Lovave v Lovave [2022] PGDC 116; DC9053 (17 November 2022)

DC9053

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY COURT JURISDICTION]

FC 113 of 2022
BETWEEN

JOVITHA LOVAVE
Complainant

AND

MICHAEL LOVAVE
Defendant

Lae: J Morog

2022: 4; 18 October; 8; 17 November 

FAMILY- Spousal Maintenance – Section 109 of Lukautim Pikinini Act 2015 - Constructive Desertion – no circumstances to justify withdrawal from residence.

Cases Cited
Robert Kunjil v Theresia Monpi [1995] PNGLR 281
Noi v Noi (1990) N923

References

District Courts Act
Lukautim Pikinini Act 2015

Counsel

Complainant in Person

Defendant in Person

Lae, 2022

1. J Morog: the complainant claims spousal maintenance against the defendant for deserting her since 18^th November 2021 and leaving her without any financial support. She was once working in the private sector in Office Administration and Accounting and it is not clear now if she is employed or not.

2. Defendant denies desertion and contends that she was the one who left him and the children who are under his care and custody while she is living elsewhere and so he shall not pay any spousal maintenance. He is a Research Scientist with PNG Forest Research Institute under the PNG Forest Authority for over 20 years and still in their employ.

3. This case is brought under section 109 of the Lukautim Pikinini Act 2015 since the repealing of the Deserted Wives and Children’s Act.

BACKGROUND

4. They met since 2001 and their marriage was solemnized at the St Mary’s Catholic Church in Lae on the 13^th of September 2013.

5. She had a previous marriage which she had two children and later with the defendant now she has another two children and one adopted child.

6. She says that she has gone through a lot over the 20 plus years of their marriage. On the 18^th November 2021 they had an argument over the defendant having extra marital affairs and in the course of their argument the defendant told her to ‘piss off’ and she left the house and now living elsewhere ever since.

LAW
7. Section 109 of the Lukautim Pikinini Act 2015

109. MAINTENANCE OF A SPOUSE.

Where the Court hearing a complaint under this Part in relation to maintenance of a spouse who is deserted by the defendant, the Court may order the defendant to pay to the complainant a fortnightly sum or in kind as maintenance for the spouse.

8. Section 121 of the Lukautim Pikinini Act 2015 has repealed the Deserted Wives and Children’s Act but I will adopt the definition of constructive desertion under that law to adjudicate this matter.

9. Section 20 of the repealed Act defines constructive desertion as;

“...a wife who has been compelled to leave her husband's residence under reasonable apprehension of danger to her person or under other circumstances that reasonably justify her withdrawal from that residence shall be deemed to have been deserted without reasonable cause"

ISSUE(S)

1. Whether or not the defendant has deserted the complainant?

2. If the answer to the first issue is ‘NO’ then that is the end of the matter but if it is ÝES’ then the next issue would be the amount of or kind of maintenance to be paid.
EVIDENCE

Complainant

10. Complainant tendered and relied on her own affidavit in support and affidavit in response filed on 11^th August and 7^th October 2022 respectively.

11. She deposed that between the years 2001 to 2004 the defendant did not support her and the children and also that she was forced to do an abortion in 2001 and now she has medical complications and needs financial assistance but defendant does not support her.

12. She also claims that during the 21 years of their marriage the defendant was having extra marital affairs and has been neglecting her and the children.

13. She generally claim that she encountered physical, social, spiritual, financial, emotional and psychological abuse for the las 21 years. She says that due to his extra marital affairs and another motive he does not support her with the medical bills and reviews.

14. On the 18^th of November 2021 they had an argument regarding the defendant’s extra marital affair and he told her to piss off and she left the house.

Defendant

15. The defendant relies on his affidavit filed on the 29^th of September 2022 and says that he married the complainant and took her two children ages 2 and 3 years from her previous marriage and looked after them all.

16. He said that between the years 2001 to 2004 they were not living as a couple yet. It is not clear when they came to live together as a couple.

17. They solemnize their marriage in Church in 2013 and have lived together since then until she left him and the children on the 18^th of November 2021.

18. He is now looking after the children and their daily needs and he contends that he never deserted the complainant and so he shall not pay any maintenance to her.
APPLICATION OF THE LAW

19. In this case I find that the couple met in 2001. At that time the complainant was a divorcee and she had her two children ages around 2 and 3 years old. They did not cohabit until after 2004 and thereafter they solemnized their marriage in 2013.

