without any evidence given or filed by the Defendant, this Court accepted the eligibility of the Complainant to be maintained by the Defendant, including his three children.
    

ISSUE 2: DID THE DEFENDANT DESERT THE COMPLAINANT AND THEIR CHILDREN AND LEFT THEM WITHOUT AN ADEQUATE MEANS OF SUPPORT?

49. The law under section 21 of the Act provides for the following:
    

“21. EVIDENCE OF DESERTION.

(1) Where a husband has abandoned his wife, or a parent his child, for a period exceeding 80 days, and during 14 days at least of that period the wife or child has been left by the husband or parent without means of support, the husband or parent shall, prima facie, be deemed to have deserted the wife or child.

(2) This section does not prevent a Court, if it considers fit, from adjudging the fact of desertion on other evidence or on proof of abandonment for a period of less than 80 days.”

50. I accept that on the hearing of the complaint and in the absence of any evidence filed by the Defendant, that no reasonable cause has been shown for his desertion or him leaving without support.
    
51. I further accept that the Complainants assertions that the Defendant deserted her and their children and that he did indeed desert them without any means of adequate support was also successfully pleaded and supported by credible evidence.
    
52. It is also important to consider that custody orders have been sought by the complainant.
    
53. At this juncture I am mindful of the ages of all the children all being under the age of 16 years and that they have been in the custody of their mother since the desertion of their father.
    
54. This Court is mindful that under s.3(1) of the Act, a custody order in favour of the wife may be issued by the Court but only in conjunction with an order for maintenance of either the wife or the children.
    
55. This Court is required to make such custody orders as appears just, having regard primarily to the best interest and welfare of the child or children.
    
56. Section 14 of the Act states:
    

“14. WELFARE OF CHILD.

Where it appears on the hearing of a complaint that a father has left his child without means of support, the Court shall make such order as to the custody and support of the child as appears to it just, having regard primarily to the welfare of the child, and an order may be made notwithstanding that the father is willing to receive and maintain the child in his own home or elsewhere.”

FINDING ON EVIDENCE

57. I find in relation to the first issue – I accept that the Complainant’s evidence is sufficient to show on the balance of probabilities that there exists a marriage recognised by law between the Defendant and the Complainant that has not been disturbed by an order from the village court for divorce, has been proven.
    
58. I find in relation to the second issue – I accept that the Complainant’s evidence is sufficient as to the Defendant’s desertion and his non provision of an adequate means of support, that it has been proven on the balance of probabilities.
    

CONCLUSION

59. The complainant has sought fortnightly maintenance payments for herself and the three children, 16 years of age and below respectively.
    
60. In the end this Court does not know the ability of the defendant to pay a reasonable sum in maintenance nor his financial obligations towards his other woman and whether the sum sought would be too much for him to pay.
    
61. Had he appeared in Court and testified on those issues and provided relevant evidence it would have brought some clarity and he did not.
    
62. On that premise, I am of the view that an award for a modest sum of K200 a fortnight be granted in favour of the applicant and her children.
    
63. In the circumstances I would grant the orders as sought.
    

COURT ORDERS
64. I consequently make the following orders.

1. The defendant Daniel Mathew is ordered to pay maintenance for the use of the complainant Maisuru Mathew and the maintenance and support of the children Shekinah, Naomi and Vinita Mathew in the sum of K200.00 per fortnight as follows:
   
   • (i) Complainant = K70.00
   • (ii) Shekinah = K50.00
   • (iii) Naomi = K40.00
   • (iv) Vinita = K40.00
     
2. 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.
   
3. The full terms of the order for maintenance of the children Shekinah, Naomi and Vinita Mathew 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.
   
4. The complainant shall have custody of the parties children namely Shekinah, Naomi and Vinita Mathew and the Defendant shall have reasonable access to them during school holidays.
   
5. All monies received or receivable shall be paid to the Cashier’s Office, BMS, Alotau, for appropriation towards the support of the complainant and the child McKenzie, fortnightly.
   

Given under my hand at the Alotau District Court this 10^th day of September 2014.

In Person: Complainant
In Person: Defendant