PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE 
SITTING IN ITS FAMILY COURT JURISDICTION]
FC 146 of 2017
BETWEEN
REGINA JOANNE SAMAR
Complainant

AND
DONOVAN WAGGA KABEWA
Defendant

Port Moresby:  T.Ganaii
2017:  09th August
       
CIVIL – Family Court - Application seeking daily maintenance orders – Orders for tithes and offering  and child’s contribution to home where they reside - Objectives and Principles of the LPA - UN Convention on the Rights of the Child – Duties of parents to provide necessities 

CIVIL – What is ‘adequate means of support’ and appropriate amount for maintenance – Order for back-date is discretionary and must be reasonable   

Cases Cited
1. R v Stipendiary Magistrate of Port Moresby and Hunnam [1965-66] P&NGLR 344; 

References
1.	The Lukautim Pikinini Act of 2015
2.	 The 1992 United Nations Convention on the Rights of the Child, United Nations, 2010

Counsel
Regina Joanne Samar:		Applicant/Complainant in person
Donovan Wagga Kabewa: 	Ms Maryanne Zurenuoc (Pro-Bono)
09th August, 2017      
RULING ON MAINTENANCE
Introduction:
Ganaii, M: The complainant Ms R. J. Samar (referred to as Ms Samar) filed maintenance proceedings against the defendant Mr D.W.  Kabewa (referred to as Mr Kabewa) on the 15th of May 2017. Ms Samar claims that after separation Mr Kabewa failed to provide adequate means of support for their child XY (M/C DOB: 17/06/2008).  She relied on two of her affidavits in support sworn and filed on 15th May 2017 and on the 12th July 2017 respectively. 
2.	In his defence, Mr Kabewa argued that he did provide adequate means of support. He relied on his own affidavit in support sworn and filed on the 27th of June 2017; an affidavit filed by Mr Kabewa’s current partner Ms Sandra Sambre sworn and filed on the 27th of June 2017 and a further affidavit in support of assessment for a suitable amount for maintenance by Mr Kabewa sworn and filed on the 17th of July 2017.
Undisputed Facts:
3.	Ms Samar and Mr Kabewa entered into a recognised relationship in 2006. In 2008 XY was born. The relationship lasted 5 years and ended in December 2011. Mr Kabewa has a new partner and a child in this new relationship. They reside at the Kabewa’s family home. XY is currently in the custody of Ms Samar who has become unemployed since July 2017. Both Ms Samar and XY lodge with her sister. 
Disputed Facts:
4.	The main disputes are on the amount of K600 that Ms Samar is seeking fortnightly for maintenance and daily upkeep; contribution to lodging fees, tithes and offering and an order for back date to January 2017. Mr Kabewa argued that he has continued to maintain adequate support for XY after separation and there is no reason why he should pay maintenance at an increased amount or to be ordered to pay a back-dated amount. 
Issues:
5.	The main issues arising therefore are:
•	Whether or not after separation, Mr Kabewa failed to provide adequate means of support
for XY?
•	What is as an appropriate amount for maintenance? and
•	Whether or not the Court should order a back-date to January 2017?

Submissions by Mr Kabewa:
6.	Mr Kabewa through his lawyer submitted as follows:
-	both parties to have equal responsibilities over XY
-	Ms Samar provides reasons for seeking back-date to January 2017
-	a trust account be opened for XY under his own name where both parties to be signatories
-	he had been solely responsible for all of XY’s medical expenses since birth as XY is covered under his company’s Medical Insurance Scheme
-	medical expenses to be shared equally
-	parties to agree on which school  XY will attend and 
-	he would claim custody if Ms Samar is unable to provide financial support
7.	Further, Mr Kabewa relies on Annexures “A” and “B” of his affidavit which are: a Pay Slip showing his Net earnings at K2, 250. 00 per fortnight and his Budget break up showing his support to XY, respectively. According to these two annexures, XY’s support payment remains same at K150. 00 compared to other spendings even though Mr Kabewa’s net pay changed with an increase of about K850.00.  from his first annexure of the Budget Break-up sworn and filed on 27th June 2017 with  a net pay of  K1, 500.00 and the latest Budget Break-up on the 17th July 2017 provided upon the Court’s request for a salary/pay slip showing a take home pay of K2, 250.00.  
Submissions by Ms Samar:
8.	In 2010 Ms Samar suggested to Mr Kabewa to open a trust account for XY however he had not gotten to sign the forms. She had gone ahead to open a trust account depositing K500. Also she opened a Kids Savings account. To date there has not been any contributions to neither account by Mr Kabewa.

