Waira v Bonga Junior [2019] PGDC 23; DC5055 (30 October 2019)

DC 5055

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY COURT JURISDICTION]

CWA: 74 of 2012
BETWEEN

Jonalyne Waira
Complainant

AND

Joseph Bonga Junior
Defendant

Kokopo: SLavutul

2019: 30^th October

      

FAMILY COURT- Maintenance Orders Enforcement Act – Arrears In Respect Of Maintenance Order – Continuous failure and defiant by Defendant to adhere to and comply with the nature and spirit of the Orders for maintenance – Liberty to vary orders.

Cases Cited
Nil

References

Maintenance Enforcement Act of 1970
Lukautim Pikinini Act 2015
District Courts Act

Counsel

Complainant Appeared In Person

Defendant Appeared In Person

REASONS FOR DECISION

30^th October 2019

Samuel Lavutul; This is an application filed by Complainant Jonalyne Waira on the 02nd of October 2019 pursuant to Section 4 of the Maintenance Orders Enforcement Act of 1970 seeking the court to commit the Defendant Joseph Bonga Junior to prison for his failure to comply with the substantive orders of the 03^rd of October 2012 in order to pay per fortnightly the total sum of K150 to the Complainant for the upkeep of her children namely; Daniel Bonga and Mesulam Bonga.

2. It is alleged the Defendant failed to fully comply with the orders of the 03rd of October, 2012 and accrued arrears to the sum of K4, 000.00.

Background

3. The Complainant and Defendant entered into a defacto relationship in about 2017. As a consequence they had two (2) children namely Daniel Bonga who was born on the 17^th of May 2008 and Mesulam Bonga, who was born on the 04^th of May, 2010. The Defendant then left the Complainant and their two (2) children in about June of 2011 without any adequate means of support which resulted in the Complainant securing court orders for maintenance on the 03^rd of October, 2012 until today.

4. For the records the Defendant is currently serving as a primary school teacher with the Division of Education under the East New Britain Provincial Administration. He was teaching at Malakuna No. 5 Primary School in the Bitapaka Local Level Government area, Kokopo District when this matter was heard.

5. His Worship Regget Marum as he was then entered orders on the 03^rd of October 2012 in the following;

“1. Defendant is ordered to pay to the complainant the sum of K100.00 for maintenance of Daniel per fortnight and K50.00 for Mesulam per fortnight until each child reaches the age of 18 years or discharge by a court of Competent Jurisdiction.

2. Custody of the children to the mother with access by the father.

3. Both the defendant and complainant to pay 50% of the school fee of each child until tertiary education.

4. Liberty to apply to vary the order.”

The Law -IMPRISONMENT FOR DISOBEDIENCE OF ORDER.

6. Section 4 of the Maintenance Orders Enforcement Act -

(1) Where the defendant, being a male person, has disobeyed or failed to comply with a maintenance order and a sum of money (in this section referred to as “arrears”) due under the order is unpaid, application to commit the defendant to prison may be made to the Court by or on behalf of the person for whose benefit the order was made.

(2) Subject to Section 66, on application under Subsection (1), the Court may order that the defendant be committed to prison for such period, not exceeding 12 months, as the Court thinks proper.

8. As per our records the Defendant was served with a copy of the APPLICATION TO COMMIT THE DEFENDANT TO PRISON and a copy of the CERTIFICATE OF ARREARS IN RESPECT OF MAINTENANCE ORDER by the Complainant on the 04^th of October 2019. A Proof of Service was filed as proof confirming the service on the Defendant dated 28^th of October 2019.

9. The Defendant and Complainant both appeared in person on Wednesday 30^th of October 2019. The Application was read and explained to the Defendant. He fully understood the nature of the Application.

10. The Defendant was then given the opportunity to respond orally after the court put to him on why he should not be imprisoned. The Defendant openly admitted to not paying maintenance thus accruing the arrears of K4, 000.00, raised in his defence that he decided not to pay as he claimed that he had seen some nude pictures and a copy of a video of the Complainant and that he was upset. Despite his excuse the Defendant failed to give or assist the court with any reasonable and workable options on how best he could settle the sum of K4, 000.00.

11. In reply the Complainant told court the she didn’t have anything else to say and left it to the court to deal with the matter.

Findings and Deliberations

12. I find the Defendant to be a teacher and currently on a fortnightly salary. The Defendant is also married with children. I also noted on the face of the records contained in the court file after the substantive orders for fortnightly maintenance was entered on the 03^rd of October 2012 until this matter came before me, I am of the view and I find the Defendant to be a habitual defaulter. He totally had not complied with the spirit and intent of the orders to pay fortnightly the sum of K150 to the Complainant for the upkeep of the said children.

13. I also noted from the records the Defendant has cultivated a habit over-time of not complying with the orders to pay fortnightly but only pay after an application to commit him (defendant) to prison is taken out against him by the Complainant as is the issue before me. The Defendant has over –time demonstrated his arrogance and disrespect to a lawful court order. I am of the view the orders that a court either the District or the National court makes has a specific intent and that specific intent could only be achieved through compliance by the person the orders were entered against as in the case of Defendant Joseph Bonga Junior.

14. I further find the Defendant has not shown to the satisfaction of the court on why he being employed as a teacher and on a fortnightly salary has not taken any constructive and lasting measures to enable him to start paying fortnightly through either salary deductions by his employer or organize a standing order against his bank account in order for the bank to debit his account and monies be directly paid into the Complainant’s account fortnightly.

15. By now the Defendant should have demonstrated some maturity in accepting the fact that there are two (2) children that needs his continuous support through a fraction of what he earns on a fortnight. The Defendant should by now come to accept and appreciate the fact that Complainant/mother accords 100% of her time to tender and take care of the said children even if he does not comply with the court orders fortnightly. The Defendant must also understand his parental responsibilities; the court included in the substantive orders and granted him access to the said children as a means for him to provide psychological support and comfort to the said children. In addition the Defendant must understand that it is the said children that suffer through his inactions and disobedience to comply with a lawful court order.

16. I noted also the Defendant raised in his pleadings the Complainant’s behaviour which I take as an inference by the Defendant which may amount to suspicion on how the Complainant may have been using the monies intended for the said children. The Defendant is at liberty to take issue with and on how the monies are being used by the Complainant. The court in its substantive orders on the 03^rd of October, 2012 in clause (4) provided for the parties with their liberty to vary the orders at any time should circumstances arise. The Defendant must understand that issues such as the one he raise in his defence must be formally brought before the court by way of an Application to Vary the Orders and must be proven with evidence to establish the abuse of maintenance monies by the Complainant. He must not use such as an excuse and a stand- off to ignore and not to comply with a lawful court order. I refused to accept such an excuse as a defence.

17. I also would like to note for the records that non –compliance to court orders in family court proceedings in the manner the Defendant Joseph Bonga Junior is charged with before the district court in Kokopo is prevalent. There are increasingly a number of Defendants who are not paying as they were ordered however they only wait until enforcement and they pay. They neglect their parental responsibilities.

18. Based on my line of reasoning and considerations I am of the view I will impose a deterrent penalty against Defendant Joesph Bonga Junior and with emphasis to re-enforce that court orders must be complied with especially with orders for maintenance. I will impose an imprisonment term in pursuant to Section 4 (1) (2) of the Maintenance Orders Enforcement Act of 1970.

Court Order

(1). That the Defendant be imprisoned to 8 months in hard labour.

(2). That three (3) months be deducted should the Defendant fully pay the sum of K4, 000.00 owing in maintenance arrears to the complainant forthwith.

(3). That a warrant of Commitment be issued forthwith.

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