N11186

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CIA NO. 33 OF 2024

BETWEEN:
DEREK DAI
Applicant

AND:
GABRIAL SERAH KAUPA
Respondent

LAE: DOWA J
10, 14 MARCH 2025

APPEAL-Against District court orders decision of lower Court can only be set aside on appeal if there is obvious error showing substantial miscarriage of justice-there being an obvious error on the face of the record in making an order for maintenance beyond the means of the parent’s earnings, grounds of appeal made out and appeal allowed, and substituted with other orders. 

Cases cited
Nil

Counsel
S Ikiso for the Appellant
No appearance by the Respondent

DECISION

1.	DOWA J:	This is a decision on an appeal against maintenance orders made by the Lae Family Court in proceedings- FC No. 82 of 2024-Serah Gerell Kaupa v Derek Dai. 

	Background Facts

2.	The Appellant and the Respondent come from Simbu Province. They are married according to custom, although this is disputed. They have commenced their cohabitation in 2009, with intervals of separation.  Born to this relationship are two children, Steven Kaupa age 11 years and More Kaupa, 3 years old. They have been leaving in various places in Papua New Guinea. At the present time the parties live separately in Lae, Morobe Province. The Respondent has the custody of the children. The Appellant is employed by Islands Petroleum Limited.

The Family Court Proceedings

3.	The Respondent instituted child and spousal maintenance proceedings in the Family Court, alleging the Appellant deserted or neglected them without means of support. The Respondent claimed the following reliefs: 

1.	A support allowance of K 1,000.00 each for the children under section 109 of the Lukautim Pikinini Act 2009.
2.	An order that the complainant be on K500.00 allowance of confinement expenses
3.	In breach of the above orders, the Defendant is to be imprisoned in custody.
4.	Such other orders as the Court deems meet.”	

4.	The Appellant denied neglecting the children. The reason he left the family was due to the Respondents abusive behaviour. He says, he provides financial support for the children and has been paying school fees for the eldest child who attends school at the Lae International School. He is prepared to pay K250.00 per fortnight for each child from his net take home wage of K2,849.67.

5.	Both parties relied on their respective affidavits at the hearing of the matter.

6.	On 27 June 2024, the Family Court made the following orders:

1.	It is hereby heard, adjudged and ordered that the Defendant shall pay child maintenance fortnightly as follows:
				(a) Steven Kaupa -     K 700.00
				(b) More Kaupa -        K 700.00

2.	The Defendant is also ordered to pay spouse maintenance of K600.00 per fortnight to Complainant Serah Kaupa.

		3. 	The payment per order (1) and (2) be backdated to 10th June 2024.

4.	The Defendant is also ordered to pay confinement expenses of K5,000 per child, totalling K10,000,00 by 27th July 2024.

          5.	The Defendant is also ordered to assist with the school fees for both children.

          6.  	The Paymaster of Island Petroleum shall ensure maintenance deductions are deducted directly into Complainant’s Account Number; Gerel Serah Kaupa-Account Number 21813816.

           7. 	Custody of both children remain with the Complainant/Mother and Defendant shall have legal right of access to see the children at any place and time that is convenient through agreement between the parties.

The Appeal

7.   Aggrieved, the Appellant appeals the decision of the District Court. The Appeal contains twelve grounds in the Notice of Appeal filed 19th July 2024. These grounds can be crystallised in the following:

1.	The learned Magistrate erred in law in dealing with the proceeding which was incompetent on the face of the record. (Refer Grounds 1 and 2).

2.	The learned Magistrate erred in law and fact in failing to consider relevant factors when deciding the amount of maintenance to award. (Refer: Grounds 6,7 and 8)

3.	The learned Magistrate erred in awarding spousal maintenance of K600.00 which was not pleaded in the Complaint. (Grounds 3).

4.	The Learned Magistrate erred in law and in fact awarding confinement expenses of K5,000.00 per child. (Ground 4). 

Hearing

8. 	The appeal was heard on 10th March 2025. Only the counsel for the Appellant appeared. The Respondent did not attend. Since both parties were present when the hearing date was obtained, the Appellant was granted leave to proceed ex parte. That said, the Court notes that the Respondent has filed an Affidavit on 5th November 2024 responding to the grounds of appeal which the Court has considered in the decision. 

Issues

9.	The issues for consideration emanated from the grounds of Appeal are: 
	
1.	Whether the learned Magistrate erred in law in dealing with the proceeding which was incompetent on the face of the record.