9.	After their break up, from the period April to December 2012 – Ms Samar solely provided accommodation and paid school fees for XY in Wewak. Further, in Madang in 2013, again Ms Samar was solely responsible for providing accommodation, airfares and meals for XY. On the 16th June 2013 Ms Samar sent XY to live with Mr Kabewa in Port Moresby because he needed to be with his father. During the period February 2014 - May 2014 Ms Samar lived in Australia with her now de factor partner. She returned to Port Moresby in May 2014 and re-united with XY.

10.	In 2015 - 2016 and in the first semester of 2017, she had paid for school fees for XY at K26, 000. In May 2017, she resigned from her role as Accounts Receivable Supervisor with Remington Print and Documents Solutions and is unemployed and has no means of income. Ms Samar is unable to provide a pay slip or an itemised list of budget. She and XY lodge with her sister. Ms Samar agrees that Mr Kabewa had met some medical expenses and is happy that he continues to do so. Her decision to seek custody is motivated by love and compassion, and that she is a responsible and matured adult. She is unmarried and does not have any other children and XY would have her love and undivided attention. 

11.	Ms Samar submits that her reasons for seeking K600 per fortnight for XY’s upkeep are for the following: K100 for love, tithes and offering to Church; K200 for daily upkeep and K300 for contributions to the home they live in (i.e. for power, water etc.) She further submitted in reply to Mr Kabewa’s submission of his budget break up that he is using his father’s vehicle and is not paying off a car loan as stated. There is no further evidence to support her claim on this aspect of her submission. The court relies on Mr Kabewa’s sworn affidavit on this. She further seeks that Mr Kabewa pays back the money she has paid for XY’s school, medical and rental fees. 

Mr Kabewa’s reply:
12.	Learned counsel for the defendant Ms Zurenuoc submitted in reply as follows:
-	Tithes and offering is not XY’s obligation 
-	An order for K300 to be paid for XY’s contribution to the house is too much. It is not known who else will benefit from XY’s contribution
-	Whoever else is living in the house that XY lodges at must also contribute for the same reason. If all makes their contribution to the house, then XY’s contribution should only be a lesser amount
-	XY has been visiting Mr Kabewa on the weekends (2 days being Friday and Saturday I would think). In that way Mr Kabewa  contributes financially for his up keep on four days in a fortnight and
-	Mr Kabewa can settle for K300 per fort night and no more
Findings of Facts:
13.	The following are facts I accept and find present in this case:
-	From 2008 to 2011 before separation, Mr Kabewa contributed to the maintenance and upbringing of their child where he regularly gave support in cash and kind. In 2011, after separation, Mr Kabewa entered into a relationship with his current partner. He did not have access to XY. In 2012 Ms Samar took XY to Wewak without his knowledge and consent

-	During the period 2007-2010 Ms Samar was solely responsible for providing shelter (rented accommodation) for them and their child when he was born in 2008. She had paid rent in the amounts of up to K2, 000 – K4, 000 per month. Her reasons for renting out and not living in the Kabewa family home was because the house needed maintenance

-	In 2011, Ms Samar separated with Mr Kabewa after finding out that Mr Kabewa was in another relationship

-	From April to December 2012 Ms Samar solely rented at K2, 700 per month accommodation in Wewak Hill and paid for XY’s school fees at K5, 000.00. per annum

-	In 2013, Ms Samar provided meals, accommodation and airfares for XY until in June 2013, she asked Mr Kabewa to take custody of XY which he did. Ms Samar lived and worked in Madang and XY lived with Mr Kabewa and his family where the family  provided back up support for him and XY

-	From February – May 2014, Ms Samar lived in Australia with a now de-factor partner

