Tokom v Tokom [1985] PGNC 30; [1985] PNGLR 195; N510(M) (5 July 1985)

N510(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

ELIAS TOKOM

V

LUISA TOKOM

Rabaul & Waigani
Bredmeyer J

17 May 1985
5 July 1985

MAINTENANCE OF WIVES AND CHILDREN - Leaving without means of support - Order for reasonable allowance for use of wife - Wife’s earnings - Not relevant to "means of support" - Relevant to "reasonable allowance" - Deserted Wives and Children Act (Ch No 277), ss 1, 3.

MAINTENANCE OF WIVES AND CHILDREN - Leaving without means of support - Reasonable cause for so leaving - Grave and weighty conduct required - Refusal to resume co-habitation where separation not justified - Deserted Wives and Children Act (Ch No 277), s 3(4).

MAINTENANCE OF WIVES AND CHILDREN - Order for maintenance - Specification of amount in respect of children - Specification of amount in respect of wife implied - Deserted Wives and Children Act (Ch No 277), s 13.

MAINTENANCE OF WIVES AND CHILDREN - Appeal - Appeal against order by husband - Specified cash sum to be paid into court - District Courts Act (Ch No 40), s 222.

The Deserted Wives and Children Act (Ch No 277), s 3, provides that an order for "such allowance as [the court] considers reasonable for the use of the wife" (a maintenance order), may be made if the court is satisfied that the wife is "left without means of support" and provided the husband does not have "reasonable cause" for leaving her without support. "Means of support" is defined in s 1 as meaning "lawful and sufficient means of support other than her own earnings". Section 13 requires the amount payable as maintenance in respect of each child to be specified in the order.

On appeal by a husband from an order requiring him to pay K60 per fortnight for his wife and three children.

Held

(1) The earnings of a wife cannot be taken into account in determining whether a husband has left his wife "without means of support", but may be taken into account in determining what is a "reasonable allowance" for the use of the wife.

Jacobs v Jacobs (No 2) [1976] PNGLR 532, affirming [1976] PNGLR 261, followed.

(2) A husband will have "reasonable cause" for leaving his wife without means of support where he can show that the wife’s conduct was so grave and weighty as to make married life quite impossible: mere unhappiness or incompatibility of temperament is not sufficient.

(3) A wife’s refusal to accept a husband following a separation caused by conduct of insufficient weight to justify reasonable cause to leave without support, was in the circumstances, itself a reasonable cause for leaving her without support.

(4) The requirement in s 13 to specify the amount payable in respect of each child, by implication, requires specification (where applicable) of the amount payable in respect of the wife.

(5) (Obiter) Where an appeal is lodged by a husband against an order for maintenance made under the Deserted Wives and Children Act (Ch No 277), it is desirable that the husband be required to pay a specified cash sum into court under the District Courts Act (Ch No 40), s 222, for the due prosecution of the appeal and so avoid misuse of the appeal procedure as a means of avoiding maintenance payments under the order.

Cases Cited

Jacobs v Jacobs (No 1) [1976] PNGLR 261, and on appeal, [1976] PNGLR 532.

Appeal

This was an appeal by a husband against a maintenance order of K60 per fortnight made by the Rabaul District Court.

Counsel

B Dilon, for the appellant.
E Jubilee, for the respondent.
Cur adv vult

5 July 1985

BREDMEYER J: This is an appeal from a maintenance order made by the Rabaul District Court on 18 October 1984. The magistrate ordered the defendant Elias Tokom to pay maintenance of K60 per fortnight as from 31 October 1984 under the provisions of the Deserted Wives and Children Act (Ch No 277). In the complaint Luisa Tokom claimed that the defendant had unlawfully deserted his wife and three children of the marriage, Elisha born 9 May 1975, Willie born 15 June 1976 and Dorish born 22 January 1978, and left them without lawful means of support.

After hearing argument I reserved my decision. Mr Dilon, counsel for the appellant, had addressed a strong argument to me that the defendant/husband had just cause to desert his wife and in order to consider that argument I thought it essential that I ascertain if, in fact, any part of the award of K60 per fortnight, was for the maintenance of the wife. Accordingly I asked the trial magistrate for a report under the District Courts Act (Ch No 40), s 225, on the breakup of his award. He replied promptly with a report that the breakup was K30 for the wife and K10 for each child per fortnight, a total of K60 per fortnight. A magistrate is required by the Deserted Wives and Children Act, s 13, to specify the amount payable in respect of each child. By inference he must specify the amount awarded to the wife because, obviously, the total award less the total of the sums specified for the children, is the sum awarded to the wife.

Mr Dilon argued that the husband had a reasonable cause to desert his wife. He quoted from Bromley’s Family Law (4th ed), at 161-162 that desertion is:

"(1) the de facto separation of the spouses;

(2) the intention on the part of the deserting spouse to remain separated permanently;

(3) the absence of consent by the deserted spouse; and

(4) the absence of any reasonable cause for withdrawing from cohabitation on behalf of the deserting spouse."

I think that is a succinct statement of the common law but it is important to look first to the terms of our statute. Although, under s 2 of the Deserted Wives and Children Act unlawful desertion is a ground for the issue of a summons or a warrant of arrest, it is not the basis for a maintenance order made under s 3. Under that section a maintenance order is made if the court is satisfied that the wife is left without means of support. That makes sense because a man may desert his wife in the four-fold way mentioned by Bromley but yet provide adequate maintenance for her, in which case she would not be entitled to an order. Although no formal order has been extracted in this case the order was undoubtedly made under s 3 so to upset the order Mr Dilon has to challenge the finding that the wife was left without means of support, not that she was deserted. The same goes for the order in favour of the children; Mr Dilon has to challenge the finding that they were left without means of support; not that they were deserted. I will deal first with the arguments in relation to the wife.

