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Papua New Guinea District Court |
DC1023
PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE AT VANIMO
CH NO. 13 OF 2008 & 109 OF 2008
MARY NAUGRE
AND
BINUS NAUGRE
VANIMO: J. AUGUST, DCM
2008: 11, 18, April 14, 21, May, 27 June, 9, 10 July
MAINTENANCE – Enforcement of Outstanding Maintenance Arrears – Child already over 16 years - Application to Discharged the Maintenance Order - Whether Defendant relieved of arrears of K6200.00 when the child reach 16 years – Whether Court can enforce Maintenance Arrears after Discharging the substantive Maintenance Order.
Maintenance Orders Enforcement Act, ss 4, and 5. Maintenance Orders Enforcement Regulation ss 1, 2, 3, 4 and 5.
Deserted Wives and Childrens Act, Section 11.
Facts
The Defendant was ordered to pay maintenance for only one of his 3 children namely Cliff Naugre born to the Complainant on 4 August the 1985 after the Court found that they were married in 1978 by custom prevailing at that time in Wutung Village Vanimo, West Sepik Province. The District Court made the orders on the 26th June 1998 for the Defendant to pay K40.00 every forthnight for the maintenance of the child, Cliff Naugre. The Complainant on many occasions had to apply to Court to enforce the maintenance arrears, which went up to about K14, 570.00 as of the 25 May 2004. In February 2007 the Defendant paid K10, 000.00 into the Complainant Bank account with BSP Vanimo while the arrears continued to build up to K6, 200.00 as per the Collectors Certificate issued on the 26 March 2008.
The Complainant filed an application to commit the Defendant to prison for the arrears on the 26th March 2008. Coincidentally, the Defendant also filed an application under Section 100 of the Child Welfare Act to discharge the Order. The Court is of the view that the Defendant intended the application to be under Section 11 of the Deserted Wives and Childrens Act because this is a Deserted Wives and Childrens matter.
An order to discharge the Maintenance Order of the 26th June 1998 was granted on the 27 June 2008 but the question remains whether the Defendant should also pay the arrears of K6, 200.00. The matters were consolidated and heard together by me and the application to discharge the substantive maintenance order was granted.
Held
1. The fact that the defendant is likely to be imprisoned for the maintenance arrears should not affect the recovery of the arrears.
2. The fact that the child Cliff Naugre has reach 16 years does not relieve the Defendant of the maintenance arrears.
3. The defendant has the means and the ability to pay for the arrears being employed with the Provincial Treasury Office, Depart of Finance in Vanimo.
4. That the defendant shall pay the arrears of K500.00 by 25 July 2008 and the balance of the arrears of K5,700.00 on or before the 17 December 2008 in default to be imprisoned for six (6) months.
No cases cited:
Paul Pukari & Oro Cable TV and Peter Seeto N9410
Counsels:
10 July 2008
AUGUST, DCM: The Complainant made an application to commit the Defendant to prison for maintenance arrears pursuant to section 4 of the Maintenance Orders Enforcement Act 1970. The Defendant was ordered by the District Court in Vanimo inter alia that he pay K40.00 every forthnight for the maintenance of one of his 3 children namely, Cliff Naugre after the Court found that the Defendant had a subsisting customary marriage with the Complainant according the custom of the people of Wutung Village, West Sepik Province.
The Complainant in support of her application submitted that the Defendant should pay the outstanding arrears before the Court should entertain his application to discharge the existing Maintenance Order. The Complainant further submitted that the children were never living with him in the same house when he moved to Wutung Village to live with his second wife and three adopted children. The complainant submitted that the Defendant has over the years shown an arrogant attitude by not honoring Court Orders and would only comply when enforcement proceedings were instituted against him.
In response to the Complainant’s submission, the Defendant wants Mary Binus to provide to the Court the expenditure details of the first payment of K14,000.00 which he has paid as arrears. The Defendant submitted that Clifford Naugre has turned 17 years in 2002. Clifford is now taken care of by me and has been accepted back to Aitape High School to complete his grade 10 at my own expense.
The Defendant ask the court to dismissed the application to enforce the maintenance arrears as the Complainant has put to her own use the amount of K14,000.00 that has been paid to her. Further to that, I ask the Court to have the maintenance order of the 26th June 1998 discharged.
I am of the view that there are two issues:
The applicable provisions that should throw some guide on these two issues are provided for by the Maintenance Orders Enforcement Act 1970. Sections 4 states: -
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 this section referred to as "arrears") due under the order is unpaid, application to commit the defendant to prison may be made to the Court by or on behalf of the person for whose benefit the order was made.