-	In the middle of 2014 Ms Samar came to Port Moresby and withdrew XY from his school without Mr Kabewa’s knowledge and consent. XY was schooled at home for the remainder of the year by Ms Samar’s mother, Mrs Philomena Tailam Samar, a certified Primary School teacher and

-	XY is currently in the care and custody of Ms Samar. Currently, Mr Kabewa has access to XY on the weekends. Mr Kabewa supports the child in his current relationship as well. He is committed to maintaining XY. Mr Kabewa’s partner and son have no issues with XY spending weekends with them, or Mr Kabewa providing care and support for XY.  
Law:
Intent of the Maintenance Provision of LPA:
14.	An application made under section 108 of the LPA for maintenance orders is brought when a party alleges provision of ‘inadequate means of support’ for the general  upkeep of a child mainly for but is not limited to nutrition, clothing, lodging, nursing, medical and educational expenses. It is a requirement to state the time of desertion or separation when claiming that a party had not provided adequate means of support and more particularly when one is seeking a back date to that date or to date of filing of the summons.

15.	The term ‘adequate means of support’ in the new LPA or ‘without any means of support’ in the CWA have not been subjects of judicial interpretation. Regardless, fair and liberal interpretation rule must apply. In considering what is ‘adequate’, the liberal and fair meaning of ‘adequate’ would be ‘reasonable’. Hence, in my view, in this case, the appropriate test to apply would be to determine the question: “What is reasonable means of support for the day to day up keep of an average earning income family for a child in urban Papua New Guinea”? Once that is determined, the next step is to determine whether or not the defendant had provided that kind of realistic and reasonable support for the child? 

16.	A realistic, reasonable and fair support of a child is the kind of support that accounts for all of the following needs of a child: daily meals (which is nutritious breakfast, lunch and dinner); daily transport fee to and from school (if child is of school age); clothing (including school uniforms); shelter (room, power, water or rentals); nursing (or baby-sitter) and medical and educational expenses.  

17.	The right to child support and the responsibilities of parents to provide such support have been internationally recognized. The 1992 United Nations Convention on the Rights of the Child is a binding convention signed by every member nation of the United Nations and formally ratified by all including PNG. It declares that the upbringing and development of children and a standard of living adequate for the children's development is a common responsibility of both parents and a fundamental human right for children, and asserts that the primary responsibility to provide such for the children rests with their parents. The LPA has been enacted to comply with the International Convention on the Rights of the Child. The following sections of the LPA talk about the objectives, the principles, the rights of a child and the duty of parents: Section 4 –The Objectives of the LPA; Section 5 – The Principles of LPA; Section 6 – Right of a Child; Section 7 – Right of a Child to live with parents and Section 8 – Duty to maintain a Child.
Hence regardless of what ever factors, both parents are obligated to provide reasonable support for a child’s welfare and upbringing. Reasonable support also means that the support must be within the earning capacity of both parents of the child considering the age and specific realistic needs of the child and the parties other financial obligations apart from that of maintaining the child the subject of any maintenance proceedings.
Reasonable Amount for Maintenance:

18.	What is a reasonable amount to pay as maintenance begs the question: How much should a parent be paying in order to say they have reasonably supported a child in an urban PNG setting? Unlike other more developed countries, for e.g. Australia, UK and the US, where their Social Child Welfare systems are advanced that their laws provide Child Support Agencies that create and develop Child Support Formulas that provide fixed figures depending among others on earning capacities of both parents; specific particulars and needs of the child, type of school, location, and cost of raising a child in certain locations etc., our system does not.

19.	In PNG, Courts have been using the following basic guideline: earning capacity of defendant ( as in a majority of the cases, the applicant is not earning an income or is a stay home mum); defendant’s other financial obligations; child’s age and  specific needs; reasonable cost of raising a child (daily expense x 14 days for fortnightly maintenance). Hence, all of the above is taken into account in deciding on an appropriate amount for daily upkeep of a child.
Payment of back-dated amount:
20.	Neither the LPA nor the old laws (DWCA or CWA) make provisions for orders of back date of maintenance amounts to date of desertion or date of filing of summons. Courts however have decided that orders for back date are a discretionary matter and can be decided on a case by case basis. In the case of R v. Stipendiary Magistrate of Port Moresby and Hunnam  the Court said: “A maintenance award ….may be ordered to be paid weekly, fortnightly or monthly, but it is not possible to backdate the payment to the time of desertion”. This court is not bounded by that view.

