Allman v Arua [2020] PGDC 7; DC4041 (23 September 2020)

DC4041

PAPUA NEW GUINEA

IN THE FAMILY COURT OF JUSTICE

HOLDEN AT

PORT MORESBY DISTRICT COURT

In the Matter of Adultery & Enticement Act

&

Lukautim Pikinini Act 2015

Consolidated Proceeding of

FC# 166 of 2020 and FC# 167 of 2020

Between:

ELIZABETH ALLMAN

Complainant

And:

EDMOND SCOTT ARUA

First Defendant

And:

GABRIELLA HAROHARO

Second Defendant

His Worship Mr. E. Komia

23^rd September 2020

Counsels for the Complainant: in person

Counsels for the First Defendant: in person

Counsels for the Second Defendant: in person

Legislations Cited

Adultery and Enticement Act 1988

District Courts Act

Case Laws

Emmanuel v. Iga [2003] PNGLR 20 (14 July 2013)

John Gawi and Diana Apas v. Mary Gawi (1997) N1584

1. INTRODUCTION

The two matters FC# 166 of 2020 – Elizabeth Allman v. Edmond Scott Arua, and FC# 167 of 2020 – Elizabeth Allman v. Edmond Scot Arua and Gabriella Haroharo came before this Court for the consolidated hearing on substantive issues on maintenance claim against the defendant Edmond Scot Arua and compensation for adultery against Edmond Scott Arua and Gabriella Haroharo.

2. FACTS.

The facts of the cases are as follows:

1. The defendant and the complainant had their relationship beginning in 2001, and out of their relationship, they have three children. The eldest child, Helen Aisi is nineteen (19) years old, followed by William Aisi, a seventeen (17) year old boy and a younger daughter, Shanelle Aisi, who is around 9 years old.
   
2. In 2011, the complainant soon after giving birth to their third child, moved back to her maiden home, and the reason for such migration is not established.
   
3. On 31^st January 2013, their marriage was solemnized, and officiated by the Registrar General of Papua New Guinea. There has been no dissolution of marriage or a decree nissi, of dissolution issued by the National Court dissolving the marriage.
   
4. The complainants and the defendants filed their respective affidavits, nevertheless, the court noted from the inquiry it conducted on its own volition, that the complainant and the defendant had in fact been living separately since 2015, and the relationship had been going on and off for quite a while.
   
5. The defendant is a musician, and earns his money through playing gigs and performances in various nightclubs and hotels in Port Moresby. He has been unable to do so after the COVID 19 Pandemic hit the country.
   
6. The first defendant often visited the complainant and the children from time to time, and it was difficult for him to spend nights with them as he stated due to the limitation of spaces. In 2017, they reunited and lived together, until 2019, when he was removed from the house for assaulting the complainant. He was locked up at the Waigani Police Lock up Cells.
   
7. All throughout these years, the complainant has been the sole bread winner and the cornerstone of survival for the family.
   
8. In February 2020, the first defendant met the co-defendant or second defendant through Facebook and they have been friends since. They have a very stable relationship, and they maintain that they are very good friends.
   
9. The defendants have only had one instance where they fell in love with each other and made love, and they say that it was a one off situation. This was stated when the court enquired about their relationship, to which the first defendant stated; “man cannot live on bread alone”
   
10. The complainant sighted their image on Facebook, and was also advised by their children of the relationship the defendants were having. The two defendants have been living together.
    

100. ISSUE

11. Whether there were adulterous relationships between the first defendant and the co-defendant?
    
12. How much should the principal defendant and the co-defendants pay respectively as compensation to the complainant for their adulterous affairs if the answer to the above question is to the affirmative?
    
13. Whether the defendant should pay maintenance to the three children as claimed in the summons, and if so, how much should the court order for maintenance per child?
    
14. Whether this Court has the power to dissolve customary marriages and statutory marriages.
    

4. EVIDENCE
   

15. The complainant and the defendants’ evidence are summarized in the facts and the Court relies on the facts as agreed facts and relies on it as evidence.
    

