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Tuliya v Clement [2020] PGDC 58; DC5039 (19 October 2020)

DC5039

IN THE FAMILY COURT OF JUSTICE

HELD AT

PORT MORESBY DISTRICT COURT

In the Matter of Maintenance Order Enforcement Act – Application to Commit Defendant to Prison

FC No. 03 of 2017

Between:

LILIAN TULIYA

Complainant - Applicant

And:

DANIEL CLEMENT

Defendant - Respondent

PORT MORESBY DISTRICT (FAMILY) COURT:

His Worship Mr. E. Komia

19th October 2020

Application To Commit Defendant To Prison – Purpose of the Legislation – Powers of the District (Family) Court – whether s. 108 of the Lukautim Pikinini Act allows for variation of maintenance orders made for children below the age of 18 years– No powers under s.110 enabling District Court to Vary Orders for Maintenance – Where application is not properly before the Courts - Application to Commit defendant denied – The orders for variation made pursuant to. S.110 must set aside.


Papua New Guinea cases cited

Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC5 SC906 (28 March 2008)

Papua and New Guinea v Doriga Guba [1973] PNGLR 603)

O’Neill v Eliakim (2016) SC1539

Herman Gawi v PNG Ready Concrete (1983)

Yama v PNGBC Ltd (2008) SC922 at [24]

Nema v Rural Development Bank Ltd (2012) N5317 at [6]

Mahuru v. Hon Lucas Dekena (2013) N5305 at [12]

Emmanuel v. Iga [2003] PNGLR 20 (14 July 2013)
Jeffrey v Yapo [1999] PGNC 137; [1999] PNGLR 89 (23 April 1999)


