Bangbangat v Ringo [2015] PGDC 25; DC4061 (28 April 2015)

DC 4061

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY COURT JURISDICTION]

CWA: 44 of 2011
BETWEEN

Roslyn Bangbangat
Complainant

AND

Joe Ringo
Defendant

Kokopo: SLavutul

2014: 09^th July, 06^th August, 15^th September, 08^th October,
19^th November, 19^th December
2015: 21^st, 28^th January, 25^th February, 11^th March

      

FAMILY COURT-Lukautim Pikinini Act of 2009- Child Maintenance- Confinement Expenses- Custody of Children- Section 171(1) (b) of the District Courts Act Chapter 40. Neglect or Refusal by Defendant to do an act.

Cases Cited
Nil

References
Lukautim Pikinini Act
District Courts Act

Counsel

Applicant/Complainant Appeared In Person

Respondent/Defendant Appeared In Person

DECISION

28^th April 2015

SLavutul; This is an application filed on the 25^th of June 2014 seeking the court to commit the Defendant Joe Ringo to prison for his failure to comply with the substantive orders of the 14^th of June 2011 in order to pay per fortnightly the total sum of K350.00 to the Complainant for the upkeep of her children.

2. It is alleged the Defendant failed to fully comply with the orders and accrued arrears to the sum of K14, 350.

3. The matter was schedule for mention on the 09^th of July 2014. In which through my preliminary enquiries I found out the Defendant had not fully complied with and had continued to disobey the lawful court orders of the 27^th of July 2011.

4. The Defendant totally failed to comply with the orders in relation to the custody of the children in which the court awarded custody to the complainant/mother with liberal access to the Defendant/father.

5. At this juncture the court then explained fully at length the circumstances and the adverse effect surrounding the Defendants disobedience towards a lawful court order.

6. I also noted since the beginning of the entire substantive proceeding until today the Defendant despite being aggrieved by the orders or with the shift in his circumstances and that of his children had totally failed to apply formally to the court in order that variation could be effected to suit his situation and that of the complainant including their children. I am of the view the Defendant on the face of the record had acted in contempt to the entire nature and intent of the orders of the 27^th July 2011.

7. On the 09^th of July 2014 for the sake of clarity and in order to assist the court form an opinion; the Defendant was then directed to file submissions in reply to the current proceedings against him. The Defendant then filed his submission s on the 04^th of September 2014. I note it took the Defendant two (2) months to file his submission.

8. The Defendant in his submission claims sometimes in 2008 the court through then presiding Magistrate Magaru ordered for mediation between the parties in which the Defendant claims Mrs. Magaru sat as the mediator. Present for the mediation were the Complainant Roselyn Bangbangat, Meli Takekel including Welfare Officers.

9. The Defendant claims these were the following terms of the agreement reached during the above mediation;

(a). that the custody of the three (3) children (Bradley, Francis and Michael) that were residing with the Defendant were to remain in his custody whilst the other four (4) children were to remain in the custody of their mother.

(b). that they agreed that the Defendant pays maintenance to the complainant mother at K100.00 per fortnight for the upkeep of the said children which were under her care.

(c). that the payment of K100.00 per fortnight was to be arranged through fortnightly salary deduction and to commence after a week.

10. The Defendant admitted he was married to the Complainant since 1996 and had seven (7) children of their marriage. He claims the three boys had been living under his care since 2007 when he was transferred to Melkoi LLG in Pomio District.

11. The Defendant pleaded for this court to consider the manner and approach of the decision made against him by His Worship Regget Marum on the 27^th of July 2011. He further submitted that it is his plea for this court to seriously consider the Order of the 27^th of July 2011 with suspicion as to why did he award maintenance to the three children who were physically residing with him and not the complainant.

12. He also claimed he was not served with a copy of the summonses for the substantive proceedings which resulted in the orders of the 27^th of July 2011 and he objected strongly to the maintenance orders for three boys, Bradley, Francis, and Michael.

13. He added total fortnightly maintenance for the three boys was K180.00, and further argued if we calculate K180.00 commencing from the date of the order up to March 2014, he believes the amount of K14, 300.00 in arrears would not be correct.

14. The Defendant submitted that the court to calculate and subtract the total amount of K180.00 x the period calculated to arrive at K14, 300 then the balance be subtracted from K14, 300.00

15. The Defendant submitted that an amicable solution was reached during mediation for a fortnightly deduction of K100.00 to be paid by the Defendant to the Complainant for the upkeep of the children which were in her custody in which he further submitted deduction commenced as per the agreement.

16. The Defendant contended in his submission that he was never served a copy of the summons and complaint pertaining to the substantive proceeding which resulted in the substantive orders of the 27^th of July 2011.

