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Papua New Guinea - Magistrates' Manual |
CHAPTER 16 – FAMILY AND CHILDREN'S MATTERS IN MAGISTRATE'S COURTS
16.1 INTRODUCTION
A great deal of Magistrates’ work concerns family matters. Judges of the National and Supreme Courts have an inherent jurisdiction in relation to children. This jurisdiction is known as parens patriae. The literal meaning of this term is “parent of the country”. It gives Judges a residual role as guardians of persons (including infants) who cannot look after themselves. Magistrates, on the other hand, have only the express powers given to them by statute, and are therefore without this residual power. Therefore, when exercising their jurisdiction, Magistrates must be careful that they are utilising only powers that are expressly given by statute.
This chapter focuses on the most common family matters that arise in the District Courts and Children’s Courts. It covers the types of family orders that can be made by Magistrates. It goes on to consider provisions for the enforcement of maintenance orders. Enforcement in non-family civil matters is considered in detail in Chapter 20.
The jurisdiction of Magistrates in relation to family matters derives primarily from the following statutes.
· Deserted Wives and Children Act
· Adultery and Enticement Act
· Child Welfare Act
· Juvenile Courts Act
· Local Courts Act
· Maintenance Orders Enforcement Act
· Customs Recognition Act
16.2 DETERMINATION OF PATERNITY: CHILD WELFARE ACT
Part IX of the Child Welfare Act provides Magistrates with the jurisdiction to determine paternity. A finding of paternity may, in turn, give rise to liability of a father to provide support. Such an order may only be made in relation to single mothers or illegitimate children. Neither married women nor legitimate children are entitled to relief pursuant to Pt IX of this Act. An application for such an order may be made either before or after the birth of a child.
An application that is made pursuant to s 50, before the birth of a child, may, on a finding that the defendant is the father of the unborn child, result in an order that the defendant pay confinement expenses in connection with the birth of the child. However, such an order cannot exceed K150: Child Welfare Act, s 53.
An application may also be made for a finding of paternity after the birth of a child pursuant to s 51. A man, who is found, pursuant to this section of the Act, to be the father of a child, may be ordered to pay maintenance for the support of the child. This obligation continues, unless discharged or varied, until the child reaches the age of 16.
Paternity applications may be heard by a Children’s Court and, in some other instances, by a District Court.
A Children’s Court must be properly constituted in order to make a valid order. The requirements are set out at s 28 of the Child Welfare Act. A Magistrate may not sit alone but must have another member present. Further, pursuant to s 28(2), one member of the Children’s Court must be a woman. A Children’s Court that is improperly constituted cannot make a valid order. This was confirmed in the case of Kanai Pineri v Lina Balus [1993] PNGLR 475, where an order made by a Magistrate sitting alone was held to be invalid and the case was resubmitted to the Children’s Court for rehearing.
The District Court also has jurisdiction to hear applications pursuant to Pt XI of the Child Welfare Act where there is no Children’s Court established for the particular area pursuant to s 33(3) of the Act.
In most cases an application will be made by the mother or, in the case of confinement expenses of an unborn child, by an expectant mother. However, a mother or expectant mother may consent to an application being made by the Director of Child Welfare or a person authorised in writing by the Director to make an application. A Magistrate should ensure before commencing a hearing that the applicant has standing.
16.2.3 Prerequisites for an application
· In any application for an order pursuant to Pt XI of the Child Welfare Act, an application must be made in writing on oath. In the case of Charlie Kipit v Elizabeth Chonghahan [1994] PNGLR 274, this requirement was confirmed. However, in that case, the appeal Judge held that, since no objection was raised at the hearing, this technical defect should not be allowed to defeat an otherwise meritorious claim.
· The complaint must state (ss 50 and 51):
· the name of the complainant;
· the name of the defendant;
· that the defendant is over the age of 16;
and either:
· that the woman is pregnant; or
· that the defendant is the father of the child and has left the child without means of support.
· A complainant must, prior to issuance of a summons or warrant, produce, on oath, either in writing or orally, evidence that corroborates, in some material way, the paternity of the child. Evidence of sexual intercourse with the defendant at the relevant time, or evidence of an admission by the defendant that he is the father, are examples of evidence that can constitute corroboration. Such an admission may be explicit or implicit from the behaviour of the defendant towards the child.
16.2.4 Compelling attendance of the defendant
A Magistrate, on being satisfied that the prerequisites set out above have been satisfied, may compel the attendance of the defendant by means of the issue of a summons or, “if satisfied that the circumstances of the case require it”, by the issuance of a warrant: Child Welfare Act, s 52. Such circumstances would amount to a reasonable conclusion on the part of a Magistrate that a summons, for whatever reason, would not be effective in compelling attendance of the defendant at court.
Pursuant to s 27, a summons may be served on the defendant personally, “or if he cannot be found”, then at his last or most usual known place of residence. The case of Eric Siam v Lamus Lom (1981) NZ84 dealt with the right of a defendant to be heard, and the discretion of a Magistrate to hear an application ex parte where the voluntary non-attendance of a defendant may be presumed to be voluntary.
Although there is no prescribed procedure for a hearing pursuant to Pt XI of the Child Welfare Act, the rules of natural justice apply. It is, therefore, necessary that the defendant be given an opportunity to be present. He must have an opportunity to give evidence and call witnesses if he wishes. Further, he is entitled to a full cross-examination of the complainant and her witnesses.
16.2.6 Defence – common prostitute
It is a defence to an application under Pt XI of the Child Welfare Act that the mother is a common prostitute. The meaning of this expression has not been judicially clarified. However, taking money from only one person for sexual intercourse, even repeatedly, does not automatically make a person a common prostitute: see Raukisa v Leahy [1967-1968] PNGLR 153; L v M [1987] PNGLR 365. Where this defence is successfully raised, it effectively precludes a child of a common prostitute, even one whose paternity is admitted, from the benefit of an order for maintenance.
The standard of proof in hearings to establish paternity is the civil burden of balance of probabilities. This is not explicitly set out, but can be inferred from the various provisions. In relation to confinement expenses, ss 53(2)(c) and 55(2)(c) of the Child Welfare Act are both consistent with this in preventing any order being made where the evidence establishes that it is “impossible or unlikely” that the defendant is the father of the child.
In situations where a man admits sexual intercourse with the complainant “in circumstances where he may possibly be the father”, the court may make an order. Similarly, where sexual intercourse is not admitted but is proved to have taken place in circumstances that make it possible that the respondent may be the father, the court may make an order: see ss 58(1) and (3).
Where a court hears an application under Pt XI of the Child Welfare Act, it may proceed initially by way of mediation pursuant to s 22B of the District Courts Act. Mediation may also be conducted at any stage of the hearing: see Chapter 24. In relation to matters of disputed paternity, mediation may be inappropriate. Mediation is likely to be more appropriate where paternity is not in dispute and the only issue is an appropriate amount of maintenance, or, where disputed, the court has determined paternity and the hearing proceeds to the next issue, namely the quantum of maintenance. A Magistrate should be sensitive to possible disparity in the respective bargaining position of the parties, which might result in one party capitulating.
