[1998] PNGLR 338

PAPUA NEW GUINEA

[national court of justice]

EVELYN BETSY ZITA WONG

v

DANIEL YIN MO WONG

lae, goroka: sawong j
13 May and 18 June 1998

Family Law - Maintenance - Maintenance of children - Matrimonial property - Settlement of Matrimonial Property.

Facts

The petitioner sought orders from the court asking for certain reimbursements for costs which had arisen during the time when the petitioner and respondent had been living together as husband and wife. These reimbursements included:

•	claims for outstanding telephone bills;

•	claim for the return of bus or the refund of K6,000.00;

•	reimbursement of school fees for one of the two children born out of the relationship; and

•	Maintenance for the two children of K200.00 per fortnight.

Held

1.	Under s 75(1) and (2) of the Matrimonial Causes Act (Ch. No. 282) the court has the power to make orders with regards to the settlement and distribution of property which it deems to be just and equitable.

2.	The power given to the court under s 73(1) of the Matrimonial Causes Act (Ch. No. 282) is a discretionary power to be exercised on proper principles. The principles, which have been established, include:

a)	both mother and father must contribute equally to the maintenance of the child;

b)	each application for maintenance must be determined on its own facts and circumstances;

c)	that in having regard for the circumstances of each individual case the court must have regard to the parties means or ability, earning capacity, conduct of the parties to the marriage and all other relevant factors.

Papua New Guinea cases cited

Jacobs v Jacobs (No. 2) [1976] PNGLR 572.
Kiruhia v Kiruhia [1992] PNGLR 30.

Counsel

L A Dacre, for the petitioner.
C Inkisopo, for the respondent.

18 June 1998

Sawong j. On 13 May 1998, by consent of the parties I made the following orders: 

1.	That a decree nisi dissolving the marriage between the petitioner and the respondent be granted.

2.	The petitioner shall have custody of the children Craig Edward Wong born on 8 November 1983 and Donika Doreen Wong born on 31 December 1984.

3.	The respondent shall have unlimited access to the said children.

4.	No maintenance is to be paid to the petitioner.

5.	The claims for the maintenance of the said children and the claims for the settlement of the matrimonial property of the parties are adjourned to 1:30 pm on 13 May 1998.

When the Court resumed at 1:30 pm on 13 May 1998, the parties informed the court that they were unable to settle the matters set out in paragraphs of the orders which is set out above.

The parties also informed me that no further evidence would be called and that each of them would rely on the various affidavits that had been filed. The court then gave directions that the parties file written submission in relation to those contested issues. This they have done. I have read and considered carefully the evidence and the respective written submissions.

Essentially the petitioner’s remaining claims are for the divisions of matrimonial property and the maintenance of the two children. I propose to deal with these claims under those two headings.

There is really no dispute that the respondent has made no offer whatsoever for the division of the matrimonial property. Further he has offered K100 only per fortnight in maintenance for the two children of the marriage.

A.	Division of Matrimonial Property

Before I consider each of the claims, I think it is relevant to state the law. In that respect I consider s 75 (1) and (2) of the Matrimonial Causes Act, (Ch. No. 282) to be relevant. It is in the following terms:

"75.	Powers of Court with respect to settlement of property.

(1)	In proceedings under this Act, the Court may by order require the parties to the marriage, or either of them, to make, for the benefit of all or any of the parties to, and the children of, the marriage, such settlement of property to which the parties are, or either of them is, entitled (whether in possession or in reversion) as the Court thinks just and equitable in the circumstances.

(2)	In proceedings under this Act, the Court may make such order as the Court thinks just and equitable with respect to the application, for the benefit of all or any of the parties to, and the children of, the marriage, of the whole or part of property dealt with by ante-nuptial or post-nuptial settlements on the parties to the marriage, or either of them."

In my view the effect of these provisions are clear. In exercising its powers, the Court is to be guided by common sense, and what is equitable and just in the circumstances of a particular case.