5. DISCUSSIONS ON FACTS AND LAW
   

16. This court having to deal with issues of adultery and maintenance in these consolidated proceeding is now tasked to consider the evidence and make an informed ruling on the issues of liability and assessment as outlined in my earlier part of this judgement. Hence, I will deal with the issues surrounding the claim for compensation on adultery and then proceed to discuss the issues on maintenance.
    

6. ADULTERY
   

17. The laws relating to adultery and extra marital affairs is the Adultery and Enticement Act 1988. This Court sitting as a District (Family) Court has the jurisdiction granted and bestowed to preside over matters and issues concerning illicit affair committed by persons who are married, as in this case, where the complainant is married to the defendant and the marriage had been solemnized under the laws of Papua New Guinea’s Marriage Act (Chapter 280), as evidenced in the complainant’s affidavit annexing a Marriage Certificate.
    
18. Marriage come in two forms in a modern contemporary Papua New Guinea society. These two forms of marriages are commonly known as customary marriage, and statutory marriage. Nevertheless, a third form of marriage also exists, which I prefer to term as a hybrid marriage, arising out 9of an ad hoc arrangement, which is neither customary, nor statutory, but is more consensus oriented, and can fit within the category of a de facto marriage for the following reasons:
    
    • (i) There is the meeting of the mind, or “consensus ad idem” by the man and woman to live with each other despite nonperformance of any customary or statutory requirements for marriage; and,
      
    • (ii) When a child is born out of that relationship, it confirms marital status; and,
      
    • (iii) A recognition of the relationship from both families of the man and woman, which result in their sexual relationship being connived, despite the partners living separately or with their own families.
      
19. Nevertheless, where there has been no dissolution of marriage, and a spouse has been living separately from the wife or husband for a year, then has a new relationship with someone other than his or her spouse, can that be rendered, not an adultery, but a just and fair act of moving on in life?
    
20. I find the answer to be simple as a NO. Simply because of the fact that, none of the circumstances put forward in evidence establish an evidence of dissolution of marriage. Form the evidence before this court, I find that the assault of the complainant leading to the removal of the first defendant from the house at Waigani falls within a constructive desertion, and as such, the actions of the defendants cannot be excused by law. Section 18 of the Matrimonial Causes Act states:

18. Constructive desertion.
(1) A married person whose conduct—

(a) constitutes just cause or excuse for the other party to the marriage to live separately or apart; and

(b) occasions the other party to live separately or apart,

shall be deemed to have willfully deserted that other party without just cause or excuse.

(2) For the purposes of Subsection (1), it is irrelevant that the married person did not intend the conduct to occasion the other party to the marriage to live separately or apart.

21. Bearing the above in mind, can this court safely arrive at finding the defendants liable for adultery and if so, what are the reasons. The District Courts being a court established under statute (District Courts Act), its powers are subject and limited to what the enabling legislation or Act expressly provides (see the case of Emmanuel v. Iga [2003] PNGLR 20 (14 July 2013). In such cases as this, the Court is to deal with the matter pursuant to the Adultery and Enticement Act 1988, and is to be guided by the legislative framework of Part III – Penalties, Compensation and Enforcement of Orders, covered within ss. 10 to 20 of the Act, with adherence to the Iga Case (supra). At the same time, this court is reminded that, a marriage once solemnized under the marriage act remains effective, and until such time a decree is ordered for dissolution, the law still recognizes the man and woman to be husband and wives.
    
22. An Act of Adultery is defined under s. 2. of the Adultery and Enticement Act as follows;

S.2 - ACT OF ADULTERY

An act of adultery is committed where a spouse engages in voluntary sexual intercourse with a person other than his spouse. Ss 8(4) of the Adultery and Enticement Act 1988, states;

23. Section 4 of the Act gives rise to the cause of action for adultery, and the avenues available to an aggrieved spouse to institute proceedings against the offending spouse.
    
24. The complainant claims in her summons and complaint (which I decided to hear jointly as consolidated proceedings because of the same complainant person and same first defendant person), that her husband has committed adultery and is therefore seeking compensation for the adulterous affair he has had with the second defendant in this consolidated proceeding. The first defendant, who is the complainants lawfully wedded husband had adulterous affair with the second defendant and it was admitted in Court.
    