There is National Court authority that the Frauds and Limitations Act applies to applications pursuant to Pt XI of the Child Welfare Act. The limitation period is six years from the date that the cause of action arose: see Gone v Alick [1994] PNGLR 545, which was followed in Morgan v Faith [1995] PNGLR 273. This means that, in effect, no application may be brought more than six years after the birth of the child in question.
16.2.10 Finding against more than one person
The Child Welfare Act creates the possibility of more than one person being ordered to pay maintenance. Section 58 provides that where a male person, apparently over the age of 16, admits to sexual intercourse with the mother of the child in question, then if the court is satisfied that he “may possibly be the father of the child”, it may order that male to pay maintenance. This section diminishes the burden upon a complainant from that of proof of paternity on a balance of probabilities to one of possibility.
Because more than one male may possibly be the father of a child, it is possible that more than one male may be the subject of an order under s 58. This possibility reflects an apparent intent on the part of Parliament to give priority to the needs of children over the need for a high degree of proof that a person is the father of the child. It appears that orders against more than one person under s 58 are rarely, if ever, made. Such orders, however, might be appropriate where a pregnancy arises from a pack rape.
It should also be noted, in relation to s 58, that no application is required in order to make an order against a person. This appears to mean that a Magistrate could make an order against a witness who makes an admission that he had sexual intercourse at the relevant time with the mother of the child.
Evidence in support of a finding of paternity will normally include medical opinion about the time of conception. This would be especially true in a case where a mother had sexual intercourse with more than one person at or close to the approximate date of conception. A Magistrate may also take judicial notice of the fact that the normal gestation period is approximately nine months. In some cases, however, where there is more than one act of sexual intercourse around the expected period of conception, or where there is no evidence that the gestation period in question was normal, this may be insufficient to make a determination of paternity.
As a trier of fact, a Magistrate may also draw inferences as to paternity from a physical resemblance between the defendant and a child in relation to whom an application is being made: see DD v PK (1991) SC423.
Medical opinion may be in the form of an affidavit pursuant to s 37 of the Evidence Act: see Chapter 5. Care should be taken to avoid a party being prejudiced by the sudden production of an affidavit containing medical opinion, where the party against whom it is produced wishes to cross-examine the deponent or at least have an opportunity to examine the document and make submissions on whether an adjournment is warranted.
Presumption regarding age: Section 51(3) of the Child Welfare Act creates a rebuttable presumption regarding the age of a person against whom a complaint is made. The effect of this presumption is to place the burden of proof regarding age on a person who maintains that he is under the age of 16. If a person upon whom this burden rests is not able to discharge it, then a court must find that the person is over the age of 16.
A Magistrate must ensure that the evidence of a complainant in a paternity application is corroborated “in some material particular” before making a finding of paternity. This does not require evidence by an eyewitness to the act of sexual intercourse. It may be satisfied if evidence is given of meetings between the mother and the defendant at the presumed time of conception, where there was an opportunity for the parties to have sexual intercourse. A court may infer from such an opportunity that sexual intercourse took place, and this may constitute corroboration: see Charlie Kipit v Elizabeth Chonghahan [1994] PNGLR 274. A false denial by a defendant of a material matter in relation to allegations of paternity may also amount to corroboration: see Bob Lightbody v Lilly Maiban [1987] PNGLR 365. Also, in relation to corroboration, see PK v DD (1990) N843 (4 May).
16.2.13 Without any means of support
Before a court can make an order for maintenance under Pt XI of the Child Welfare Act, it must be satisfied that the defendant “has left the child without any means of support.” This expression is contained in ss 51 and 53 of the Act. The meaning of this expression does not appear to have been subjected to judicial interpretation. However, it is submitted that if a defendant is already making financial provision for the maintenance of a child, a court would not find that he “has left the child without any means of support”.
16.2.14 Orders for maintenance
The determination of the amount of maintenance or the amount of confinement expenses in any case depends upon a finding of paternity, and is conceptually separate and follows upon a finding of paternity.
Sections 54 and 55 of the Child Welfare Act provide little guidance to how a Magistrate should calculate the amount of maintenance in any given case. Both sections only provide for maintenance in an amount that “the court thinks proper”.
It is useful to keep in mind four factors when hearing evidence regarding the amount of maintenance. These factors are the:
· amount of support that the child gets from other sources;
· amount of money required by the child in order to be reasonably supported;
· amount of income received or likely to be received by the defendant; and
· financial obligations of the defendant apart from the obligation to maintain the child.
None of the above factors alone may indicate what amount of maintenance is appropriate. They should be considered together and carefully balanced off against each other: see X v Y [1977] PNGLR 34.
16.2.15 Payment of maintenance
Where orders for maintenance are made against two or more males pursuant to ss 58(2) or 59(4) of the Child Welfare Act, the total amount of maintenance ordered must not exceed what would have been ordered if the application had been made against one male under s 51: see ss 58(5) and 59(7).
Except under s 54 (where an maintenance order is incidental to an application for confinement expenses), maintenance must be ordered to be paid on a weekly basis.
Section 56(b) provides that an order for maintenance under ss 54 or 55 (and, in accordance with the deeming provisions of ss 58(4) and 59(5), orders made under those sections) apply to “maintenance of the child from the date of birth of the child”. It is not clear whether this means that every maintenance order must provide for payments commencing at the child’s birth regardless of when the application is brought.
Orders continue in effect until a child reaches the age of 16, dies or until the order is discharged, whichever first occurs.
Orders for maintenance and confinement expenses made pursuant to Pt XI of the Child Welfare Act must direct that payments of maintenance be made to the Director of Child Welfare. A Magistrate need not be concerned in the first instance with particulars of the payment of money to the Director or the payment of money by the Director. However, if either the Director or the mother of the child makes an application, a court may give directions as to the disposal of the money: Child Welfare Act, s 57(2).
Section 100 of the Child Welfare Act provides that an order for maintenance may be varied on the application of either the Director, the mother of the child in question or the person liable to pay money under the order. Where an application is made to vary maintenance, a Magistrate may summon to court all persons stated in the complaint to be liable for maintenance of the child. Section 59(6) also provides for variation of orders that have already been varied.
Section 100(2) sets out the requirements of an application for variation. A Magistrate who hears an application for variation need not be the same Magistrate who made the original order: s 100(4).
On hearing an order for variation, a court may “alter, vary, suspend or discharge the order or make a new order as it thinks just in light of fresh evidence adduced”. Where a finding of paternity is made and evidence supports an award of maintenance, an order will be made for maintenance: s 100(5).
16.3 ORDERS FOR MAINTENANCE: DESERTED WIVES AND CHILDREN ACT
The Deserted Wives and Children Act provides a means for dealing with the maintenance of wives who have been left without support by their husbands, and for children who have been left without support by their fathers.
The Act also provides for awards of custody of children where a father has deserted his child or left the child without means of support.
16.3.1 Grounds for bringing complaint
Section 2 of the Deserted Wives and Children Act provides a basis for bringing a complaint pursuant to the Act.
