Pandea v Malepa [2022] PGDC 85; DC9022 (20 September 2022)

DC 9022

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY JURISDICTION]

FC No. 192 of 2021
BETWEEN

JACINTA PANDEA
Complainant

AND

GREG TIMOTHY MALEPA
Defendant

Port Moresby: Mr. Seth Tanei (Magistrate)

2022: 20^th of September
      

CIVIL – Application for Maintenance Arrears/ to Commit Defendant to Prison– District Courts Act – s 4– Maintenance Orders Enforcement Act 1970 – Application refused

Cases Cited

References

Legislation

District Courts Act
Maintenance Orders Enforcement Act 1970
Lukautim Pikinini Act 2015
Counsel

The Complainant in Person

Mr. Lora, B – For the Defendant

RULING

20^th September 2022

S Tanei (Magistrate): This is my ruling on the Complainant’s application for Maintenance Arrears and or to commit the Defendant to prison filed on 19^th July 2022.

2. The Complainant claims that the Defendant has stopped paying maintenance of her children pursuant to a Court Order of 6^th October 2021.
   
3. On 29^th August 2022 the application returned for hearing. Mr. Brian Lora of Lora Lawyers appeared for the Defendant on that day and sought an adjournment to seek further instructions. The matter was then adjourned to 1^st September 2022 for hearing.
   
4. On 1^st September 2022, the application was heard.
   
5. This is my ruling on the Complainant’s application.
   

FACTS:

6. On 6^th October 2021, the Court made an Order against the Defendant, requiring him to pay maintenance to his children in the sum of K 350 per fortnight.
   
7. The Complainant says that the Defendant has defaulted in complying with the terms of the Court Orders of 6^th October 2022 and as such she seeks to enforce those orders and to commit the Defendant to prison if he fails to comply with those orders.
   

ISSUES:

8. The Court is faced with the following issues;
   
   1. Whether the Complainant’s Application is incompetent?
   2. Whether the Defendant has defaulted in paying maintenance?
   100. If so, whether he should be committed to prison?
        

THE LAW

9. Section 4 of the Maintenance Orders Enforcement Act 1970 provides that;
   

4. IMPRISONMENT FOR DISOBEDIENCE OF ORDER.

(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.

(3) For the purposes of Subsection (1), the arrears shall be taken to include any amount that the defendant is ordered to pay in respect of the costs of the application.

(4) The defendant is not liable to be committed to prison in respect of his failure to pay any arrears–(a) if he has previously served a term of imprisonment in respect of his failure to pay them; or

(b) if he is, by virtue of an order made under Section 6, deemed to have served a term of imprisonment in respect of his failure to pay them.

(5) The fact that a defendant is not liable to be committed to prison in respect of his failure to pay any arrears does not affect the recovery of them under any other section of this Act

(6) The period of detention in prison of a person under an order under Subsection (2) is subject to the provisions of Sections 202 and203 of the District Courts Act1963 as if the amount of the arrears were the amount of a fine imposed by the Court.

(7) Where the arrears in respect of which an application has been made to the Court under Subsection (1) are paid after the service of a copy of the application on the defendant and before the Court makes an order for the issue of a warrant committing the defendant to prison, the Court may order the defendant to pay the costs of and incidental to the application.

(8) Section 168 of the District Courts Act1963 applies to and in relation to an order under Subsection (2) as if it were a conviction referred to in Subsection (1) of that section.

(9) Where a person is entitled to receive payments under each of two or more maintenance orders against the same defendant, one application may be made under Subsection (1) in respect of the arrears due and unpaid under each of those orders.

(10)Where a person makes one application to the Court in respect of the arrears due and unpaid under each of two or more maintenance orders, the Court shall, in determining the period for which the defendant is to be committed to prison, have regard to the amount ascertained by aggregating the arrears and subtracting from the total sum the amount of any arrears, or the sum of the amounts of any arrears, in respect of which the defendant is not liable to be committed to prison as if it were the amount of the arrears due under one maintenance order.

EVIDENCE

39. The Complainant relied on her Affidavit in Support of 19^th July 2022 where she says that the Defendant only paid maintenance twice in December 2021 and completely stopped paying. She also stated that she witnessed the Defendant mocking the Court Orders. The maintenance orders were not complied with since January 7^th 2022. Arrears amount to K 4,900.
    
40. On the other hand, the Defendant did not file any Affidavit in response. Although he attempted to rely on an Affidavit filed in support of a Notice of Motion he filed to dismiss this application. The Complainant also objected to the use of that Affidavit as she was not served a copy of the Affidavit.
    
41. The Defendant’s lawyer did not ask for an adjournment so as to comply with the service requirements or file an affidavit in response for the Defendant but made submissions from the bar table.
    

SUBMISSIONS

42. The Complainant reiterated her position in her Affidavit and asked the Court to enforce the Court Orders of 6^th October 2021.
    
