Jubilee v Elavo [1991] PGLawRp 468; [1991] PNGLR 98 (15 March 1991)

Papua New Guinea Law Reports - 1991

[1991] PNGLR 98 - Wesley Jubilee v Josephine Elavo 

[1991] PNGLR 98

N977

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

JUBILEE

V

EVALO

Rabaul

Jalina J

13 March 1991

15 March 1991

FAMILY LAW - Maintenance - Enforcement of orders - By imprisonment - Application to enforce - Standard of proof - On balance of probabilities - Means and ability to pay - Discretion to imprison - Adultery by wife - Effect of - Maintenance Orders Enforcement Act (Ch No 279), ss 4, 5 - Deserted Wives and Children Act (Ch No 277), s 11.

The Maintenance Orders Enforcement Act (Ch No 279) provides:

N1>“4.      Imprisonment for disobedience of order

N2>(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.

N2>(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.

N2>(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.

N2>(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.

N2>(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.

N2>(6)      The period of detention in prison of a person under an order under Subsection (2) is subject to the provisions of Sections 208 and 209 of the District Courts Act 1963 (Adopted) as if the amount of the arrears were the amount of a fine imposed by the Court.

N2>(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.

N2>(8)      Section 174 of the District Courts Act 1963 (Adopted) applies to and in relation to an order under Subsection (2) as of it were a conviction referred to in Subsection (1) of that section.

N2>(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.

N2>(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.”

N1>“5(1)(a)        that the defendant:

N2>(i)       does not have the means and ability to comply with the order under which the moneys are due and unpaid; and

N2>(ii)      has not had, since the order was made, the means and ability; and

N2>(iii)     could not be reasonable effort have had that means and ability.”

The Deserted Wives and Children Act (Ch No 277), s 11 provides:

N1>“11.    Variation of order

N2>(1)      On application by or on behalf of a wife or child or the husband or parent, and on notice given in such manner as it directs to all parties affected, a Court may vary, suspend or discharge an order made by a Court under this Act.

N2>(2)      Subject to Subsection (3), an application under Subsection (1) shall be heard and determined by a Court sitting:

(a)      at a place agreed on by the parties; or

(b)      if either of the parties is resident in the province in which the order was made, at the place where the order was made; or

(c)      if neither of the parties is resident in that province, at a place in the province in which the respondent resides.

N2>(3)      The Court may postpone the hearing of an application under this section and direct that the application be heard and determined by a Court sitting at some other place specified by it.

N2>(4)      On the hearing of an application under this section, the Court may take into consideration all the circumstances of the case and the conduct and circumstances of the parties since the date of the order, and it may admit any evidence relating to the conduct and circumstances of the parties before and at the date of the order that it was satisfied was not available at the time when the order was made.

N2>(5)      An order may be varied, suspended or discharged as from a date before the application, and may be varied or suspended from time to time.

N2>(6)      Where a Court is satisfied that a husband and wife have resumed cohabitation and that the husband is supporting the wife, the Court, on the application of the husband or wife shall discharge any order made under this Act for the support of the wife.

N2>(7)      Where a Court is satisfied that a wife who has obtained an order under this Act for her support has, since the date of the order, committed adultery, the Court shall discharge the order, but, if it thinks fit, the Court may:

(a)      refuse to discharge the order if in its opinion the adultery was conduced to by the failure of the husband to make such payments as in the opinion of the Court he was able to make under the order; and

(b)      in the event of the order being discharged, make an order that:

(i)       the custody of the children of the marriage continue to be committed to the wife; and

(ii)      the husband pay, weekly, fortnightly or monthly and to such person and in such manner as the Court orders, such allowance for the support of the children as it thinks reasonable.

N2>(8)      Where a Court is satisfied that there are good and sufficient reasons for the default, it may hear an application to vary, suspend, or discharge an order notwithstanding that the applicant is in default in complying with the order.”

Held

N1>(1)      On an application under s 4 of the Maintenance Orders Enforcement Act, the standard of proof required is the civil standard on the balance of probabilities.

N1>(2)      The court has a discretion to make an order for imprisonment under s 5 of the Act if satisfied as to the matters relating to means and ability to pay in s 5(1)(a) pars (i) to (iii).

N1>(3)      Section 11(7) of the Deserted Wives and Children Act is a mandatory provision requiring the court to discharge a maintenance order where there is evidence of adultery unless the husband has conduced thereto.

Cases Cited

Wama Bole v Willie Imbeli [1983] PNGLR 128.

