N3881

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 09 OF 2009

BETWEEN:

JENNIFER JEAN SCOTT
Petitioner

AND:

MICHEAL GEORGE SCOTT
First Respondent

AND:

MARY VAN DUSEON
Second Respondent

Waigani: Kandakasi, J.
2009: 13th October
17th December

FAMILY LAW – Child maintenance – Dependency age – Cut off period for age of dependency - Difference legislation giving different dependency periods – Intention of Parliament – No intention to discriminate children – Age 16 normal age of dependency period – Special case need to be made for dependency beyond age 16 before or after orders for maintenance – Court obliged to specify cut off date for maintenance – Where no date is specified normal age of dependency applies – ss. 38, 59, 73 & 74 Matrimonial Cause Act, s. 3 Deserted Wives and Children''s Act, s 56 Child Welfare Act. 

STATUTORY INTERPRETATION – Matrimonial Cause Act, Deserted Wives and Children''s Act & Child Welfare Act - Principles governing statutory interpretation- Fair large and liberal meaning to be given – Purpose and intend behind legislation – Mischief to be avoided - No parliamentary intend to discriminate children – Child maintenance – Cut of period for age of dependency - General import of various provisions – Age 16 normal age of dependency period – In special cases dependency period beyond normal age – Unless court order specifies normal dependency age of 16 years applies. 

Papua New Guinean Cases Cited:

PLAR No. 1 of 1980 [1980] PNGLR 326.
SCR No. 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council (2002) SC693.
The State v. Downer Constructions (PNG) Limited (2009) SC.
Inakambi Singorom v. Klaut [1985] PNGLR 238.
Chief Collector of Taxes v. Bougainville Copper Ltd; Bougainville Copper Ltd v. Chief Collector of Taxes (2007) SC853.
MAS International Ltd v. David Sode (2008) SC944.
Mairi v. Tololo [1976] PNGLR 125.
Bean v. Bean [1980] PNGLR 307.
Hawthorne v. Hawthorne (Unreported judgment 855, 8th September, 1975).
Talasanga Tolison v. Thomas Samual Tolison [1985] PNGLR 125.
Kiruhia v. Kiruhia [1992] PNGLR 30.
Seni Ela v. Independent state of PNG [1989] PNGLR 653. 
Kuman Kua v. Independent state of PNG [1990] PNGLR 565.
Collins v. Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 580.

Counsel:

T. Nonggorr, for the Respondent/Applicant
K. Frank, for the Petitioner /Respondents

17th December 2009

1. KANDAKASI J: Michael George Scott is applying to effectively end his payment of maintenance toward his child, Jack Scott who has reached 18 years old. Michael argues that the normal dependency period initially of 16 years and later change by case law of 18 years should apply as the cut off period for maintenance. Jack's mother is opposing the application arguing that George's maintenance of Jack should continue until Jack has reached age 21 which is the limit provided for in s. 73 (4) of the Matrimonial Causes Act. 

Relevant Issue

2. The only issue presented for this Court's determination is this. What is the cut off age for the purposes of maintenance of a child? This issue has not been the subject of any judicial consideration in our country. Hence, it arises in this case for the first time. The issue has given rise to the need for a consideration of a number of legislation providing deferent age limits for maintenance and age of majority. Both counsel assisted me greatly with their respective submissions for which I am grateful. 

Principles on Statutory Interpretation

3. As the issue presented requires statutory interpretation, I remind myself of the relevant principles on statutory interpretation. As I have noted in many of my earlier decisions, Wilson J., stated the relevant principles in PLAR No. 1 of 1980 bearing in mind the different approaches to statutory interpretation in these terms:

"… there is no place in a developing country where the courts, as well as the Law Reform Commission, are given special responsibilities in the process of development, for the narrow interpretation of statutes without adequate regard to the social purpose of particular legislation. Development is difficult to achieve if courts adopt too conservative an approach to the interpretation of statutes. There has been a tendency in our National Judicial System, less evident in some recent decisions of the courts but still perceptible, to over-emphasize the literal meaning of a provision at the expense of the meaning to be derived from other possible contexts; the latter including the application of the "mischief" rule, the recognition of the general legislative purpose, as well as the obligations laid down under the Constitution such as, for example, the obligation upon the courts in interpreting the law to give ''paramount consideration to the dispensation of justice'…"