21.	If this Court is to consider a back-dated amount, in my humble view, this should run from the date of granting of maintenance orders to the time desertion or inadequate support commenced. Although not specifically stated by Ms Samar, the period of inadequate support in this case would run from date of separation and living apart i.e. since 2011. Further, an order for a back-dated payment can be made if the court is satisfied that the applicant had solely expanded money for the upkeep of a child. Mr Kabewa has made some contributions but the question to ask is: Was the support he gave reasonable and adequate?    

22.	Ms Samar does not state a specific date after separation in 2011 that she seeks back date to where she claims that Mr Kabewa has stopped providing adequate support for XY. Time period is important as Mr Kabewa argues that he had given his continued support ever since XY’s birth. What Ms Samar states in her affidavits are reasons for separation and that she had expanded monies on shelter, meals and school fees for XY for certain periods. Further, Ms Samar asks the court for a back date to January 2017 but does not state why to January 2017 and not to 2011 when separation occurred. When applicants seek back date to a certain time, that in most cases is usually the date of desertion, or date when means of support was stopped or not adequately given after separation or divorce.  I will return to this discussion later in this ruling. First, I have to make a finding on whether Mr Kabewa’s support of XY at K150 per fortnight after separation as stated and not disputed, is inadequate. 

23.	According to evidence Mr Kabewa says he continues to buy K150 worth of food and other items for XY on a fortnightly basis, and he has access to him on four days in a fortnight (which is the two days on a weekend for a fortnight). Ms Samar has not disputed that except to tell only of how the relationship ended and how much expenses she has incurred in paying school fees for certain periods of time. This fact in my view shows Mr Kabewa’s support. 
Application of the Law to the Facts:
Whether or not Mr Kabewa’s provision of K150.00 per fortnight and other contributions is sufficient and shows adequate means of support? 

24.	A discussion on whether or not this is sufficient follows by considering among others, the following: earning capacity of both parents; age and specific needs of the child; other financial obligations and reasonable cost for daily maintenance of child before period of inadequate support commenced.

•	The earning capacity of both parents:
Ms Samar has been unemployed since May 2017 but is capable of finding a steady employment. Currently she is unable to produce a break up of her budget without an earning capacity. Mr Kabewa earns K2, 250.00 per fortnight and has provided a breakup of his budget. K150 is used to purchase food and other items for XY. 

•	Age and needs of XY
XY is 9 years old this year and is a growing child. He will need space (shelter); daily nutritious meals i.e. breakfast, lunch and dinner; clothes, and fees for school and medicals. 
 
•	Mr Kabewa’s other financial obligation
Mr Kabewa has a partner and child to look after. Other financial obligations like lunch money for nieces and nephews, mum and dad, baby sitter, water bill, gas, power, land rates, fuel, Hitron, savings; are his other spending.

•	Reasonable cost for XY’s Daily maintenance
Annexure “C” of Mr Kabewa’s affidavit shows:

Fortnightly food 				= K300 - K400	Half that:	K200.00 
Diapers, Milk, Baby Food		= K200		Half that:	K100.00
Medical Bills	
(cost varies depending on illness)	= K150 – K300 	Half that: Share cost (when due)

Total:						= K600 – K900	Half that:	K600 = K300
												K900 = K450.

25.	Hence, looking at Annexure “C”, realistic spending by Mr Kabewa on keeping house and maintaining XY was at about K600 (without considering medical expenses) before separation. If that is shared, then  K300 is a justified amount for one parent in maintaining XY (although this amount of spending occurred years back and now cost of goods and services has increased, and XY has grown and therefore cost for maintaining him has gone up also). 