I now deal with each of the heads of claims. Under this head of the claim, the petitioner is claiming:

(a)	The payment of orders for costs made by the National Court in previous applications. 

It is quite clear from the evidence that the respondent has not complied with these court orders. This is a serious matter, and it may well amount to contempt of the court. As the order for costs have not been set aside, it is still effective and binding. I do not have any evidence as to the amount of such costs, but it is quite clear that he has not made any payments. In the circumstances, I order and direct that the respondent pay these costs within 21 days from today.

(b)	Reimbursement of half the school fees paid by the petitioner for the child Raymond Denis Wong. 

In relation to this claim, there is no dispute that the petitioner paid the school fees for Raymond Denis Wong, amounting to K4,770.00. She was able to pay this by obtaining personal loans from friends. The argument put forward by the respondent that the school fees component of the contract of employment was only good and valid for as long as the parties remained married and remained in joint employment cannot hold. There is nothing in terms of employment that goes to even suggest that proposition. By no stretch of imagination can it be said that the school fees were to be paid only and only so long as the parties remain married and were jointly employed. Furthermore there is no evidence from the respondent disputing this aspect. The submission and or explanations raised by the respondent are misconceived and baseless. I do not accept the submission. I find that as the petitioner has paid this, she is entitled to the reimbursement of what she has paid, that is the sum of K2,385.00 by the respondent. In my view, this would be a just and fair way.

(c)	Claim for balance of outstanding telephone bills - K729.95

The telephone service is in the name of the petitioner. In her evidence she says she has paid off an estimated sum of K1400.00. In her submission it has been submitted that the outstanding balance of K729.95 be taken out by the respondent and he pay it off. The reason is advanced as to why the respondent should pay off the petitioner’s debt. This debt was incurred by the petitioner. All the evidence points to the fact that the telephone was the sole responsibility of the petitioner. There is evidence from the respondent that when he wanted to use the telephone he paid for it. In those circumstances, I am not prepared to grant the petitioner this claim.

(d)	Claim for return of bus or refund K6,000.00

In so far as this claim is concerned, the evidence is conflicting to some extent. However, there is no dispute that a Toyota Hiace 10 Seater Bus, registered No. RAB - 343 was bought by the parties. There is ample evidence to suggest that either the whole or part of the purchase price was borrowed from Credit Corporation. There is also clear evidence that the loan was in their joint names. It is also quite clear that repayments were made in the joint names of the parties. And the outstanding balance as at 19 July 1995 was K6,580.00. There is evidence that the total loan obtained by the parties was K12,160.00.

The difficulty I find myself is in regard to the transfer of the ownership of the vehicle to their eldest son. On the one hand, the respondent says that the vehicle was transferred by the parties to their eldest son as his 21st birthday present. On the other hand the petitioner says that was not the case, but that it was transferred to avoid the vehicle being repossessed by Westpac Bank. The problem with this argument is that all these letters between the respondent and the bank were between December 1997 and February 1998. This would be consistent with the respondent’s version, that the bus was indeed transferred to Darren Wong on his 21st birthday present, in 1995.

The evidence is further confusing because there is no evidence from Darren as to the circumstances of him being given the vehicle. And the parties have not fully disclosed when the vehicle was transferred to Darren. In those circumstances, I am not prepared to grant this claim in the amount she seeks. However, it is quite clear to me that as at January 1995, the parties were registered owners of the said vehicle, subject only to the rights of Credit Corporation. In view of the fact that the respondent has been unwilling to help the petitioner and the children with regard to providing as a parent and his general conduct, I would grant 50% of the amount she claims that is in the sum of K3,000.00. In the circumstances, I consider that is just and equitable.

B.	Maintenance of two children

In her petition for divorce, the petitioner has claimed maintenance for the two infant children of the marriage. There is no question that the children, Craig Edward Wong and Dorika Dorren Wong are children of a valid marriage between the parties. That being the case, the issue of maintenance, requires the consideration of the relevant law and the evidence. 