4. Many subsequent cases in which the Supreme and National Courts have been required to interpret legislative provisions, they have consistently allowed themselves to be guided by these principles. An example of that happening is in the case of SCR No. 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council. There, the Supreme Court said in the context of the Value Added Tax legislation: 

"Going by this expressed dictation in the Constitution …, it is now an accepted principle of both constitutional and other statutory interpretation, that provisions of the Constitution and all Acts of Parliament must be given their fair and liberal meaning. This is so as to give effect to the intent of Parliament behind the provisions in question. There is a long line of case authority on that."

5. As I recently noted in my descending decision in the case of The State v. Downer Constructions (PNG) Limited, there are however, two known exceptions to this approach. The first is in cases where the words used in the legislation under consideration are so plain and clear that no art of interpretation is required. The second is in tax legislation cases, where the strict interpretation rule applies. In such cases, the law is that, for the imposition of a tax or charge against a subject, clear and unambiguous intention must be shown in the statute. Otherwise, an interpretation favourable to taxpayers would be preferred. 

6. Again as I noted in my above mentioned decision, there is a further well accepted principle of statutory interpretation. That is in the area of, what is included and excluded in any legislation. It is a well accepted principle that, where the legislature provides for inclusions or exclusions, the opposite is intended for the matters not included or excluded, as the case might be. I referred to the decision of the Supreme Court in SCR No. 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council as an example of a case on point. 

7. Having reminded myself of relevant and applicable statutory interpretation, I now appropriately turn to a consideration of the arguments presented before me. Michael's main argument through his learned counsel is this. Section 73 (4) does not provide for a cut off date for purposes of maintenance of a child. This allows for discretion in the Court to say a maintenance order comes to an end once the child for whose benefit the order is made reaches age 16. Learned counsel for Michael submits that would be consistent with the provisions of Section 3 (3) of the Deserted Wives and Children''s Act, Section 56 (b) of the Child Welfare Act and the combined effects of Sections 38 and 59, the Matrimonial Cause Act, the rules enacted thereunder and Form 7. Further, it is submitted that, this is consistent with the position in most common law countries and even in Canada where the parties originally come from and presently where Jennifer and Jack are living. Finally, learned counsel for Michael referred the Court to the decision of Bean v Bean [1980] PNGLR 307 in support of her submissions.

8. On the other hand, Jennifer also through learned counsel, Mr. Frank argues that the provisions of Section 73 (4) of the Matrimonial Causes Act are clear. The Court has the power to make appropriate orders of the maintenance of children up to age 21 years. It is further argued that, this provision even allows for maintenance orders for children who have reached age 21 years if a case is made out for such an order. Furthermore, learned counsel for Jennifer argues that, the provisions of the Deserted Wives and Children's Act as well as the Child Welfare Act only apply within the context of the respective legislation and have no application to the provisions s.73(4) of the Matrimonial Causes Act.

Consideration of Submissions
 
9. I do not find any persuasion in the arguments for Jennifer for a number of reasons. Firstly, all of the legislative provisions in question concern the welfare and interest of children. Some children are born in proper wedlock or marriage while others are born outside of proper wedlock. Break up of marriages or relationships in which there are children often results in the children standing to be seriously affected. The interest and welfare of the children are independent of their parents although the children are intimately connected to their parents. Regardless of where or how they are born all children are children having the same fundament rights as human beings and particularly as children they all deserve equal care and treatment. Indeed Article 1 of the Universal Declaration of Human Rights of 10 December 1948, states in no uncertain terms that, all "human beings are born free and equal in dignity and rights." Given that, Article 7 of the same declaration says that all humans:

"are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination."

10. Equality of all persons is such an important human right that it is repeated in many other international conventions and declarations such as the International Covenant of Civil Rights of 16 December 1966. Many countries in the world including the Charter of Fundamental Rights of the European Union have subscribed to these declarations and conventions and have incorporated it into their national constitutions this fundamental right. We in PNG have followed that by incorporating in our Constitution the basic and fundamental rights in sections 35 to 49.