Legislations


Lukautim Pikinini Act 2015

Lukautim Pikinini Regulation 2016

District Courts Act


Counsels for the Complainant: in person

Counsels for the Defendant: in person


29th September 2020

  1. INTRODUCTION
  1. This is an application for enforcement of a Maintenance Order which had been varied by this court on 23rd October 2019. The initial orders were made on 04th April 2017.
  2. I now make my ruling on this case.
  1. FACTS.
  1. The Complainant filed a summons and a complaint against the defendant on 09th February, 2017 seeking maintenance of two children born out of wedlock.
  2. On 04th April, 2017 the Court made orders for the defendant to pay a maintenance of K150 per fortnight (K75 per child), and for those maintenance funds to be paid into the defendants nominated account.
  3. On 08th April, 2019 the complainant filed an application to vary the orders of the Court and increase the amount to K300 (K150 per child) per fortnight for the two children. The reasons given where that the children’s needs have arisen as they are growing up.
  4. The Application for Variation of the Orders were filed pursuant to S.110 of the Lukautim Pikinini Act 2015, on 08th of April 2019. The first hearing was on 20th May 2019.
  5. The orders granting the variation for the amount to be increased from K75 per child to K150 per child, totaling K300 where made by this Court on 23rd October 2019. The Orders were made pursuant to S.42 of the Lukautim Pikinini Regulation 2016.
  6. On 20th August 2020, this Application to Commit the Defendant to Prison was filed. The applicant alleges that the defendant has not complied with those orders and, as a result of that, there has been arrears totaling up to K2, 250.00 at the time of filing of this application.
  7. The defendant – respondent, at the time of the hearing of the application for variation was earning around K291.05 per fortnight and, that he is currently paid the same amount of money as there are many deductions still ongoing, coupled with the fact that the salaries section of Department of National Planning does not allow for any additional deduction if the deductions made, total to more than 75% of the salary; thus, there can be no further deductions made. This is because the payroll system for the Department of National Planning rejects it, when it is entered into the Alesco payroll system.
  8. During the cause of the hearing, the defendant raised the issue of custody and argued that, given the difficulties faced by the defendants in taking care of the child, the custody of the children should be awarded to him.
  9. Defendant further argued that the custody should be awarded to him because, it is only fair for him to look after his children with ease by budgeting his salary instead of dividing it.
  1. ISSUE
  1. Whether the defendant should be granted custody of the children?
  2. Whether S.110 of the Lukautim Pikinini Act 2015 allows for variation of an Order for Maintenance of a child or children under 18 years of age?
  3. If the answer is to the affirmative, should the defendant be committed to prison for his failure to comply with the Orders of 23rd October 2019? And if the answer is to the negative, what should happen to the orders of 23rd October 2020?
  1. EVIDENCE
  1. The defendant’s evidence establish that he had been repaying loans he had obtained from various financial institutions that lend money, and since the deductions were current and ongoing, there could not be any further deductions made. He has no control over the payroll system, because, at the time the orders were made, the defendant was on K291.05, and he could not comply with those orders due to the reasons alluded to above.
  2. The complainant has not filed any affidavit to support her application but, the document titled “DEFENDANTS NON COMPLIANCE TO FAMILY COURT ORDER OF 23RD OCTOBER 2019 PURSUANT TO SECTION 42 OF THE LUKAUTIM PIKININI REGULATIONS ACT OF 2016 filed on 07th July 2020, has some statement filed by the complainant – applicant and I take that, to be her deposition which she relies on for her application, to commit the defendant to prison.
  3. Despite the fact that the Application to Commit The Defendant to Prison, states that the Orders were made pursuant to s. 42 of the Lukautim Pikinini Regulation 2016, the Initial Application for Variation of Orders of 04th April 2017, was made pursuant to s. 110 of the Lukautim Pikinini Act 2015. There was no application filed pursuant to s.42 of the Lukautim Pikinini Regulation 2016.
  4. This raises an issue of form, and jurisdictional basis for varying orders for maintenance of children below 18 years.
  5. Although the forms may have been incorrect, the jurisdictional basis for an application for variation of the Orders must be the correct jurisdiction, so as to, not render the orders vague. A closer analysis of the application for variation, establishes that the application for variation was filed pursuant to s.110 of the LPA, the orders were subsequently made pursuant to s.42 of the LPR 2016.
  1. DISCUSSIONS OF ISSUES AND LAW – APPLICATION FOR CUSTODY
  1. The first issue I would like to address is the issue of custody. The defendant in the course of his submission, made an oral application for the custody of the two children to be awarded to him. His primary reason for making that application was that; if the mother (complainant) finds it hard to take care of the children, she should release the children to be with him, and that there is no point in varying the Court Orders and asking the Court to punish him for not paying the K300 maintenance monies. This he submits is because it would cause more stress and hardship on him, if he is to further break up his salary and divide it between his children.
  2. The complainant in her submission argues that the children visit him, but are uncomfortable with the step mother. This Court has never had the chance to see the demeanor of the step mother. Nevertheless, be that as it may, the issue here is, whether this Court can deal with the application for custody?
  3. I note from the court file that, term five (5) of the orders of 04th April 2017, made orders for the custody of the children to be awarded to the complainant, and the defendant to have reasonable access. So, in essence the Court did deal with the custody issue. The appellant was at liberty to file an application to set aside the custody order, and or appeal that order, if he disagreed with the terms of the orders of 04th April 2017. That has not been done.
  4. This Court cannot be a review court to review its earlier decision, neither can it be an appeal court to rehear matters already argued before it, and has been determined. The Court becomes functus officio with respect to that issue, and would be barred to deal with the issue by virtue of the common law principle of ‘res judicata’ and issue estoppel’. This Court can only vary its earlier orders, and such variation orders can only be made by this Court upon proper applications being filed before the Court. An application whether formal or informal would result in either ‘res judicata’ or ‘issue estoppel’ depending on the manner in which, the issue was disposed of by the Court.
  5. In the case of Telikom PNG Ltd v Independent Consumer and Competition Commission [2008] PGSC 5; SC 906 (28 March 2008) the Supreme Court in determining an appeal from the National Court Judicial Review Application, in which the National Court dismissed the appellant’s (Telikom PNG Ltd) appeal on the basis of the common law principle of res judicata, held that the Courts cannot revisit or determine an issue that has already been determined by a court or tribunal. In arriving at its decision, the majority of the court constituted of Cannings and Kirriwom JJ, stated;

“For the doctrine of res judicata to apply, it must be shown that the previous decision relied on was made by a tribunal of some sort which had the jurisdiction to finally decide the question arising between parties. Such a tribunal does not have to be a court or be called a court (The Administration of Papua and New Guinea v Doriga Guba [1973] PNGLR 603). The primary judge considered this issues in detail in his written judgement, stating;


Given the importance of the principles of res judicata, the principles extend to all decisions of a court as well as other tribunals however constituted, which are empowered and do come to a final decision on an issue or dispute and arrive at a final decision on an issue disputed between the two or more disputing parties. The authority to hear a dispute and arrive at a final decision may be based on statute or by consent of the parties as in the case of arbitration. Where the decision maker is created and empowered by statute, the presumption is usually in favor of the principle of res judicata.


