N2199

PAPUA NEW GUINEA

[In the National Court of Justice]

CIA No. 46 of 2001

BETWEEN:

GEORGE W. SULLIMANN
Appellant

AND:

THECLA K. SULLIMANN
Respondent

WAIGANI: DAVANI .J
2002: 10 May, 20 May

CUSTODY - Applications under ss. 2 and 3 of the Deserted Wives and Childrens Act Chapter 277 (DWCA) - who can apply and the process – on the award of maintenance, custody follows - s. 3(b)(I)(iii) and (iv) of DWCA 

PRACTICE AND PROCEDURE - Proof of marriage s. 19 of DWCA

CUSTOM – application for custody only, if custom is raised – to be specifically pleaded and to be heard by the appropriate court.

APPEAL - Appeal Court to rely on material contained in appeal book

Cases Cited:
Gia Kewa Piel v Erick Ron Pranpi [1996] PNGLR 396

Counsel:
J. Kemaken for the Appellant
R. Uware for the Respondent

DECISION

20 May 2002

DAVANI J:	This is an Appeal filed by the appellant appealing against the whole of the decision of the Port Moresby Family Court of 26 January 2001 where the court ordered that the appellant comply with the following orders and which I set out in full:

"1.	That maintenance be granted;
2.	That the Appellant pay K50.00 per child for three (3) children of the marriage;
3.	That the Appellant pay K50.00 per week to the complainant as maintenance;
4.	That these payments commence on the 1st of January 2001, a total of K200.00 per week;
5.	The Appellant to pay school fees for the children of the marriage commencing the school year of 2001 and thereafter;
6.	The Appellant shall provide adequate accommodation for the Respondent and the children from time to time;
7.	The Respondent shall have custody of the children and the Appellant to have the right of access;
8.	The Respondent shall keep the peace towards the Appellant."

A sealed certified copy of the court order is at page 40 of the Appeal Book.

The orders were made after the hearing of a complaint filed by the Respondent in the Port Moresby District (Family) Court seeking maintenance and custody of the three children of her marriage to the Appellant. That application was made under sections 2 and 3 of the Deserted Wives and Children’s Act Chapter 277 (‘DWCA’). 

The children of the marriage that the orders relate to are:

1.	Georgina Sullimann born on 22 September 1986;
2.	Flayiva Sullimann born on 24 April 1988;
3.	Nigel Sullimann born on 28 January 1993.

The appellant raises eleven (11) similar lengthy grounds of appeal in the Notice of Appeal filed on 23rd February 2001. I have summarized these and which are:

1.	that the customary marriage between the parties at the time or date of the application for maintenance had been dissolved and that therefore the court should not have made orders for maintenance and custody as there was no existence of a valid marriage;

2.	the learned magistrate erred in law and in fact when he failed to take into account the appellant’s customs confirming that the marriage had dissolved and that by custom the appellant was entitled to custody of the children;

3.	The learned magistrate erred in fact and in law when he failed to allow the parties to be cross examined on the contents of their affidavits;

4.	The learned magistrate erred in law in hearing an application for attachment of earnings when the appropriate application was not before the court.

APPEAL BOOK

The Appellant’s lawyer submits that there were affidavit material filed by the Appellant in the District Court which are not before me.

The appeal book before me consists of the documentation filed in support of the appeal, the magistrate’s typed reasons for his decision and the affidavits filed by both the Appellant and the Respondent, being the appellant’s affidavit sworn on 13th December 2000. The Respondent’s evidence consists of her affidavit sworn on 6th November 2000. There is also a Certificate of Correctness of the Appeal Book signed by the appellant’s lawyer and dated the 3rd October 2001. Neither the Respondent nor her lawyers signed this document. There is also a sealed copy of the Port Moresby Family Court’s Order of 26 January 2001 and copies of the Complaint and Summons to a Person upon Complaint filed by the Respondent in the Port Moresby Family Court and dated 17th November 2000.

At page 22 of the Appeal Book, there is an affidavit sworn by the Appellant on the 18th January 2001 which was not accepted by the presiding magistrate and which has a hand-written notation "copy not served on complainant. Affidavit is rejected," and which is signed by the presiding magistrate and dated 25 January 2001.

There are also five pages of the magistrate’s notes which comprise of the hearing of 15 December 2000, which is illegible, 30 December 2000, 9 January 2001, 25 January 2001 and 29 January 2001. This therefore confirms that the only evidence relied on by the parties were the affidavits filed by the parties and which I referred to earlier.

The Appeal book was certified by the Appellant’s lawyer as correct. I will consider material contained only in the Appeal Book as the Appellant’s lawyer was satisfied the book was complete, having certified it himself . He also agrees that the appeal court can only rely on what is before it in the appeal book.

The appellant seeks orders that the District (Family) Court’s orders of 26 January 2001 be quashed and that the matter be referred to the Local Court in Wewak for the said Court’s deliberation on the issue of the dissolution of the customary marriage. 

I will discuss separately each ground of appeal later below.

THE LAW

The DWCA is an Act that relates to deserted wives and children. A "child" is defined in the DWCA as being under the age of 16 whether born in wedlock or not.