26.	Court finds that there is no challenge to Mr Kabewa’s submission that he continue to support XY. Since there is no dispute to this I find that Mr Kabewa has continued to provide support to XY since birth by the doing following:
-	Having custody in 2014 whilst when Ms Samar was in Australia
-	Continuous weekend access when Ms Samar had custody of XY
-	Medical expenses
-	K150 worth of shopping on a fortnightly basis and 
-	Purchase of school stationaries, clothes, shoes, i-pad, laptop and android phone
27.	Apart from these support that Mr Kabewa gave, Ms Samar had been the sole provider of shelter, daily meals and school fee for certain periods of time since separation in 2011. Looking at Mr Kabewa’s support in Annexure “C” of K300 per parent prior to separation, and amount of K150 after separation for maintenance is inadequate. Consequently, where Ms Samar had met the balance of cost for reasonable maintenance, providing shelter and school fees, it is only fair that a reasonable order for back-date be given. Since Ms Samar is not specific to a start date for commencement of ‘inadequate’ support, her claim to seek back date to January 2017, is a lenient and genuine approach on Mr Kabewa in the circumstances of this case. The court will consider a reasonable order for back-date payment.
What is an appropriate amount for maintenance that the Court should now order?
28.	This court’s view given the above discussion is that K150 per fortnight for daily upkeep of XY in the city of Port Moresby by one parent is not sufficient. Particular consideration is given to the break up in Annexure “C” of Mr Kabewa’s affidavit namely that of the cost of maintaining XY before separation. It is noted that after separation, Mr Kabewa expanded a lot of cost for living with his family.  Further, looking at both budget break-ups, Mr Kabewa does not explain why spending for XY remains same at K150 when first earning capacity was changed from K1, 560 to K2, 250.00. I do not understand why cost for spending for everything else went up and not for XY’s upkeep. Hence, if anything, benefit for giving no explanation will be given to the consideration of what is in the child’s best interest. The amount of K150 fortnightly spending on XY in my respectful view is insufficient. The Court is of the view that an amount of K300 is reasonable so that it aligns with realistic spending by Mr Kabewa before separation. Court also notes that the captions in Annexure “C” are from the period when XY was an infant. Now, the cost of looking after a 9 year old child would be more.  

29.	I find that maintenance payment of K150 is not sufficient for the above reasoning and should be increased to K300 per fortnight.
Is Ms Samar’s seeking of K100 as Tithes and Offering through orders for maintenance proper?
30.	Ms Samar’s submission for K100 to be paid through this maintenance proceeding for religious tithes and offering is refused for reason being that maintenance is for daily up keep of a child.  According to section 2 of the LPA, these necessities include: food, clothing, shelter, medical and school fees. The law on maintenance proceedings does not include seeking child support for other things such as Religious monetary obligations. Tithes and offering are Biblical teachings and are paid by persons who earn an income or yield harvests from farm produces etc. A child does not earn an income and cannot pay tithes. Teaching a child Biblical principles is a personal choice and a matter for individuals.  On the particular subjects of tithes and offerings, teaching a child on this aspect of the Christian faith can be done in a manner appropriate to the child’s level of understanding. For e.g. if a child is given K10 pocket allowance for doing household chores, that would be money earned by the child. He or she can then be taught to pay 1/10 of that which is K1 to Sunday school as tithes or love offering. There is no case law or legal argument to support this application by Ms Samar. I refuse to grant this order.
Is Ms Samar’s seeking of K300 as XY’s Contribution to lodging justified?
31.	Submission by Ms Samar for contribution to lodging is considered. XY’s need for shelter must be provided for by both parents. However, where he is residing now, the amount of K300 is too much for his contribution for the house. In my respectful view, an amount of K100 is appropriate simply for reasons being that there are other people living in the same house and not just Ms Samar and XY. The other occupants’ contributions can also go towards lodging fees for rental, water bill, electricity, gas etc. In that way, Ms Samar or XY’s contribution should be less than K300. The same argument can be made on Mr Kabewa’s contribution to the family home where he lives in, in order to justify less contribution to upkeep other persons and justification to increase maintenance for his dependents including XY.
Is Ms Samar’s seeking of Maintenance for daily upkeep of XY at K200 justified?
32.	Maintenance and upkeep amount of K200 is considered a fair amount for one parent. Hence in addition to this figure, the K100 lodging fee contribution brings to total K300 as a justified, appropriate and adequate maintenance amount by one parent.
Other issues
Allegations of Assault:
33.	Ms Samar’s allegation of assault is a matter for another court and this court has no jurisdiction to decide on that matter. This court appreciates that Ms Samar’s submission on this aspect of her affidavit was only to show reason for separation leading to her allegations of Mr Kabewa’s failure to provide adequate support. 
Reimbursement of Monies expanded by Ms Samar on School fees and Rentals:
34.	Further, submission by Ms Samar that Mr Kabewa pays back her monies for rental and school fees she expanded on XY in previous years cannot be ordered for re-imbursement as it is not an agreement that can be enforced by this court. There is no court order that can be enforced so Mr Kabewa pays or reimburses Ms Samar. Ms Samar had not come to court earlier to get court orders that could be enforceable by this court. 