11. Notwithstanding the equality of all children as human beings, there is an immediate appearance of discrimination of children on the basis of under which of the legislation, maintenance of children becomes an issue. Under s. 3 (3) of the Deserted Wives and Children's Act and s. 56 (b) of the Child Welfare Act, age 16 is the cut off period for maintenance of children. Both of these legislation empower the District Courts and or the Children's Court which is an equivalent of a District Court to make amongst others, orders for maintenance of children up to 16 years of age by a parent who has deserted the child without any means of support of a child or who is not willing to take responsibility and provide for the maintenance and up keep of a child. On the other hand, s. 73 (4) of the Matrimonial Causes Act allows for maintenance of a child up to age 21 and even beyond that age in special cases. Only the National Court has jurisdiction in relation to matters covered by the Matrimonial Causes Act.

12. Without more, a quick look at these provisions, gives the clear impression that, what matters is under what Act the issue of maintenance is being considered and in which Court. If it is under the Deserted Wives and Children's Act and or the Child Welfare Act, which ends up in the District Court, the Court can order maintenance only up to 16 years. If however, the issue arises under the Matrimonial Causes Act, the National Court has jurisdiction and maintenance can be up to 21 years and even beyond in special cases.

13. The arguments for Jennifer have not brought out what if any sound public good is intended to be served or what if any specific possible public harm or mischief s. 73(4) is intended to prevent. I accept that, many countries like India for instance have provided for what is termed affirmative or positive discrimination. Its proponents see it as an important principle for democratic societies in order to redress imbalances, due to disproportionate representation of underprivileged sections of society in governmental, educational and industrial institutions. Accepting Jennifer's arguments through her learned counsel without more would pave the way to give effect to and strengthen the apparently discriminatory law and or inconsistency that exists. 

14. The second reason for not finding any persuasion in the arguments for Jennifer is this. Section 73 (4) neither provides for maintenance to run up to age 21 as a matter of course, nor does it exclude the normal dependency and therefore maintenance period of up to age 16. Instead that provision reads:

…"(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." 

15. It is plainly clear to me that this provision is saying the Court has an unlimited power to order maintenance for a child of a marriage. It does not stipulate a cut of age for the purposes of maintenance. However, before ordering any maintenance in favour of a child who has reached age 21, the Court has to be first satisfied that special circumstances exist, that warrant orders for their maintenance. 

16. Generally, it is accepted almost the world over that in most cases, children cease to be children when they reach their 16th birthday and become young adults. That is when it is also generally accepted that the young adults are able to break free from their dependency on their parents. They become independently thinking and acting individuals making their own decisions with an understanding and an appreciation of what is right and is wrong. That is why we have legislation like the Criminal Code which for instance in s. 229A (1) makes it an offence for sexual penetration of a child under age 16 regardless of any consent from them. These are in addition to the provisions made in the Deserted Wives and Children''s Act and Child Welfare Act. Further, s. 7 of the Marriage Act says that a male person who is aged 18 years is of marriageable. However, a person who has reached age 16 can with the approval of a Judge or Magistrate, a person who has attained 16 years in the case of a male and 14 years in the case of a female can marry. The law thus accepts that, a female is of marriageable age at age 16. However, I note that under s.8, a minor who is by definition a person who has not attained the age of 21, cannot marry unless consent to do so has been given in accordance with the relevant provisions of the Marriage Act.

17. Even the Matrimonial Causes Act itself speaks in terms of age 16. Section 59 of Matrimonial Causes Act and rule 38 of the Matrimonial Causes Rules and form 7 require certain particulars of children to be provided if orders for custody and maintenance of children are required in addition to the primary relief of divorce. The form at paragraph 9 requires particulars of children of the marriage up to age of 21. Then at paragraph 14, there is a requirement for disclosure of proposed arrangements for the welfare, advancement and education of children up to age 16 as required by r. 38 of the Rules and s.59 of the Act. These are condition precedent as no decree will be given by the Court unless it is satisfied that proper arrangements have been made for any children of the marriage under age 16. Finally according to r. 193 of the Rules, where maintenance orders are required, the orders sought and the facts relied upon must be included in paragraph 15 of Form 7. There is no similar requirement for children who have reached age 21 who might be included in a divorce petition.

