Itamar v Masoai [2018] PGDC 33; DC3064 (26 July 2018)

DC3064

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL [FAMILY COURT] JURISDICTION]

BETWEEN

MANA ITAMAR
Applicant

AND

ROSEMARY MASOAI
Respondent

BUKA: BTASIKUL

2018: 26^th JULY

     

Civil-

Cases Cited

References

Counsel

RULING OF THE APPLICATION

1. B.TASIKUL: This is an application by Mana Itamar the applicant seeking to vary a child maintenance order issued by the Buka District Court on the 26^th October, 2017.
   
2. The brief back ground of the matter is as follows: The respondent Rosemary Masoai sues the Applicant Mana Itamar under the Deserted Wives and Children Act for childmaintenance for herself and her four children.On the 26^th October,2017 the court after it was satisfied that the applicant has deserted his wife and the children granted the following orders:
   
   1. Defendant to pay K200.00 to the following;
      1. Marcelinus Itamar D.O.B 11/8/02
      2. Manuel Itamar D.O.B 8/1/11
      100. Mariana Itamar D.O.B.2/5/12 and maintenance fee of K100.00 is to be paid
      4. Complainant (Mother)
   2. The maintenance payment totals at K700.00 is to commence on the first fortnight of November 2017 and continues every fortnight till the children reaches the age of 18 years.
   3. Payment for the complainant will continue until she remarries or decides to cease it herself
   4. The order for payment of maintenance remains in force unless this court order for a change
   5. All payment is to be paid to the clerk of court for disbursement.
3. However, before I proceed on with this application I ask myself the following question. Under which legislation is this application will be based on? The reason is basicallybecause the Deserted Wives and ChildrenActwhichthe substantive proceeding was based onhas now been repeal and replace with the Lukautim Pikinini Act, 2015, TheLukautim Pikinini Act, 2015, is silent on the issue of variation of court orders. However, s.42 of the Lukautim Pikinini Regulation. ; States that an application for the variation of a court order shall be made accordance with the procedures prescribe by the District Court Act. Section 21A of the District Court Act gives the Chief Magistrate the jurisdiction to make rules relating to procedure and practice in civil matters. The chief Magistrate on the..... issued a Practice Direction on an application for variation of court orders under the Lukautim PikininiAct,2015 which is under s.22 of the District Court Act, therefore this application is make under s.22 of the District Court Act.
   
4. I now proceed on with this application.
5. The applicant upon the above court order dated 26^th October, 2017 is applying to this court to vary this order. His application is supported by his affidavit filed and swore on the 7^th March, 2018. He also gave oral evidence and tendered documentary evidence to support his application.
   
6. The respondent also gave oral evidence and tenered documentary evidence to support her case.
   
7. I noted from the applicant’s evidence that his salary base is K26, 902.00. He received additional allowance such as Domestic Allowance, Nursing Service, On Call, Radiation, Allowance, Uniform and 25% Shift Allowance. He also contributes to various funds such as Heduru, Teachers Savings and Loan Society, Nursing Association and Nambawan Supa.
   
8. According to his pay slip dated 23^rd May, 2018 which he tenered as part of his evidence his net salary is K832.64. He further testified that currently he is renting a property for K300.00 which was confirmed by the Land Lord. He is also repaying loans from different financial institutions.
   
9. I noted from the respondent evidence that she is also on a salary base of K26, 902.00, with additional allowances as the applicant.After all the deduction her net salary is about K755.37.She is currently living with the children at the institutional house and does not pay rental fee. However, she told the court that she has been the only one paying school fees for their children. Currently, they still owe the school outstanding fees.
   
10. What I have highlighted above does not include their daily expenses such as food, medical bills and others by both the applicant and the respondent.
    
11. I now ask myself, taking into account what I have noted from the evidence by the parties, should I vary the court order dated 26^th October, 2017 or not. If so what would be the appropriate amount the applicant should pay toward maintenance for his wife and the children? But firstly I ask myself how did his worship Mr Banjoy came up with the total amount of K700.00?
    
12. From the face of the court records K200.00 was for Marcelinus Itamar born on the 11/8/2002, K200.00 for Manual Itamar born on the 8/1/11, and K200.00 for Mariana Itamar born on the 2/5/12 and K100.00 for the Respondent. The first born Leah Itamar has reaches 16 years old which she was not entitled to maintenance.
    
13. Proceeding under the now repeal Deserted Wives and Children Act entitled the wife to claim maintenance for her children and for herself. Section 3 (1) (a) (i)(iii) (b) (i) (iii) of the Act spells out that where the court is satisfied that the wife and child have been left without any means of support by the father the court may order for the father to pay reasonable allowance to the wife and children. Subsection (3) provides for the maintenance to cease when the child reaches the age of 16 years.
    
14. I ask myself is the K700.00 reasonable? Yes the parents are responsible for the well-being and welfare of their children. That is the paramount factor the court take into account when determining child maintenancecases. The court also must take into account the ability of the parents to pay and earning capacity of the parents. There are some parents that have no full time employment which must not be overlooked.
    
15. In this case before me both parents have full time employment. They received a fortnightly salary. Both of them are on the same salary base of K26, 900.00 per annum. After deduction the applicant is left with a net of K832.00 while the respondent net is KK755.00.The applicant is now living with another woman while the respondent is living with the children at their institutional house. There is evidence that the respondent has been paying for their children educational expenses. To date she still have outstanding school fee for the children.
    
16. Educational and Medical expenses are the share responsibilities of both parents. The parents must not overlook this very important responsibility. Despite the applicant living away from the family he must not overlook his role and responsibilities in the up bring of his children.
    
17. Yes, they may be some differences between the parties but that does not mean they have no obligation towards their children. S.102 of the LPA guides the court to take into consideration the well-being and interest of the children as paramount. Furthermore s. 108 (2) include medical and educational expenses for the children.

18. The applicant net salary as I have alluded is K832.00 and by paying K700.00 maintenance will leave him with K132.00. He is also paying rental fee of K300.00 and have other living expenses. The respondent on the other hand is receiving a K755.00 net salary.She also maintains the children and pay school fee for the children and other living expenses.
    
19. After considering all the factors mentioned above I am of the view that I grant a variation of the order and make the following orders;
    
    1. That the order dated 26^th October,2017 be varied and replace with the following orders;
    2. Applicant /Defendant pays K150.00 each as Maintenance to the three children namely; Marceline Itamar, Manuel Itamar and Mariana Itamara total of K450.00 per fortnight,
    3. Payment to commence on PPE 3^rd August ,2018 and thereafter on fortnightly;
    4. Because the Respondent/Complainant is currently has full time employment she will not be entitled for Maintenance, however, in the event she is no longer employed than she will be entitled to K150.00 Maintenance for herself.
    5. Both the Applicant/Defendant and the Respondent/Complainant to share payment towards their four children educational and medical expenses, event after they reaches 16 years old and are still schooling;
    6. The Respondent/Complainant be awarded the custody of the children, however, the Applicant/Defendant must be given the rights of visitation and access to his children as well;
    7. This order will remain in force until the children reaches the age of 16 years,dies,or varied by a court of competent jurisdiction.