20. Their two children from the complainant’s marriage would have been adults and their own two children teenagers when the complainant left the house on the 18^th of November 2021.

21. In this case there was no apprehension of any danger to her person to have left the house thus the first instance of constructive desertion on personal safety under section 109 of the Lukautim Pikinini Act 2015 (the Act).

22. So I ask whether there are other circumstances that reasonably justify her withdrawal from the house as the second instance of constructive desertion under the Act.

23. Despite the complainant’s generalization that she suffered for 21 years of their marriage I rule out the years between 2001 until 2013 the year when they solemnize their marriage as unless she was forced to go through with the marriage which there is no evidence to that effect except the evidence of the defendant that it was so much of the complainant’s wish and doing.

24. She would have been wiser to avoid this marriage if she sensed suffering during the years of 2001 to 2013 and also I note the defendant deposing that he was conservative on the marriage in church when they have not yet gone through customary marriage but it was her idea to push things through and they went through with it.

25. I now look at the years from 2014 to 2021 to find whether there are circumstances to constitute constructive desertion by the defendant.

26. I have read the two affidavits filed by the complainant and noted that she premised her withdrawal from the house on the belief that the defendant was having extra marital affairs and had a hidden motive so he told her to piss off and she left.

27. She also said that she had medical complications due to an abortion forced upon her by the defendant in 2001 which in 2017, 2019 and 2021 she missed her medicals and reviews due to lack of financial assistance from the defendant.

28. The defendant denies that he forced her to abort her pregnancy and says that firstly it was a consensual understanding between both of them due to their situation at that time and also it was her own doing of taking a long journey by sea from Lae to Alotau while she was pregnant and that affected her pregnancy.

29. In regard to the allegation of forced abortion I find this incredible. It suffices that the complainant was a divorcee with two very young children when she met the defendant in 2001 and fell pregnant. It would be more sensible to regard the defendant’s version that they had a consensus on abortion due to their situation at that time.

30. The defendant denies that he is responsible for her leaving their house but instead it is her own free will and decision. He says that he has been paying her medical bills through his salary all along until after her departure from the house he does not now.

31. He denies the extra marital affairs and says that that she is speculating and assuming things. At the time during their argument he told her to piss off because she was bad mouthing him too much and he said that to make her stop bad mouthing. It was not intended to tell her to leave the house.

32. Does this circumstances suffice to reasonably justify her withdrawal from their family home in the legal sense?

33. In the case of Robert Kunjil v Theresia Monpi [1995] PNGLR 281 it is clear that bringing a new wife to the matrimonial home is held to be constructive desertion. Most of the cases of constructive desertion arise out of circumstances where a second wife comes into the picture however in this case the complainant only alleges extra marital affairs and suffering.

34. In the case of Noi v Noi (1990) N923 the National Court confirmed the finding of the District Court that brutality and extra marital affairs over a span of about 20 years was sufficient to constitute constructive desertion. In that case the evidence was overwhelming and instances of violence and liaison with other women were established unlike the case at hand and so I note that distinction.

35. There is no evidence on other circumstances, perhaps, cruelty or drunkenness or physical violence at home or continuous absence from matrimonial home etc...

36. In this case the family have been living together until the argument on 18^th November 2021 and the complainant left their matrimonial home and her children with the defendant until now. So the presumption of desertion by the husband to abandon the wife for 80 days and 14 days of which she was left without means of support does not apply here.

37. I understand that it does not make sense for a woman to just walk away from their family unless there is some compelling reason but I just cannot deduce it from the evidence provided by the complainant here.

38. This court has considered the affidavit evidence of both parties to ascertain the circumstances leading up to the 18^th November 2021 and not so much on the events that transpired after that date. The circumstances raised by the complainant in this case does not reasonably justify her withdrawal from the matrimonial home.

39. Therefore I rule that the defendant has not deserted the complainant and consequently the claim for maintenance shall fail.

40. The answer to the first issue in this case is NO and so there is no need to consider the question on type of maintenance to be paid.

Orders

1. The case is dismissed
2. Parties bear their own costs
   

Complainant In Person

Defendants In Person