A "wife" is not defined in the DWCA, however s.19 of the DWCA, the provision on "proof of marriage" states when a wife can lodge a complaint for maintenance and custody and proof of her standing to do so, being the existence of a legal valid marriage and desertion. In this case, the issue is whether there was a valid marriage when the District Court’s Orders were made.

Section 19 of the DWCA states;

"19.	Proof of Marriage

1.	At the hearing, a woman who complains that she has been deserted by her husband or left by him without means or support shall produce direct evidence of her marriage to the defendant or, if she is unable to produce direct evidence to the satisfaction of the court, shall make and produce an affidavit setting out the time, place and circumstances of the marriage".

The Respondent in this case applied to the District Court as a "deserted wife" under the DWCA, claiming maintenance and custody The relevant provisions of the DWCA relied on by the Respondent were ss. 2 and 3. These provisions read; 

"2.	Power of court to issue summons or warrant.

(1)	Where –

(a)	a husband has unlawfully deserted his wife or left her without means of support; or
(b)	a father has deserted his child or left him without means of support; or
(c)	a husband or father is about to leave the country without making adequate provision for the support of his wife or child,

a court on complaint on oath being made by the wife or the mother of the child or by a reputable person on behalf of the wife or child, may – 

(d)	issue a summons requiring the husband or father to appear before it to show cause why he should not support his wife or child; or
(e)	where it is satisfied that the circumstances justify it doing so, issue a warrant for the arrest of the husband or father.

(2)	Where a warrant has been issued and the Defendant cannot be found, on proof of enquiry and search, may proceed in the case ex parte.

(3)	Hearing and order.

(1)	On the hearing of a complaint under section 2, the court shall enquire into the matter and –

(a)	where it is satisfied that –
(i)	the wife is left without means of support; or
(ii)	the defendant is about to leave the country without making adequate provision for her support,

the Court may –

(iii)	order the defendant to pay such allowance as it considers reasonable for the use of the wife; and
(iv)	commit the legal custody of a child of the marriage to a wife or some other person, and
(v)	order the defendant to pay such allowance as it considers reasonable for the support of the child; and
(b)	where it is satisfied that –

(i)	A child of the defendant is left without means of support; or
(ii)	The defendant is about to leave the country without making adequate provision for the support of the child;

the Court may –

(iii)	order the defendant to pay such allowance as it considers reasonable for the support of the child; and
(iv)	commit the legal custody of the child to the mother or to some other person.
………"

Desertion can be either constructive desertion or actual desertion. This is provided for in s. 20 and 21 of the DWCA. These provisions read;

"20.	Constructive desertion.

For the purposes of this Act, 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.

"21.	Evidence of desertion.

(1)	Where a husband has abandoned his wife, or a parent his child, for a period exceeding 80 days, and during 14 days at least of that period the wife or child has been left by the husband or parent without means of support, the husband or parent shall, prima facie, be deemed to have deserted the wife or child.

(2)	This section does not prevent a Court, if it considers fit, from adjudging the fact of desertion on other evidence or on proof of abandonment for a period of less than 80 days."

The Appellant under the DWCA must show proof of marriage by producing direct evidence of marriage to the defendant or, if she is unable to produce direct evidence to the satisfaction of the court, shall make and produce an affidavit setting out the time, place and circumstances of the marriage (per s. 19 of DWCA). 

EVIDENCE AND THE LAW

Ground 1

That the Customary Marriage between the parties at the time or date of the application for maintenance had been dissolved and that therefore the Court should not have made the orders for maintenance and custody as there was no existence of a valid marriage.

The Respondent in this case, filed in support of her application for maintenance and custody, her affidavit sworn on 6th November 2001. There at paragraph 3, she deposes that the Appellant and her were married according to custom in 1983.

The Appellant in his affidavit sworn on 13th December 2000, deposes that the Respondent and him had resided together as husband and wife since 1987 up to and including 1998. On the 6th April 1999, the Appellant’s family paid bride price of K1,940.00 to the Respondent’s family. The Appellant deposes further that on the same day after bride wealth was paid, the marriage was also dissolved. He says further that on 8th July 1999 the Respondent’s family returned the exchange gift of K850.00 to his family signifying the acceptance of the dissolution of the marriage. There is no other evidence before me confirming that the marriage was dissolved by custom.

For conclusive proof of dissolution of a customary marriage, a party must apply to the District Court under s. 22A of the District Court’s (amendments) Act No. 8 of 2000 for a Certificate. This section reads; 

"22A.	Dissolution of Customary Marriage

(1)	A District Court shall, on application by a person married by custom, and on being satisfied that the marriage has been dissolved in accordance with custom, grant to him a certificate that the marriage has been so dissolved.

(2)	A certificate under subsection (1) is conclusive evidence that the marriage has been dissolved." 

This Act was certified on 18th August 2000, after the Local Court Act was repealed by the Local Courts (Repeal) Act No. 11 of 2000 and which was certified on 18th August 2000. This in effect answers the Appellant’s lawyers queries on whether the Local Court Act was repealed.

