DC3047
PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]
 FC:16of 2017
BETWEEN 
PENNINAH INOVE
Complainant
AND
YORIVE INOVE
Defendant

Goroka:  P Kaumba, Magistrate
 2017:  September 9, 21
CIVIL:

Cases Cited:
Nil

References:
Nil

Counsels:

Lawyer for the Complainant,In person.

Lawyer for the Defendant,In person.

21st September, 2017
DECISION

P. KAUMBA, Magistrate:The complaint was filed in court on the 4thof May 2017 alleging that theDefendantshas left the complainant and her children namely AbinayInove,TukuInove and Ray Inove without any means of support since 2011.
											-2-
2.  The case came before me for mention on the 13thof June 2017 and after several adjournments the case was heard ex-parte on the 6th of September 2017. The complainant and her witness gave their evidence and I recorded their statements and answers to my questions. The case was adjourned to the 21st of September 2017 for decision.
3. Issues for courts consideration:
(1)Did the defendant desert his wife and children without any means of support?
(2)If so, what should be the reasonable amount the defendant should pay for the complainant and her children’s maintenance
4.  THE LAW.
	The DESERTED WIVES AND CHILDRENS ACT.
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 by the mother of the child or by 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 of arrest of the husband or father,
                 (2) Where a warrant has been issued and the Defendant cannot be found the court on 
	proof of inquiry and search,may proceed in the case exparte. 

3.HEARING AND ORDER.
(1) On hearing of a complaint under section 2, the court shall inquire 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
										-3-

(iv)	commit the legal custody of the 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; and
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 some other person,
(2)	 An allowance ordered to be paid under subsection (1) shall be paid weekly, fortnightly, or monthly, and to such person and in such manner as the court orders.
(3)	An order for the support of a child or an order committing custody of a child to a person does not continue in force after the child has attained the age of 16 years or died, except for the recovery of arrears then due under the order.
(4)	On hearing of a complaint under section 2 where the court is satisfied that reasonable cause has been shown for-
	(a)	desertion; or
	(b)	the leaving without support; or
	 (c)	leaving the country,
It may decline to make the order.
(5) An order shall not be made on the application of a wife or a person on her behalf if it is proved that she has committed adultery or isof drunken habits,unless thehusband has condoned or connived at the adultery or,by his cruelty,wilful neglect or misconduct, conduced to the adultery or drunken habits.
LUKAUTIM PIKNINI ACT.
91 INITIATING PROCEEDINGS.
(1)	A proceeding under this part shall be initiated by way of complaint.

-4-

(2)	The complaint shall be as prescribed.
101 APPLICATION FOR PARENTING ORDERS.
(1)	This Division deals with an application for and making of parenting orders and general obligations created by parenting orders.
(2)	A parenting order in relation to a child’s parents may be applied for, by-
(a)	Either or both of the child’s parents; or
(b)	The child; or
(c)	The grandparent of the child; or
(d)	Any other person concerned with the care, welfare or development of the child; or
(e)	Any guardian, whether appointed under this Act or by will or otherwise; or
(f)	Any person acting in a fiduciary capacity who is under any will, gift, settlement, or otherwise by, possessed of any fund for the maintenance or education of the child, or any fund a portion of which may be applied for the maintenance or education of the child.
102 CONSIDERATIONS BY THE COURT.
(1)	In deciding whether to make a particular parenting order in relation to a child, the Court must ensure the best interest of the child as the paramount consideration.
(2)	In making decision under this division, the Court must ensure that the child spends equal time or substantial and significant time with each parent.
(3)	If a parenting order provides(or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must –
(a)	Consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b)	Consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c)	If it is , consider making an order to provide(or including a provision in the order) for the child to spend equal time with each of the parents,
(4)	The determination of ‘substantial and significant time’ is at the discretion of the court but includes weekdays and weekends, holidays, occasions in the childs life, occasions in the parents life  an opportunity for the parent to be part of the child’s daily routine,
103 BEST INTERESTS OF THE CHILD
(1)	In determining what is in the child’s best interest,  the primary considerations are-
(a)	The importance of the child’s development of a positive relationship with a parent or guardian and secure a place as member of a family; and
(b)	The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2)	Additional considerations are-

