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Lovave v Lovave [2025] PGNC 290; N11435 (7 August 2025)

N11435

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APP CIA NO. 65 OF 2024

BETWEEN:
JOVITHA LOVAVE
Appellant

AND:
MICHAEL LOVAVE
Respondent

LAE: DINGAKE J
7 AUGUST 2025

FAMILY LAW – Appeal – Grounds of Appeal – Desertion – Assessment of Evidence – Held – no misdirection by the Trial Magistrate – Appeal dismissed

Counsel
Jovutha Lovave, the appellant, in person
Michael Lovave, the respondent, in person

RULING

1. DINGAKE J: INTRODUCTION: This is an appeal from a decision of the District Court delivered on 17 November 2022, in which the Complainant’s application for spousal maintenance under Section 109 of the Lukautim Pikinini Act 2015 was dismissed.
   
2. The Appellant (Complainant) alleges multiple procedural and substantive errors in the District Court’s handling of the case, including bias, denial of procedural fairness, delay, and failure to properly consider documentary evidence.
   

BACKGROUND SUMMARY

4. The Appellant and Respondent were married in 2013 following a relationship that began in 2001. The Appellant alleged she was constructively deserted following a longstanding pattern of mistreatment which led to an argument on the 18^th of November 2021, which caused her to leave the matrimonial home.
   
5. The District Court, after reviewing the affidavits of both parties, dismissed the application on the basis that the Respondent had not deserted the Appellant, either actually or constructively.
   
6. The Appellant aggrieved by the decision of the Court below now appeals to this court.
   
7. In her Notice of Appeal, she raised the following grounds of appeal:
   
   1. That the Learned Magistrate erred in law and in fact without informing the Complainant and Defendant that his decision will be based on sworn statements file by the Complainant and the Defendant.
      
   2. That the Learned Magistrate erred in law and in fact by acting oppressively by stating bias information on the Court Order under the Family Court jurisdiction, without having an Official Court Stamp on the Court Order making it bias and illegal. Injustice and unfairness done on the Complainant.
      
   3. That the Learned Magistrate erred in law and in fact advice the Complainant to seek legal advice from the Public Solicitor’s Office because the Complainant has a good case during the Interim Protection Order the court proceedings and without enforcing any Order. The Complainant was bind after the court process was abused by the Learned Magistrate.
      
   4. That the Learned Magistrate erred in law and in fact by acting oppressively by deliberately delaying his decision without conducting any trial until the closure of the legal year and served his written Court Order in the Court Room to the Complainant on the 17^th November 2022.
      
   5. That the Learned Magistrate erred in law and in fact did not consider the evidence and documents especially the Church Marriage Certificate as an evidence provided by the Appellant instead of the Defendant who was ordered by the court to provide and had failed.
      

THE ISSUE THAT FALLS FOR DETERMINATION

8. The Appellants grounds of appeal considered singularly and or collectively failed to capture the essence of appeal. In my mind there are peripheral to the appeal. The real issue that falls for determination is whether the District Court erred in law and/or in fact in concluding as it did that the Appellant was not deserted by the Respondent having regard to the evidence and the provisions of Section 109 of the Lukautim Pikinini Act 2015.
   

EVIDENCE BEFORE THE COURT BELOW

9. In the Court below, the Appellant relied on two affidavits namely, her affidavit filed on the 11^th of August and 7^th of October 2022, respectively. The Defendant on the other hand relied on his affidavit filed on the 29^th of September 2022.
   
10. A substantial portion of the said affidavits considered collectively does not canvass the material issues related to the desertion that would give rise to the relief sought being that of spousal maintenance.
    
11. The appellant avers in the above affidavits that between 2001 and 2004 the Defendant did not support her and the children. She also says that she was forced to do an abortion in 2001.
    
12. At paragraph 11 of the Complainant’s affidavit in support dated 11 August 2022, the Complainant says:
    
    11. The Defendant told me to piss off from the house on the 18^th November 2021 after an argument regarding his dishonesty, and I have moved out because this is not the first time he has been doing this to me. I have moved out and living with my eldest son in the rent house, and now currently living with friends. The Defendant has been having extra marital affairs and had a hidden motive so he is telling me to piss off after building the life that he has been dreaming off.
        
13. The Defendant on the other hand denies deserting the Appellant. He confirms that the marriage was solemnized in church in 2013 and thereafter they lived together until she left him and the children on the 18^th of November 2021.
    

ANALYSIS OF THE EVIDENCE

14. The evidence of the Appellant captured in the two affidavits above does not set out in any substantive fashion why she claims she was deserted by the Respondent.
    
15. Essentially it speaks to several misunderstandings the couple had over the years during the course of the marriage and or the relationship. The closest the evidence comes to dealing with the core issue of desertion is when she says the respondent told her to piss of on the 18^th of November 2021 and she decided to leave following what appears to have been a quarrel between the couple.
    
16. Given that on the evidence the Respondent denies desertion, the Appellant carried the burden to prove on a balance of probabilities that she had been deserted.
    
17. The Learned Magistrate carefully and clinically reviewed the evidence and concluded that there was no evidence of desertion. There is no basis to fault the reasoning and the conclusion of the Learned Magistrate. The Learned Magistrate’s reasoning is informed by the cases in his judgment.
    

THE LAW

18. Section 109 of the Lukautim Pikinini Act 2015 provides that:
    

109. MAINTENANCE OF A SPOUSE.

Where the Court hearing a complaint under this Part in relation to maintenance of a spouse who is deserted by the defendant, the Court may order the defendant to pay to the complainant a fortnightly sum or in kind as maintenance for the spouse. (Emphasis mine)

19. It is clear from the above provision that the Court may only order the Defendant to pay the complainant spousal maintenance only in circumstances where the Defendant deserted the complainant.
    
20. In this case this Court agrees with the finding and conclusion of the learned Magistrate that there was no evidence of actual or constructive desertion to warrant granting relief of spousal maintenance.
    

CONCLUSION

21. After careful consideration of the record and the written judgment of the District Court, I find that the Magistrate:
    
    • Applied the correct legal test under Section 109 of the Lukautim Pikinini Act 2015;
      
    • Considered the evidence presented by both parties; and
      
    • Reached a reasoned conclusion that the Appellant was not deserted in law.
      
22. There is no error of law or fact that justifies interference by this Court.
    

Orders

1. The appeal is dismissed.
2. The District Court judgment dated 17 November 2022 is affirmed.
3. No order as to costs.