Appeal

This was an appeal against an order of the Rabaul District Court ordering the defendant to pay maintenance arrears within one week in default two months imprisonment in hard labour.

Counsel

J Mika, for the appellant.

T Tamusio, for the respondent.

Cur adv vult

15 March 1991

JALINA J: This is an appeal against an order of the Rabaul District Court on 2 November 1990 whereby the appellant was ordered to pay K680 being maintenance arrears within one week from the date thereof and in default two months imprisonment in hard labour.

The grounds of appeal are:

N2>(a)      That on the evidence before the court the presiding magistrate could not be satisfied beyond reasonable doubt that the appellant had the means and ability to comply with the maintenance order made against him by the Kieta District Court on 26 May 1986 under the Deserted Wives and Children Act (Ch No 277).

N2>(b)      That the presiding magistrate did not take into account evidence of deductions from the appellant’s salaries by his employer as evidence of his attempts to comply with the order for maintenance.

An eleventh-hour application by the appellant to add a third ground was refused as it would have amounted to unfairness to the respondent to allow such an amendment at this very late stage when the appeal was about to be argued. Further, the appellant has had sufficient time to have considered this and made such an application prior to the application. In fact this appeal was adjourned to 13 March from 8 March and no application for amendment was made then.

The respondent has also filed a cross-appeal. This was only filed last Friday, 8 March 1991, just before the appeal was about to be heard. She first sought an extension of time in which to file the cross-appeal and since the cross-respondent did not object to the extension of time being granted, I granted the extension of time for the filing of the cross-appeal to Monday, 11 March and, since the cross-appeal was already on file, I dispensed with the conditions precedent to hearing of appeals pursuant to powers under s 231 of the District Courts Act (Ch No 40).

The grounds of the respondent’s cross-appeal are:

N2>1.       That the learned magistrate erred in law in ordering the arrears to be reduced from K1,440 to K680.

N2>2.       That the cross-respondent had wilfully not made any such application for variation with the courts during that period.

For convenience to all parties and to save cost, particularly when Mr Jubilee (the appellant/cross-respondent) was privately represented, I adjourned to 13 March for both appeals to be argued together. Although there is a cross-appeal and as such the parties would be known as respondent/cross-appellant and appellant/cross-respondent respectively, for convenience I propose to refer to them as appellant and respondent respectively.

The respondent has applied pursuant to s 4 of the Maintenance Orders Enforcement Act (Ch No 279) to commit the appellant to imprisonment for failure to pay maintenance arrears totalling K1,440 pursuant to a maintenance order of the Kieta District Court dated 26 May 1986. The maintenance arrears in the sum of K1,440 are shown in the certificate of arrears which has been filed by the respondent in support of the application. These arrears were for the period 26 May 1989 to 28 September 1990.

From the evidence, the appellant commenced employment with Ela Motors, Rabaul on 11 July 1988 and finished in early January or February 1990. The actual date cannot be ascertained due to the conflict in the evidence of Mr Rieck from Ela Motors and the appellant.

Evidence was also given of deductions at K40 per fortnight by Ela Motors from the appellant’s salary. The respondent said she only received a total of K240 which represented only six fortnights’ deductions. Due to the letter from Ela Motors tendered by the respondent and the pay-slip tendered by the appellant not being available among the depositions it cannot be determined with certainty whether deductions from the appellant’s salary continued until he ceased employment early in January or February 1990.

There is also evidence, through the admission of the respondent during cross-examination, that she had committed adultery as a result of which she had a child who was three years old. If this appellant was in fact paying maintenance during the period of his employment with Ela Motors it appears from the fact that the respondent’s child is three years old that she had been engaged in an adulterous relationship about a year or so after the maintenance order was made by the Kieta District Court.

Mr Mika for the appellant has submitted that the learned magistrate had erred in that, on the evidence before him, he could not have been satisfied beyond reasonable doubt that the appellant had the means and ability to pay within the requirements of s 5(1)(a) of the Maintenance Orders Enforcement Act (Ch No 279). Pay-slips were tendered which showed that the appellant had paid by salary deductions until he ceased employment in early 1990. This showed that he only had arrears for the period from early 1990 to November at the time of the application. As he was not working from early January or February 1990 to November 1990 (the time of the respondent’s application) he did not have the means and ability to pay.