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A claim may be brought against a husband where the he has: |
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· unlawfully deserted his wife; |
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· left his wife without means of support; or |
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· is about to leave the country without making adequate provision for his wife. |
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A claim may be brought against a father where he has: |
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· deserted his child; |
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· left the child without means of support; or |
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· is about to leave the country without making adequate provision for the support of the child. |
Note that the grounds for bringing a complaint against a father or husband only differ in that, where desertion is a ground, in the case of a wife the desertion must be “unlawful”. The significance of this difference is not clear, and does not appear to have been subjected to judicial interpretation.
There is nothing to prevent a single application being made collectively on the behalf of a wife and child or children. However, where this happens, a Magistrate must allocate sums of maintenance to each person rather than making an order for a single amount: s 13.
An application may be made on behalf of a child whether that child is born to married parents or out of wedlock: PR v SC [1986] PNGLR 69.
A complaint must be made on oath. Where a complaint is not made on oath, any order that is made by a Magistrate pursuant to that complaint will be invalid.
Where a marriage has been dissolved, no further order may be made on behalf of a wife. This applies to both a statutory marriage and to a marriage that has dissolved in accordance with custom: Martha Aeava v Oa Ikupu [1986] PNGLR 65.
A husband who has been deserted by his wife cannot make an application pursuant to the Deserted Wives and Children Act: Agua Bepi v Aiyu Simon [1986] PNGLR 233. The principle of this case is presumably wide enough to prevent an application from being made on behalf of a child who has been deserted or left without support by his or her mother.
It is important to note that, unlike many other proceedings in the District Courts, a hearing under s 3 of the Deserted Wives and Children Act is in the nature of an inquiry. Section 3 says that “a Court shall inquire into the matter”. The significance of this is that a court has a much more active role to play in an inquiry than it does in a traditional adversarial hearing in the nature of a trial. In an inquiry, a Magistrate is at liberty to ask more questions of witnesses, and to summon witnesses to a greater extent than does a Magistrate in a trial situation (particularly a criminal trial). Where parties are not able to articulate questions clearly and are not familiar with the requirements of the statute, a Magistrate’s role includes ensuring that the issues are defined and the relevant evidence is adduced both in support of, and in opposition to, the claim. However, where parties are represented, or where they are able to take a lead in the proceedings, a Magistrate should take a less active role than he or she otherwise would.
At all times, a Magistrate must ensure that the requirements of natural justice are complied with in the proceedings. This means that each side must be given an opportunity to call witness in support of their case, and must have an opportunity to cross-examine the opposing party and witnesses called by that party.
In all proceedings under the Deserted Wives and Children Act, both spouses are competent and compellable: s 18. This includes proceedings pursuant to ss 22 and 23, which create offences for unlawfully and unreasonably deserting a wife and child. The effect of this is to remove the privilege that otherwise attaches to an accused in a criminal proceeding, and which prevents a court from drawing an adverse inference from the failure of a defendant to testify. An adverse inference may be drawn from the voluntary failure of a father or husband to testify. It is also possible for a party to summon a husband, wife or father to give evidence. However, if this occurs, the party calling the witness must treat the witness as their own, and, subject to a declaration that the witness is hostile (see Chapter 5), may not engage in unfettered cross-examination of the witness.
As mentioned above, unlawful desertion is a ground for an application for maintenance for a wife. Desertion is a ground for an application on behalf of a child. The meaning of desertion in relation to a wife has been considered in a number of cases.
The physical departure of a husband or father from the family home is the most common form of desertion. However, where a wife leaves a family home, her departure may amount to desertion by the husband. This is known as constructive desertion. Constructive desertion results from a state of affairs, created by a husband, which makes it intolerable for a wife to remain in the family home, with the result that she is compelled to leave. Section 20 of the Deserted Wives and Children Act provides that:
<Legislation Quotation>
“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”.
<End Legislation Quotation>
Frequently, constructive desertion results from repeated threatened or actual physical abuse inflicted on the wife by the husband. The departure of a wife due to the husband bringing another woman into the home in a spousal relationship may also amount to constructive desertion: Kunjil v Monpi [1995] PNGLR 281.
Section 21 of the Act creates a presumption of desertion where a husband or father has abandoned a wife or child for a period in excess of 80 days, during 14 of which the wife or child has been left without means of support. Other evidence may lead to a finding of desertion where abandonment of fewer than 80 days exists.
Although most facts in an application for maintenance by a wife are provable by viva voce evidence, s 19 of the Deserted Wives and Children Act creates a special requirement for proof of marriage. Direct evidence of a marriage is required, and if no direct evidence is available, then the wife must produce an affidavit setting out the time, place and circumstances of the marriage. The meaning of direct evidence does not appear to have been subjected to scrutiny in the National or Supreme Court. However, it would appear to require the production of a marriage certificate in the case of a statutory marriage: see Evidence Act, s 57.
Reasonable grounds for desertion: A husband who has deserted his wife, left her without reasonable support, or is about to leave the country, may defend himself against a claim by a wife on any of these grounds if he has reasonable grounds for his actions. Where reasonable grounds are demonstrated, a Magistrate may decline to make an order in favour of a wife. The court is left with some discretion in the matter. This applies to applications on behalf of both wives and children. What the term “reasonable” contemplates is not clear, and it does not seem to have been subjected to interpretation in any National or Supreme Court case. Clearly, what is reasonable is a matter of fact to be decided in any particular case where the defence is raised.
Elias Tokom v Luisa Tokum [1985] PNGLR 195 is authority for the proposition that a husband will only have reasonable cause for leaving his wife if her misconduct is so weighty and grave as to make married life quite impossible. Mere unhappiness or incompatibility is not sufficient to provide a husband with a reasonable excuse for deserting his wife or leaving her without any means of support.
Adultery or drunken habits: A more specific defence is available to a husband under s 3(4) of the Deserted Wives and Children Act. This section provides that a wife who has committed adultery or is of drunken habits is not entitled to an order for maintenance pursuant to the Act. Subject to s 3(5), a Magistrate is left with no discretion where this defence is raised. The burden of proving the existence of this defence is on the husband who alleges it. A Magistrate, after hearing all the evidence, must be prepared to determine whether, on the evidence, the husband has established that the wife is either of drunken habits or has committed adultery.
However, pursuant to s 3(4), such a defence is not available to a husband who has “conduced or connived at the adultery or, by his cruelty, wilful neglect or misconduct, conduced to the adultery or drunken habits”. A Magistrate must therefore, where the wife is either of drunken habits or has committed adultery, be prepared to determine, on the evidence, whether the husband has condoned or connived at the adultery or, by cruelty, wilful neglect or misconduct, whether he has conduced to the adultery or drunken habits.
Condonation: To condone means to voluntarily overlook or forgive adultery, and to treat a wife as if it had never happened: Black’s Law Dictionary (6th ed).
Connivance: To connive, pursuant to s 3(4), is to co-operate secretly with, or to have a secret or clandestine understanding with, one’s wife in relation to her adultery. It implies knowledge of and consent to the adultery of the wife: Black’s Law Dictionary (6th ed).