  1. There are other authorities that discuss this well-established principle such as, in O’Neill v Eliakim (2016) SC1539, Herman Gawi v PNG Ready Concrete (1983) unnumbered and unreported, decided by Bredmeyer J, Yama v PNGBC Ltd (2008) SC922 at [24], Nema v Rural Development Bank Ltd (2012) N5317 at [6], Mahuru v. Hon Lucas Dekena (2013) N5305 at [12] and many other case laws that discuss and apply the common law principle of res judicata. In applying the decision of Telikom (supra), and the reasoning in the other decisions cited, this Court finds that, the argument of custody is res judicata, and therefore dismisses the application and argument for custody, raised by the defendant - respondent.
  2. The District Court is created and empowered by statute and as such, when this Court made orders for Custody on 04th April 2017, that was conclusive and it put to rest the issue of custody. The only option available to the defendant – respondent was to have filed an appeal to the National Court. A resurrection of an issue that has already been put to rest ultimately amounts to res judicata.
  3. It is for this reason alone, that the respondent’s application for custody is declined.
  1. DISCUSSIONS OF ISSUES AND LAW – APPLICATION TO COMMIT DEFENDANT TO PRISON FOR FAILURE TO COMPLY WITH ORDERS OF 23RD OCTOBER 2019.
  1. I now turn to the substantive issue that is before this court. That is the issue of whther this Court should commit the defendant – respondent to prison for failure to comply with the orders of 23rd October 2019?
  2. During the cause of the hearing of this application, the defendant admitted that he had in fact not paid the additional K150, as ordered by this Court on 23rd October 2019. The defendant – respondent in his submission supported by his affidavit annexing his pay slip, basically mentioned to the Court that, the additional amount of K150 could not be deducted by his Human Resource division, because he has already gone past the threshold limit allowed for salary deductions by the HR. He states that the salary system does not further deduct any more monies, if the total deductions on the employee’s pay is above 75% of the net salary, which he says is such, in his case.
  3. The defendant - respondent also states, that from time to time, he assists in terms of bus fare and uniforms for the children, and that, given his salary of K291.05, he is unable to further deduct to the defendants account.
  4. The complainant - applicant claims that the K150 is really not enough to take care of the two children in the city, and I find this argument realistically true. The complainant – applicant also states that the children are often sent to the defendant – respondent’s home at times, but the children keep coming back. She claims that the children are not comfortable living with the step mother. That in essence is as a result of the mother factor.
  5. I have noticed from the record of documents filed in Court, that the form and the jurisdictional basis, upon which the orders were made on 23rd October 2020 is irregular and, the court made orders pursuant to an application that invoked the wrong jurisdiction. In this instance, this Court must look into the nature of the application and, be satisfied that the orders were proper and regular, so as to warrant the committal of the defendant to prison. Otherwise, the orders must be set aside and the application to commit the defendant to prison must also fail.
  6. District Courts are given the power to make orders for maintenance of a child or children under S.108 of the Lukautim Pikinini Act 2015, whilst s. 109 of the Act establishes the powers of the District Court to make orders for maintenance of the spouse.
  7. Ss. 108 and 109 of the Act states;

Division 7. — Maintenance Orders.

108. Maintenance of a child.

(1) Where the Court 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 as maintenance for the child.


(2) A maintenance order under Subsection (1) also includes an order for the medical and educational expenses of the child.


109. Maintenance of a spouse.

Where the Court hearing 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 to the complainant a fortnightly sum or in kind as maintenance for the spouse.


  1. Section 110 of the Act establishes the duration of the orders of maintenance for the child (children) and the spouse. Ss 110 (1) of the Act gives three instances for duration of the orders. It states that “an order for maintenance under s.108 applies until, the child dies, the order is discharged by a court of competent jurisdiction; or the child attains the age of eighteen years.
  2. Unless none of the three eventuate, the orders remain in force. There is no clause for variation of orders made for children.
  3. A closer look at Ss. 110 (2) has a very slight difference on the scheme of wording. The wordings are as follows;

(2) An order for maintenance under Section 109 applies until —

(a) the spouse dies; or

(b) the spouse remarries; or

(c) it is varied; or

(d) the order is discharged or varied by a Court of competent jurisdiction,

Which ever first occurs.