Did the husband leave the wife without means of support and, if so, did he have a reasonable cause to do so? First, did he leave her without means of support? The phrase "means of support" is defined in s 1 to mean:

"... lawful and sufficient means of support and in the case of a wife means lawful and sufficient means of support other than her own earnings."

In the case of this wife, the definition means sufficient means of support but excluding her own pay of K135 gross per fortnight. After the husband left, the wife said he gave her on successive fortnights K2, K5, K9 and K25 for herself and the three children. I exclude her salary as the definition requires and it is obvious that she was left without sufficient means of support.

Did the husband, in the words of s 3(4), have "reasonable cause" to leave her without sufficient means of support. The husband gave evidence of a number of reasons to leave.

1. On one occasion she assaulted him. She "broke his teeth and face". She admitted that. He never assaulted her. She said she did it to make him change his behaviour but he did not change.

2. He said she constantly talked about a girl Elizabeth Elias. The husband committed adultery with Elizabeth in 1982 but later went back to his wife. He said he told her not to mention Elizabeth’s name but she did so.

3. He found her writing to two boyfriends. She tore up the letters and they forgave each other.

4. A month after the separation he wanted to go back but she refused and threatened him by saying that her relatives would assault him. She was living in her village at the time.

5. At the time of the court case, in October 1984, he wrote a letter and a note asking to be allowed to come back and that if she didn’t accept him by 3 pm that would mean she wanted a divorce and he would divorce her and marry Elizabeth.

It is difficult to determine if some or the total of all these allegations amount to reasonable cause not to support her. The law on this taken from English cases summarised in Bromley’s Family Law (4th ed), at 168, is that the wife’s conduct must be so grave and weighty as to make married life quite impossible. The duty to cohabit is not lightly to be abandoned and, by English law, mere unhappiness or incompatibility of temperament can not justify separation.

Of the five matters mentioned I do not think that the wife’s one act of assault was sufficiently grave and weighty to be reasonable cause to leave her without support. Nor do I think her mentioning of Elizabeth’s name when he forbade it is grave and weighty misconduct by the wife. Rather it is trivial argument. It is part of nagging and verbal arguments common in many marriages which do not justify a separation. I consider that matter 4 (supra) is more serious. A month after leaving, he asked to come back but was refused and threatened. He said she said that because she was angry and because he habitually came home late and did not support her and the children. It seems to me that the wife has to put up with the husband’s conduct — coming home late etc — to a large extent. That is part of an incompatible bad marriage. It does not justify a separation. It seems to me that her refusal to accept him back at that time, at least for a trial period, was a reasonable cause not to support her and amounts to a bar to her claim.

There is another problem with the magistrate’s order of K30 per fortnight maintenance for the wife. Although I have quoted the definition of means of support which excludes the wife’s own salary (which common sense suggests should be included), the maintenance order for a wife, as set out in s 3(a)(iii), is not based on that definition. By s 3(a)(iii) the court may order the defendant "to pay such allowance as it considers reasonable for the use of the wife". It has been held in Jacobs v Jacobs (No 1) [1976] PNGLR 261 at 268 per O’Leary AJ that in determining the appropriate amount the magistrate must take into account any income earned by the wife. That case went on appeal but this point was upheld on appeal: see Jacobs v Jacobs (No 2) [1976] PNGLR 532 at 535. When I apply that principle to the facts of this case, the wife was earning K135 gross per fortnight and despite the fact that the husband was earning more (K186 gross per fortnight) I consider that her wage was enough for her to live on and that, even if the husband did not have a defence of reasonable cause, the award for her maintenance should have been set aside.

It is certain that the husband left the children without reasonable means of support. The sums he gave each fortnight of K2, K5, K9 (he says it was K19) and K25 are woefully inadequate as his share of jointly maintaining three children aged 9, 8 and 6. I consider that he has not raised any reasonable cause to a maintenance order being made in their favour. I note that of his salary of K186 gross per fortnight he sends K40 to PSA Savings & Loans (whether as a saving or repayment of a loan I do not know) and "investments K5" — much more than he spends on the children. The award of K10 per fortnight for each child — total K30 per fortnight — is very low indeed and I affirm it. Had there been a cross appeal by the wife I would have increased it but without a cross appeal I cannot. In any event she can apply to the District Court for a variation.

I allow the appeal in part. I quash that part of the award of the District Court of 18 October 1984 which is for maintenance of the wife. I affirm the other part of the award K10 each per fortnight for Elisha, Willie and Dorish.

The appellant has not sought costs so I make no order as to costs.

I make a final comment for the assistance of counsel and the magistrate. When an appeal is lodged the appellant has to deposit a sum of money or enter into a recognisance as required by the District Courts Act (Ch No 40), s 222, as security for the due prosecution of the appeal. According to the papers I have no such deposit was paid and no such recognisance was signed. The husband may now be nearly ten months in arrears. From the wife’s point of view it is very good practice to ask the magistrate to fix a cash sum — in this case K200 would have been adequate — to be paid into court, into trust account as security for the due prosecution of the appeal. From her point of view a cash deposit paid into court is much better than a recognisance. If the appeal fails, the money is immediately available for payment out of court to the wife or children. Such a cash deposit prevents the husband lodging the appeal entirely or largely as a delaying tactic, to avoid paying any maintenance under the order pending the hearing of the appeal.

Appeal allowed in part

_________________

Lawyer for the appellant: Deputy Public Solicitor, Rabaul.
Lawyer for the respondent: Warner Shand, Wilson & Associates.