Heni v Heni [2017] PGDC 40; FC 112 of 2017 (9 August 2017)

    

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY COURT JURISDICTION]

FC No. 112 of 2017
BETWEEN

ANI HENI
Complainant

AND

UDU HENI
Defendant

Port Moresby: T.Ganaii
2017: 09^th August
    

CIVIL - Family Court - Application seeking orders for daily maintenance – Medical and Educational Fees – Custody - What is ‘adequate means of support’- Appropriate Amount for Maintenance – Children and Complainant live in matrimonial home

CIVIL – Objectives and Principles of the LPA - UN Convention on the Rights of the Child – Duties of parents to provide necessities

Cases Cited
Samar v. Kabewa, 146 of 2017, Port Moresby Family Court

References

1. The Lukautim Pikinini Act of 2015
2. The 1992 United Nations Convention on the Rights of the Child
   

Counsel
Ani Heni: Applicant/Complainant in person
Udu Heni: Mr Samuel Olewale, Kipoi Lawyers, for the Defendant

09^th August, 2017     

RULING ON MAINTENANCE APPLICATION

Introduction:
Ganaii, M: The complainant Ani Heni (referred to as Mrs Heni) filed maintenance proceedings against the defendant Udu Heni (referred to as Mr Heni) on the 31^st of May 2017 claiming that Mr Heni failed to provide adequate means of support for their three children after separation. Mrs Heni relied on her affidavit sworn and filed on 05^th May 2017; and two further affidavits sworn and filed on the 13^th June 2017 and 25^th of July 2017 respectively.

In his defence, Mr Heni argued that he did not fail to provide adequate means of support and that he left home because of Mrs Heni’s constant use of abusive words, and assault on him. He relied on his own affidavit in support sworn and filed on the 11^th of July 2017.
Facts:

2. Mr and Mrs Heni were married under custom in 1997. They have three children namely: H.U, (M/C DOB: 21/09/2002); C.U, (F/C DOB: 27/04/2004; and W.U, (F/C DOB: 11/05/2013). They all reside at Hanuabada village, at Mr Heni’s clan, and in his house, which is known as their matrimonial home. In 2016, Mrs Heni took Mr Heni to court for adultery. In June 2017, Mrs Heni obtained court orders against Mr Heni and one other namely Geua Arua who paid Mrs Heni compensation for adultery. Mrs Heni alleged that since then Mr Heni had not ‘adequately’ supported her and the children for five consecutive fortnights.
   

Issues:

3. The main issues arising therefore are:
   • Whether or not Mr Heni failed to adequately support Mrs Heni and the three children? and
   • What is as an appropriate amount for maintenance if the court was to order maintenance?
     

Submissions by Mr Heni:

4. Submissions made by Mr Samuel Olewale of learned counsel for the defendant in support of the defence case is that the whole maintenance proceeding is frivolous and vexatious and are just a show of Mrs Heni’s emotional outburst on Mr Heni. The reasons for saying these are:
   • Mrs Heni’s allegations that Mr Heni has had extra marital affairs is based on suspicions only and that there has not been any proof before this court
   • Mr Heni had been providing adequately for his wife and children by allowing them to continue to live in their matrimonial home where Mr Heni provides at his clan in the village and by providing food to them on a fortnightly basis;
     
   • Mr Heni gave his Bank card to Mrs Heni for her to spend for the children’s upkeep, however, he took the Bank card back because he alleged that Mrs Heni’s brother used the Bank card and stole his monies;
   • Mr Heni provides sufficient support for their teenage son who is in the sports of body building to show support in his son’s interest and love for the sport;
   • Mr Heni left home because Mrs Heni has continuously used abusive words on him and on one occasion had assaulted him in his own home
   • Mr Heni now lives with his Pastor sister
     

Submissions by Mrs Heni:

5. In support of her case, Mrs Heni submitted as follows:
   

• Her reason for the assault on Mr Heni was because she saw him with another woman who he was having affairs with
• Mr Heni had been providing for Mrs Heni and the children but on certain occasions during and after the adultery case he stopped providing support. He had not given bus fare and lunch money for the children. Since the Village Court gave orders for him and the other defendant (Geua Arua) to pay compensation, he had stopped providing adequate support for the children particularly bus fare and lunch money
• Mr Heni gave Mrs Heni his Bank Card only because Mrs Heni found out about his extra marital affairs and threatened to sue them. He had never left his Bank card with her before
• Mrs Heni’s concern is that since the Village Court had found Mr Heni and Geua Arua guilty of adultery, Mr Heni had shown that he is capable of stopping provision of adequate means of support as he otherwise would have. She is worried for herself and the children.
  

Mr Heni’s reply:

6. Mr Olewale of counsel for the defendant replied stating that the whole proceedings is based on Mrs Heni’s false allegation of adultery where this court has no evidence off and that since Mr Heni had been providing for the children, the matter should be struck out.
   