  1. Then Ss. 110 (3) states that if in the opinion of the Court, there are special circumstances including his education, medical and other special needs, and having regard in particular to Part II and the general principles prescribed in Section 5 of this Act, the order may be varied after the child attains 18 years of age. –emphasis mine
  2. After carefully considering and analyzing s.110 of the Act, I am fortified in my opinion that, this Court did not and does not have the power under s.110 to vary an order for maintenance of a child, after formal orders have been made and entered. Neither did it grant jurisdiction for an application for variation of maintenance of a child to be filed or varied. Even at the time of making of the initial orders, this Court cannot make an order allowing for variation of the orders made for maintenance, as there is no provision within the Lukautim Pikinini Act 2015 that allows for the Court to vary orders for maintenance made under s. 108 of the Act. Although S. 88 of the Act bestows the District Courts jurisdiction to deliberate on matters pertaining to the maintenance of a child under S.88(c), Ss. 108, and 110 crystallizes the specific areas of jurisdiction, and as such, the District Courts are drawn down to the limits under the two provisions.
  3. So the threshold question is; Whether the variation orders made on 23rd October 2019, is a proper exercise of power by this Court, given the nonexistence of a provision that allows for variation of maintenance order for a child (or children), such as that provided under s.109, in the light of the jurisdiction of the District Court established under s. 88 of the Act, later crystalized down to specific jurisdiction provided under ss. 108 and 110?
  4. I am convinced that the District Courts do not have enabling powers under s.110 of the Lukautim Pikinini Act 2015 to vary orders for maintenance made under s. 108 of the Act. The District Court rather has powers under S.22 of the District Courts Act to make orders varying the Orders for variation, and such orders for variation under s. 22 can only be made pursuant to an application for variation brought before this Court pursuant to s. 42 of the Lukautim Pikinini Regulation 2016.
  5. So in this instance where an application has been brought before the Court, and is not properly made pursuant to the correct laws provided under statute, the issue would then be; whether the Court still has the power to deal with such application that does not cite proper jurisdiction? An Application filed citing the wrong law does not amount to a wrong form, but is rather an error that is more substantive and must be carefully scrutinized by the Court, so the Court does not make an error of law. How does this Court deal with the issue of non-compliance of a Court Order, which has been made under a wrong mode or form? Although ‘an error in form does not necessarily affect the substance of the proceeding’[1] it is important to note that the forms may be altered and amended or taken to be properly before the court, if the application and the improper form is founded on its correct jurisdiction; thus enabling the court to waiver with the strict requirements of forms. But where the improper form or proper form (whichever it may be) has no proper jurisdictional basis, the Court’s cannot blindly proceed to make orders, as it would tantamount to an act that is ultra vires, and substantially amount to an order made irregularly, which can then be set aside.
  6. In Emmanuel v. Iga [2003] PNGLR 20 (14 July 2003), the National Court in dealing with an appeal from a District Court order that restrained adulterous parties from seeing each other, upheld the appeal of the appellants and quash the orders of the District Court that restrained the appellants from seeing each other and living together. In arriving at the decision, Justice Kirriwom held that the District Courts had no unfettered jurisdiction such as the National Courts and the Supreme Courts, but is a Court of Statute; hence it must be adjudicating and administering its powers and functions within the scope of the enabling legislations, and must not be acting outside the ambit of the jurisdiction provided by the Statute. This includes matters of substantive issues, preliminary, ancillary and interlocutory issues, and as such, it must have jurisdiction to deal with the application that goes before it.
  7. In this instance where the District Court makes an order for variation of a maintenance order, when there are no clear powers enabling this court to vary its own orders for maintenance of a child, can it usurp such powers and make such variations, as in this case? To my mind, I find that, it is a jurisdiction this court yearns to have, in the absence of such a provision for variation as compared to s.110 (2) which allows for variations of a maintenance order for a spouse, this court would erroneously make an order for variation pursuant to an application filed under s. 110 of the LPA. Although S.42 of the Lukautim Pikinini Regulation allows for applicants to file application for variation of maintenance orders for a child, the Court must be invoked of that jurisdictional basis to deal with the application for variation properly. This is by filing applications correctly to make those orders for variations, otherwise, if the application is founded on the wrong law, it must not be dealt with, until the jurisdictional defects are cured, or in the event that it is dealt with, it can be set aside.
