Towowoda v Towowoda [2021] PGDC 182; DC7038 (20 July 2021)

DC7038

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

FC NO. 347/2017
SHIRLEY TOWOWODA
(Complainant)

-v-

FRED TOWOWODA
(Defendant)

VANIMO: B.Fehi

MAINTENANCE ENFORCEMENT: Maintenance enforcement proceedings brought pursuant to Section 171 of the District Courts Act – Arrears of K35, 000.00 – No evidence from the defendant- Complainant’s claim uncontested – Pursuant to Section 165 of the District Courts Act, defendant ordered to pay installments within a reasonable period of time.

PRACTICE AND PROCEDURE: Pursuant to Section 143 of the District Courts Act, leave was granted for matter to be heard Ex-parte – Provisions of the Maintenance Orders Enforcement Act does not apply to affiliation proceedings commenced pursuant to the provisions of the Lukautim Pikinini Act 2015 – Matter returnable for review – Issuing of Warrant of Commitment to be determined upon review.

Statutes:

• Lukautim Pikinini Act 2015;
• Maintenance Orders Enforcement Act 1970; and
• District Courts Act
  

Case Law Cited:

(No cases sited)

Representations:

Complainant in person

No appearances for the Defendant

20^th July 2021

1. FEHI. B. DCM: This complaint is filed pursuant to Section 171 of the District Courts Act seeking orders for the enforcement of an Order for Maintenance issued by this court on 21^st December 2017 sitting under its jurisdiction as the Family Court in Port Moresby. The nature of the complaint appears as follows:

“Did fail to comply with Court Order dated 21^st day of December 2017 to pay K700.00 as maintenance for the complainant and the three children.

“You are now in arrears of K35, 000.00 for PPE: 23/04/2019 to 13/08/19 and 18/12/2019 and PPE: 02/01/2020 to PPE: 01/07/2021.

Complainant therefore prays this Honorable Court for imprisonment order under Section 171 (1) of District Courts Act.”

RECORD OF PROCEEDINGS

2. The substantive proceedings were filed in Port Moresby Family Court on 14^th September 2017, maintenance orders were subsequently issued in favor of the complainant. Thereafter, given the change of circumstances surrounding respective party’s position, it was requested upon by the complainant to have this matter transferred to Vanimo District Court House, West Sepik Province. On 20^th November 2019, a Certificate of Transfer was issued effectively transferring the matter here.

3. The complainant instituted enforcement proceedings before this court through her complaint filed on 23^rd June 2021, complainant effected service of the summons on the defendant in Lae, Morobe Province on 25^th June 2021. Matter was set for first mention on 15^th July 2021 and on that date, complainant appeared with no appearance shown by the defendant, perusal of the court file indicates no written explanations or request from the defendant. As such, matter was further adjourned to 20^th July 2021 to afford the defendant an opportunity to appear in person or to communicate with this court his reasons or explanations if he is unable to attend. Again, the defendant showed no appearance, given this to be a progressive matter, I find it appropriate to proceed with the hearing Ex-parte, as it is reasonable to infer that the defendant is fully aware of and should anticipate such actions being brought against him in future.

4. Hearing conducted in the absence of the defendant and upon conclusion of the complainant’s case matter was set down for ruling where I handed down my decision extempore issuing orders in favor of the complainant. This is now my full judgment on the matter.

BRIEF FACTS

5. Briefly put, the defendant had defaulted in paying to the complainant, K700 fortnightly since 23^rd April 2019 to 01^st of July 2021, which accumulated to total arrears of K35, 000.00. The defendant is currently employed and maintains a permanent resident in Lae, Morobe Province and the complainant is with their three children here in Vanimo West Sepik Province. Initially, defendant was required to pay K400 to the complainant and K100 each for the 3 children, a total fortnightly deduction of K700.00. Further orders were issued for salary deduction which ensured compliance until defendant left his employment with Papua New Guinea Defence Force (PNGDF), giving rise to the arrears. Defendant has since not filed any application before the court to vary the substantive orders given his change of circumstances. Defendant is now employed as a supervisor with Hawkeyes Security firm in Lae Morobe Province. Complainant stands aggrieved and therefore files this proceeding to get defendant to settle the accrued arrears.

PRACTICE CONSIDERATIONS

6. I rely on Section 143 of the District Courts Act to hear this matter in the absence of the defendant. For completeness, the above section provides as follows:

“142. Where defendant does not appear.

