PNG Law Reports 1993
[1993] PNGLR 163
N1144
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
THOMAS URATA
V
HILDA CHRIS
Kimbe
Doherty J
3 February 1993
MAINTENANCE ORDERS ENFORCEMENT ACT - Must be an application to commit to prison, per s 4(1).
Facts
The appellant was sentenced to 6 months imprisonment in hard labour for failing to pay maintenance. He appealed against his sentence and applied to the court pursuant to s 42(5) of the Constitution on the grounds he was unlawfully or unreasonably detained. The appellant argued that he could not be committed for imprisonment without an application to do so under Maintenance Orders Enforcement Act Ch 279 and, secondly, being unemployed without any means or ability to pay maintenance, he could not justifiably be imprisoned under a piece of legislation which did not exist at the material time, contrary to s 37(2) of the Constitution.
Held
1.       There was no application per s 4(1) Maintenance Orders Enforcement Act Ch 279 to commit the appellant.
2.       The appellant was purportedly imprisoned under an act which did not exist, which is contrary to s 37(2) Constitution.
3.       There was no evidence of his means or ability to pay.
4.       He was sentenced on a plea of guilty when he had raised issues that should have put the Court on its guard.
Counsel
A E Raymond, for the appellant.
E Papala, for the respondent.
3 February 1993
DOHERTY J: The defendant appeals against the decision of the District Court at Kimbe imprisoning him for a term of six months in hard labour. The warrant of commitment on the CIS records states as follows:
"Whereas on this date the 14th of May 1992, in the District Court held at Kimbe, it was ordered/charged that Thomas Urata of Poinini Block Kimbe WNBP having charged for failing to comply with the District Court Order in the sum of K2,260.00 being for payment of arrears under the provision of s 4 of Maintenance Order and Enticement Act be imprisoned for a term of six months in hard labour unless the said sum of K2,260.00 is paid sooner". [sic]
The heading of the warrant also notes that the defendant is convicted for "unpaid compensation".
The background to this order is, at best, confused. The defendant was committed to prison on 18 January 1993, not on 14 May 1992, as might be thought in the light of the order I have read. There is no clear reason why there is such a gap in time.
The appellant was summonsed under the provisions of the District Court Act Ch 40 on a complaint which alleged that "he fail to comply with the Court order of June 1982 and is now in arrears of K2,260.00 being two hundred and twenty-six (226) fortnights maintenance from the 5th of August 1983 to the 3rd of April 1992" [sic]. The complaint was lodged by Hilda Chris and is not a sworn complaint. A summons was then issued, pursuant to s 56 of the Child Welfare Act Ch 276, in which it is alleged that the defendant is the father of an illegitimate child born in April 1982 and has left it without means of support. The court depositions in the District Court show a hand written notation at the bottom of the complaint as follows:
"NB: This was not a Court order and was not registered in the Children's Court".
That notation is not signed. I am informed that it was made by a magistrate at the court.
The defendant appeared before the District Court on 28 April 1992. The complainant did not appear. The heading of the "record of civil matters" does not distinguish whether it was a District Court or a Local Court hearing.
The record shows that the appellant said in answer to the complaint, "That is true, but the Welfare Officer Kila had told me to stop pay maintenance so I stop paying maintenance". [sic]
Then there is an entry, "Plead not guilty. Matter set for hearing 14/05/92". The record on 14 May 1992 shows that it was a hearing of the District Court. The defendant/appellant again appeared. Again, there was no appearance by the complainant. Again, the complaint was read and the appellant is recorded as saying, "I use to pay the fine but the woman, misuse the money so I stop payment". [sic]
He is recorded as being "guilty" and his antecedents as being married with three children and unemployed. The Court then ordered that he pay the sum of K2,260.00 within 30 days, in default of which he would be imprisoned for six months.
This is the entire record in the District Court. It will be noted that the complaint was lodged under the District Court Act, the summons under the Child Welfare Act, and the warrant and commitment under a provision of an act that does not exist and which I presume is intended to be the Maintenance Orders Enforcement Act Ch 279.
In the appeal before me, an affidavit of the clerk of Court at Kimbe was produced stating that the Clerk maintains a record and there is no record of any child maintenance order registered either in the name of Hilda Chris, an aunt of the child, or Mathilda Augustine, the natural mother, against the appellant Thomas Urata. The Clerk of Court goes on to say that there is no court order and that it was not registered in the Children's Court. There is also a statutory declaration from Esther Papaia, a welfare officer with the Department of Home Affairs, Youth and Culture in Kimbe dated 13 May 1992 stating that she has examined the records of maintenance for the child, Gladwin, and there is no written document indicating that a welfare officer advised Thomas Urata to cease paying maintenance. She also states that the last payment made by the appellant was on 11 July 1983. It will be noted that this affidavit is dated one day before the hearing, but there is no record whether it was considered by the Court or served on the defendant/appellant or read to him.