Conduce: To conduce means to contribute to the adultery or drunken habits. In Billy Tau Noi v Irong Noi [1990] PNGLR 335, the court adopted Halsbury’s Laws of England, Vol 13, para 1318, where it states that “misconduct conducing to adultery or desertion is conduct which in itself constitutes the true cause of the adultery or desertion”. In that case, the husband’s failure to fulfil his obligations to maintain his family, together with his brutality towards his wife, amounted to misconduct that conduced to the adultery of the wife.
Whether a husband has connived, conduced or condoned the wife’s behaviour is a matter of fact for a Magistrate to determine based on the evidence in a particular case. The onus of proving the existence of these would be on the wife who is seeking to bar a husband from relying upon her adultery or drunken habits as a defence.
Where a Magistrate is of the opinion that a husband has conduced to the adultery or drunken habits of a wife, it is important that the Magistrate “expressly state to that effect and also give the reasons for such refusal [to discharge an order]”: Jubilee v Ealo [1991] PNGLR 98 at 103.
The only guidance that the Deserted Wives and Children Act provides to Magistrates, in relation to the quantum of maintenance, is that it should be in such amount as the Magistrate considers reasonable for the use of the wife or support of the child as the case may be: s 3(1)(a)(iii) and (v).
It should be noted that the earnings of the wife cannot be taken into account in determining whether a husband has left a wife without means of support. However, a wife’s income may be considered in determining what is a reasonable amount of maintenance to order for the use of the wife: Elias Tokom v Luisa Tokom [1985] PNGLR 195.
The lifestyle and level of affluence enjoyed by a wife and child prior to the desertion of the husband or father are relevant considerations in determining a reasonable amount of maintenance: P v P (1990) N931 (7 December).
In addition to the income and reasonable expenses of a wife or child recipient of a maintenance order, the financial circumstances of the husband (both income and expenditures) should be considered in the determination of a proper award of maintenance. See Jacobs v Jacobs [1976] PNGLR 532 for a consideration of how a husband’s subsequent obligations to a mistress and her children should be taken into account.
Where the reasonable need of a recipient exceeds the ability of a father or husband to pay, careful attention should be paid to the expenditures of both parties in order to ensure that an award of maintenance identifies and distinguishes the essential expenditures of a husband or father from those which may require compromise in favour of his obligations to a wife or child. In making an award which will result in a husband or father having to compromise on expenses for himself or others who he is not legally or morally bound to support, an explanation of reasons should be given.
16.3.8 Structure of a maintenance order
Magistrates have some discretion in determining how an order for maintenance should be structured. Unlike Pt XI of the Child Welfare Act (paternity applications) where maintenance orders must be structured on a weekly basis, the Deserted Wives and Children Act, at s 3(2), provides that a Magistrate may order that payments pursuant to an order for maintenance shall be paid weekly, fortnightly or monthly, and to such person as the court orders. Where a defendant father or husband is in receipt of a regular income (from employment or otherwise), this allows for maintenance payments to be made at the same intervals as the income.
An order for the support of a child does not extend beyond the child’s 16th birthday: Deserted Wives and Children Act, s 3(2). In making an order for maintenance of a child, a Magistrate should ensure that this limitation is expressed in the order. However, any arrears that are unpaid beyond a child’s 16th birthday continue to be recoverable.
A Magistrate is given a wide discretion in determining the recipient of an order for maintenance made for the benefit of a wife or child. Section 3(2) provides that payments may be ordered to be made to “such person and in such manner as the Court orders”.
Factors which will influence a Magistrate’s discretion in this regard are likely to include:
· the need for certainty in the accounting of maintenance payments;
· the desirability in some cases of limiting direct contact between a husband or father and the wife or children on whose behalf an order is made; and
· the responsibility of available persons who may be entrusted with applying child maintenance payments to the welfare of the child.
In cases where the court registry is able to deal with the administration of maintenance payments, it should be considered as a recipient of child maintenance payments.
After an order for maintenance or custody has been made, circumstances of either party can change in ways that are relevant to the order. Section 11 of the Deserted Wives and Children Act provides for the variation of an order for custody or maintenance. An application may be made by or on behalf of a wife, child, husband or parent of a child.
An application may only be made at a court that satisfies the geographical requirements of s 11(2) and (3).
A court hearing an application for variation of maintenance may hear evidence of circumstances of the parties both after and before the making of the original order. However, in relation to circumstances before the original order, only evidence that was not available at the time of the original order is admissible. The meaning of the expression “not available” is not clear, and may refer to the fact that it was not adduced at the original hearing. Alternatively, it may refer to evidence which, even with due diligence on the part of the party, could not have been adduced at the time of the application for the original order.
An application, pursuant to s 11 of the Deserted Wives and Children Act, may be made to discharge the order, or an application to vary may result in the discharge of the order. The discharge of an order should only be made where it is clear that circumstances will not change in a way that would merit the continuation of the order. In circumstances where a temporary lapse would be more appropriate than a discharge, the reduction of a maintenance order to a token amount (perhaps K1) is warranted.
An example of circumstances that would warrant the discharge of an order would be the death of the beneficiary of the maintenance order. Another would be the remarriage of a recipient spouse. However, remarriage of a mother should not automatically result in the discharge or variance of maintenance for children. A further ground for the discharge of a maintenance order in favour of a wife would be her adultery in circumstances where there is no “defence” for the adultery: see s 11(7).
The discharge of an order for maintenance does not amount to the quashing of the original order. Therefore, although a discharge may be made retroactively, payments made pursuant to the original order are not automatically refundable, even where ground for discharging the order existed for some time prior to the order itself. Where a customary marriage is dissolved in accordance with native custom, it will provide a ground for the discharge of an order for spousal maintenance. See Igua Nou v Karoho Vagi [1986] PNGLR 1, which considered this issue under the provisions of the Maintenance Orders Enforcement Act. See also Martha Aeava v Oa Ikupu [1986] PNGLR 65.
16.4 CHILD CUSTODY UNDER THE DESERTED WIVES AND CHILDREN ACT
Section 3(1)(a)(iii) of the Deserted Wives and Children Act provides for a custody order to be made by a Magistrate. The custody order may be made in favour of the wife or “some other person”. The Deserted Wives and Children Act cannot be used as a means of deciding the custody of a child or children unless the father has deserted the child, left him or her without means of support or is about to leave the country: Raymond Mura v Dan Gigmai (1997) N1573.
In contested claims for custody in the National Court pursuant to the Matrimonial Causes Act or the Infant Act, the best interests of the child in question are the paramount consideration. Magistrates do not hear applications under these statutes, but should be guided by the same principle. This is consistent with s 14 of the Deserted Wives and Children Act, which states that “the welfare of the child” should be the primary criterion.
In RG v MG [1984] PNGLR 413, the National Court set forth some considerations that might be relevant in relation to the best interests of the child. These are:
· the claim of the mother and her preferred role;
· the relative circumstances in which it is intended to raise the child;
· the ability of the competing claimants to provide for the child in question, including their ability to provide for the child’s advancement in life;
· the age of the child; and
· the need to maintain existing relationships.