18. The combined effect of the provisions we have discussed recognizes that, children are deemed to have reached the age of majority at age 16 for the purposes of custody and maintenance orders. However, for the purposes of marriage, the Marriage Act says persons who have not attained the age of 21 are minors. That is not the same to say they are not of marriageable age but can marry only with the required consents. When Section 73 (4) of the Matrimonial Causes Act is considered in this context, it is quite apparent that, the provision is talking about two types of maintenance. The first is ordinary child maintenance for a child who has not yet reached aged 16. The second is special maintenance for a child who has gone passed the ordinary child maintenance age of 16 years (which is also the marriageable age for females and with approval for males) and has gone passed their age of majority which is 21 years. 

19. This makes a lot of sense because maintenance for children are often ordered for the support of children when a person is considered a child and is not able to support him or herself. Usually there is no argument when children are under the age of 16, although in exceptional circumstances a child under 16 years old may already be supporting him or herself. However, there may be cases in which a child may have reached age 16 or even 21 but not in a position to self support. The opposite might be the case for others. It would therefore be not right to have an arbitrary cut off period for maintenance at age 16 or even 21. It would thus be more preferable for each case to be assessed on its own merits. Accordingly, in my view, the legislature has deliberately allowed for a wide discretion in the Court under s. 73 (4) of the Matrimonial Causes Act to allow for maintenance at any age except in cases where a child has reached age 21. In the case of a child who has reached age 21, the Court needs to be satisfied that, special circumstances warranting continued maintenance exists before there can be allowance for maintenance beyond that age. 

20. This leads to the next point which is also the third reason for not finding any persuasion in Jennifer's arguments through her learned counsel. The Supreme Court in Bean v. Bean, had occasion to consider two apparently conflicting provisions in the Matrimonial Causes Act and the Infants Act. That concerned matters considered relevant to determining custody issues. More specifically, this concerned the concept of "interest of children as paramount" as provided for in s.74 of the Matrimonial Causes Act and the interest of the parents as provided for in s. 4 of the Infants Act. The Court held that, in addition to the welfare of a child, the interests of the parents are also relevant. The Supreme Court per Kidu CJ., at p. 311 said: 

"It cannot have been the intention of the legislature that different emphasis would apply on custody applications depending on the Act under which the application is made."

21. In expressing that view, the Court endorsed an earlier approach by Saldana J in Hawthorne v. Hawthorne, where His Honour decided to consider the provisions of the Matrimonial Causes Act. There, the Court allowed itself to be guided by the provisions in the Matrimonial Causes Act even though the application before the Court was under the Infants Act.

22. A final reason for finding no persuasion in Jennifer's arguments through her learned counsel is this. Most of the judicial pronouncements through the case law in our jurisdiction, state unanimously that the age of majority in our country is 16 years.

23. In Talasanga Tolison v. Thomas Samual Tolison, the petitioner sought amongst others, an order for maintenance for three children of her marriage to the respondent. That was under the Matrimonial Causes Act. The Court awarded maintenance for each of the children until they reached their respective ages of 16 years or completion of their education.

24. Later in Kiruhia v. Kiruhia, the petitioner sought and the Court per, Los J., order child maintenance past the children's 16 birthday for two children of the marriage again as ancillary orders following a divorce order. The children were aged 13 and 15 at the time of the application. His Honour ordered maintenance payment of K130 per fortnight for the children to continue past their 16th birthday until they have completed two years of senior high school or the first two years of any other training institution.

25. The Courts have been consistent even in the case of loss of dependency as a result of wrongful deaths. A good example is the decision of the Court in Seni Ela v. Independent state of PNG. There, the plaintiff's husband died in a motor vehicle accident. She claimed loss of dependency for herself and one child. The Court allowed damages for loss of dependence until the child attained the age of 16 years. 

26. The Courts have consistently applied the 16 years the appropriate age for ordinary dependency. This shown for example in the decision of the National Court in Kuman Kua v. Independent state of PNG where the Court assessed damages for loss of dependency for a child up to age 16.