  8. This Court notes that, on the application for variation of maintenance orders filed on 09th February 2019, the heading is titled IN THE MATTER OF MAINTENANCE VARIATION UNDER SEC. 110 OF LPA. I find this application misconceived and is actually improper. This is because none of the provisions under S.110 gives this Court the jurisdiction to deal with an application for variation of an order made by the District Court in the first instance.
  9. In such exceptional circumstances, can this Court revisit the earlier decision of 23rd October 2019, and set it aside? This Court is of the view that, where there is a glaring error of law, the Court must ensure that it is fixed. The proper thing for this Court to do is to set aside the Warrant to Commit the Defendant to Prison. If the complainant intends to vary the orders for variation, the proper application should be filed invoking the proper jurisdiction. As I noted earlier, from the history of the court file, the initial Application for Variation filed was pursuant to s.110 of the LPA. The orders of the Court were then made under s.42 of the Lukautim Pikinini Regulation 2016, which to my mind is also wrong, as it only provides for an application to be filed for variation in accordance with the District Court Act.
  10. This Court is of the view that the procedures and the process, and the mode of which the Court proceeded to hear the application for variation is completely wrong and irregular. I say this because, if this Court is to deal with an Application to Commit the Defendant, then the orders of 23rd October 2019, have to be properly and regularly obtained. It is improper for an application for variation of a child maintenance order to be made under s.110, and for the Court to then make an order under s. 42 of the Regulation, when the application is not properly before the Court. This tantamount to orders made irregularly and are not properly founded in law. It is tantamount to abuse of process and, the practice and procedures.
  11. The process that should have been properly followed are as follows;
    1. The complainant must file an Application for Variation of Maintenance Orders pursuant to s. 42 of the Lukautim Pikinini Regulation 2016.
    2. The application is then heard by the Magistrate, and determined, and if satisfied, the Magistrate then should make an order for Variation pursuant to s.22 of the District Courts Act.
  12. I also note that the Court did not also make an order for an amendment to the application for variation. I am therefore of the view that, if I am to commit the defendant to prison, it would base on an order erroneously made by this Court, based on an application founded upon wrong law. There is no discretion in matters and procedures prescribed by statute, and it would be injustice after having noticed such error, to turn a blind eye and commit the defendant to prison.
  13. I also note that the Magistrate has powers under s.138 of the District Courts Act to amend the forms when a summons or complaint comes before him. In this case, it is not a summons or a complaint, but an application, and as such, s. 138 is not applicable for the Magistrate to exercise that discretion. It is simply irregular, and improper, as the matter is not concerning an information based on a summons or a complaint. I cannot see a reason why orders made pursuant to an erroneous application which yearns for jurisdiction can be allowed to stand.
  14. The principles surrounding the jurisdiction of a District Court to set aside or revisit its earlier orders are not established under the District Court Act. Rather, the only jurisdictional basis in which this court can set aside the earlier orders may only be done so, pursuant to s. 22 of the District Court Act.
  15. I am of the view that, if the court has made orders which are interlocutory in nature such as this, and have been made on erroneous legal principles, this court on such glaring and identifiable error, can revisit the orders, and set it aside pursuant to s. 22 of the District Courts Act, as the interest of justice would dictate so.
  16. At this juncture, I find that it is only proper for me to revisit the initial orders of 23rd October 2019, and establish that the orders made on an application that was based on the wrong law, and thereby the rendering the orders irregular, and as such, it means that the Orders of 23rd October 2019 are vague, and consequently, I decline to commit the defendant to prison.
  17. I also note the reasons forwarded by the defendant – respondent in this application of the difficulty poised in further deducting his salaries, and the procedural and jurisdictional errors resulting in the variation orders. For those reasons, I would deny the application to commit the defendant to prison and set aside the orders.

THE COURT HEREBY ORDERS THAT:


  1. Pursuant to S. 22 of the District Courts Act, the Orders of 23rd October 2019 is hereby set aside, and orders of 04th April 2017 shall remain in force.
  2. The Application to Commit the Defendant to Prison, filed on 20th August, 2020 is declined.
  3. The Defendant is at liberty to file another fresh application for variation of the Court Orders of 04th April 2017, pursuant to s.42 of the Lukautim Pikinini Regulation 2016, and such application shall clearly cite the provision and the Regulation for the Court to invoke its proper jurisdiction so as to deal with the application properly.
  4. Cost are to be borne by parties.
  5. Time is abridged.

BY THE COURT.


[1] Jeffrey v Yapo [1999] PGNC 137; [1999] PNGLR 89 (23 April 1999)


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