2.	Whether the learned Magistrate erred in law and fact in failing to consider relevant factors when deciding the amount of maintenance to award. 
3.	Whether the learned Magistrate erred in law and fact in awarding spousal maintenance of K 600.00 which was not pleaded in the Complaint. 
4.	Whether The Learned Magistrate erred in law and in fact awarding confinement expenses of K 5,000.00 per child. 

Issue 1. Whether the learned Magistrate erred in law in dealing with the proceeding which was incompetent on the face of the record.

10.	The appellant submits the affiliation proceedings were not commenced in accordance with Section 106 of the Lukautim Pikinini Act 2015.  Section 206 (2) (c) of the Act provides that the Form to be used is as prescribed by the District Court Act. Section 28 of the District Court Act prescribes Form 15 as the relevant Form. In the present case, the Respondent’s Complaint and Summons to a Person Upon Complaint did use the correct Form 15 but cited the “Lukautim Pikinini Act 2009” which Act has been repealed by Lukautim Pikinini Act 2015. The appellant submits that the learned Magistrate failed to amend the Complaint and Summons at the time of hearing. Instead, she proceeded with the hearing based on defective documents rendering the proceeding incompetent. 

11. 	In response, the Respondent says, she is a layperson and is not conversant with the legal requirements. The documents, when filed, were accepted and registered by the Court registry. The matter proceeded without any questions being raised by the appellant and the appellant be allowed to raise them in the appeal.

12.	I perused the Complaint, and the Summons filed in the Family Court and note that the Form 15 is in order except for the insertion of the words “Lukautim Pikinini Act 2009”. While the Magistrate has the power to amend the Complaints and Summons by virtue of Section 138 of the District Court Act, there is no evidence of the Appellant raising the issue of competency at the hearing. It is trite law that an appellate Court be slow in entertaining matters not previously raised at the lower Court.  The alleged defect is minor mistake in the Form and does not affect the merits of the complaint. In my view this ground of appeal is not made out.

2.	Whether the learned Magistrate erred in law and fact in failing to consider relevant factors when deciding the amount of maintenance to award. 

13.	The Plaintiff alleges the Magistrate failed to consider relevant factors when fixing amounts for maintenance and this rendered the decision unreasonable and erroneous.  

14.	 Sections 4, 5, 108,109 and 110 of the Lukautim Pikinini Act 2015 are relevant. Basically, the Act seeks to protect and promote the well being of the children. When deciding in proceedings brought under the Act for maintenance, the best interests of a child must be the paramount consideration. Those interests include the provision of food, clothing, shelter, education, health, protection, love and affection.

15. 	In determining what is the appropriate amount to award, the Court must have regard for the following matters:

			a. the peculiar needs of a child
			b. the earning capacity and ability of the parents to pay
			c. provisions for expenses other than cash
			d. conduct of the parents

16.	In the present case, the Appellant’s salary details show the Appellant earns an annual net wage of K103,2136. K 40,400.00 is not cash but in the form of allowances made for accommodation, school fees and leave fares. The balance is paid fortnightly in the sum of K2,849.67. The order for maintenance is that he pay K700 each per child totalling K1,400.00 and spouse maintenance of K600.00 totalling K2,000.00. This leaves a balance of K849,67. The appellant says he has a personal loan which he is paying K850. This leaves the Appellant virtually nothing for him to use. I note the Learned Magistrate included the housing allowance of K2,600 and the voluntary contribution of K200.00 for the purposes of assessing the amount.  The housing allowance is a monthly expense. The learned Magistrate was not reasonable in the assessment. In my view the Appellant as the breadwinner should retain a reasonable portion of the income to sustain himself. In my view, a reasonable figure for the children should be K500.00 per child totalling K1,000.00 and the mother K400.00.

17.	As for the school fees, it is noted that the appellant shall pay for them from the allowance made available by his Employer as a term and condition of his employment. This, I note the Plaintiff has been doing and shall continue. The Plaintiff shall also pay reasonable medical expenses as and when the need arises.

3.	Whether the learned Magistrate erred in law and fact in awarding spousal maintenance of K 600.00 which was not pleaded in the Complaint. 
	
18.	The Appellant submits the learned Magistrate erred when she awarded K600 spousal maintenance to the Respondent which was not pleaded. In response, the Respondent submits she did plead an order for maintenance in Relief No 2 in the Complaint and Summons.