The appellant had attached to his affidavit of the 13th December 2000 a set of documents being an application and his supporting affidavit applying to the Local Court at Wewak for Orders for dissolution of the customary marriage. This application I note may have been filed and argued and refused. This was intimated by Appellant’s Counsel. I do not know when this application was argued. When the application for maintenance was made and before the order was made on 26th January 2001, the District Court’s (Amendments) Act No. 8 of 2000 was already in force, having been certified on 18th August 2000. Neither the Appellant nor his lawyer had recourse to this procedure.

The only evidence on marriage is that of the Appellant and the Respondent. The learned magistrate did consider this evidence when he said "I do not know how a marriage can be formalised and simultaneously dissolved", which in effect means he found there was a valid marriage. . I agree with him that it would have been strangely unusual for the parties to marry and then immediately dissolve the marriage. He also did not have before him then, a Certificate of Dissolution of Marriage

In his further affidavit sworn on 18th January 2001, the Appellant deposes that the claim for maintenance seems to have been made with ulterior motives and that he was not the biological father of the children. The learned magistrate held there that the Appellant’s evidence is made up of "deliberate lies". The learned magistrate states this because in an earlier affidavit the appellant had deposed to having contributed towards maintaining the children of the marriage and the marital home, however, in the same breath in another affidavit, denies that he is the children’s biological father. 

I find that, on reviewing the evidence before me, that the learned magistrate did consider the existence of a marriage under s. 19 of the DWCA and did find correctly that at the time the application was made, that there was a valid marriage. 

I therefore dismiss this ground of appeal.

Ground 2

That the learned magistrate erred in law and in fact when he failed to take into account the appellant’s customs confirming that the marriage had been dissolved and that by custom the appellant was entitled to custody of the children."

I have seen that the only evidence before the court were the Appellant and Respondent’s affidavits that I referred to earlier. For the appellant to prove that the customary marriage had been dissolved, he would have had to pursue an application for dissolution of marriage to then obtain a certificate. The learned magistrate was correct when he said or ruled that the application for dissolution of marriage must be dealt with separately. This he stated in his written reasons of the 25 January 2001 (page 20 of the Appeal Book). 

The appellant, I believe was represented by a lawyer and should have pursued his application for dissolution of marriage under the amended District Court’s Act, but did not. In the absence of a Certificate of Dissolution of Marriage, the court was quite entitled to deal with the evidence it had before it in the way that it did.

In relation to the Appellant’s claims for custody of the children of the marriage, the court correctly ruled that the Respondent have custody of the children as s. 3(b)(I)(iii) and (iv) of the DWCA state plainly that once the court finds that a child has been left without means of support, the court will order an allowance for the support of the child and will also order that custody of the child be committed to the wife. The latter order is automatic upon the court finding the former (my stress).

Even if the court had considered the issue of custom, the District Court was not the correct arena within which the Appellant should pursue his claim for custody. If the appellant is seriously considering applying for custody of the children relying on his custom, he should file an action in the National Court claiming such orders and should also plead the customary cause of action involved. (see Gia Kewa Piel v Erick Ron Pranpi [1996] PNGLR 396). In that case, the court held that lawyers and parties to a customary cause of action must plead the cause of action in a clear, precise and adequate manner, especially where there is a conflict between custom and the law, as in this case. Furthermore, the action before the District Court was not a claim for custody per se but an action for maintenance and custody filed by a wife. The Appellant cannot ask the District Court for Custodial Orders under the DWCA as that court does not have jurisdiction to hear and make orders for custody as an application on its own. 

I will dismiss this ground of appeal.

Ground 3

That the learned magistrate erred in fact and in law when he failed to allow parties to be cross examined on the contents of their affidavits.

The learned magistrate dealt with this when he ruled that because the parties had not given notice to cross examine each other on the contents of their affidavits that he would proceed to determine the case on the affidavits before him. This is found in page 20 of the Appeal Book.

I will dismiss this ground of appeal.

Ground 4

The learned magistrate erred in law in hearing an application for an attachment of earnings order.

The application before the District Court was one for maintenance and custody under the DWCA. The application for attachment of earnings is one that can be made separately after the court finds that the applicant had not complied with the court order. I do not see an attachment of earnings order in the appeal book and I am perplexed as to why this ground was included at all.

I will dismiss this ground of appeal.

ORDER

I therefore find that the grounds of appeal advanced by the appellant do not have any merit. I will dismiss the appeal.

The formal orders of the court are that the Port Moresby District (Family Court’s) order of 26th January 2001 are affirmed. 

I should also add here that the orders of the Port Moresby District (Family) Court will continue until the following occurs;

-	For the children, until they each turn 16 years old or die or the order is varied by a court of competent jurisdiction.
-	For the respondent, until the order is varied, suspended or discharged by a court of competent jurisdiction.

I also note that the appellant does not dispute payment of maintenance for the children. However if he is affected by the amount he is paying, there are procedures available to him under the various existing legislation to vary the District Court’s orders. This also applies to his claims for custody of the children. He should pursue those applications if he is genuine.
________________________________________________________________________
Lawyer for the appellant:		Kemaken Lawyers
Lawyer for the respondent:		Public Solicitor