25. What would be the adequate compensation assessment this court should make, when parties have continuously decided to avoid coming to court? This court has to decide on the assessment and make an order for payment of such compensation.
    
26. In John Gawi and Diana Apas v. Mary Gawi (1997) N1584 the Court established that the compensation for the claim of adultery and enticement would still amount to K 1000.00.
    
27. Sections 11 and 12 states that the court can make orders against any or all of the defendants. I am fortified in my opinion that, for a spouse to be involved in a new relationship, when the marriage has not been dissolved in accordance with law, a fresh relationship, although parties have separated and live on their own accord, it can never be an excuse to qualify themselves to engage themselves in any sexual relationship. It is rather illegal, by virtue of s.34 of the Matrimonial Causes Act, which states that “Where a decree of dissolution of marriage under this Act has become absolute, a party to the marriage may marry again as if the marriage had been dissolved by death. This is not the case here. Having due regard for all those requirements and prerequisites for the compensation, I will make an assessment of the compensation demand then, make a ruling on the assessment and the form of how the compensation should be paid to the defendant by the principal defendant and the two co accused.
    
28. This Court therefore finds that;
    1. The First Defendant is unemployed, and there is no formal source of income. His form of income through musical gigs and performances have been ceased due to the COVID 19 Pandemic Restrictions, therefore he is in a difficult and disadvantaged financial position.
    2. The Co Defendant or Second Defendant is also an unemployed woman, and it is very unfortunate for her to be presented with such situation.
29. Taking those factors into consideration, I must make a fair and just assessment so as to ensure justice is served, whilst having in mind the difficulties that would be poised on the defendants and the time they would need to raise such funds to pay the complainant.
    
30. In considering all the factors before me and finding that the defendant was involved in an act of adultery, This Court will make the following assessment:
    
    1. The first defendant shall pay K200 to the complainant, as compensation for the one act of adultery with Gabriella Haroharo, and such compensation shall be paid within thirty (30) days from the date of this Order.
    2. The Second Defendant Gabriella Haroharo shall pay K200 to the complainant as compensation for the one act of adultery with the complainants lawfully wedded husband, Edmond Scott Arua within thirty (30) days from the date of this Order.

MAINTENANCE, CUSTODY AND DISSOLUTION OF MARRIAGE

31. I now turn to the issue of maintenance, custody and Dissolution of Marriage.
    
32. The complainant seeks orders for maintenance of the three children against the defendant, Edmond Scott Arua. As I indicated in my findings on the claim of adultery, I am reminded again of the fact that the defendant is not employed and as such, he has no tangible and feasible manner in which he can bring up his children or support his children.
33. From the evidence put forward by both parties, I understand that it is a difficult and tedious task to put food on the table, provide bus fares, pay for uniforms, and other basic necessities in a big city such as Port Moresby. It is a very lame excuse for one parent to say, I am unemployed and for now, the mother should take care of those needs until such time I find an employment. That is not what the Lukautim Pikinini Act 2015 says. PART II of the Act States as follows:

PART II. — OBJECTIVES AND PRINCIPLES OF THE ACT.

4. Objectives of the Act.
The objectives of this Act are —

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

(b) to 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) to protect, promote and strengthen family; and

(d) to utilise, strengthen and develop community structures, which provide care and protection for children; and

(e) to foster collaboration with other departments of government whose activities directly affect the health or well-being of the children; and

(f) to foster collaboration and assist voluntary agencies and organisations and non-government organisations engaged in the provision of services designed to promote the well-being of children, families and communities; and

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

(h) to prevent the ill-treatment, abuse, neglect, and exploitation of children; and

(i) to provide care and protection for children who are suffering abuse, neglect or exploitation or who are otherwise in need of care and protection; and

(j) to ensure that all services and facilities responsible for the care and protection of children provide an environment that is free of violence and exploitation and provide services that foster their health, psychological needs, spirituality, self-respect and dignity; and

(k) to promote research into issues and concerns that affect the well-being and development 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

(m) generally, to promote the well-being of children.

