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Kende v Kende [2022] PGDC 38; DC8049 (14 April 2022)

DC 8049

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY JURISDICTION]

FC No. 190 of 2021
BETWEEN

DIANNE KENDE
Complainant


AND

MAX KENDE
Defendant


Port Moresby: Seth Tanei


2022: 14th of April
      

CIVIL – Application for Maintenance Orders – Objectives and Underlying Principles of the Lukautim Pikinini Act 2015 – s 108 and s 109, s 113 – Lukautim Pikinini Act 2015.


CIVIL – Complainant seeks maintenance for herself and her adopted Child – Interest of Child is of Paramount Concern – Child left without means of support – Application granted.


Cases Cited


Dini –v- Tekwie [2021] PGDC 178; DC7036
Puri v Puri [1993] PNGLR 451
Woodman v Undai [1999] PGNC 62; N1868


References


Legislation


Lukautim Pikinini Act 2015


Counsel

The Complainant in Person

The Defendant in Person

RULING

14th April 2022

S Tanei: This is a claim for Maintenance. Through a Complaint dated 18th June 2021, the Complainant sought Orders for Maintenance of herself and their adopted child against the Defendant.


  1. On 28th March 2022 the matter went for trial.
  2. This is my ruling on whether the Court should grant maintenance orders against the Defendant.

FACTS:


  1. The Complainant says that she married the Defendant through custom on 13th April 2006. They adopted a female child namely Hamago Kende. She was born on 5th May 2011. She has been living with the Complainant and the Defendant ever since she was born and adopted.
  2. She said that in January 2021, the Defendant left them without any means of support.

ISSUES:


  1. The Court is faced with the following issue;
    1. Whether the Complainant and her adopted child are entitled to Maintenance by the Defendant?

THE LAW


  1. The Complainant seeks Maintenance Orders under Sections 108 and 109 of the Lukautim Pikinini Act 2015.
  2. Sections 108 and 109 of the Lukautim Pikinini Act 2015 provides that;

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 106 of the Lukautim Pikinini Act 2015 provides that;

106. COURT PROCEEDINGS AFTER BIRTH OF CHILD.


(1) Where a child has been left without means of support, a complaint may be made, in accordance with this Part in the Family Court -

(a) by the mother of the child; or

(b) by the Director; or

(c) by a person authorised in writing by the Director to make a complaint under this Palt; or

(d) by an affected person by leave of the Court.


(2) A complaint under this section shall -

(a) be in writing and made on oath; and

(b) state-

(i) the name of the mother of the child; and

(ii) the name of the child; and

(iii) the name of the father of the child; and

(iv) that the person named as the father or mother of the child has left the

child without means of support; and

(c) be in the form as prescribed in the District Courts Act (Chapter 40).


  1. In the case of Dini v Tekwie [2021] PDGC 178; DC7036, my Brother Magistrate, His Worship Mr. Baptist Fehi deliberated on the principles and purposes of the Lukautim Pikinini Act 2015. He held that the most important consideration in maintenance proceedings is the welfare or the best interest of the child. Any decision the Court makes must be made with the best interest of the child in mind. I adopt these principles.
  2. Here, the Complainant must also show that the Defendant;
    1. Is the father of the child in question and he has;
    2. Left the child without any means of support.

EVIDENCE

  1. At the hearing, the following Affidavits were tendered into evidence;

Complainant’s Affidavits

  1. Affidavit of Dianne Kende filed on 18th June 2021 (Exhibit “C 1”)
  2. Affidavit of Dianne Kende filed on 2nd August 2021 (Exhibit “C2”)

Defendant’s Evidence

  1. Affidavit in Max Kende filed on 15th October 2021 (Exhibit “D1”)
  2. Affidavit of Max Kende filed on 22nd July 2021 (Exhibit “D2”)

DISCUSSION ON EVIDENCE

Complainant’s evidence

  1. In her evidence, the Complainant said that she and the Defendant got married though custom in 2006. She found out later that the Defendant had other relationships and had four (4) children of his own. However, she took them in and looked after them as their own.
  2. She said that in 2011, they adopted a female child from her side of the family namely Hamago. She was born on 5th May 2011. She has always been with them but she goes and spends time with her biological parents as well.
  3. The Complainant also said the Defendant’s behaviour started to change in 2020. They had an argument on 6th December 2020 and the Defendant went out and did not come back. She tried to save their relationship by going to the Welfare Office but this did not change the Defendant’s mind.
  4. In January 2021, the Defendant left her and their adopted child and went away without any means of support.

Defendant’s evidence


  1. On the other hand, the Defendant denies the Complainant’s claim and says she is not entitled to what she is seeking.
  2. He does not dispute marrying the Complainant but he says that his marriage with the Complainant was dissolved on 15th June 2021 by the NCD Peace Mediation Centre at Boroko.
  3. He says that the Complainant does not look after his children well which resulted in one of them dying and others being ill and performed badly in school. Despite that he had helped the Complainant and her family a lot physically and financially.
  4. He says that the child being referred to in this proceeding spends most of her time with her biological parents and not with them and as such she is not adopted.