35.	Considering Ms Samar had been the sole provider of shelter, daily meals and school fee for certain and longer periods of time and in considering that Mr Kabewa’s support had been inadequate, it is only fair that this court considers a reasonable order for back-date rather than an order for reimbursement on the total amount she seeks.

36.	The orders that are now being sought and if granted are enforceable in this court in future. Hence, where future maintenance amounts, school and medical fees as ordered by this court are not paid; orders can be enforced against Mr Kabewa by this court. Where Ms Samar has spent monies to maintain XY she could claim reimbursement by enforcing the current orders. The court will hereby not make an order for reimbursement of monies spent by Ms Samar on XY prior to this proceeding. 

Trust Account:

37.	On the discussion by parties on XY’s Trust Account – the idea is good and is for the benefit of XY. It is a matter for both parties to further discuss.

Preferred School:

38.	On the issue of which School XY should go to and whether or not parties should talk, the main consideration is what is in the best interest of child, i.e. considering his learning and mental capacity and mental development and which school will best meet his level of learning and whether both parents earning capacity can afford school fees for a particular type of school. Again, this is a matter for both parties to discuss.
Conclusion:
38. 	Having considered all of the above, I rule as follows: 
•	Although Mr Kabewa did provide means of support since separation, the provision was inadequate;
 
•	Mr Kabewa now pays maintenance for daily up keep of XY at a reasonable amount imposed by the court;

•	Mr Kabewa pays a reasonable back-dated amount to January 2017 for maintenance and upkeep of XY; 

•	Ms Samar to have care and custody of XY and Mr Kabewa to have reasonable access; and 

•	If there is any variation or a new application to be made on custody, parties are at liberty to apply.

Court Orders:

Court hereby orders accordingly as follows:

39.	Mr  Kabewa pays maintenance amount for M/C XY - DOB: 17/06/2008 at K300 per fortnight up until XY reaches the age of 18 years, dies or there is a variation, suspension or discharge of the orders by a court of competent jurisdiction whichever occurs first in time;

40.	Mr Kabewa pays back date amount of K2, 100. at rate of K150 (K300 which is now ordered minus K150. 00 he has been spending on food for XY) for 14 fortnights (i.e. from period January – July 2017). So, K150 x 14 fortnights = K2, 100 back dated amount. Defendant to pay at a rate of K200 per fortnight starting August 2017 to January 2018, a total of 11 fortnights. The schedule of payment is K2, 000 in ten fortnights at K200 per fortnight and K100 on the eleventh fortnight;

41.	Maintenance order and order for back date be attached to Mr Kabewa’s salary section for deduction to be paid into ANZ Boroko Branch, Account Name of Regina Joanne Samar, Account No. 12047571.  Mr Kabewa to provide the address of his Salary section to the Clerk of Family Court;

42.	The amount of K300 per fortnight for maintenance plus the  K200 per fortnight for back dated amount over 11 fortnights makes Mr Kabewa to be paying K500 per fortnight until the back dated amount of K2, 100 is completed, then he pays the K300 fortnightly maintenance; 

43.	Mr Kabewa pays half the cost of medical and school fees as and when they fall due;

44.	Custody of XY is committed to Ms Samar and Mr Kabewa has access to XY on the weekends. 

Orders accordingly.

Lawyer for the Complainant:	In person
Lawyer for the Defendant:	Ms Maryanne Zurenuoc (Pro – Bono)