Mickey v Karatai [2019] PGDC 17; DC4037 (3 October 2019)

DC4037

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS CIVIL [FAMILY COURT] JURISDICTION]

GFCr 26 of 2019

BETWEEN

VIRGINIA MICKEY
Complainant

AND

DAVID KARATAI
Defendant

BUKA: BTASIKUL

2019: 03^rd October.

      

Civil-

Cases Cited

References

Counsel

DECISION

1. B.TASIKUL: Virginia Mickey filed a complaint against the defendant David Karatai for unlawfully deserting her and the two children namely Allan Kobuka born 14/2/2014 and Judah Marius born 14/5/2016 without any lawful means of support. She sought the following orders;
   1. The defendant pay fortnightly maintenance payment of K200.00 @ K100.00 each for the two children;
   2. Pay K150.00 to the complainant;
   3. The custody of her two children while the defendant may have access to the children.
      
2. It is alleged that both parties were married through custom in 2013 in Buka and was witness by both their family members. They had a happy life whereas the defendant supported his family very well, until the complainant went her village at Nissan due to accommodation problem. During her absent the defendant enter into a new relationship with another woman. The complainant then returned to Buka where they reside together and the defendant continued to support them. However, the complainant did not like the idea of two women living together and decided to leave the house and went to stay with her sister. It was further alleged that the defendant then enter into another relationship with a third woman which at present they are now living together.
   
3. Despite that, the defendant continued to support the complainant and her two children until sometimes in February 2019 he ceased supporting them. The defendant told the court that he ceased supporting them because the complainant took away one child from him. The complainant testified and told the court that the reason why she took back the child because she observed that her child has been abused by the defendant’s new partner and she felt that it was not safe for her child to live with them.
   
4. The complainant is now living with the two children at her sister’s residence while the defendant resides with his new partner at a different house.
   
5. This complaint is filed under the Lukautim Pikinini Act 2015. The main objective of the Act is spell out in section 4 which state:
   
   • (a) to make provision for services and means for promoting the sound physical, psychological and social development of children; and
   • (b) provide appropriate assistance to parents in the performance of their parental responsibilities in order to ensure that children receive such care and protection as is necessary for their safety, welfare and development; and
   • (c) promote, protect and strengthen family, and
   • (d) ........................................................................
   • (e) ........................................................................
   • (f) ....................................................................
   • (g) Protect and promote the rights of children; and
   • (h) to prevent the ill treatment. abuse, neglect, and exploitation of children; and
   • (i) .......................................
   • (j) ...................................................
   • (k) ........................................................
   • (l) ............................................
   • (m) Generally to promote the well-being of children.
     
6. Other relevant provision I think is important that I must quote are; Section 8 (1) states;

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) immunization, and
(c) clothing, and
(d) education and guidance; and
(e) medical attention.
(2) It shall be the duty of any person having custody of a child to protect the child from
discrimination, violence, abuse, neglect and exploitation.

7. Division 6 of the Act relates to affiliation proceedings. S.105 to 106 a mother of a child may apply to the District Court for maintenance for her child or children where they are left without any means of support. S.108 also provide for the mother to claim maintenance for herself.
   
8. In this present case the following facts are not disputed; that the defendant is married to the complainant, that the two children are his children, which the defendant continued to support them up to February 2019 when he ceased supporting them. Finally, that they are now living separately from each other.
   
9. The only contentious reason why he cease supporting them is basically because the complainant took away one of the child that was residing with him and his partner.
   
10. The questions I ask myself is: by living separately and providing support to your wife and children be considered as a lawful means of support? What does it mean by desertion?
    
11. The present legislation Lukautim Pikinini Act, 2015 replaced the old Child Welfare Act, chp 276. The present Act does not define desertion. However, in Concise Law dictionary, seven edition by Roger Bird define it as; Desertion is where a husband or wife voluntarily and without reasonable cause leaves the other spouse against his or her will and with the intention of permanently ending the cohabitation.
    
12. In the case of Kunjil V Monpi [1995] PNGLR 281 his honor Woods J as he was then states; the essence of the complainant under the Deserted Wives and Children Act is the unjustified conduct of the husband or father. Desertion may be actual or constructive, that is if the wife is compelled to leave by the husband’s violence or other improper behaviour, she will not be deemed to have been deserted without reasonable cause.
    
13. In this matter the complainant left the defendant to live with her sister because she cannot continue to live with another woman in the same house. The defendant behaviour in entering into another relationship with another woman has compelled her from leaving because of these circumstances.
    
14. The rationale behind passing of this Act, the Lukautim Pikinini Act, 2015 is to protect wives and children from actions by husbands which might place them in a situation where they may not have any means of support and importantly for the children’s development of a positive relationship with the parents and a secure place as member of a family.
    
15. There are some husbands’ tents to think that by providing financial support or giving food items, clothing and etc, on several occasions is sufficient means of support. This is a narrow interpretation. Sufficient means of support from my view, must not only limited or focus on physical material rather it must cover moral means of support. This includes the everyday love towards the children, the presence of the father at home and other activities the family part takes together.
    
16. If the defendant is living with the other partner, however is he going to provide those moral means of support? Adequate means of support must be on a full time bases 24/7 as long as we live and when the children grows up and move on with their lives.
    
17. For the defendant to cease supporting his children and his wife of the reason he highlighted is too shallow. There is evidence of child abuse and for the child to continued living with the defendant and his new partner would not be for the interest of the children.
    
18. In considering all of the above factors I find that by living separately and providing financial support on an ac hoc bases is not a lawfully means of support. I therefore find that the defendant has deserted his wife and the two children and he must pay adequate means to support them.
    
19. After considering the defendant’s earning capacity and other expenses I hereby make the following orders;
    
    1. That the defendant shall pay K200.00 for maintenance to the complainant and her two children as follows
       1. K100.00 to the complainant;[Virginia Micky]
       2. K50.00 to Allan Kobuka; and
       100. K50.00 to Judah Marius.
            
    2. This payment is to be backdated to last PPE for the month of February,2019 and thereafter on a fortnightly basis;
    3. The maintenance payment shall be paid into the complainant’s bank account details which she shall provide or whatever arrangement is suitable for them.
    4. The defendant shall continue to pay for all reasonable medical and educational expense for the two children whenever, they fall due;
    5. The custody of the two children be awarded to the mother, however, the father will have access to his children whenever he likes;
    6. The order of this court remains in force until;
       1. Any child dies;
       2. The children reaches the age of 18 years old;
       100. The complainant maintenance will cease automatically if she re marry;
       4. This order is varied .discharge by a court of competent jurisdiction.