Findings of Facts:

7. The following are facts I find to exist in this case:
   
   • Mr and Mrs Heni were married by custom in 2007. They have three children namely: H.U, M/C DOB: 21/09/2002 – Now 15 years old, attends school; C.U, F/C DOB: 27/04/2004 – Now 13 years old, attends school and W.U, F/C DOB: 11/05/2013 – Now 4 years old, not of school age
     
   • Mrs Heni and the three children live in their matrimonial home in Hanuabada village, in Mr Heni’s clan
   • Mr Heni has always sufficiently provided for the daily upkeep of the three children where he would spent up to K250.00 per fortnight on food and other necessities for keeping house such as easy pay (power); and give special treats to the children especially on their birthday
   • Mr Heni left his Bank Card with Mrs Heni for a short while only
   • Mrs Heni filed adultery proceedings against Mr Heni and one other person, namely Ms Geua Arua in April 2017 where the Village Court ordered that they pay her compensation. Ms Geua Arua paid compensation in June 2017. After payment of compensation, Mr Heni took back his Bank card
   • There is no proof of allegations of assault and fraud by Mr’s Heni’s brothers on Mr Heni. Those are matters for another court to decide
   • Mr Heni stopped paying bus fare and lunch money for the two school aged children after Mrs Heni took him to court for adultery
     

Law:

Intent of the Maintenance Provision of LPA:

8. An application made under section 108 of the LPA for maintenance orders is brought when a party alleges provision of ‘inadequate means of support’ for the general upkeep of a child including but is not limited to nutrition, clothing, lodging, nursing, medical and educational expenses.
   
9. The term ‘adequate means of support’ in the new LPA^[1] or ‘without any means of support’ in the CWA^[2] have not been subjects of judicial interpretation. Regardless, fair and liberal interpretation rule must apply. In considering what is ‘adequate’, the liberal and fair meaning of ‘adequate’ would be ‘reasonable’. Hence, in my view, the appropriate test to apply is to determine what is reasonable means of support for the day to day up keep of an average earning income family for a child in urban Papua New Guinea? Once that is determined, the next step is to determine whether or not the defendant had provided that kind of realistic and reasonable support for the child?
   
   10. A realistic, reasonable and fair support of a child is the kind of support that accounts for all of the following needs of a child: daily nutrition (breakfast, lunch and dinner); daily transport fee to and from school (if of school age); clothing (including school uniforms); shelter (room, power, water or rentals); nursing (or baby-sitting) and medical and educational expenses^[3].
       
   11. The right to child support and the responsibilities of parents to provide such support have been internationally recognized. The 1992 United Nations Convention on the Rights of the Child is a binding convention signed by every member nation of the United Nations and formally ratified by all including PNG. It declares that the upbringing and development of children and a standard of living adequate for the children's development is a common responsibility of both parents and a fundamental human right for children, and asserts that the primary responsibility to provide such for the children rests with their parents. The LPA has been enacted to comply with the International Convention on the Rights of the Child.
       

12. The following sections of the LPA talk about the objectives, the principles, the rights of a child and the duty of parents: Section 4 –The Objectives of the LPA^[4]; Section 5 – The Principles of LPA^[5]; Section 6 – Right of a Child^[6]; Section 7 – Right of a Child to live with parents^[7] and Section 8 – Duty to maintain a Child^[8].

13. Regardless of whatever other factors present in a case, both parents are obligated to provide reasonable support for a child’s welfare and upbringing. Reasonable support also means that the support must be within the earning capacity of both parents of the child considering the age and specific realistic needs of the child and the parties other financial obligations apart from that of maintaining the child the subject of any maintenance proceedings.
    

Reasonable Amount for Maintenance:

14. What is a reasonable amount to pay as maintenance begs the question: How much should a parent be paying in order to say they have reasonably supported a child in an urban PNG setting? Unlike other more developed countries, for e.g. Australia, UK and the US, where their Social Child Welfare systems are advanced that their laws provide Child Support Agencies that create and develop Child Support Formulas^[9] that provide fixed figures depending among others on earning capacities of both parents; specific particulars and needs of the child, type of school, location, and cost of raising a child in certain locations etc., our system does not.
    
15. In PNG, Courts have been using the following basic guideline: earning capacity of defendant ( as in a majority of the cases, the applicant is not earning an income or is a stay home mum); defendant’s other financial obligations; child’s age and specific needs; reasonable cost of raising a child (daily expense x 14 days for fortnightly maintenance)^[10]. Hence, all of the above is taken into account in deciding on an appropriate amount for daily upkeep of a child.

Application of the Law to the Facts:
Whether or not Mr Heni failed to support the children with adequate means of support?

16. A discussion on whether or not this is sufficient follows on from considering these factors: earning capacity of both parents; age and specific need of child; other financial obligations and reasonable cost for daily maintenance of child before period of inadequate support commenced.
    