27. Subsequently, however the Courts have come to accept that, cutting of a child's period of dependency at age 16 as arbitrary and therefore inappropriate. In Collins v. Motor Vehicles Insurance (PNG) Trust, the late Hinchliffe J., reviewed the previous cases and shifted toward age 18 years as a possible cut off age for dependency purposes in these terms:

"… the question of the maximum age of a child in a claim such as this. In the past, courts have been fairly consistent in saying that 16 years is the maximum age, although more recently some judges have not necessarily followed that view. Brunton J in None v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 561, held that 16 years was an arbitrary figure and did not reflect the economic materiality of the dependency of children upon their parents.

A similar approach was taken by Woods J in Tapi v Motor Vehicles Insurance (PNG) Trust [1990] PNGLR 568.

I agree with those judges in their approach. There are instances where children, well after their 16th birthday, may be dependent on their parents. Some continue being educated into their early twenties and may be fully reliant on their parents for financial assistance. Others could be unemployed and may stay at home under parental guidance and support for many years. The days of leaving school and finding immediate employment have gone for ever. The opportunities for further education are increasing. Many people have shifted from their villages and moved to the cities. They no longer have gardens. All in all it means that now young people, to a large extent, are dependent on their parents well after the age of 16 years. Maybe the time has come to consider whether or not 16 years is realistic in such a claim as this one."

28. As far as I can see, the judicial pronouncements in our country make it clear that, normally all maintenance orders cease at age 16. However, there would be some special cases in which maintenance would still be required by a child. Such special circumstances would be like the ones, Hinchliffe J., mentioned in Collins case. Others would be say for instance, the child is disabled and requires support far beyond age 16 or even 18 and his or her 21st birthday. In such a case it would be appropriate to allow for maintenance beyond the normal dependency age of 16 years, thereby warranting special maintenance beyond the normal dependency age of 16 years. 

Decisions/Conclusion

29. Allowing myself to be guided by all of the above authorities and the views I have expressed in the foregoing, I conclude as follows: 

1. Parliament could not have intended that children be discriminated upon and therefore be differently treated on the basis of which legislation the issue of their maintenance arises and the Court they are before;

2. Parliament could have instead intended that, the same period of cessation for ordinary child maintenance at age 16 should apply;

3. Where special circumstances exist and a case is made out for maintenance beyond the normal age of dependency, the Court could make an order for maintenance beyond a child's 16th, 18th or even his or her 21st birthday;

4. Unless a child's special need is inherent or obvious and is known at the time of the Court making an order for the child's maintenance, it would be difficult for the Court to ascertain a child's special needs. A child may have special needs when he reaches age 16 or 18 and even 21. On the other hand, a child might already become self dependant and therefore not in need of any of the parents support. Given that, it would be more arbitrary than not to impose a cut off date for maintenance. Instead, it would be appropriate for the sake of consistency in the application of the law to make an order for maintenance up to the normal age of dependency up to 16 years and make provisions in the order for parties to come back to the Court with an application for a variation by or before the child's 16th birthday which may be subject to further review when the child reaches age 21.

5. It should follow therefore that, where an order fails to specify a cut off period for the maintenance of a child, the normal cut off date for maintenance applies. If a different cut off date is preferred, a party wanting such an outcome has the obligation to make a case for special maintenance and on being satisfied that there is a case for special maintenance the Court must specify the cut off date.

Directions/Orders

30. In view of the foregoing discussions and conclusions, I order and direct as follows:

1.	The parties shall enter into meaningful discussions and settle all outstanding issues in these proceedings.

2.	The 4th of February 2010 at 9:30am is set for a return of this matter.

3.	If the parties are not able to settle out of court, they shall identify the existence of a meritorious factual or legal issue with the reasons for the issues which warrant only a court hearing and determination.

4.	If the latter turns out to be the case, the parties shall come with draft consent orders that will enable an expedited hearing and determination of the identified issues.

___________________________________________________________
Nonggorr William Lawyers: Lawyers for the Application/Respondent
Young & Williams Lawyers: Lawyers for the Respondent/Petitioner