FINDING OF FACTS


  1. The evidence in this case will be weighed on the balance of probabilities as it is settled law in this jurisdiction for civil cases.
  2. I find from the evidence that the Complainant and the Defendant were married through custom in 2006. That is confirmed in the Affidavit of the Complainant and the Affidavit of the Defendant filed on 22nd July 2021. The Defendant in his other Affidavit (Exhibit D1) tries to change the story by saying he has not paid any bride price or performed any customary rite.
  3. I also find from the evidence that the purported dissolution of marriage by an Office called NCD Peace Mediation ADR dated 1st May 2021 is not binding as it is only a recommendation from them to dissolve the marriage and not a Court Order from a Village Court. In the case of Woodman v Undai [1999] PGNC 62; N1868, the Court held that the Village Court generally has the Power to dissolve Customary Marriages pursuant to sections 47, 57 and 68 of the Village Courts Act. I did not find any Certificate of Dissolution of Customary Marriage by and village Court.
  4. I find that the Defendant and Complainant adopted the child Hamogo Kende from the Complainant’s elder sister and her husband when the child was born on 5th May 2011. The evidence does not show any dispute regarding the adoption of the child before 2021.
  5. I find that while he confirmed the fact that there was a customary marriage and that he and the Defendant adopted a female child namely Hamago, the Defendant later tried to deny the fact that he married the Complainant through custom and challenged the adoption of the child.
  6. From his Affidavits, I find that the Defendant left the Complainant and their adopted child in January 2021. There was no further mention of his biological children by himself and the Complainant.

APPLICATION OF THE LAW TO THE FACTS

  1. Section 106 (1) of the Lukautim Pikinini Act 2015 provides that the Complainant must show that the child was left without means of support.
  2. While the Complainant relied on sections 108 and 109 of the Lukautim Pikinini Act 2015, the correct provision in relation to maintenance for an adopted child is section 113 of the Act.
  3. It is my view that I have the discretion to invoke provisions of this Act as it seems fit based on what is before the Court. This is because section 95 of the Lukautim Pikinini Act 2015 allows the Family Court to deal with Family Court proceedings in an informal manner and also to proceed without regard to legal forms.
  4. I will therefore deal with this proceeding as it was commenced under Section 113 of the Lukautim Pikinini Act 2015.
  5. Section 113 of the Act gives the power to the Family Court to deal with applications relating to Maintenance of Adopted Children.
  6. From the evidence, the parties were married through custom in 2006 and lived as a married couple for 15 years. The child that is in question was born on 5th May 2011. There is no evidence to show that the Defendant disputed her adoption. She lived with them until 2021.
  7. In my view, it is normal in PNG societies for relatives to give away children to their relatives who are unable to bear children of their own without going to Court to obtain formal documentation. These children are looked after by their adopted parents as their own. They use their adopted parents’ surname and identify themselves as children of their adopted parents. The society recognises them as children of their adopted parents. In the case of Puri v Puri [1993] PNGLR 451, the National Court recognised customary adoption through recognition by the community or society.
  8. This happens to be the case in this proceeding. The child Hamogo Kende was adopted without formal documentation but was adopted with the Defendant’s consent and recognition from their families.
  9. Having found that the child was customarily adopted, the Court must now turn to find out whether the child’s best interest is at stake. As stated in the case of Dini v Tekwie [2021] PDGC 178; DC7036, the most important consideration is the welfare of the child and or the child’s best interest and that the child was left without means of support.
  10. When I apply the principles in the cases and the provisions of the law to the facts, I find that indeed the Defendant is the Adopted father of the child in question and he has left the Complainant and their customarily adopted child namely Hamogo Kende without means of support. Her well-being will be affected if the Defendant cuts himself off from providing for her needs.
  11. I am also of the view that the marriage was not properly, legally and customarily dissolved and as such the Complainant is the legal wife of the Defendant. Hence, she is entitled to maintenance under section 109 of the Lukautim Pikinini Act 2015.

CONCLUSION


  1. From the above, the Court is satisfied that the Defendant has left the Complainant and their adopted child without any means of support.

COURT ORDERS


  1. The following are the formal orders of the Court;
    1. Pursuant to section 113 of the Lukautim Pikinini Act 2015, the Defendant shall pay maintenance for the Child namely Hamogo Kende born on 5th May 2011 a sum of K 150 per fortnight.
    2. Pursuant to section 109 of the Lukautim Pikinini Act 2015, the Defendant shall pay maintenance for the Complainant’s use a sum of K 100 per fortnight.
    3. The maintenance order shall be attached to the Defendant’s Salary Section at his place of employment for deduction into the Complainant’s bank account at Bank South Pacific with account number 10004443947.
    4. This Order for maintenance is backdated to 2021 when the Defendant deserted the Complainant and their child.
    5. The Defendant shall meet the costs of education and medical expenses for the child as and when they fall due.
    6. The child Hamago Kende is entitled to the Defendant’s recreational leave tickets and other entitlements.
    7. Pursuant to Section 102 of the Lukautim Pikinini Act 2015, the Custody of the Hamago Kende is given to the Complainant while the Defendant is given reasonable access.
    8. These Orders are effective and are enforceable until the child turns 18 years old or if the child dies or completes school or if these orders are varied or discharged by a Court of Competent Jurisdiction.

Lawyer for the Complainant: Complainant in Person

Lawyer for the Defendant: Defendant in Person

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