Relevant custom may also play a role in the determination of contested custody claims. However, consideration of custom should be made in light of the child’s best interests. Also, where custom is considered, a Magistrate must be aware of the limitations in the application of custom as set out in Sch 2.1 of the Constitution and in s 3 of the Custom Recognition Act.
In Wan v Koman [1990] PNGLR 322 (decided under the Infants Act), it was held that where a child is from an area where custom governs social structure, decisions about custody should take into account the child’s social security as part of a larger group according to custom.
16.5 AWARDS OF COMPENSATION FOR ADULTERY AND ENTICEMENT
The Adultery and Enticement Act eliminates any pre-existing common law right to compensation for adultery or enticement of a spouse, and creates a statutory entitlement to damages. The District Court has jurisdiction over this statutory remedy.
In most respects, an action under the Adultery and Enticement Act is a civil proceeding. The statute does not provide particulars about the form of complaint or service of the complaint on a defendant. Magistrates should be guided by the provisions of the District Courts Act in relation to filing of complaints, the issuance of a summons or warrant and service of process.
The time for bringing an action for damages for adultery or enticement is restricted by s 8 of the Adultery and Enticement Act. Rather than a limitation period measured in years, which is usual for civil claims, the limitation for bringing a claim under the Act is six months from the date of the adultery or enticement that is complained of. A Magistrate is given the discretion under s 8(2) to extend the period for up to three months where a complainant has a “reasonable cause for not bringing an action” within the six-month period.
The Act does not specify what constitutes reasonable cause, and there appears to be no reported authority. However, it might be reasonable to extend the period in cases where the complaining party does not learn about the alleged act of adultery or enticement until more than six months from its alleged commission.
16.5.2 Parties to an action for adultery or enticement
The spouse of a party may bring an action under the Adultery and Enticement Act. A spouse is defined in s 1 as “a party to a relationship between a man and a woman which can be reasonably considered as a subsisting relationship having the status of a marriage”. This definition leaves several questions, none of which appear to have been resolved by judicial authority. It is not clear whether “status” has a legal meaning or a non-legal objective meaning. In other words, does a relationship have to have the status of a legal or customary marriage for a spouse to bring an action? The answer is not clear.
A spouse may give permission to a relative to bring an action on his or her behalf. The degree of relationship required is not clear. Degrees of relationship may conceivably extend beyond a sibling, parent or child relationship to more distant ones. It may also extend to relationships of marriage rather than blood. Some guidance may be found in the notion of standing: see 14.3.2.
If a spouse is unable or incapable of giving consent, a relative may do so pursuant to s 6(b)(ii). A complaint brought by a relative should set out the basis of the authority for bringing the complaint. This includes the relationship of the complainant to the person entitled under ss 4 or 5 of the Act, and the basis of the authority for bringing the complaint. In any event, this should be clarified under oath when the proceeding commences. If a relative does not establish grounds for bringing the action, it should be dismissed.
A party named as a defendant may be the spouse of the complainant or the person who has allegedly committed adultery with or enticed the spouse.
16.5.3 Consolidation of proceedings
Under s 8 of the Adultery and Enticement Act, where more than one separate complaint is made under the Act, they may be consolidated in certain circumstances. This may occur where more than one complaint is brought for enticement or adultery against the same person. It may also happen where two actions are brought in relation to the same alleged act of adultery or enticement, one against the spouse and one against the person who enticed the spouse or who allegedly committed adultery with the spouse.
A consolidation of actions pursuant to s 8 may be accomplished on the initiative of a Magistrate, without application of a party and without additional documents being filed. However, an order for consolidation should be clearly made and recorded. Also, court staff should be instructed in advance to be alert to cases that may be consolidated, so that when an order is made, a single court date can be set and unnecessary adjournments can be avoided.
Mediation plays an important role in the resolution of disputes under the Adultery and Enticement Act. Section 10 requires that a Magistrate endeavour to have the matter settled by mediation. A Magistrate who is approved by the Legal and Judicial Services Commission may attempt this. Magistrates who involve themselves as mediators should disqualify themselves from presided at a hearing of the case when mediation fails, unless both parties expressly consent to the Magistrate presiding at a contested hearing. In any event, the matter may be referred to whoever is available and appropriate to act as a mediator in the community. In many cases, there is nobody available with formal qualifications, but pastors, elders and others who have the confidence of both parties may serve as mediators: see Chapter 24.
A hearing pursuant to the Adultery and Enticement Act is essentially civil in nature. Accordingly, a Magistrate has the discretion to allow a proceeding to take place on an ex parte basis (provided that mediation has already been canvassed) where the absence of the defendant or defendants can be presumed to be voluntary.
The rules of natural justice apply to hearings. This involves the right of a party to call and give evidence, and the right to cross-examine witnesses called for the opposing side. Each side should be provided with an opportunity to make submissions at the conclusion of the evidence, and should be prevented from making submissions (except on ancillary matters that arise during the hearing) before that time. The burden of proof is on the balance of probabilities.
Section 9 of the Adultery and Enticement Act provides defendants with specific defences that may be advanced alone or in combination.
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A defendant may avoid liability by showing that: |
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· the person entitled to bring the action consented to the act of adultery or enticement prior to its commission; |
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· the person entitled to bring the action has forgiven the defendant. This may be either the spouse or the person who enticed or committed adultery with the spouse of the person entitled to bring the action; or |
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· the defendant believed, on reasonable grounds, that the person they enticed or committed adultery with was not married. |
The onus of proof in relation to these defences is on the defendant who advances the defence, and the standard would be on a balance of probabilities.
16.5.7 Determination of compensation
The Adultery and Enticement Act places a ceiling on the amount of damages that may be awarded for adultery and enticement. The limitations in this regard may be found in ss 12 and 13.
Where an action is brought against two defendants for an act of adultery, the total amount of compensation must not exceed K1,000. Where an order is made against two or more defendants for enticement, the total compensation must not exceed K500. Where a person entices and commits adultery with a spouse, a claimant is not entitled to more than a total of K1,000 for both the adultery and the enticement.
In John Gawi and Diana Apes v Mary Gawi (1997) N1584, it was held that repeated acts of adultery between the same partner are to be treated as one act of adultery. There cannot be a repetition of actions for continuing acts of adultery between the same partners. According to this decision, “[i]t cannot be intended that where there is a continuous adulterous relationship, there can be a repetition of actions.” The court held that to allow repeated actions for repeated acts of adultery would, in effect, amount to forcing a marriage to continue against the will of one of the spouses. In such cases, the proper forum for relief is the National Court, where proceedings pursuant to the Matrimonial Causes Act may be brought.
Where an award for compensation is made in respect of more than one defendant, the order must, pursuant to s 15, clearly state how liability for compensation is apportioned between or among defendants.
Compensation may be ordered to be made in cash or in goods or in a combination of the two. This allows for appropriate compensation in some cases where a defendant is not able to make a cash payment. Compensation may be ordered to take place in a lump sum or by way of periodic instalments.