    • The earning capacity of both parents:

Mr Heni is employed by the BSP Ltd as an Administration Officer and earns a take home pay of K4, 000. Mrs Heni is a stay home mum whose contributions are rearing of the children and housekeeping.

• Age and needs of the Children

1. H.U, M/C DOB: 21/09/2002 – Now 15 years old, attends school
2. C.U, F/C DOB: 27/04/2004 – Now 13 years old, attends school
3. W.U, F/C DOB: 11/05/2013 – Now 4 years old, at home
   
   • Mr Heni's other financial obligation

Mr Heni has not filed evidence or made submissions on how he would use his take home pay of K4, 000. There is no budget break up except there is evidence that K250 goes to house shopping and easy pay. Mr Heni also gives the children treats; an example is where he bought a tablet for one of them on their birthday.

• Reasonable cost for Children’s Daily maintenance

According to evidence above, reasonable cost for keeping house is at K250.00 for food and electricity (easi-pay). This is not inclusive of bus fare and lunch money for the two school aged children that Mr Heni stopped giving. Mr Heni has provided a home for Mrs Heni and the children in his clan. Looking at all of above, reasonable cost would be at K250 plus cost for bus fare and lunch money for the two school aged children. Shelter is provided.

What is an appropriate amount for maintenance that the Court should now order?

17. In the present case, an appropriate amount for maintenance i.e. for daily provision of nutritious food (breakfast, lunch and dinner) and easy pay considering above factors would in my view be at an amount of K250 – K300 per fortnight. I have considered that Mr Heni had provided that support and there is no dispute by Mrs Heni. Hence, court will make appropriate orders that Mr Heni continue to give that support in kind. Further, in considering that Mr Heni had stopped giving bus fare and lunch money for the school aged children, an amount appropriate for spending on lunch and bus fare is considered.
    

Conclusion/Ruling:

18. Having considered all of the above, I rule as follows:
    
    • Mr Heni continues to provide for the children on a fortnightly basis by providing food and payment for electricity and other necessities for the house at a cost of K300;
    • Mr Heni pays fortnightly maintenance for lunch and bus fare at K100 each for two school aged children at a total of K200. These monies are to be paid into Mrs Ani Heni’s Bank Account which she must provide to the Court;
    • Mr Heni pays all medical and school fees as and when they are due;
    • Where Mr Heni lives separately from Mrs Heni, Mrs Heni to have custody of the said children and Mr Heni to have reasonable access; and
    • The maintenance orders apply until the children reach the age of 18 years; die or the orders are discharged or varied by a court of competent jurisdiction whichever occurs first in time.
      

Orders accordingly.

Lawyer for the Complainant: In person

Lawyer for the Defendant: Kipoi Lawyers

---

^[1] Section 2 of LPA of 2015 - Definition of the term ‘maintenance’
^[2] Sections 51 and 53 of the CWA of 1969
^[3] Ibid
^[4] The relevant objectives on the current issue are:

(a) to make provision for services and means for promoting the sound physical, psychological and social development of children;

(g) to protect and promote the rights of children; and

(l) to give effect to relevant provisions of the United Nations Convention on the Rights of Children and other related international conventions; and

^[5] The relevant Principles on the current issue are:
1 (a) in all actions and decisions made under the Act concerning a particular child the best interests of the child must be the paramount consideration, and where any conflict arises between the interests of the child and another person, the interests of the child are paramount; and
(b) children have the right to be protected from all forms of abuse, neglect and maltreatment; and
(c) all children to have equal opportunity and access to education; and
(d) the preferred environment for the care and upbringing of a child is his own family and the responsibility for the care and protection of children rests primarily with their parents; and
(e) wherever possible, the relationship between a child and his family should be maintained and strengthened; and...

(4) It is the duty of a parent, guardian or any person having parental responsibility of a child to maintain that child and, in particular to -
(a) safeguard and promote the child's health, development and welfare; and
(b) provide education and guidance to the child in a manner appropriate to the stage of development of the child; and
(c) ensure that the child receives adequate nutrition, clothing, shelter, immunisation and medical attention; and ...

^[6] 6. Rights of the child.
The rights of a child under this Act and other laws and relevant international conventions shall be accorded to a child.

^[7] 7. Right of child to live with parents.
A child is entitled to live with his parents unless it is determined that it is in the best interests of the child to separate him from his parents and place him in a child-friendly place or in an out-of-home care place in accordance with this Act.

^[8] 8. Duty to maintain a child.
(1) It shall be the duty of a parent, or any person having custody of a child to maintain that child and, in particular that duty gives a child the right to —
(a) adequate nutrition; and
(b) immunisation; and
(c) clothing; and
(d) shelter; and
(e) education and guidance; and
(f) medical attention.

^[9] From Wikipedia, the free encyclopedia, (Redirected from Costs of raising a child)

^[10] Majority of Family Court Child Maintenance cases in Family Courts through-out PNG, in recent times 2000-2015.