Where, in the case of a complaint, the defendant does not appear at the place and at the time specified in the summons, or at the place and time to which the hearing was adjourned or postponed, as the case may be, if –
(a) it appears to the Court on oath that –

(i) the summons was duly served at least 72 hours before the time appointed in the summons for appearing; or

(ii) an order for substituted or other service or for the substitution for service of notice by advertisement or otherwise was duly complied with; and

(b) no sufficient grounds are shown for an adjournment,

the Court may proceed ex-parte to hear and determine the complaint or may adjourn the hearing to a future day.

7. A similar practice rule is provided for under Order 10 Rule 12 of the National Court Rules. In my view, it is not necessary to place reliance on the National Court Rules as the District Courts Act through Section 143 sufficiently provides for this practice.

8. Section 143 as it appears, sets out conditions to qualify the use of this practice and basically the complainant must prove to the satisfaction of the court the following:

(i) Summons must be served on the Defendant at least 72 hours (3 days) before the time set within the summons for fresh hearing before the court;
(ii) The service of the summons must be made in compliance with an order providing for substituted service and other mode of service including through advertisement taken out to give notice of hearing; and

(iii) No reasonable cause as to why further adjournment should be granted.

9. The complainant has produced before me a Proof of Service document dated 25^th June 2021. First mention was on the 15^th of July 2021, therefore she has to my satisfaction met the first condition. As for the second condition I find it not applicable in this matter because all court documents were dully served on the defendant within the allowable time frame. Finally, I have not received nor sighted any feedback from the defendant regarding his current status and the reasons for his non-appearance after the date of service and before the matter was mentioned in court. Given the nature of the proceedings, it is in my view a progressive matter and the defendant should anticipate this current action taken against him by the complainant. I am convinced that his non appearances are without any reasonable cause and it is only in the best interest of their children that this matter must proceed with no further adjournments. The third condition is satisfied by the complainant and the matter will now be heard in the absence of the defendant.

APPLICABLE LAW

10. The complainant brings his claim under Section 171 of the District Court’s Act which the whole provision appropriately appears as follows:

171. Warrant of Commitment in other cases.

(1) Where –

(a) a conviction does not adjudge the payment of a fine, but that the defendant be imprisoned for his offence; or

(b) a Court orders the doing of an act other than payment of a fine or sum of money or costs and directs that, in case of the defendant’s neglect or refusal to do the act, he shall be imprisoned, and the defendant neglects or refuses to do the act,

the Court or Magistrate may issue a warrant of commitment for the imprisonment of the defendant for such time as the conviction directs.

(2) If, by a conviction or order referred to in Subsection (1), costs are also adjudged to be paid by the defendant to the complainant, and the defendant does not pay the costs in accordance with the terms of the conviction or order, a Magistrate, by warrant, may commit the defendant to a corrective institution or police lock-up, there to be kept according to the terms of the conviction or order, unless he sooner pays the costs.

11. Section 171 above falls within Part IX (Enforcement of Decisions) of the District Court’s Act. Division 2, of this part provides for Warrant of Execution and Commitment, reading the whole of this division, most if not all of the provisions within predominantly covers convictions were fines and costs are ordered to be paid and in the event of default the procedures to follow and the factors to weigh before warrants are used to ensure enforcement or compliance. Section 171 is what I consider to be a stand-alone provision, in particular its Sub-section (b), its literal meaning in my view requires that there must be an order in the first instance, directing the defendant to do an act, in the event of refusal or neglect to perform that act, the court is empowered to issue a warrant for his imprisonment.

12. Prior to the enactment of the Lukautim Pikinini Act, all maintenance proceedings were commenced under the provisions of the Child Welfare Act and the Deserted Wives and Children Act. Enforcement proceedings were brought under the Maintenance Orders Enforcement Act. Both the Child Welfare Act and Deserted Wives & Children Act have so far been repealed. However, the Maintenance Orders Enforcement Act is still active and its provisions only apply to maintenance orders issued under the 2 repealed legislations. Section 1 of the Maintenance Orders Enforcement Act provides as follows;

1. Interpretation.

In this Act unless the contrary intention appears –

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“maintenance order” means an order for the payment of moneys for or towards the maintenance of a wife, husband or child, and includes –

(a) an order under Section 3 of the Deserted Wives and Children Act 1951; and

(b) an order for the payment of confinement expenses under Section 53, 58 or 59 of the Child Welfare Act 1961; and