The amount of compensation takes into account the defendant’s ability to pay. Section 16 of the Adultery and Enticement Act requires a Magistrate to take into account a defendant’s earning capacity and “any other financial hardship likely to be suffered from the making of the order.” This section distinguishes awards of compensation for adultery and enticement from most other forms of civil damages. In most civil cases, damages are based solely on the amount required to compensate a victim. The quantum is geared towards placing the victim in the position that he or she was in prior to the cause of action. A defendant’s ability to pay compensation is irrelevant in most (non-family) civil cases, but, pursuant to s 16 of the Adultery and Enticement Act, it becomes a relevant consideration.
Magistrates are also directed by s 16 to take into account any other matters that are relevant, including any compensation that has already been paid by custom.
Care should be taken in framing orders in order to avoid ambiguity or vagueness, especially where an order departs from a lump sum award in money.
16.6 CERTIFYING THE DISSOLUTION OF CUSTOMARY MARRIAGES
16.6.1 Customary marriage and dissolution
The formation and dissolution of a customary marriage takes place without the interference or participation of a court or any government regulatory body. A customary marriage ends in a similar way. However, when a customary marriage ends, parties to the marriage may wish to obtain conclusive proof that their marriage has been dissolved. Section 22A of the District Courts Act provides that a Magistrate, on being satisfied that a customary marriage has been dissolved in accordance with custom, may grant a certificate of dissolution. The Magistrate does not actually dissolve the marriage, but merely provides official recognition of the dissolution.
There are two questions in deciding upon whether a certificate of dissolution of a customary marriage should be granted:
1. Have the parties been married in accordance with custom?
2. If the parties have been married in accordance with custom, have they been divorced (has their marriage been dissolved) in accordance with custom?
One or both parties may assume that the relationship they have had is a customary marriage, when in fact it is not. If it is not, then no hearing pursuant to s 16 of the District Courts Act needs to be concluded, and no certificate of dissolution of marriage is required.
In relation to the formation of a customary marriage, s 3 of the Marriage Act provides:
<Legislation Quotation>
“(1) Notwithstanding the provisions of this Act or of any other law, a native, other than a native who is a party to a subsisting marriage under Part V, may enter, and shall be deemed always to have been capable of entering, into a customary marriage in accordance with the custom prevailing in the tribe or group to which the parties to the marriage or either of them belong or belongs.
(2) Subject to this Act, a customary marriage is valid and effectual for all purposes.”
<End Legislation Quotation>
The determination of whether a customary marriage has taken place entails the question of what is the relevant custom in relation to the marriage of the parties. According to s 16 of the Underlying Law Act, custom is a question of law and not fact. A Magistrate may ascertain custom by reference to cases, books and official statements, as well as evidence adduced by the parties or on the Magistrate’s own initiative. For further discussion of the effect of this Act, see 2.3.8, 2.4, 3.4.2, 5.13 and 25.6.4.
Schedule 2.1 of the Constitution should also be borne in mind in the determination of whether a customary marriage exists. It prevents the recognition of custom that is inconsistent with the general principles of humanity.
In Re Maip [1991] PNGLR 82, the National Court held that a de facto relationship does not automatically give rise to a customary marriage, even in the face of a recognition that custom is changing in Papua New Guinea.
Similar considerations are involved in the determination of whether a customary marriage has been dissolved. The relevant custom must be considered as a question of fact, bearing in mind Sch 2.1 of the Constitution. Evidence of the dissolution of a customary marriage may take the form of viva voce evidence of the parties. Evidence may also take the form of a certificate of dissolution of customary marriage, issued by a Village Court. The determination of this issue remains, however, a question of fact to be decided upon the evidence. In some cases, a party may be seeking a certificate of dissolution in order to be legally remarried. In such cases, the parties may not have gone through the necessary customary steps to dissolve the marriage.
A marriage that has been solemnised by statute is not a customary marriage and cannot be dissolved by the District Court: The State v Floyd Robinson [1992] PNGLR 205.
A number of consequences may follow upon recognition by the court of the dissolution of a customary marriage. One of these may be the return of the bride price payment made pursuant to custom by the husband’s family at the time of the marriage. An application for the return of such a payment may be heard as part of the same proceeding in which a certificate of dissolution is sought.
Custom must be applied in applications for the return of bride price payments on dissolution of marriage. Fault also plays a part in deciding how much, if any, of a bride price payment must be repaid on the dissolution of a customary marriage. For instance, if a husband makes life intolerable for a wife and in effect precipitates the dissolution of the marriage, it would be likely that less (or perhaps none) of the bride price payment will be ordered to be returned: Kere v Timon [1990] PNGLR 103.
The same case stands for the proposition that, where the customs of the husband and the wife’s people conflict, “[i]t is a question of fairness whether one custom should be applied in an area where there is a different custom in existence and accepted and practised by people in that area.” In the absence of strict statutory guidelines or a large body of written decisions to guide Magistrates, the concept of basic fairness will continue to be an important guiding principle.
16.7 ENFORCEMENT OF MAINTENANCE ORDERS: MAINTENANCE ORDERS ENFORCEMENT ACT
The Maintenance Orders Enforcement Act applies to all orders for maintenance made pursuant to the Deserted Wives and Children Act, the Child Welfare Act (including orders for the payment of confinement expenses and for payment of the funeral expenses of a ward) and all orders of maintenance made by a Local Court. It does not apply to orders for maintenance pursuant to the Matrimonial Causes Act.
All applications under the Maintenance Orders Enforcement Act must be made in the District Court.
16.7.1 Hearings and evidence under the Maintenance Orders Enforcement Act
Proceedings under the Maintenance Orders Enforcement Act are commenced by way of complaint. The complaint must be made under oath: s 65(1). Upon the filing of a complaint, the Clerk of Court may issue a summons or, if the whereabouts of the defendant are unknown, may issue a warrant: s 65(3). Where a defendant does not appear after being served with a summons, a court may proceed ex parte (if it is satisfied that service of the summons was effected or, if after “strict inquiry”, service has not been possible), or it may issue a warrant and adjourn the proceedings. However, if a warrant is issued, a court may still proceed ex parte, then or later: s 66(5).
Where a person makes an application on behalf of another person pursuant to the Maintenance Orders Enforcement Act, the authority of the person to make the application is presumed, pursuant to s 69, and does not require proof.
Where an issue arises about whether a payment has been made or money has been received, and court records, in the form of books of account, purport to disclose the relevant information, those books are admissible to prove the information contained in them. This is a specific exception to the hearsay rule that eliminates the need, in most cases, to call witnesses who made the entries, or witnesses who provided the information upon which the entry is based: s 70.
Section 71 provides a means of supplementing an original enforcement order with further directions or changes in the order. This would be appropriate where a defendant changes employers between the time an attachment order is made and the completion of payment of arrears. Another instance would be where an order for seizure and sale of property is frustrated in some technical way that can be alleviated by the giving of further directions.
A defendant, in whose absence a hearing has taken place pursuant to s 66 (where the defendant was not served), may apply to set aside the order within 21 days of learning of the existence of the order. If the original order is set aside, a new hearing takes place: s 72(2).