(2) Subject to Section 66, on application under Subsection (1), the Court may order that the defendant be committed to prison for such period, not exceeding 12 months, as the Court thinks proper.
(3) For the purposes of Subsection (1), the arrears shall be taken to include any amount that the defendant is ordered to pay in respect of the costs of the application.
(4) The defendant is not liable to be committed to prison in respect of his failure to pay any arrears—
(a) if he has previously served a term of imprisonment in respect of his failure to pay them; or
(b) if he is, by virtue of an order made under Section 6, deemed to have served a term of imprisonment in respect of his failure to pay them.
(5) The fact that a defendant is not liable to be committed to prison in respect of his failure to pay any arrears does not affect the recovery of them under any other section of this Act
(6) The period of detention in prison of a person under an order under Subsection (2) is subject to the provisions of Sections 202 and 203 of the District Courts Act 1963 as if the amount of the arrears were the amount of a fine imposed by the Court.
(7) Where the arrears in respect of which an application has been made to the Court under Subsection (1) are paid after the service of a copy of the application on the defendant and before the Court makes an order for the issue of a warrant committing the defendant to prison, the Court may order the defendant to pay the costs of and incidental to the application.
(8) Section 168 of the District Courts Act 1963 applies to and in relation to an order under Subsection (2) as if it were a conviction referred to in Subsection (1) of that section.
(9) Where a person is entitled to receive payments under each of two or more maintenance orders against the same defendant, one application may be made under Subsection (1) in respect of the arrears due and unpaid under each of those orders.
(10) Where a person makes one application to the Court in respect of the arrears due and unpaid under each of two or more maintenance orders, the Court shall, in determining the period for which the defendant is to be committed to prison, have regard to the amount ascertained by aggregating the arrears and subtracting from the total sum the amount of any arrears, or the sum of the amounts of any arrears, in respect of which the defendant is not liable to be committed to prison as if it were the amount of the arrears due under one maintenance order.
5. Restriction on commitment.
(1) A Court shall not commit a defendant to prison under Section 4 if it is satisfied—
(a) that the defendant—
(i) does not have the means and ability to comply with the order under which the moneys are due and unpaid; and
(ii) has not had, since the order was made, the means and ability; and
(iii) could not by reasonable effort have had that means and ability; or
(b) that for any other reason the order ought not to be enforced by imprisonment.
As a matter of fact, the defendant has not been imprisoned for non-payment of any arrears or part of an arrears because he has either paid or has partly paid and has somehow got off the orders that have been made in default of payments to be imprisoned in the past.
The fact that the defendant is likely to be imprisoned for the arrears should not affect the recovery of the arrears. Cliff Naugre has reach 16 years does not relieve the Defendant of the maintenance arrears. The defendant has the means and the ability to pay for the arrears being employed with the Provincial Treasury Office, Depart of Finance in Vanimo. There should not be any excuse to pay. As a matter of fact these moneys that are owed are moneys that legally should be paid to the Complainant under that substantive Court Order. If the money was paid when it was due, there will not be any arrears now and the parties will not be in court. The only issue for the Court to consider is to discharge the maintenance order upon the child reaching 16 years of age and the Court does not automatically do that, as the Defendant seems to think. That will require an application to court pursuant to section 11 of the Deserted Wives and Childrens Act before an order for discharge may be issue. However, that application should not be entertained until the judgments in the same or related action have been complied with.
In the case of Paul Pukari & Oro Cable TV and Peter Seeto N9410, the National Court said it is an abuse of process and the Judge stayed the process until the judgment was met.
This ruling is based on the principle that he who comes to court must come with clean hands. Nevertheless the Court has allowed the application to discharged the maintenance order of the 26 June 1998 and it is only fair that the Defendant pay the outstanding arrears of K6200.00. The question of how the money was used does not come into the picture. If the Defendant has evidence that the Complainant has misused the money that rightly should benefit Cliff Naugre, he should take the matter to court in a separate proceeding.
The Court is satisfied that the Defendant is in arrears in the sum of K6200.00. The Court is also satisfied that the Defendant should by law pay the arrears and should not be relieved by the fact that the child has reached the age of 16 years. I am further satisfied that the Court can enforced the arrears pursuant to Section 4 of the Maintenance Arrears Enforcement Act 1970.
The Court having satisfied itself now make the following orders:
Complainant, Mary Naugre for herself
Defendant, Binus Naugre for himself
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URL: http://www.paclii.org/pg/cases/PGDC/2008/138.html