N2158

PAPUA NEW GUINEA

[In the National Court of Justice in Mount Hagen]

OS NO. 529 OF 1999

BETWEEN:

JERRY LUME
Plaintiff

AND:

RONECHA PURINGI
Defendant

Mount Hagen: Davani J
2001: 18 & 25 May

PRACTICE AND PROCEDURE – Application to the National Court for custody, access and suspension of district Court’s Maintenance Order – District (Family) Court orders for custody and maintenance still on foot – Abuse of process if application for same orders is made to the National Court – Must utilize avenues of variation available to applicant in district court or appeal within prescribed period – Deserted Wives and Childrens Act Chapter 276 ss. 1.2 and 3 Infants Act s.4(5) Child Welfare Act Part IV s.33.

Counsel:
Parties in person

25th May, 2001

DAVANI J.	Brief reasons were delivered in court on 25 May 2001. My detailed reasons are set out hereunder.

This is an application by the Plaintiff by way of notice of motion filed on 20 April 2001 for the following orders;

"1.	For custody of Leah Jerry (F) 7 years and Junior Jerry (F) 4 years be awarded to the Plaintiff.

2.	That the maintenance order of 20 April 1995 be suspended.

3.	That the Defendant have reasonable access to the children."

On 1 September 1999, the Plaintiff filed an originating summons seeking the same orders that he is seeking in the motion before me

The both parties were unrepresented at the hearing but I note from perusing documents filed that the both may have obtained legal assistance in the drafting of their documents.

Facts:

The facts of the case are set out in affidavit material filed by both parties. For the plaintiff, he relies on his own affidavits, sworn on 1 August 1999 and 7 October 1999. He has also filed written submissions.

The Defendant, in opposing the application, relies on the affidavits of John Raramu, sworn and filed on 21 September 1999 and her affidavit sworn and filed on 15 September 1999.

Briefly, the facts are that the Plaintiff and the Defendant were customarily married in 1989. In 1995, bride price of K1,400.00 was paid by the Plaintiff to the Defendants relatives.

In February 1993 and December 1994 respectively, the children Leah and Kasmory were born.

The Plaintiff sought and obtained a customary divorce from the Gomis Village Court, Mount Hagen on 26 January 1995. The Plaintiff was ordered to pay compensation to the Defendant of K400.00 and a fine of K30.00 to the Court.

The Defendant remarried in 1996 to a John Raramu. He has filed an affidavit where he deposes to caring for the children Leah and Kasmory as his own. He states that the Defendant and him now have a child. The Defendant and John Raramu have the daily care and control of all three children.

On 20 April 1995, the Defendant obtained orders for Maintenance and custody of the Children from the Mount Hagen District (Family) Court. The orders according to Annexure ‘A’ of the Defendants affidavit, were issued as "children affiliation – proceedings". The court sat as "The District Family Court", Mt. Hagen. The order reads:

PAPUA NEW GUINEA
CHILDREN AFFILIATION PROCEEDINGS
_______________________________________

							A/F/93/93
							20/4/5

IN THE DISTRICT FAMILY COURT
HOLDEN AT MOUNT HAGEN

							IN THE MATER OF:
							RONICA PURINKI
								(Complainant)

								JERRY UME
								(Defendant)

MAINTENANCE ORDER:

(1)	Father Jerry Ume to pay:

(a)	Leah Ume (daughter) the sume of K20.00.
(b)	Kasmory Ume (daughter) the sum of K20.00 a total of K40.00 to be paid as fortnightly maintenance.

(2)	First of such shall commence PPE 28/04/95.
(3)	All payments shall be paid to the Clerk of Court, P.O. Box 379, Mount Hagen, WHP to be picked up by the mother.
(4)	I award custody of the two (2) children to the mother.
(5)	This Order shall remain in force unless it is.
(a)	varied by a court of competent jurisdiction
(b)	children attain the age of (16) sixteen
(c)	children or father becomes deceased which occurs first.

Handed down by my hand.

(Signed)
BETTY JACOBS
Presiding Magistrate

There is then a further order of the 5th March 1998 made by the same magistrate, same court and titled "CHILD AFFILIATION PROCEEDINGS". The order reads:

"MAINTENANCE ORDER

Judgment entered for the complainant in the sum of K920.00 being for arrears in maintenance for Pay Period Ending 28/05/95 to 16/01/98.

This amount shall be paid by the end of June, 1998 in default enforcement proceedings will be taken out under the same act. All payments shall be paid to the Clerk of Court, Mt. Hagen. Dated at MOUNT HAGEN this 5th day of MARCH, 1998.