A defendant is compellable and may be cross-examined about his means and ability to comply with any order made against him under the Act. Further, a defendant may be compelled to provide, in the form of a signed statement, information pertaining to his employer, his income and any other relevant matters the court requires: s 74. The same section provides that a person who is alleged to be indebted to the defendant may also be required to provide a signed statement that sets out relevant information: s 74(2).
Statements provided under s 74, and purporting to be such, may be introduced into evidence and are deemed to prove their contents.
Section 47 of the District Courts Act governs the rules of service of documents under the Maintenance Orders Enforcement Act. In addition, substituted service may be ordered under s 75(2) of the Maintenance Orders Enforcement Act. Section 75(4) provides rules for service on infants.
Service must be effected 10 clear days prior to the hearing to which service relates: s 75(6). However, proceedings are not invalidated by failure to give this much notice. In order to preserve the elements of natural justice, however, an adjournment should be considered for a person who has had fewer than ten days notice and feels prejudiced by this: s 75(8).
16.7.2 Types of orders available
The Maintenance Orders Enforcement Act sets out the following main types of orders that may be employed to ensure the payment of maintenance and enforce the payment of arrears of maintenance:
1. Order a defendant in arrears to go to prison. This includes orders that impose conditions for payment of arrears and automatic imprisonment where those conditions are not met. Sections 4-6 of the Act deal with this.
2. Provide for a person, in whose favour a maintenance order has been made, to proceed to the National Court for enforcement pursuant to the jurisdiction of that court. Magistrates are not directly involved in this procedure.
3. Order that a defendant enter into a recognisance, either at the time that a maintenance order is made or subsequently.
4. Order the seizure and sale of property belonging to a defendant who is in arrears in respect of a maintenance order.
5. Order that earnings, or a portion of the earnings, of a defendant in arrears be attached and paid towards the satisfaction of the outstanding maintenance.
Each of these types of orders is considered in greater detail below.
The problem with prison is that it does not automatically result in the payment of any money pursuant to a maintenance order. At best, it works as an inducement to pay. The powers in ss 4-6 of the Maintenance Orders Enforcement Act provide a Magistrate with several means of utilising this inducement. They include ways of applying the inducement in the form of a threat of imprisonment and, where this is considered sufficient to secure the desired result, it should be considered in preference to automatic imprisonment.
The power to enforce a maintenance order by imprisonment may only be used against a male person. The application is brought by or on behalf of the person who is the beneficiary of the maintenance order. The application may be brought ex parte in some circumstances: s 66.
A Magistrate may sentence a defendant to prison for up to one year. Magistrates should bear in mind the nature of an order for commitment pursuant to s 4. It is not a criminal sentence. The term of imprisonment that is imposed should be calculated on the basis of what it would take to secure payment, and not on the basis that it is a punishment for failure to pay maintenance.
16.7.4 Defences to an application for commitment to prison
A defendant may not be committed to imprisonment more than once in relation to the same arrears of maintenance.
Section 5 of the Maintenance Orders Enforcement Act also provides a defendant with further defences based on his inability to pay the arrears. The principle underlying this section is that only those defendants who wilfully fail to pay arrears of maintenance should be committed to prison.
Particular attention must be paid to a defendant who has previously appeared in court in relation to arrears of maintenance and not been committed to prison for a particular amount of arrears. A Magistrate, pursuant to s 5(2), must only commit a defendant to prison in relation to his arrears if satisfied that circumstances “have so altered as to make it reasonable for him to be committed to prison for its non-payment.”
Section 26 provides a defence to an application for imprisonment (or any other proceeding in relation to arrears of maintenance). If a defendant, who is in arrears in relation to an order for maintenance, provides adequate support to the person for whose benefit the order was made, during the period to which the arrears relate, no order for imprisonment may be made.
16.7.5 Partial payment after committal order
A defendant who is committed to prison may make partial payment of the outstanding arrears in relation to which the order has been made. The period of imprisonment is accordingly reduced in proportion to the amount of arrears paid. Sections 202 and 203 of the District Courts Act are incorporated by s 4(6) of the Maintenance Orders Enforcement Act in this regard. Section 6(2) of the Maintenance Orders Enforcement Act provides for a similar pro-rationing of the arrears where partial payment has been made between the time of an order and the time that a warrant of committal is issued or executed.
Section 4(7)-(10) contains further particulars in relation to orders for imprisonment.
Section 6 provides a Magistrate with some flexibility in committing a defendant to prison. This flexibility may be directed toward the goal of using the threat of prison, rather than imprisonment itself, as an effective inducement to pay. This flexibility arises from the power to delay the issue or execution of a warrant of committal. Section 6(1)(c) provides for an order that payments be made by instalments, and that failure to make such payments will result in the issue or execution of the order of committal.
It is very important that Magistrates carefully consider the wording of an order. It is advisable to adjourn a case briefly after the conclusion of evidence and submissions. During the adjournment, a Magistrate can carefully consider the terms of the order and how they can be concisely and accurately expressed in a manner that allows the parties, the collector, and any other authority that comes into contact with the order, a payment or the defendant to interpret it correctly.
An example of the sort of order where such care is required is where a Magistrate imposes conditions pursuant to s 6 of the Maintenance Orders Enforcement Act, and the order for committal applies to a portion of arrears only.
16.7.7 Recovery of arrears in National Court
Section 7 of the Maintenance Orders Enforcement Act deals with enforcement of arrears of maintenance in the National Court. This does not directly involve Magistrates.
A recognisance is an acknowledgment made by a defendant of the amount of arrears due, together with a promise by the defendant to pay the maintenance. Although the Maintenance Orders Enforcement Act does not specifically indicate that an order that a defendant enter into a recognisance may be conditioned by a deposit of money in a specified sum, s 8(5) implies that this is the case.
A Magistrate may order a defendant to enter into such a recognisance at the time of making the original maintenance order or at any other time on application. A recognisance may therefore apply to maintenance as it becomes due, or to arrears that have already accrued: s 8.
A surety may be required as a condition of the recognisance. The Maintenance Orders Enforcement Act does not provide specific guidance about considerations relating to a surety. A Magistrate, in deciding whether the requirement of a surety should be imposed, should be guided by two considerations. One is whether a surety is necessary to ensure that the recognisance is complied with. The other is whether the defendant can realistically be expected to secure a surety who will satisfy conditions imposed.
An order that a defendant enter into a recognisance may not be made unless the defendant has shown, by past conduct, that he is unlikely to comply with a maintenance order, or has persistently failed in the past to comply: s 8(2).
Where a defendant fails to enter in to a recognisance when ordered to do so, he may be committed to prison under s 8(3). Further, under s 8(4), where the terms of a recognisance are not complied with, a recognisance may be cancelled, and moneys secured under the terms of the recognisance may be forfeited.
There is no provision under s 8 that provides for the automatic or discretionary imprisonment of a defendant who fails to comply with the terms of a recognisance. However, an application may be made under s 4(2), with the possible result that a defendant is committed to imprisonment.