The proceedings in this case was instituted under the provisions of the Matrimonial Causes Act, for amongst other matters, divorce from statutory marriage and maintenance of the children. The National Court’s power in considering applications for maintenance is provided s 73(1) of the Matrimonial Causes Act, (Ch. No. 282), which is in the following terms:

"73.	Powers of Court in maintenance proceedings.

(1)	Subject to this section, in proceedings with respect to the maintenance of a party a marriage or of children of the marriage, other than proceedings for an order for maintenance pending the disposal of proceedings the Court may make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.

(2)	Subject to this section and to the Rules, in proceedings for an order for the maintenance of a party to a marriage or of children of the marriage pending the disposal of proceedings, the Court may make such order as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.

(3)	The Court may make an order for the maintenance of a party notwithstanding that a decree is or has been made against that party in the proceedings to which the proceedings with respect to maintenance are related.

(4)	The power of the Court to make an order with respect to the maintenance of children of the marriage shall not be exercised for the benefit of a child who has attained the age of 21 years unless the Court is of opinion that there are special circumstances that justify the making of such an order for his benefit."

It is quite clear that the National Court may make such orders as it thinks proper, having regard to the means, earning capacity and conduct of the parties to the marriage and all other circumstances.

The power given is a discretionary power to be exercised on proper principles. It is trite law in this jurisdiction that both the mother and father of a child must contribute equally to the maintenance of a child of the marriage. It is also equally trite law that in each case for an application for maintenance that must determine such an application on its own facts and circumstances. Furthermore, it is well established that in so doing the Court is entitled to consider and have regard to the parties means or ability, earning capacity, conduct of the parties to the marriage and all other (relevant) circumstances. This would include the applicant’s ability, income and expenses and his/her conduct. See Jacobs v Jacobs (No. 2) [1976] PNGLR 572.

In the present case, there is uncontested evidence that the respondent has not paid any maintenance for the welfare and upkeep of the two children since the parties were separated. There is also no dispute that each of the parties is gainfully employed and there is evidence of their incomes and liabilities. There is equally no dispute that the respondent is prepared to pay maintenance. The only dispute is as to how much should he pay. The respondent is willing to pay K50.00 per child per week, or K100.00 per fortnight. The petitioner says he should pay K50.00 per child per week or a total of K200.00 per fortnight.

In all the circumstances, I accept the evidence and submission from the petitioner. The respondent is living by himself, in the sense that there are no children of the marriage living with him for whom he is responsible to maintain. The petitioner on the other hand has the custody of the two children and she has to look after them. 

As Los J in Kiruhia v Kiruhia [1992] PNGLR 30, at 33 said:

"One could argue that is too bad, the petitioner (respondent) is the masters of his own misfortune. However, to be practical, he can only do so much within his financial abilities."

And so taking into account the financial circumstances of the petitioner and the respondent and the needs of the children, I consider a sum of K50.00 for each of the children per week, that is a sum of K100.00 per week or Two Hundred Kina per fortnight to be appropriate.

I order that the respondent pays K200.00 per fortnight for the maintenance of Craig Edward Wong and Donika Doreen Wong and the payment is to continue until each of the said children have attained the age of twenty one years or dies, which ever occurs first.

My formal Orders are:

(1)	The respondent shall within 21 days from today, pay the petitioner’s costs of previous applications.

(2)	The respondent pays the sum of K2,385.00 to the petitioner.

(3)	The respondent pays the sum of K3,000.00 to the petitioner.

(4)	The respondent pay the sum of K200 per fortnight for the maintenance of the said two children, until each of them obtains the age of 21 years or dies, which ever occurs first.

(5)	Petitioner shall have her costs for these proceedings, such costs are to be taxed, if not agreed.

Lawyers for the petitioner: Warner Shand Lawyers.
Lawyers for the respondent: Public Solicitors.