43. Mr. Lora of Counsel for the Defendant submitted that the Complainant’s application must fail because she used the wrong provision of the law.
    
44. He submitted that the Complainant should have used section 174 of the District Courts Act to apply for enforcement of the Maintenance Orders of 6^th October 2021 instead of Section 4 of the Maintenance Orders Enforcement Act. This is because section 4 of the MOEA refers to the Child Welfare Act and the Child Welfare Act has been repealed.
    

DISCUSSION OF ISSUES

1. Whether the Complainant’s Application is incompetent?

45. Mr. Lora submitted that the Complainant’s application is incompetent as she used a repealed provision of the law.
46. He submitted that according to section 1 of the Maintenance Orders Enforcement Act 1970, “maintenance” refers to an Order under the Child Welfare Act. He submits that the most appropriate application should be made under section 174 of the District Courts Act as the Child Welfare Act was repealed by virtue of the Lukautim Pikinini Act 2015.
47. My reading of section 174 of the District Courts Act, however, does not point me to any provision that deals with enforcement of maintenance orders. Section 174 of the District Courts Act deals with the procedure in relation to the execution of Warrants of Execution.
48. Therefore, the Defendant’s argument in this regard is misconceived.
49. I also find that the Defendant’s argument in relation to section 1 of the MOEA is misconceived.
50. This is because a careful reading of section 1 of the Maintenance Orders Enforcement Act 1970 does not limit “maintenance” to the Child Welfare Act. It provides that;

“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 Act1961; and

(c) an order for the maintenance of a child under Section 54, 55, 58 or 59 of the Child Welfare Act1961; and

(d) an order for the payment of funeral expenses under Section 60 of the Child Welfare Act1961; and

(e) an order for the maintenance of a ward under Section 69 of the Child Welfare Act1961; and

(f) [Repealed.]

(g) a maintenance order made under the Matrimonial Causes Act1959 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;”

51. Further, section 122 of the Lukautim Pikinini Act provides that;

“122. CHILD WELFARE ACT

Where any Act or subordinate enactment, other than this Act, contains a reference, express or implied, to the Child Welfare Act (Chapter 276) and Lukautim Pikinini (Child) Act 2009, that reference shall, on and after the coming into operation of this Act, be read and continued as a reference to the Lukautim Pikinini Act 2015.”

52. This means that any reference to the repealed Child Welfare Act in the Maintenance Orders Enforcement Act regarding maintenance orders refers to such orders under the Lukautim Pikinini Act 2015.
53. Hence, the argument by the Defendant in this regard is misconceived.
54. Therefore, the application by the Complainant is not incompetent.
    
    2. Whether the Defendant defaulted in complying with the Court’s Orders of 6^th October 2021?
       
55. The Complainant’s evidence shows that the Defendant defaulted in complying with the Court Order of 6^th October 2021.
    
56. Non-payment of maintenance in itself amounts to default or non-compliance of the Court’s Orders.
    
57. The evidence shows that the Defendant started paying maintenance in December 2021. However, without any reason, he stopped paying.
    
58. The Defendant failed to provide any reason as to why he defaulted in paying maintenance.
    
59. He attempted to rely on an Affidavit filed on 30^th August 2022. However, that Affidavit was not served on the Complainant and the Complainant objected to it being used. I upheld the objection as it was not served on the Complainant and if it had been served, it would have been short served.
    
60. I will not allow such ambush techniques being used in my Court by parties.
    
61. I therefore, find that the Defendant has defaulted in complying with the Court’s Orders of 6^th October 2021.
    
    100. Whether the child the Defendant shall be committed to Prison.
         
62. I note from the Complainant’s application that the amount in arrears is K 4, 900.00.
    
63. I will use my powers under the Maintenance Orders Enforcement Act to order the Defendant to pay that amount.
    
64. If he fails to do so within the time required, I will commit him to prison per the provisions of section 4 of the MOEA.
    

CONCLUSION

65. In conclusion, the Court is satisfied that the Defendant has defaulted in complying with Maintenance Orders issued by this Court on 6^th October 2021.
    

COURT ORDERS

66. The following are the formal orders of the Court;
    
    1. The Defendant shall pay half of the Maintenance Arrears of K 4, 900 (K2450) within three (3) months while the remaining K 2450 shall be paid in fortnightly instalments of K 47.12 for 52 fortnights.
       
    2. If the Defendant fails to pay half of the maintenance arrears (K2450) within the time specified, a warrant of commitment shall be executed and he shall be committed to prison to serve six (6) months in hard labour at Bomana Corrections Institution.
       
    3. A Warrant of Commitment is issued forthwith
       
    4. This matter shall return to Court for review on 21^st November 2022.
       

Lawyer for the Complainant: Complainant in Person

Lawyer for the Defendant: Lora Lawyers