Aiya v Pale [2022] PGDC 87; DC9024 (10 October 2022)

DC9024

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY JURISDICTION]

FC No. 302 of 2019
BETWEEN

LEA AIYA
Complainant

AND

LEO PALE
Defendant

Port Moresby: Magistrate Seth Tanei

2022: 10^th of October
      

FAMILY – Application by Defendant to vary Maintenance Orders – section 22 District Courts Act, section 110, Lukautim Pikinini Act.

FAMILY – Section 10 – Lukautim Pikinini Act – inappropriate - s 22 – District Court Act – appropriate – Substantial Change of Circumstances - Application Granted – Maintenance Order Varied.

Cases Cited

NIL

Legislation

District Courts Act

Lukautim Pikinini Act 2015

Parties

The Complainant - In Person

The Defendant – In Person

RULING

10^th October 2022

Seth Tanei (Magistrate): This is an application filed pursuant section 110 of the Lukautim Pikinini Act 2015 and section 22 of the District Courts Act to discharge the Attachment of Earnings Order issued by the Court on 6^th May 2022 and or vary the Court’s Maintenance Orders of 19^th November 2019. It was filed on 12^th May 2022.

2. The Court heard the application on 30^th May 2022 and adjourned the matter for a ruling on 16^th June 2022.
   
3. During the Course of writing a ruling, the Court discovered that there may be a change of circumstance in the case. That is the children may no longer have been in the custody of the Complainant and that there is a need for the Court to hear from the children.
   
4. When the matter returned for a ruling on 16^th June 2022, the Court adjourned to 14^th July 2022 for continuation of hearing as it wanted to interview the children.
   
5. On 14^th July 2022, one of the children was not present as he was taken to Mt. Hagen. The parties agreed for the matter to be adjourned so the child could be brought down from Mt. Hagen. The matter was further adjourned from 14^th July to 7^th September and then to 17^th September due to non-attendance by either of the parties or the children.
   
6. The children were finally brought to Court on 27^th September 2022 and the Court interviewed them.
7. The Court’s ruling on the application by the Defendant.
   

BACKGROUND FACTS

8. On 19^th November 2019, this Court made Maintenance Orders in favour of the Complainant after hearing both parties.
   
9. The Court Ordered the Defendant to pay K500 as maintenance towards his four children namely Danny Leo, Bonny Leo, Andaka Leo and Sandan Leo.
   
10. The Court also granted joint custody of the children to both the Complainant and the Defendant with access rights. I will not disturb that order.
    
11. The Defendant now says that the children are all with him and as such circumstances have changed and he should not pay maintenance as ordered by the Court
    

ISSUES:

12. The Court is faced with the issue of whether circumstances have changed so as to warrant a variation of the Court’s Orders of 19^th November 2009.
    

THE LAW

13. The Complainant seeks Orders under Section 22 of the District Courts Act and Section 110 (3) of the Lukautim Pikinini Act 2015.
    
14. Section 22 of the District Courts Act gives a wide range of powers to the District Court to make Orders including varying or setting aside its own orders.
    
15. Section 110 of the Lukautim Pikinini Act provides for the duration of Maintenance Orders.
    

EVIDENCE

16. The Defendant/Applicant relied on his Affidavits filed on 12^th May 2022 and 26^th May 2022. In those Affidavits, the Defendant stated that all the four (4) children are in his custody and care and there is no reason why he should pay maintenance to them. He stated that the Complainant has moved on. He also attached his payslips from his employer stating his inability to pay the maintenance amount as per the Court order of 19^th May 2022.
    
17. The Complainant/Respondent relied on her Affidavit filed on 19^th May 2022. She says that she is entitled to maintenance. She does not deny that the children are with the Complainant. However, she still wants the Complainant to pay maintenance. She further stated that the Defendant has threatened her with violence when the Court granted her maintenance orders in 2019.
    
18. The Court also had the benefit of interviewing the parties’ four (4) sons and hearing their views on 27^th September 2022. They were each heard in chambers away from their parents. They were all brave young boys who spoke with ease and confidence when they were individually interviewed. This is what they had to say;
    
    1. Danny Leo

He is their eldest son. He is 14 years old. He told the Court that he is currently in his currently with his mother and her family. He is happy and want to live with his mother and her family in Tokarara.

2. Bonny Leo

He is 12 years old and is the second born. He told the Court that he is currently in his father’s custody and he wants to continue to stay with his father as he is happy with the father. He also told the Court that he is not happy that his mother and father are coming to Court.

3. Andakam Leo

He is 7 years old. He told the Court that he lives with his father. He said that he wants to live with his father. However, he told the Court that he does not want his parents to argue.

4. Sandan Leo

He is 5 years old. He told the Court that he currently lives with his father. He bravely told the Court that he wants to live with his father and not his mother.

DISCUSSION ON EVIDENCE

19. From the evidence, the reasonable conclusion that the Court can draw is that there is a considerable change in circumstances.
    
20. Three (3) of the children are in the Defendant’s custody.
    

FINDING OF FACTS

21. I find from the evidence that there is a considerable change in circumstances since the granting of the Maintenance Orders in 2019.
    