There was also a statement of fact signed by Hilda Chris. This is in Tok Pisin, but the facts show that she is the aunt of the child, Gladwin, who was born to her sister in September 1982 (other documents show the child was born in April 1982). She has looked after Gladwin, who is now of school age, and has been feeding and clothing him and paying his school fees. The mother has married another man, who is not prepared to permit Gladwin to stay with his natural mother. Hilda Chris states that there had been "court bilong maintenance", that Thomas agreed to pay K10 per fortnight, and that the record of the welfare office shows that he started to pay this maintenance in June 1982 but stopped in July 1983 and has made no payments since. At no point does she apply for imprisonment per s 4(1) of the Maintenance Orders Enforcement Act Ch 279 or give the facts about the defendant's means and ability required under s 5(1). There is no application under s 8 Deserted Wives and Children Act Ch 277.
This combination of facts leads to an impression that there may have been an agreement drawn up between the appellant and the natural mother by the Department of Welfare in 1982 concerning maintenance. As a result, we have requested the officers of the Department of Home Affairs, Youth and Culture to come and assist in clarifying the situation. They have done so and have also voluntarily made their file available, waiving any privacy or privilege claims concerning it.
It shows that there was, in fact, a Local Court order made in 1982. The appellant says he never appeared in such a court and has no record or knowledge of such an order. The record shows that it was a Local Court order, that a summons was filed under the Deserted Wives and Children Act, and that the complaint was lodged under the Child Welfare Act.
It is clear from the supporting affidavit dated 11 May 1982 by Mathilda Augustine, who says she is the natural mother of the child, that she had a relationship with the appellant which resulted in the pregnancy. She at no point alleges that they were married, either in law or in custom, so I do not know how an order could be made pursuant to the Deserted Wives and Children Act, as there is no proof of a customary marriage to extend the jurisdiction of the Local Court pursuant to s 17 of the Local Court Act Ch 41.
The parties before me do not challenge the fact that the children named Chris Thomas and Gladwin, referred to in the affidavit of Hilda Chris, are one and the same child. It is clear to me also that the original order of 1982 has never been appealed, varied, or suspended in any way.
There is no evidence before me that Hilda Chris was empowered by the Director of Child Welfare under s 59 of the Child Welfare Act to bring proceedings under s 56 of the Child Welfare Act. In any event, there was already an order for maintenance in the Local Court, and if there was to be enforcement proceedings, it should not have been under s 56 of the Child Welfare Act.
It would appear from the transcript that the learned Magistrate intended to proceed under the Maintenance Orders Enforcement Act, but at no point in the proceedings is that act mentioned, nor has it been made clear to the defendant from the summons or the complaint that the defendant was liable to face a term of imprisonment. The complaint seeks an order for payment of arrears; at no point does the complainant make any application that the appellant be imprisoned. Similarly, there is no information before the Court pursuant to s 5 and s 66 of the Maintenance Orders Enforcement Act setting out the information that the defendant/appellant had the means to pay maintenance and was deliberately refusing or avoiding to do so. In fact, the antecedents say he was unemployed.
The defendant did raise what might be called a defence before the learned magistrate that he had been advised to stop paying the maintenance and that the maintenance was being misused. Witnesses should have been called and there should have been a proper hearing to clarify the situation. There is also a suggestion from the handwritten notation I have quoted plus the records that were within the control of the Clerk of Court that there may not have been an order at all for this case, and this should have put the learned magistrate on his guard prior to committing the defendant to prison. For these reasons alone, I consider that there has been a grave miscarriage of justice. I am prepared to uphold the appeal and accede to the submission of counsel for the appellant that he be released pursuant to s 42(5) of the Constitution.
The whole proceedings in this matter are, to put it boldly, a mess. Five different pieces of legislation have been referred to in the proceedings, and none of them has been used correctly. The defendant has been convicted and imprisoned under a piece of legislation that does not exist, and this is clearly a breach of s 37(2) of the Constitution.
The fact remains that the defendant, in his own affidavit and in this Court, makes it quite clear that he is the father of this child. As such, he has a duty, both legally and morally, to support his child. The law makes it clear that it is a criminal offence not to support your own child when you are able to do so (s 22, Deserted Wives and Children Act; s 362, Criminal Code Act Ch 262). He says that the money was being misused. There is no suggestion that this child has starved to death, nor been running naked upon the streets in the past ten years. Someone has looked after him and raised him and is now anxious that he gets an education.
The applicant wanted financial help to support the child, and there were adequate legal means to enforce the original order. It assists no one to put a person in already overcrowded jails when the purpose of the case is to achieve a quite different end. The court should not imprison when there was no application to do so. Section 4(1) of the Maintenance Orders Enforcement Act requires such an application.
Mrs Raymond, on the behalf of the appellant/defendant, has said he is willing to pay the maintenance originally agreed of K10.00 per fortnight. By consent, I order that he do so. He is also willing to pay some amount towards the arrears. He says that he is running a small trade store and his income fluctuates but he is willing to pay about K2.00 a fortnight. I will, therefore, order by consent that he pays the K10.00 per fortnight maintenance plus K2.00 to K3.00 per fortnight in arrears. 
Lawyer for the appellant: Warner Shand.
For the respondent: Director of Child Welfare.