THE STANDARD OF PROOF

The standard of proof Mr Mika submitted was one of “beyond reasonable doubt” in view of the fact that it entailed a criminal consequence, namely imprisonment. For this he relied on two passages in the judgment of Pratt J in Wama Bole v Willie Imbeli [1983] PNGLR 128; a case which involved s 198 (now s 192) of the District Courts Act relating to the imprisonment of fraudulent debtors in civil cases. He placed much emphasis on his Honour’s remarks (at 129) where his Honour said: “The judgment-creditor is like a policeman — he must prove his case fully before he can obtain his order under s 198.” At 131, his Honour said:

“I would like to say something about the imposition of the `default penalty’. Section 198(3) permits the court to grant a specific period of time in which the debt must be paid but again great care must be exercised because of the use of a term from the criminal law within a civil context.”

I cannot, with respect, agree. I do not think that his Honour, by saying that the judgment creditor is like a policeman who must prove his case meant that it must be proved “beyond reasonable doubt”. I also do not think that when the term “default penalty” is used in the criminal context it changed the standard of proof from the civil standard which is “on the balance of probabilities” to the criminal standard which is one of proof “beyond reasonable doubt”. The application for imprisonment arises out of a civil case and as such the standard of proof should be the civil standard. I agree that great care must be exercised but that does not mean that the standard of proof should be changed to the criminal standard. If the standard of proof was the criminal standard (of proof) it could result in a lot of men escaping not only their liability but also their responsibility to pay maintenance thus leaving wives and children without any means of support. They would also leave wives and children without any means of enforcement as much evidence would be required from the applicant to satisfy the court “beyond reasonable doubt”.

MEANS AND ABILITY TO PAY

As I said earlier, due to the conflict in the evidence regarding the total deductions made by Ela Motors during the period the appellant/cross-respondent worked coupled with the pay-slips tendered by the respondent/cross-appellant not being among the depositions, this Court cannot ascertain the actual total amount paid by the appellant. However s 5(1)(a) of the Maintenance Orders Enforcement Act requires the court to be satisfied as to the matters specified in pars (i) to (iii) before it proceeds to make an order for imprisonment. This involves the exercise of discretion. The learned magistrate had the opportunity of viewing both the letter from Ela Motors tendered by the respondent and the payslips tendered by the appellant and, by ordering imprisonment in default of payment, appears to me to have been satisfied that the appellant had the means and ability to pay and thus exercised his discretion accordingly. I therefore do not think that I should disturb his Worship’s decision on this basis.

THE RESPONDENT’S ADULTERY

As I said above, there is evidence through the respondent’s own admission that she had a three-year-old son from another man, thus showing that she had committed adultery only a year or so after the maintenance order was made against the appellant in 1986. Section 11(7) of the Deserted Wives and Children Act makes it mandatory on the court to discharge a maintenance order where the court is satisfied that a woman who has obtained an order under that Act for her support has, since the date of the order committed adultery unless the court is of the opinion that the adultery was conduced to by the failure of the husband to make such payments as in the opinion of the court he was able to make. If the court refuses to discharge the order because of its opinion that the husband had conduced to the adultery then it must in my view expressly state to that effect and also give the reasons for such refusal. That is a minimum requirement of a court which has evidence of adultery put before it. The learned magistrate in this case failed to do this and in doing so erred in law in my opinion.

Mr Tamusio for the respondent did not reply to the submission by the appellant but went on to argue the cross-appeal.

THE CROSS-APPEAL

Mr Tamusio submitted that the learned magistrate had erred in law in ordering that the amount be reduced from K1,440 to K680 when the appellant had not made any application for variation. The learned magistrate should have made an order for the full amount of K1,440.

The application was for imprisonment of the appellant for his failure to pay the maintenance arrears of K1,440. It was not an application to vary the maintenance order of the Kieta District Court. Consequently, the learned magistrate had two options in my opinion. He could either have ordered the appellant to be imprisoned or refused to make such an order. He could not make an order for payment of the full K1,440 because there was no need for him to do so. There was already an order from the Kieta District Court under which the K1,440 was payable to the cross-appellant by the cross-respondent. By ordering the appellant/cross-respondent to pay K680, the learned magistrate has clearly acted ultra vires his powers and therefore erred in law.

As I have found that the learned magistrate had erred in law in respect of both appeals I allow both appeals and order that the order of the Rabaul District Court of 2 November 1990 be quashed and that the case be remitted to the said court for rehearing. I further order that each party shall pay his own costs.

Appeals allowed

Lawyers for the appellant: J M Mika & Associates.

Lawyer for the respondent: Public Solicitor.