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Zita Wong v Yin Mo Wong [1998] PGNC 47; N1810 (18 June 1998)

Unreported National Court Decisions

N1810

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

MC NO. 15 OF 1996
BETWEEN
EVELYN BETSY ZITA WONG
PETITIONER
AND
DANIEL YIN MO WONG
RESPONDENT

Lae & Goroka

Sawong J
13 May 1998
18 June 1998

FAMILY LAW - Maintenance - Maintenance of children - Matrimonial property - Settlement of Matrimonial Property.

Cases Cited

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

Kirutnia v Kirutnia [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. ҈& T60; a at a Decreeecree Nisi dissolving the marriage between the Petitioner and the Respondent be granted.

2. ;ټ&##160;Petitioner sner shall have custody of the children Craig Edward Word Wong bong born onrn on 8 November, 1983 and Donika Doreen Worn on 31 December, 1984.

3. The Resnondeal shallshave have unlimited access to the said children.

4. ;ټ N60; No main maintenance is to be paid to the Petitioner.

5. ټ&##160;claor tfe maie maintenance of thof the said children and the claims for the settlement of the matrimonial nial propeproperty of the parties be adjourned to 1:30 pm3 May.

When the Court resumed at 1:30 pm on 13 n 13 May 1May 1998, the parties informed the court that they were unable to settle the matters set out in paragraph 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 282 to be relevant. It is in the following terms:

“75. &#16wers urt witt with resp 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 l or f theies td thedren of, the marriage, such settlement of property erty to whto which tich the pahe partiesrties are, or either of them is, entitled (whether in possession or in reversion) as the Court thinks just and equitable in the circumstances.

(2) ـ&#1n proc proceedingedings under this Act, the Court may make such order as the Court thinks just and equitable with respect t applon, for the benefit of all or any of the parties to, and the children of, the mare marriageriage, 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 cfrom the evideevidence that the respondent has not complied with this court orders. This is a serious matter, and it may well amount to a 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 (see annexure “B” of the affidavit of E. B. Z. Wong sworn on 3 April 1998) 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 (see annexure “D” of Exhibit “P3). 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. 282, which is in the following terms:

“73. rs oft in mainteaintenance ance proceedings

(1) & Subject to this section, ion, in proceedings witpect e maince of a party a marriage or of children of the marriage, other than pran proceedoceedings ings for an order for maintenance pending ispos procgs the CourtCourt may may make 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) &#16bject to this section aion 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 theosal oceed the may make such order as it thit thinks inks propeproper, har, having regard to the means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances.

(3) oue Cmayt ake mn order forr for the maintenance of a party notwithstanding that a decree is or has been made against that party in the proceedings to which the edingh resto maance elated.

(4)&>(4) #160; &#160 The The power of thrt to t 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 Courof op that there are sare speciapecial 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 the two children since the parties were separated. There is also no dispute that each of the parties are 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 Kirutnia v Kirutnia [1992] PNGLR 30, at 33 said:

“One could argue that is too bad, the petitioner (respondent) is the master 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 with n 21 days from today, pay the petitioner’s costs of previous applications.

(2) ⶌ&#The rdent he suK2 suK2,385.00 to the Petitioner.

(3) #160;&#160  & T60; The respondent dent pay the sum of K3,000.0the Petitioner.

(4) Th0; esp rdentnpay the sume sum of K200 per fortnight for the maintenance ofsaid hildrntil each ofch of them them obta obtains the age of 21 years or dies, which ever occurs first.

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

Lawyers for the Petitioner: Warner Shand LawyersLawyor thpondeublic Solicitors

15 Ju15 June 19ne 1998

>

Messrs Warner Shand

Lawyers

P O Box 1636

LAE

Morobe Province

Attention: Ms Linda A. Dacre

Dear Sirs

Re: MC No. 15 of 1996 - E. B. Z. Wong (Petitioner) & Daniel Yin Mo Wong (Respondent)

I make reference to the above subject and advise that His Hounour, Justice Sawong will hand down his decision for the above matter on the 18 June 1998 at 9:30 am in Goroka.

Could you make arrangements to come up or instruct one of your agents to appear and receive the judgement on your behalf.

Yours faithfully

JIMMY RUPA

Associate to Sawong J

cc: Mr C Inkisopo

Public Solicitors Office

P O Box 1184

LAE, Morobe Province

By Fax: 472 6707