19.	In the Complaint, the Respondent sought in relief No 2 “An order that the Complainant be on K 500.00 allowance of confinement expenses”. The text does not show a clear relief for spousal maintenance. However, the rest of the statement of claim show that she pleaded for spousal maintenance as well. The Court depositions show, at pages 22-23 of the Appeal Book, that the Respondent, in her oral submissions, asked for spousal maintenance although it was not made clear in the relief clause. The entire Complaint and Summons must be read together and in context. It is clear and she did plead for her maintenance of K500.00 and is entitled to spouse maintenance. As to the amount, the Magistrate used her discretion to increase it from K500 to K 600.00. In the context of the net income of the Appellant, this amount is high and be reduced to K400.00 per fortnight. 

4.	Whether the Learned Magistrate erred in law and in fact awarding confinement expenses of K 5,000.00 per child. 

20.	The Appellant submits the Magistrate erred when she awarded K5, 000 per child totalling K10,000.00 for confinement expenses. Section 2 of the Lukautim Pikinini Act 2015 defines “confinement expenses” are expenses of the mother during the period of one month immediately before birth and for the maintenance of the child and mother during the period of three months immediately after the birth of the child.

21.	In the present case, the Respondent did not seek this relief in the Complaint and Summons, although she made general complaint of raising the children without support. The Respondent did not provide evidence of the expenses. The learned Magistrate on her own discretion made an award. It is common knowledge that the Respondent did incur confinement expenses but is it reasonable to make an award of this magnitude after so many years. In my view the decision to order K5,000.00 per child in confinement expenses is unreasonable. In my view, it be reduced to K 1,500.00 per child totalling K3,000.00.

22. 	There is an order for the Appellant to pay the school fees. I note the Appellant takes no issue, so it remains.
	
Direct payment from the Employer

23.	The appellant appeals against the Order No 6 which directs the Appellant’s Employer to make a direct payment to the Respondents account. In my view, this is a miscarriage of justice. There are no arrears and if the appellant defaults, the Respondent can seek enforcement orders for the attachment of earnings. This order shall be set aside.

Custody
24.	As to the order for custody of the children, I find no errors. It is in the interest and well being of the children to remain together with the mother until circumstances change warranting a review of the issue.
  	
What orders should the Court make

25.     The powers of this Court are provided by Section 130 of the District Court Act. Section 130 reads:

“130. POWER OF NATIONAL COURT ON APPEAL.

(1) On the hearing of an appeal, the National Court shall inquire into the matter, and may–
(a) adjourn the hearing from time to time; and
(b) mitigate or increase a penalty or fine; and
(c) affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and
(d) remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and
(e) exercise a power that the Court that made the conviction, order or adjudication might have exercised; and
(f) make such further or other order as to costs or otherwise as the case requires.
(2) An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.”

26.	Based on my findings and for the reasons given, I find there is a mis carriage of justice. I propose to uphold the appeal and quash the orders. However, I will not dismiss the District Court proceedings. Instead, I am inclined to substitute the orders of the Magistrate with orders the District Court ought to have made. 

Variation Applications
27.	In making these orders, the Court is mindful that if the circumstances change in the future, the parties are at liberty to seek variation of the orders.

Costs

28.	 The final issue is cost. The Appellant has been successful in prosecuting the appeal, so he is entitled to the costs. 

Orders

29.      The Court orders that:

1.	The Appeal is allowed.
2.	The orders of the District Court made on 27th June 2024 is quashed.
3.	The Court substitutes the orders of 27th June 2024 with the following orders:

(1).	the Appellant/Defendant shall pay child maintenance as follows:
				(a) Steven Kaupa -     K 500.00 per fortnight
				(b) More Kaupa -        K 500.00 per fortnight

				Until each child turns 18 years

(2).	The Appellant/Defendant shall pay spouse maintenance of K 400.00 per fortnight to the Respondent/Complainant Serah Kaupa.

(3).	The Appellant/Defendant shall pay confinement expenses of K 1,500 per child, totalling K 3,000.00 by 30th April 2025

(4). 	The Defendant shall assist with the school fees and medical expenses for both children.

(5). 	Custody of both children shall remain with the Respondent/Complainant and the Appellant/Defendant shall have legal right of access to see the children at any place and time that is convenient through agreement between the parties.

(6)	The orders of the Court shall take effect forthwith.

4.	The Respondent shall pay the Appellant’s cost, to be taxed, if not agreed.
5.	Time be abridged.

Lawyers for the appellant: Luke Vava Lawyers