5. Principles of the Act.

(1) This Act shall be interpreted and administered in accordance with the following principles set out in this Subsection:

(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

(f) where a child is considered to be in need of care or protection, the necessary assistance or support should be provided to the family, wherever practicable, so that the child may remain with his family; and

(g) in deciding what action is necessary to protect a child from harm, the course to be followed must be the least intrusive intervention in the life of the child and his family that is consistent with the paramount concern to protect the child from harm; and

(h) interventions should be aimed at remedying the harmful situation and providing a plan to return the child to his family, unless to do so is contrary to the child's best interest; and

(i) if a child is temporarily or permanently deprived of his family environment, or cannot be allowed to remain in that environment in his own best interests, the child is entitled to special protection and assistance from the Office for Child and Family Services; and

(j) where it is necessary to remove a child in need of protection from his family, alternative care for the child within his own family or community and the child's name, identity, language, cultural and religious ties should, as far as possible, be preserved; and

(k) if a child is placed in the care of the Office for Child and Family Services or other appointed out-of-home care organisations, the child is entitled to maintain close relationships with people significant to the child, including parents, siblings, extended family, peers, family friends and community, unless it is contrary to his best interests; and

(l) wherever a child is able to form his own views on a matter concerning his welfare, he must be given an opportunity to express those views freely and those views are to be given due weight in accordance with the development capacity of the child; and

(m) in all actions and decisions made under the Act that significantly affect a child must be taken of the culture, ability, language and religion of the child; and

(n) decisions affecting a child must, wherever practicable, be made and implemented as expeditiously as possible, having regard to the child's sense of time; and

(o) the Social Obligations as reflected in the Constitution must be considered in handling any child welfare cases.

(2) To ensure that a child is able to participate in decisions made under this Act that have a significant impact on his life, the Office for Child and Family Services is responsible for providing the child with the following:

(a) adequate information, in a manner and language that he can understand concerning the decisions to be made, the reasons for intervention, the way in which the child can participate in decision making and any relevant complaint mechanisms; and

(b) the opportunity to express his views freely according to his abilities; and

(c) any assistance that is necessary for the child to express those views; and

(d) information as to how his views will be recorded and taken into account; and

(e) information about the outcome of any decision concerning the child and a full explanation of the reasons for the decision; and

(f) an opportunity to respond to a decision made under this Act concerning the child.

(3) Where a person is directed under this Act, to make an order or determination in the best interests of a child, the person shall consider the following circumstances that are relevant:

(a) the importance for the child's development of a positive relationship with a parent or guardian and a secure place as a member of a family; and

(b) the child's relationship with relatives; and

(c) the importance of continuity in the child's care and the possible effect on the child of the disruption of that continuity; and

(d) the bonding that exists between the child and the child's parent or guardian; and

(e) the child's physical, psychological needs, and the appropriate care or treatment to meet those needs; and

(f) the child's physical, psychological and emotional level of development; and

(g) the child's cultural, racial and linguistic heritage; and

(h) the child's views and wishes, if they can be reasonably ascertained; and

(i) the effect on the child of delay in the disposition of the case; and

(j) the risk that the child may suffer harm through being removed from, kept away from, returned to or allowed to remain in the care of a parent or guardian; and

(k) the degree of risk, if any, that justified the finding that the child is in need of protective services; and

(l) any other relevant circumstances.

(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

(d) protect the child from discrimination, violence, abuse, neglect, exploitation and harmful social or customary practices; and

(e) protect the child from engaging in employment or any activity that may be harmful to his health, education, physical, psychological or moral development; and

(f) ensure that in the temporary absence of a parent, the child shall be cared for by a person known and trusted by the parents or guardians.

(5) A parent, the Office for Child and Family Services and any other person must ensure that a child is not subject to any form of discrimination on any grounds including the child's or his parent's race, colour, sex, language, religion, political or other opinion, nationality, ethnic or social origin, property, disability, illness and other medical reasons, birth or any other status.

(6) In applying these principles, due regard must be given to the age and the psychological capacity of the child.

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. 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. 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.

(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.