(Signed)
BETTY JACOBS
Magistrate"

Application

It is not the task of this court to overhaul the manner in which the Mount Hagen District (Family) Court dealt with this matter. However it is of importance that parties understand the procedure in a case where there is in existence and on foot a District Court Order that has not been overturned by Appeal in the National Court.

To do that, aggrieved parties must know of an understand the avenues available to them under a particular legislation seeking relief in either the lower or the higher courts, as in this case, when claiming maintenance and custody.

To understand the procedure in applications for maintenance and custody, I will discuss briefly the nature of applications for maintenance and custody and the specific legislation under which these applications are made.

Proceedings under the Child Welfare Act are filed by the mothers of illegitimate children. These are proceedings only for maintenance and/or confinement expenses for the children and mother respectively. Proceedings only for maintenance respectively. Proceedings under the Deserted Wives and Children’s Act are filed by mothers who are legally married either by custom, church marriage or Registry marriages seeking orders for both maintenance and custody for the children of the marriage and themselves.

In this case, the Plaintiff has foregone the right of appeal to the National Court when he did not lodge an appeal within the prescribed 30 day period against the 20 August 1995 District (Family) Court decision.

The Plaintiff/Applicant filed originating summons seeking inter alia, custody of the children of his (former) marriage to the Defendant. The notice of motion seeks the same orders as in the originating summons. With that scenario in mind, are the orders sought legally possible?

The Mount Hagen District (Family) Court may have sat as a Children’s Court by virtue of s.33 of the Child Welfare Act Chapter 276 or as a District Court virtue of s.1 of the Deserted Wives and Children’s Act Chapter 277.

I assume, that the Mount Hagen District (Family) Court Orders of 20 August 1995 were made relying on either Part IX of the Child Welfare Act, which deals with Affiliation proceedings or under ss.2 and 3 of the Deserted Wives and Children’s Act.

The Mount Hagen District Court orders of 20 April 1995 and 5 March 1998 do not specify the legislation relied on when the orders were made. The Plaintiffs motion and submissions do not specify the legislation or authority on which he relies in seeking these orders.

Whilst the District Court orders are still on foot, is the National Court vested with the powers to deal with the application before it?

The Plaintiff seeks custody of the two children, suspension of the District Courts Maintenance Order of 20 April 1995 and that the Defendant has reasonable access to the children. The National Court can hear applications for custody if it is made under the Infants Act Chapter 278. In this case the Plaintiff seeks various orders, one of which is suspension of the original Maintenance Order. The National Court does not have the jurisdiction under the Infants Act to make the orders sought. The only time the National Court Court will have jurisdiction is if it is being requested to discharge an order it made (s.4(5) of Infants Act). This Court cannot even invoke its Parents Patriae powers as "the Parents Patriae Jurisdiction has traditionally been confined to maters relating to custody and guardianship of infants only". (ie. Family Law by Anthony Dickey second edition p 312).

In any event, there is already a District (Family) Court Order on for which has not been displaced by appeal but was enforced on 5 March 1998 when the Plaintiff was ordered by the same Court to pay outstanding maintenance orders. It would indeed be an embarrassment if this court were to make the orders sought. P.M. Bromley and N.V. Lowe in their book "Bromleys Family Law" eight edition at p.655 said:

"The embarrassment which might result if the two Courts were seized of the question of maintenance simultaneously has led to the formulation of the rule that two orders should not be in force at the same time. A Magistrate’s Court should normally refuse to deal with an application when proceedings are pending…..for the same reason a rule was ordered that normally a ….court would not make an order for maintenance so long as a Magistrate’s order is in force".

The District Court should and can make orders relying on the powers available to it under the various legislation. In fact, as Bromley and Lowe (supra) stated at p.673 –

"…The whole purpose of providing a summary procedure would be lost…if Magistrates do not exercise the powers available to them".

In this case, the Plaintiff is prohibited from seeking these orders as the District Court Orders are still on foot and that there are avenues available to him in the District Court to seek the remedies he seeks. His recourse would be to file the relevant application in the District (Family) Court, to either discharge, vary or suspend the orders in question, under the correct legislation.

In relation to the summons he filed, I am inclined to dismiss the substantive proceedings but will suggest that he discontinue these proceedings.

I will dismiss the plaintiffs motion. The Plaintiff is to pay the Defendants reasonable related costs to be taxed, if not agreed, costs being a non-lawyers cost.
_____________________________________________________________________
Lawyer for the Plaintiff		:	In Person
Lawyer for the Defendants		:	In Person