(c) an order for the maintenance of a child under section 54, 55, 58 or 59 of the Child Welfare Act 1961; and

(d) an order for the payment of funeral expenses under Section 60 of the Child Welfare Act 1961; and

(e) an order for the maintenance of a ward under Section 69 of the Child Welfare Act 1961; and

(f) [repealed]

(g) a maintenance order made under the Matrimonial Causes Act 1959 of Australia, as in force from time to time; and

(h) an order for the payment of costs in connection with any such order; and

(i) where any such order has been varied, the order as so varied; and

(j) any such order that has been discharged if arrears are recoverable under the order;

13. My reading of this act showed no other provisions giving a clear parameter of its application, therefore I am satisfied that Section 1 is the only provision and according to it, maintenance proceedings filed under the recently introduced Lukautim Pikinini Act 2015 does not attract its provisions, in the event of enforcement. Section 171, in my view is the only avenue given such a vacuum, but is it proper for maintenance enforcement proceedings to be made under it?

14. There still exists a lot of confusion as to how best maintenance orders made under the Lukautim Pikinini Act can be enforced. Looking at the practical aspect of the enforcement mechanism, most of the tools used to manage maintenance orders once it has been issued are provided for under the Maintenance Orders Enforcement Regulation, created by its enabling act. What is now being used in our registries is based on a legislation that does not recognize the affiliation proceedings under the Lukautim Pikinini Act. I have observed the modus operandi to be entirely dependent on the forms provided for in the regulation; it is only when the matter is before the court that we hear it under Section 171.

15. Given the above dilemma, certain considerations that are available to the court provided for in the Maintenance Orders Enforcement Act also do not apply. For instance, the need for the court to satisfy itself of the issue of means to pay (Section 5) and the conditions preventing repeated commitment to imprisonment (Section 4 (a) (b)).

16. As alluded to above, is it proper for maintenance enforcement to be made under Section 171 of the District Courts Act. I am of the opinion that for such enforcement proceedings, the court must at first opportunity, order clearly as per Section 171 (1) (b) the defendant to do an act, which in maintenance enforcement, surely to pay the amount of arrears. As per Section 165 of the District Courts Act, a clear timeframe must be given to the defendant and the defendant be allowed to pay in installments or provide some form of security for the payment. A review of the matter is a must which will determine whether the defendant has complied with the court order and performed that act. Failing to do so will result in a warrant of commitment issued for his imprisonment. By adopting that approach, conformity will be achieved, in the sense that the tools used will operate as a standard registry practice of collecting evidence and the evidence will be adducible before the court to be used to enforce maintenance orders issued under the Lukautim Pikinini Act 2015, by way of Section 171 of the District Courts Act. To do so in that manner will ensure proceedings of this nature are properly before the court.

EVIDENCE BEFORE THE COURT

A) COMPLAINANT’S CASE

17. The record of payments prepared by the Deputy Clerk of Court Vanimo, showed and confirmed the dates of default commencing pay period 23^rd April 2019 and ending 01^st July 2021. The total arrears from that period stand at K35, 000.00. These are the only evidence provided by the complainant and I consider them sufficient given the nature of the proceedings. No other evidences are necessary, unless the defendant has filed a defence which may require the complainant to respond. The complainant has also provided evidence that the defendant after leaving PNGDF, has since been employed with established security firms in Lae Morobe Province where he currently resides with his new female partner. He was employed with Blackswan Security Services before leaving to be engaged by Hawkeyes Security Services, his current employment to date.

B) DEFENDANT’S CASE

18. The defendant has filed no defence nor made any application that this court is given notice of therefore, the complainant’s attestation and the records compiled in her favor are accepted into evidence without any challenge.

RELEVANT ISSUES AND DISCUSSIONS

19. The relevant issues for my consideration are set out as follows:

i) Whether the Defendant has the means to pay the total arrears of K35, 000.00; and

ii) If not, then whether the defendant should be allowed to pay in installment and what would be the reasonable time frame for him to do so; and

iii) Whether warrant of commitment should be issued for the commitment of the Defendant to an imprisonment term and what would be the appropriate term of imprisonment.

20. I will answer the first issue in the negative. I have no evidence before me to confirm that the defendant if ordered to pay K35, 000. 00 will make such a sum available to settle the orders within any given period. I also am mindful of the jurisdictional limits which I am aware sets the ceiling at K10, 000.00. However, I am satisfied from the evidence of the complainant that the defendant is employed and is able to pay any amount K10, 000.00 and below if ordered to do so.