22. I find that the children Bonny Leo, Andakam Leo and Sandam Leo are all in the Defendant’s custody and are happy in his care while Danny Leo is in his mother’s custody and chooses to be with his mother.
    

APPLICATION OF THE LAW TO THE FACTS

23. It is my view that section 110 of the Lukautim Pikinini Act 2015 does not give the Court the power to vary its own orders.
    
24. Instead Section 110 of the Lukautim Pikinini Act 2015 sets out the time period for the existence of a Maintenance Order.
    
25. This means that section 110 of the Lukautim Pikinini Act is not the correct provision and was incorrectly used by the Defendant/Applicant in his Application.
    
26. However, the Defendant’s application is saved by the fact that he also relied section 22 of the District Courts Act.
    
27. Section 22 of the District Courts Act invokes this Court’s jurisdiction to deal with this application and to make orders as it deems fit.
    
28. The Defendant/Applicant firstly seeks to dismiss the Attachment of Earning Order issued by the Court on 3^rd May 2022.
    
29. He argues that he was not aware of any application made by the Complainant to warrant such an Order. As such he wants the Court to set aside this Order.
    
30. I note that there is a common misunderstanding by many parties and lawyers regarding the document titled “Attachment of Earning Order”.
    
31. Many Court users attend at the Registry and or come before the Court and enquire as to when the Court sat and issued the Attachment of Earning Order.
    
32. This document is not an Order of the Court nor is it issued out of an application by the Complainant in a separate hearing. It is a document issued by the Registry attaching the Court’s Orders for Maintenance to the Defendant’s employer. Although it resembles a Court Order, it is a Standard Form used by the Family Court to attach a Court Order to a Defendant’s pay. This document is not signed by the Magistrate that issued the Court Order for Maintenance but by the Clerk of the Family Court.
    
33. It is issued on the day that the Complainant attends at the Registry to collect the Maintenance Orders already issued by the Court.
    
34. In this case, the “Attachment of Earnings Order” was issued on 3^rd May 2022 as that was the day the Complainant attended at the Registry to collect the Maintenance Orders of 19^th November 2019 to serve on the Defendant’s employer.
    
35. Hence, the application by the Defendant to set aside the Attachment of Earnings Order is misconceived and baseless.
    
36. However, it is my view that the Defendant’s second leg of his application has merits. That is, circumstances have changed in this case.
    
37. I note from the evidence and from my face to face personal interviews with the parties’ children that the three (3) younger children are in their father’s custody and are taken care of by their father, the Defendant.
    
38. The Complainant on the other hand, looks after only one child, their eldest son. The child is comfortable and happy to be in his mother’s care.
    
39. I will therefore use my powers under section 22 of the District Courts Act to vary the Court order of 19^th November 2019.
    
40. I also had the benefit of viewing the Defendant’s payslip and I am of the view that the Defendant will continue to pay maintenance to the son that is currently with his mother the Complainant in the amount that I will state in my formal orders. I note that Danny Leo has turned 14 years old and his needs will also increase.
    
41. In that I will vary the Orders and remove the orders for maintenance for the sons that are currently in the Defendant’s care and custody and order the Defendant to pay K 200 as maintenance to his son namely Danny Leo who is in the custody and care of his mother the complainant.
    

CONCLUSION

42. I not satisfied that the Attachment of Earnings Order of 3^rd May 2022 is frivolous and vexatious.
    
43. However, I am satisfied that there is a considerable change of circumstances which warrants a variation of the Court’s Orders of 19^th November 2019.
    

COURT ORDERS

44. The following are the formal orders of the Court;
    
    1. Pursuant to section 22 of the District Courts Act, the Orders of the Court dated 19^th November 2019 are varied.
       
    2. The Defendant shall pay maintenance for the child namely Danny Leo, born on 7^th July 2007, a sum of K 200 per fortnight.
       
    3. This maintenance order shall be attached to the Defendant’s Employer’s Salary Section at Air Niugini Limited for deduction into the Complainant’s bank account at Bank South Pacific, Goroka Branch under the Account Name Lea Aya with account number 7023377901.
       
    4. The Defendant shall meet the costs of education and medical expenses for all his children as and when they fall due.
       
    5. The children Danny Leo, Bonny Leo, Andakam Leo and Sandan Leo are entitled to the Defendant’s employment benefits such as leave tickets and so forth.
       
    6. Joint Custody of the Children is granted to both parties with unrestricted access to either party on terms included but not limited to;
       
       1. Father’s Day/Mother’s Day and the Parties Birthdays
       2. Birthdays
       100. Weekends
       4. Any other date that is significant to the children that requires the attendance of both parents;
       5. Any other term as agreed to by parties.
          
    7. These Orders are effective and are enforceable until the child Danny Leo turns 18 years old or if the child dies or completes school or if these orders are varied or discharged by a Court of Competent Jurisdiction.
       
    8. Parties shall bear their own costs.
       

Lawyer for the Complainant: In Person

Lawyer for the Defendant: In Person