DC771

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

FC 184 of 2007

BETWEEN

ELVINA JACKIE
Complainant

AND

JACKIE STEVEN
Defendant

Lorengau: G. Madu, PM

2007: 01 January

G. Madu, PM: This is an application by the Applicant seeking order for imprisonment of the Respondent for failing to pay up in full the outstanding maintenance arrears in the amount of K3, 640.00.

1.	This application is intended to enforce the order under the Maintenance Order Enforcement Act. The facts set out in the chronological order are as follows;

2.	On the 29 of December 2004 the Lorengau District Court made a Maintenance Order against the defendant/respondent to pay the complainant/applicant K50.00 and the male child Lorderick Steven K20.00 per fortnight as both spouse and child maintenance allowances.

3.	The District Court payment of records shows that the Respondent commenced payment on 2 of January 2005 up to 27 of May 2007 the Respondent did not make any further payments and is in arrears in the total of K3,640.00.

4.	The issue is (1) whether the Respondent has the financial capacity to pay the arrears? (2) whether it would be justified to imprison the Respondent for his failure to pay the arrears?

5.	The Law 

Section 4 of the Maintenance Order Enforcement Act provides for imprisonment where the defendant fails to comply with the Maintenance Order, the provisions states:-

Section 4 -Imprisonment for disobedience of order

(1)	where the defendant, being a male person, has disobeyed or failed to comply with a maintenance order and a sum of money (in the section referred to as “arrear”) due under the order is unpaid, application to commit the defendant to prison may be made to the Court by or on behalf of the person for whose benefit the order was made. 

(2)	subject to Section 66, on application under subsection (1), the Court may order the defendant to be committed to prison for such period, not exceeding twelve (12) months as the Court thinks proper.

(3)	………….

6.	The Applicant submitted that the Respondent failed to comply with the maintenance order and has fallen in arrears in the sum of K3,640.00. The Respondent in response stated that he is not in a position to pay the arrears. He has two (2) children which he is taking care of who are attending High School. He stopped making payment whilst he pays attention to the two (2) children in High School ensuring their school fees are paid.

7.	He further stated he is now a villager and cannot afford to raise K70.00 each fortnight to pay maintenance. For the above reason, the Respondent submits that he has alternatively resorted to providing food and taking care of the children as his contribution to pay maintenance.

8.	Applicant in her reply stated that what the Respondent has submitted are all lies therefore, this Court should imprison him for failing to pay the arrears.

9.	Considerations

10.	Although it may be true that the Respondent has failed to comply with the maintenance order under Section 4 of the Maintenance Order Enforcement Act, the Court is duty bound to look at the reasons why the Respondent has failed to pay maintenance.

11.	Section 5 sets out the restrictions where by the Court must consider not to commit a defendant to imprisonment if the Court is satisfied that the defendant does not have the means and ability to comply with the order.

12.	The Respondent has given his reasons why he has fallen in arrears saying that he is now unemployed. He finds it difficult to raise K70.00 each fortnight to pay maintenance. Further he states that he also two (2) bigger children who are in High School and has to ensure that their school fees are paid. Considering the difficulties the Respondent is facing it seems to me that it is a struggle for a village man to comply with the Court order.

13.	I am inclined to accept his reasons for falling in arrears of K3, 640.00. It seems to this Court that he does not have financial capacity to pay the maintenance of K70.00 each fortnight. In this case I am of the view that the Respondent is in no better position to pay the arrears within a very short period of time since he is not a regular income earner and therefore imprisonment is not justified .I therefore apply Section16 of the Maintenance Order Enforcement Act to suspend or stay the order and further apply Section 8 of the Act to place the Respondent on Recognizance.

14.	In this instant case, the Court wishes to exercise discretion so that Respondent will be able to perform his parental obligation.

The following are the orders:

(1)	The maintenance order made by the District Court on 29 of December 2004 is temporary suspended for a period of twelve (12) months as of the date of this order. 

(2)	The Respondent is ordered to enter into a Recognizance and shall be of a good conduct and character (for a period of twelve (12) months) in which the Respondent shall pay the total arrears of K3, 640.00 in cash or alternatively provides goods either store good or garden food including meat and fish to the value equivalent to total arrears of K3, 640.00 within the period of twelve (12) months.

(3)	Upon failing to paying the arrears of K3, 640.00 either in cash or kind (in store goods or garden food) the suspension of twelve (12) months will be lifted.

(4)	The maintenance order of 29 of December 2004 shall not have retrospective effect on the suspended period from 02/07/07 to 03/07/08.

(5)	The Maintenance Order of 29 of December 2004 will take effect from 03/07/08 in its entirety.

Orders accordingly

For the Applicant -In Person
For the Respondent -In Person