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Buis v Woruba [2022] PGDC 45; DC8088 (16 June 2022)

DC8088

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS FAMILY JURISDICTION]


FC No. 61 of 2017


BETWEEN


CATHERINE BUIS
Complainant


AND


DEANE WORUBA
Defendant


Port Moresby: Mr. Seth Tanei (Magistrate)


2022: 16th of June


CIVIL – Application to bar Complainant from Enforcement of Maintenance Orders – S 22 and 25– District Courts Act – s 39(2)– Maintenance Orders Enforcement Act 1970 – Enforcement ceased in Australia – Application refused


CIVIL – Application to Order Paternity Test – s S22 of the District Courts Act, s 71 (2)(a)- Child Welfare Act – Repealed Act - Court has no jurisdiction to deal with application after paternity was resolved during substantive hearing – Application refused.


Cases Cited


Peter v Kuma [2003] PGDC 45; DC682


References


Legislation


District Courts Act
Maintenance Orders Enforcement Act 1970
Child Welfare Act 1961 (Repealed)
Lukautim Pikinini Act 2015


Counsel

The Complainant in Person

Namani, H., Mr and Waka, J., Mr. – For the Defendant


RULING

16th June 2022


S Tanei (Magistrate): The Defendant filed an Application through a Notice of Motion dated 2nd May 2022.


  1. The Notice of Motion is set out in the following terms;
    1. Pursuant to Section 22 and Section 25 of the District Courts Act, the Attachment of Earning Order dated 12th August 2021 be dismissed pursuant to section 39 (2) (a) of the Maintenance Orders Enforcement Act 1970 and the Complainant be barred from commencing any other enforcement proceeding in Papua New Guinea.
    2. Pursuant to Section 22 of the District Courts Act and Section 71 (2) (a) of the Child Welfare Act 1961, the child N’drewak Buis, who is the subject of this proceeding shall be subjected to a Paternity Test at the Pacific International Hospital within seven (7) days.
    1. Any other order the Court deems fit.
    1. Costs
    2. Time is abridged.
  2. This is my ruling on the application.

FACTS:


  1. On 6th June 2017, the Family Court in Port Moresby made Orders for maintenance against the Defendant.
  2. The Defendant was present in Court when the Orders were made on 6th June 2017.
  3. The Defendant claims that these Orders were enforced in Australia and so the Complainant is not entitled to enforce them in PNG.
  4. The Defendant also wants the Court to order a paternity test so he could confirm that he is the father of the child.
  5. On 12th May 2022 the Court heard the application. It was then adjourned for continuation of hearing on 19th May 2022 when the Complainant asked for an adjournment to file an Affidavit in reply.
  6. This is my ruling after hearing submissions from both parties.

ISSUES:


  1. The Court is faced with the following issues;
    1. Whether the Defendant should be barred from enforcing the Court Order in Papua New Guinea?
    2. Whether the child that is the subject of this proceeding should be subjected to a Paternity Test.

THE LAW


  1. Section 22 of the District Courts Act provides that;

22. GENERAL ANCILLARY JURISDICTION.

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it–

(a) grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b) give the same effect to every ground of defence or counterclaim, whether equitable or legal, as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.


  1. Section 25 of the District Courts Act provides that;

25. EX PARTE ORDER MAY BE SET ASIDE.

A conviction or order made when one party does not appear may be set aside on application to the Court on such terms as to costs or otherwise as the Court thinks just, and the Court, on service on the other party of such reasonable notice as the

Court directs, may–

(a) proceed to hear and determine the information or complaint in respect of which the conviction or order was made; or

(b) adjourn the hearing and determination of the hearing to such time and place as it thinks fit and direct such notice of the adjourned hearing as it thinks fit to be given to a party.


  1. Section 39 of the Maintenance Orders Enforcement Act 1970 provides that;
    1. ENFORCEMENT OF PAPUA NEW GUINEA MAINTENANCE ORDERS IN RECIPROCATING COUNTRIES.

(1)[6] [7]Where a Papua New Guinea order is presently enforceable in Papua New Guinea and it appears to the Collector that the defendant is resident in, or proceeding to, a reciprocating country, the Collector may send to the Attorney-General–

(a) three certified copies of the Papua New Guinea order; and

(b) a collector’s certificate relating to the Papua New Guinea order; and

(c) such information and material (if any) as the Collector possesses for facilitating the identification, and ascertaining the whereabouts, of the defendant; and

(d) a written request that the Attorney-General seek to have the Papua New Guinea order made enforceable in that reciprocating country,

and the Attorney-General shall, on receipt of those documents, transmit, or cause to be transmitted, the documents referred to in Paragraphs (a), (b) and (c) to the reciprocating country concerned, with a written request that the Papua New Guinea order be made enforceable in that country.

(2) Where, in pursuance of a request under Subsection (1), a Papua New Guinea order is made enforceable in a reciprocating country–

(a) the order ceases to be enforceable in Papua New Guinea; and

(b) the order remains unenforceable in Papua New Guinea until it ceases to be enforceable in that reciprocating country; and

(c) any warrant or other process under this Act arising out of the order and previously issued in Papua New Guinea, but not executed, ceases to have effect.