21. As for the second issue, Section 165 of the District Courts Act enables this court to consider options for the defendant to meet the arrears without being to crushing on him, that is, payment of the total of K35, 000.00 will be apportioned into installments, and the amount apportioned will be within the jurisdiction of the District Courts. Also reasonable time will be allowed for defendant to settle each installment as ordered by the court. Therefore, I will answer this issue as yes the defendant will be given time for him to pay the amount in installments so it won’t be too crushing on him.

22. The third issue is entirely dependent on how the defendant reacts to issue number two. Should the defendant abide by the court order requiring him to do an act, which is, to pay the installment and he does so, than it will not be justifiable to commit him to prison, rather the matter should be returnable for review and assessment on how best he can be able to settle the balance of the total amount. However, should he fail to perform the act as ordered, than upon review, there is a high possibility that a warrant to commit him to prison will be issued, unless during that time he has taken steps to file application contesting the basis of such actions to be taken against him. That included applications to vary the substantive maintenance order. Should all these fails and a warrant to commit is imminent, the court will decide taking all factors into consideration the period of imprisonment reasonable at this stage of the proceedings. I will answer this issue as yes, upon failure by the defendant to do an act as prescribed by Section 171 (1) (b) of the District Court Act, he is liable to be committed to prison through the issuing of a Warrant of Commitment and the term of imprisonment must be reasonable taking all factors into consideration.

FINDINGS

23. Having dealt with the above issues, I find that, to order the defendant to pay K35, 000.00 one off as arrears will be unreasonable under the circumstances. However, it would be fair taking the intent and purpose of maintenance proceedings into account to order the defendant to pay in installment. Given the fact that, all the children are with the complainant here in Vanimo and are all currently in school, interest of the children demands this court to ensure defendant pays an amount substantial to the daily upkeep of the children. An amount of K10, 000.00 as first installment is in my assessment reasonable under the circumstance. The defendant, from what I gathered from the evidence, has a history of taking out loans, I accept that to put him in an advantages situation so as to secure the amount of K10, 000.00 and pay as first installment. I consider a period of one month to be sufficient for him to achieve that.

24. I also hold in favor of having the matter set down for review after the period of one month to check on whether the defendant has completed the act by settling in full the first installment of K10, 000.00. Should he fail to do so, the review will be the avenue for the defendant to use it as an opportunity to either serve on this court any application or explain the reasons for his default, if that is not done, than the court will issue warrant to commit him to prison and also decide on the period reasonable for him to serve as a result of his default.

CONCLUSION

25. In summary, this matter was heard ex-parte as per Section 143 of the District Courts Act after the complainant has shown to my satisfaction to have complied with all the conditions provided therein. Leave is therefore granted and the matter was heard in the defendant’s absence.

26. There still exists a lot of confusion given the current state of the maintenance enforcement framework. There exists a vacuum because provisions of the Maintenance Orders Enforcement Act do not cater for Affiliation proceedings commenced under the Lukautim Pikinini Act 2015. As such, court users are forced to file enforcement under Section 171 of the District Courts Act. The court to ensure proper application of this provision to maintenance orders must utilize Section 165 of the District Court Act to ensure an act is ordered to be fulfilled by the defendant, so as to attract the application of Section 171 (1) (b).

27. Conduct of reviews is necessary to ensure compliance and identify default. Also, to allow the defendant opportunities for him file application and/or provide explanation of the default. Further, to issue warrant of commitment upon default and to determine the period of imprisonment.

28. Given all the above, the defendant is ordered to pay K10, 000.00 as first installment within 1 month from the date the orders are served on him. The matter will be set down for review at a date after the date of the expiry of the one month period.

29. I hereby issue the following orders in adherence to the above:

COURT ORDERS:

1. Leave granted for matter to proceed ex-parte;

2. Enforcement proceedings brought pursuant to Section 171 of the District Courts Act, Chapter 40;

3. Defendant is liable and is required to settle as accrued arrears K35, 000.00 to the complainant;

4. Defendant is ordered to pay as first installment K10, 000.00 within 1 month from the date of service of this order on him.

5. In compliance with order 4 above, matter to return for review on 14^th October 2021; and

6. Failure to comply subject to the review, will result in a warrant of commitment issued for the imprisonment of the defendant to a term reasonable under the circumstances, no less than 1 month and no more than 2 years.

30. This matter is now set down for review.