-5-

(a)	Any views expressed by the child and any factors(such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should to the child’s views; and
(b)The nature of the child’s relationship of the child with-
(i)	Each of the child’s biological parents; and
(ii)	Other persons(including relatives of the child); and
(c ), The extent to which each of the child’s parents has taken, or failed to take, the 
	opportunity-
(i)	To participate in the making decisions about major long term issues in relation to the child; and
(ii)	To spend time with the child; and
(iii)	To communicate with the child; and
  (d) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the 
parents obligations to maintain the child; and
(d)	the likely effect of any changes in the child’s circumstances, including the likely 
effect on the child’s circumstances, including the likely effect of any separation 
from-
          (i) either of his parents; or
          (ii) any other child, or other person(including relatives of the child) with whom he 
has been living; and
(f) the practical difficulty and expense of a child spending time with and  with a
parent and whether that difficulty or expense will substantially affect the 
child’s right to maintain personal relations and direct contact with both parents 
on a regular basis; and
(g) the capacity of-
  (i) each of the child’s parents; and
 (ii) any other person(including relatives of the child), to provide for the needs of 
the child, including emotional and intellectual needs; and 
(h)the child’s cultural, racial, linguistic and religious heritage; and 
(i) the principles under section5(2) of the Act.

108 MAINTENANCE OF A CHILD.
(1)	Where the hearing a complaint under this part in relation to the maintenance of a child is satisfied on the evidence, it may order the defendant to pay to the complainant a fortnightly sum or in kind maintenance for the child.
(2)	A maintenance order under subsection (1) also include an order for the medical and educational expenses of the child.
109 MAINTENANCE OF SPOUSE.
										-6-
Where the court hearing of a complaint under this part in relation to maintenance of a spouse who is deserted by the defendant, the court may order the defendant to pay the complainant a fortnightly sum or in kind as maintenance of the spouse.
107 CONFINEMENT EXPENSES.
Where a court issues a maintenance order under Section 108, the court may order the defendant to pay for confinement expenses at a sum not exceeding K5000.00 in cash or kind.
Bean-vs- Bean(1980) PNGLR 307. This is the leading case on custody applications in PNG.
On appeal against an order for custody made pursuant to s 7(1) of the Infants Act 1956, which section provides that such order may be made by the court having regard to the welfare of the Infant, the conduct of the parents and wishes of each parent.
Held: (1) Although not expressly stated, the welfare of the infant is of paramount consideration in applications under the Infants Act 1956... 
(2) (Per Kidu CJ)’ Consideration of the welfare of the infant requires that all matters conducive to the child’s interest  should be considered… It demands that assessment be made of any person who is to have a hand in the looking after of the infant’, Chisholm –v- Chisholm(1966) 7 FLR 347 at P 350 referred to.
(Per Kapi J) ‘The Welfare of the infant is usually referred to as the comfort, health, moral;.Intellectual and spiritual welfare of the child. These elements in turn are fundamentally dependent on the existence of security, stability, wise discipline and genuine affection at home’ Jones –v- Jones(1961) SR (NSW) 218 referred to..
6.	FINDINGS ON FACTS AND APPLICATION OF LAW.

(1)	The parties are from Okapa in the Eastern Highlands Province.

(2) The complainant and the Defendant were married according to the custom of the Okapa people of Eastern Highlands Province in 2002 after payment of bride price by the Defendants tribe.

(3) The Defendant is a lecturer by profession and complainant is a house wife.

(4) The Defendant is now a lecturer at Madang Technical College and has failed appear before this court to contest the complainants claim for maintenance and custody eventhough he was served the complaint and summons by the complainant.