(3) This section does not apply to or in relation to an order of a kind referred to in Paragraph (b) or (d) of the definition of “maintenance order” in Section 1, or an order under Section 54 of the Child Welfare Act 1961, where the order relates to an illegitimate child or to the mother of an illegitimate child, unless the defendant appeared in the proceedings in which the court adjudged him to be the father of the child, or was duly served with a summons to appear in those proceedings or consented to the making of the order made in those proceedings.


EVIDENCE

  1. The Defendant relied on the Affidavit in Support of Deane Woruba. In that Affidavit, the Defendant stated the fact that the Complainant had tried to enforce the Maintenance Orders of 6th June 2017 in Australia. However, he has since moved back to PNG. He also stated that he enquired as to the costs of a Paternity Test and he would like the child the subject of this proceeding to be subjected to a Paternity Test.
  2. The Complainant relied on her Affidavit filed on 12th May 2022. She states that the Maintenance Order in this proceeding is no longer being enforced in Australia. She stated that the case was removed from the Register in Australia. This was supported by a letter from the Child Support Services in Australia dated 22nd July 2020.

SUBMISSIONS


  1. During submissions, Mr. Namani and later Mr. Waka of Counsel for the Defendant submitted that firstly, the Maintenance Orders of 6th June 2017 were being enforced in Australia and by virtue of section 39 (2) (a) of the Maintenance Orders Enforcement Act, the Complainant is not entitled to pursue the claim in Papua New Guinea.
  2. They also submitted that the Complainant is not entitled to claim unpaid arrears for the amount that was to be enforced in Australia. This is because the Defendant no longer resides in Australia and the Australian Child Support Services have removed the case from the Register as well as the arrears amount of AUD $ 34, 045.87.
  3. The Complainant on the other hand submitted that she is entitled to pursue enforcement of the Court Order of 6th June 2017 in Papua New Guinea because this Order is no longer being enforced in Australia by virtue of the letter of 22nd July 2020 from the Australia Child Support Services.

DISCUSSION OF ISSUES

  1. Whether the Defendant should be barred from enforcing the Maintenance Orders of 6th June 2017 in Papua New Guinea?
  1. Item 1 of the Notice of Motion filed by the Defendant seeks two Orders. First it asks the Court to dismiss the attachment of earnings order of 12th August 2021 pursuant to sections 22 and 25 of the District Courts Act. However, I note from the submissions from Counsel that this particular order is not being sought. There were no submissions from Counsel in relation to this.
  2. Hence, I will not make any ruling on this but infer from conduct of counsel that they have abandoned this part of the application.
  3. Section 39 (2) of the Maintenance Orders Enforcement Act is explicit. Section 39 (2) (a) provides that a maintenance order shall not be enforced in this country if it is being enforced in another country while section 39 (2)(b) provides that it can be enforceable if it ceases to be enforced in another country.
  4. From the evidence provided by the Complainant, the Maintenance Orders of 6th June 2017 are no longer being enforced in Australia. The letter from the Australian Child Support Services of 22nd July 2020 is sufficient evidence to show that.
  5. The letter showed that the case was removed from the Australian Register. This includes the arrears of AUD $ 34, 045.87.
  6. I agree with Mr. Waka of Counsel for the Defendant that the Complainant is not entitled to pursue arrears for the period that the claim was being enforced in Australia. This is because the arrears amount is removed from the Australian Register.
  7. However, in relation to the issue that is at hand, it is my view that the Complainant is entitled to pursue the Maintenance Order in PNG as it has ceased to be enforceable in Australia.
  8. I will therefore refuse the application to bar the Complainant from commencing any enforcement of the maintenance orders of 6th June 2017 in Papua New Guinea.
    1. Whether the child the subject of this proceeding should be subjected to a paternity test?
  9. The Defendant also asked the Court to order the child that is the subject of this proceeding to be subjected to a paternity test at the Defendant’s cost.
  10. It is my view that the application must fail for two reasons.
  11. Firstly, I had a look at the full record of this proceeding, particularly the endorsements of 6th June 2017 and I note that the Defendant was present in Court on 6th June 2017. On that day, he told the Court that he had no issues with paternity and that he is the father of the child and as such Maintenance Orders were made. The issue of paternity has been resolved then.
  12. I have no power to revisit the evidence because the substantive matter was heard and a substantive ruling was made by this Court.
  13. To Order a paternity test would mean revisiting evidence or going back and dealing with evidence relating to a substantive order made after hearing both parties. As such, I am reluctant as I am bound by law and practice not to do that.
  14. Secondly, the Child Welfare Act 1961 was repealed by section 121 (a) of the Lukautim Pikinini Act 2015. This means that the Child Welfare Act 1961 ceases to be in operation and is not in force. Thus, the Defendant is not allowed to make an application under any provision of this legislation.

CONCLUSION


  1. The views expressed above lead me to the following conclusions;
    1. The Complainant shall not be barred from enforcing the Maintenance Orders of 6th June 2017.
    2. The child that is the subject of this proceeding shall not be subjected to a Paternity Test.

COURT ORDERS


  1. The following are the formal orders of the Court;
    1. All Orders sought by the Defendant in his Notice of Motion dated 2nd May 2022 are refused.
    2. The Defendant shall bear the costs of this application.

Lawyer for the Complainant: Complainant in Person

Lawyer for the Defendant: Namani & Associates Lawyers

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