9. Exercising parental responsibility.

(1) Subject to Subsection (2) a parent shall have parental responsibility for the child.

(2) Where the natural parents of a child are deceased or physically unable to perform parental responsibilities, the parental responsibility may be exercised by relatives of either parents in accordance with —

(a) custom; or

(b) by deed or will; or

(c) by way of a direction of the Director; or

(d) a Court Order in accordance with this Act.

36. So if one takes a careful look at the purpose of the legislation, it is solely centred around providing the best for children. This begs a question of why a man would want to have children? It calls for responsibility, and such responsibilities must not be taken lightly. In fact, the act also provides avenues in which, a parent can take care of his child, in the absence of unemployment, as provided under s.9 of the Act.
37. In almost all parts of the country, unemployed parents resort to informal sector for the maintenance and upkeep of their family. I am sure the defendant can resort to that in these difficult times. This Court is therefore minded to grant the maintenance orders but with certain considerations of the defendant’s unemployment condition, and also considering s.9 of the Act.
38. It is also important to note that custody orders have been sought by the complainant. Division 4 of the Act also establishes guideline to be followed by this Court, and s.102 is of paramount importance for a child to be nurtured and groomed.
39. Whilst it is necessary to maintain, all three kids, the Act places a time limitation on the age of a child that is eligible to be maintained by the parent. S. 112 places a bar on maintaining children over the age of 18, and as such, any claim for children over the age of 18 is barred and shall not be enforceable by this Court.
40. It was also submitted by parties that this Court should dissolve the marriage. I find that impossible to do, as it is the Village Court that has jurisdiction in dissolving customary marriages, and the National Court in Statutory Marriages. This Court cannot usurp powers that are not existent. There is no enabling legislation granting this court of such powers. It would be a blunt abuse of Court System, if I was to grant those orders, and would be illegal.
41. As for the issue on costs. It is a discretionary matter, and having considered the relevant background information and facts before this Court, this Court is minded to Order Costs to be borne by parties.
42. In considerations of the best interest of the child and for the upkeep and maintenance of the child, coupled with the finding of adultery, the court is minded to make the following orders.

THE COURT HEREBY ORDERS THAT:

For the Claim of Adultery as claimed for in FC# 167 of 2020

1. The first defendant shall pay K200 to the complainant, as compensation for the one act of adultery with Gabriella Haroharo, within twenty-one (21) days from the date of this Order.
   
2. The Second Defendant Gabriella Haroharo shall pay K100 to the complainant as compensation for the first act of adultery with the complainants lawfully wedded husband, Edmond Scott Arua within twenty-one (21) days from the date of this Order.
   
3. If the Defendants default to pay the compensation within the twenty – one days, a Warrant of Commitment shall be issued forthwith pursuant to s. 18 of the Adultery and Enticement Act.
   
4. The application for Dissolution of Marriage is dismissed for want of Jurisdiction.
   
5. Costs to be borne by Parties.
   
6. Time is abridged.

For the Claim of Maintenance and Custody as claimed for in FC# 166 of 2020

1. Pursuant to S. 108 of the Lukautim Pikinini Act 2015, Edmond Scott Arua shall ensure that he maintains the child William Aisi through cash or kind to the value of K150 per fortnight until 31^st July 2021, when he attains the age of eighteen (18) or demises, whichever shall occur first.
   
2. Pursuant to S. 108 of the Lukautim Pikinini Act 2015, Edmond Scott Arua shall ensure that he maintains the child Shanelle Aisi through cash or kind to the value of K150 per fortnight until 09^th June 2029, when she attains the age of eighteen (18) or demises, whichever shall occur first.
   
3. The custody of the children shall be shared custody and each child should be given the right to spend equal time with both the defendant and complainant. Such time spent with the children, shall be to the exclusion of other persons, except the parents themselves.
   
4. Parties shall ensure that the medical and educational expanses responsibilities are shared on equal portion (50/50), and shall not in any manner whatsoever give any excuses for his/her inability to contribute for such educational and medical expenses.
   
5. Parties to bear their own cost for the proceeding.
6. Time is Abridged.
   

Complainant: in person

Defendants: in person