(5)  The Defendant used to teach at Goroka Technical College and since he got transferred to Madang, he did not support the complainant and her children and has got himself involved with two other women who are his defacto wives. The second one has a he 
-7-

child and has left him. The third one is with him and she has a she child. She is also a student at the Madang Technical School and it is said that the defendant is paying for her training.

(6) Since 2015 the Defendant has left the complainant and her children without any means of support and the complainant depends on her marketing to take care of herself and her children’s needs. The only support the complainant got from Defendant was to help her buy a sewing machine in 2015 which she uses to sew clothes and sell to maintain herself and her children. The Defendant paid the complainant’s rental once only in 2015 and after that nothing.Her evidence is corroborated by the defendant’s small brother who gave evidence in support of the complainant.

(7)  The defendant tried to take his first born and second born to Madang to look after them at different times but the first born did not like staying with the defendant so after school holidays he decided to stay back in Goroka. The second born used to get sick often in Madang and the complainant went to Madang to see him. The Defendant and his new de fact wife were not looking after him properly and as a result he was sick often and faint at school and the defendant’s sister told the complainant about it. She was not happy about it and took him back to Goroka. Hence all the children are now with the complainant.

(8)  The complainant rents a house at Kofi roots Kama West Goroka,at K100.00 per fortnight to provide shelter for herself and her family.

 (9)  The defendant has failed to look after the complainant and her children and is more concerned about looking after his de facto wives and their offspring and has deserted her legal wife and her children within the meaning of desertion under section 2 and 3 of the Deserted wives and Children’s Actand section 108 and 109 of the Lukautim Piknini Act  and this court finds that the Defendant is liable to pay maintenance to the complainant and her children. The Defendant is also liable to pay for the children’s education and associated cost while the child is in school, university or colleges as the case may be until child completes his education.

(10) The defendant’s absence from this court implies that he has no interest in looking after the complainant and her children which is not good and that is not in the best interest of the children.

(11) In any custody application the interest and welfare of the child of paramount consideration (see Bean &Bean above and section 102(1) of the Lukautim Piknini Act )and in this case the Defendant has not contested the complainant’s application  even though he was served with the complainants complaint and summons and the court finds that he has no interest in looking after his children. The complainant is more interested in looking after the children and has in fact looked after herself and her children since 2015 (when the 

										-8-

Defendant is said to have left them) to date. Hence the Complainant is capable of looking after the children and custody of the Children should be granted to her.
(12) The Defendant can have access rights to see his children during holidays, weekends and school holidays and whenever he visits Goroka or Eastern Highlands Province.

Answer to the issues before it in this case are as follows:
Issue 1: Yes. The defendant has deserted the complainant and her children and left them without any means of support and is liable to maintain them.
Issue2.  The reasonable amount the defendant should pay for the complainant and the children’s maintenance every fortnight is K100.00 each. The Defendant shall also pay for the complainant and her children’s accommodation every fortnight.   The Defendant is also liable to pay for the children’s school fees and other costs associated with their education and welfare at schools, universities or colleges as the case may be until child completes his/her education.

7.	Costs is a discretionary matter. As usual costs will follow the event that is the loser will pay the winners legal Costs.

8.	The courts formal orders are:

1.	The complainant shall have custody of the parties children namely Abinnay Inove, Tuku Inove and Ray Inove and the Defendant shall have access to them during school holidays and whenever he travels into Goroka or Eastern Highlands Province.
2.	The Defendant shall pay K400.00 per fortnight to the complainantsaccount for the maintenance of the complainant and her children that is K100.00 for each of the children and the complainant forthwith. 
3.	The Defendant shall pay for the accommodation of the complainant and her children every fortnight forthwith.
4.	The Defendant shall pay for the Children’s Educationand other associated costswhile the child is at school, universities or colleges as the case may be until a child completes his education.
5.	The Defendant shall pay the complainants legal costs of taking this matter to court to be taxed if not agreed.

Counsel:
Lawyer for the Complainant, In Person
Lawyer for the  Defendant, In Person