17. Moreover the Defendant claims in his submission that the orders of the 27^th of July 2011came into effect whilst the fortnightly deduction of K100 as per their agreement in effect. And he further submitted for the court to rule null and void the orders of the 27^th of July 2011.

18. Finally the Defendant submitted having addressed his reasons for the court to nullify the complainant’s Application to commit him to prison; he invites the court to consider the following;

i). If Bradley, Francis and Michael Ringo had been living with him since 2007, can they be still being included in the maintenance orders?

ii). If he was not served with a maintenance summons, would it be correct at law for the court to proceed by deliberating on the summons?

19. In concluding the Defendant submits that the amount of K14, 300.00 is not correct and the complainant should recalculate the correct amount and further he submitted for the three boys, Bradley, Francis and Michael are to be excluded from the maintenance Order list. Lastly the Defendant submitted because the Maintenance Order was not served on him, he views this as a serious legal error and submits that the whole maintenance proceeding be nullified.

Deliberations

20. Firstly despite the Defendant’s denial of having not been served with his copy of the summons and complaint pertaining to the original proceedings I find on foot an original copy of a Proof of Service having signed on the 06^th of July 2011before former Clerk of Court and Commissioner For Oaths Mr. Robin Minding by one John Nakikus of Tinganagalip village confirming he personally served the summons on the Defendant on the 05^th of July 2011 at the Treasury Office in Kokopo.

21. However the Defendant failed to appear in court on the 27^th of July 2011 and the matter was heard exparte and orders were entered against the Defendant accordingly.

22. Since the 27^th of July 2011until today the Defendant despite being aggrieved by the orders and the nature of the orders totally failed to exercise his right by applying to the court seeking the court for the Exparte Orders to be set aside and the substantive matter to be retried inter-parties pursuant to Section 25 of the District Court Act.

23 I also wish to put on record I did on one of the Defendant’s appearance before me in relation to the same matter I did mention to him that it was appropriate and only proper for him to either file for variation of the orders or in order for the exparte orders to be set aside and retried. However the Defendant totally failed to adhere to this and I am of the view this is a total disregard for lawful directions by the Defendant. Thus the Defendant based on his line of thought and reasoning he continuously failed to fully comply with the substantive Exparte Orders of the 27^th of July 2011.

24. In relation to the two (2) issues raised by the Defendant in his submission, firstly the Defendant raise if Bradley Ringo, Francis Ringo and Michael Ringo had been living with him (Defendant) since 2007, can they still be included in the Maintenance Order? In my view the answer is yes the three children shall continue to be entitled to maintenance as per the nature of the orders of the 27^th of July 2011until and unless the orders are varied or discharged by a court of competent jurisdiction by way of application by the Defendant. The onus was and is still on the Defendant to make that application to either set aside or vary the Exparte Orders otherwise the orders remains to be the lawful orders of the court.

25. Secondly, the Defendant asked in his submissions and I quote; “If I was not served with a Maintenance Summons, would it be correct at Law for the court to proceed by deliberating on the Maintenance Summons?” In answering the Defendant’s question it would be an abuse of process if the court deals with the matter without having a Proof of Service on foot or being filed by the complainant or the person who effected the service of the Complaint on the Defendant. In the matter before me as I stated earlier there is on foot an original copy of a Proof of Service as proof that the Defendant was served with a copy of the Summons and Complaint having signed on the 06^th of July 2011before former Clerk of Court and Commissioner For Oaths Mr. Robin Minding by one John Nakikus of Tinganagalip village confirming he personally served the summons on the Defendant on the 05^th of July 2011 at the Treasury Office in Kokopo.

26. The Defendant must by now understand that the court heard and determined that matter against him based on the fact that the summons were served on him on the 05^th of July 2011 at the Treasury Office at Kokopo by John Nakikus of Tinganagalip village as oppose to his denial.

27. It is my finding that the Defendant since July 2011 has totally ignored and refused to understand the nature and implications surrounding the Court Orders of the 27^th of July 2011. It is obvious from the Defendant’s action that by holding onto custody to the three (3) children was a means to avoid paying maintenance to the Complainant.

28. I therefore find the Defendant’s action to be contemptuous in nature and a total disregard to compliance with a lawful court order; and I thereby invoke my powers under Section 171 (1) (b) of the District Courts Act Chapter 40 in order to punish the Defendant for his disobedience and outright refusal to comply with a lawful court order.

29. Section 171 (1) (b) of the District Courts Act stipulates;

(1) Where-

(a)...

(b) a Court orders the doing of an act other than the payment of a fine or sum of money or costs and directs that, in case of the Defendant’s neglect or refusal to do the act, shall be imprisoned, and the Defendant’s neglects or refuses to do the act,

the Court or Magistrate may issue a warrant of commitment for the imprisonment of the defendant for such a time as the conviction directs.

30. I will enter orders accordingly.