16.7.9 Execution against property
An application pursuant to s 10 of the Maintenance Orders Enforcement Act may be made for an order that property belonging to a defendant who has failed to satisfy the terms of a maintenance order be seized and sold. A Magistrate before whom such an application is made, on being satisfied that there is property to be seized and sold, may direct “a specified person [to] seize and sell any goods, chattels and securities belonging to the defendant”. An order may also state that the specified person may “demand and receive any annuity, rents or other income”.
16.7.10 Attachment of earnings
Sections 11-25 of the Maintenance Orders Enforcement Act deal with the attachment of earnings of a defendant whose maintenance payments are in arrears. These sections provide for the interception of moneys that are payable to the defendant, and for their payment to the benefit of the person on whose behalf the maintenance order was made instead. In this way, moneys are paid towards the satisfaction of maintenance arrears without the defendant receiving them in the first place.
In most cases, moneys secured by an attachment of earnings order would be the wages payable to a defendant by an employer. However, the definition of “earnings” in s 11 is wide enough to include pension benefits and annuities in relation to loss of employment benefits.
Not all moneys owed to a defendant are attachable. In making an attachment order, a Magistrate is obliged to specify a normal deduction rate and a specified earnings rate. This ensures that the amount deducted is sufficient to provide for the payment of the arrears, while at the same time ensuring that the defendant is left with a reasonable income upon which to live. The fact that many defendants will be earning modest incomes creates a challenge for Magistrates in reaching a fair division between protected earnings and non-protected earnings.
There is always a third party involved when an attachment of earnings order is made. Section 13(2)(b) restricts the third party to the defendant’s employer. The section does not specify whether this includes a former employer, although the wording suggests that it does not.
Section 15 provides that an attachment of earnings order need not be initiated by an application for that purpose. It may take place in the context of other proceedings.
Section 15(2) provides that an attachment of earnings order puts a stop to any other enforcement orders unless the court otherwise directs. This requires a Magistrate to clearly state if any other enforcement order (for instance, seizure and sale of assets) is to continue during the time that an attachment of earnings order is in effect.
Section 16 provides for an attachment of earnings order to be varied, suspended or discharged on application by the defendant, the person for whose benefit the maintenance order was made or someone on behalf of that person.
An attachment of earnings order ceases to have effect if any subsequent process is commenced, or order is made, in relation to the maintenance to which the attachment order applies: s 17. It also ceases to have effect upon the discharge of the attachment order or upon the discharge or variation of the maintenance order to which the attachment order relates.
In some cases, an employer to whom an attachment order is directed will have some question about whether certain moneys, or a portion of them, are payable pursuant to the terms of an attachment order. Section 22 provides a means for such questions to be answered and for the moneys to be dealt with accordingly.
16.7.11 Reciprocal enforcement of maintenance orders
Part III of the Maintenance Orders Enforcement Act deals with the registration and enforcement, within Papua New Guinea, of maintenance orders made in reciprocating states. Its provisions are relatively self-contained. This part of the Act is applied rarely. It serves the interests of persons who have obtained a maintenance order in a foreign jurisdiction and wish to enforce it against a respondent who is in Papua New Guinea.
16.8 ENFORCEMENT OF MAINTENANCE ORDERS: CHILD WELFARE ACT
Sections 56(a), 61 and 101 of the Child Welfare Act also contain provisions relevant to the enforcement of orders for maintenance.
Section 56(a) provides that an order for maintenance pursuant to ss 54 or 55 (orders for maintenance made upon a finding of paternity) is not enforceable until notice of the date of birth of the child is served on the defendant. This curious provision is understandable in the context of maintenance orders made before birth. However, it applies to all maintenance orders under both ss 54 and 55 and is, therefore, a technical defence that may be available to a defendant in some cases.
Section 61 of the Child Welfare Act contains provisions that overlap with some of the provisions of the Maintenance Orders Enforcement Act. Under this section, the Director of Child Welfare, or someone on his or her behalf, may make application in the case of a defendant who has allegedly failed to comply with the terms of a maintenance order, or who is thought to be attempting to leave the country without making satisfactory arrangements. This section provides for a Magistrate to make an order of committal to prison for up to one year, or an order that the defendant provide suitable security in such cases.
Section 101 provides a means of having arrears of maintenance enforced in the same way that the District Courts Act provides for the enforcement of other civil judgments: see Chapter 20. The Director, or person authorised by the Director, obtains a certificate of arrears from the court and files it in the District Court as a judgment.
16.9 ENFORCEMENT OF MAINTENANCE ORDERS: DESERTED WIVES AND CHILDREN ACT
16.9.1 Jurisdiction
The Deserted Wives and Children Act gives wide powers to Magistrates to include terms in maintenance orders that help ensure that the orders will be complied with. One of these is to order a defendant husband or father to enter into a recognisance with or without sureties. The powers of a Magistrate to make such an order, and the procedure, are set out at s 4 of the Act. The power is wide enough that such a condition may be imposed at the original application for maintenance or at any time afterwards on such notice as the court directs.
There is no National or Supreme Court authority on this section of the Act. Whether or not a recognisance is necessary is determined by a show cause hearing: s 4. This means that the onus is on the defendant to satisfy the court that no recognisance or surety is necessary. It is not up to an applicant to show that either of these things are necessary. However, the rules of natural justice must be complied with. An order would not be made in the absence of a defendant, and a surety would not have obligations imposed without the surety’s consent to those conditions. Parties must have an opportunity to call evidence and to cross-examine witnesses called by the opposing party.
16.9.2 Attaching funds owed to a defendant or held in trust by a third party
Section 5 of the Deserted Wives and Children Act provides for the attachment of income of the defendant father or husband. This includes all forms of periodic income, including employment income and any other money held in trust on behalf of a defendant. This includes money on deposit in banks, security deposits payable to a defendant (power, water etc) and refunds that a defendant is entitled to receive. Care must be taken in cases where the defendant is associated in some way with a limited company, to ensure that money that is attached under s 5 is money that the defendant is entitled to personally, and not money that a limited company is entitled to receive: see also Maintenance Orders Enforcement Act, ss 11-26.
In making an order under s 5 of the Deserted Wives and Children Act, a third party is necessarily brought into the proceedings. The third party may not be present at the hearing where an attachment order is made. For instance, if a defendant is employed, the evidence of the employment and the basis for the order attaching wages under s 5 may be heard without benefit of evidence from the employer.
Where circumstances require it, directions may be given to clarify the particulars of the order. A question may arise on the part of a third party who is obliged to pay money owed to the recipient of the maintenance. This may relate to whether the money in question is owed, when it accrues to the benefit of the defendant, when it should be paid, how much should be paid etc. A defendant who takes the position that money that is being paid or is about to be paid is not owed to him might make an application. A beneficiary of an order might apply for particulars where money is not being paid and it is arguable that it should be paid pursuant to the terms of an existing attachment order.
The wording of an attachment order should be clear and concise with specific names of parties, dates, where the money from the third party should be paid, how it should be paid and how often such payments should be made. These measures prevent some of the potential problems that might otherwise arise later on.
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