PacLII Home | Databases | WorldLII | Search | Feedback

National Court of Papua New Guinea
You are here:  PacLII >> Databases >> National Court of Papua New Guinea >> 2011 >> [2011] PGNC 56

Database Search | Name Search | Recent Decisions | Noteup | LawCite | Download | Help

Pokia v Pokia [2011] PGNC 56; N4378 (3 June 2011)

N4308


PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE


CIA NO. 87 OF 2010


BETWEEN:


MURISO POKIA
Appellant


AND:


LENA POKIA
Respondent


Waigani: Davani, J
2011: 17th May
3rd June


INFANTS AND CHILDREN – Attachment of earnings order – circumstances under which such an order can be made – maintenance arrears to be attached – ss.13 of Maintenance Orders Enforcement Act; s.5(1)(2)(3) of Deserted Wives and Childrens Act.


INFANTS AND CHILDREN – Maintenance – Magistrate's powers – amount ordered to be paid – appellant aggrieved by amount – evidence of earnings – must be tendered – application to vary maintenance – s.11 of Deserted Wives and Childrens Act.


INFANTS AND CHIILDREN – Application for maintenance under s.3 of Deserted Wives and Childrens Act – custody – automatic upon ordering of maintenance – s.3(1)(a)(iii)(b)(i)(iii)(iv) of Deserted Wives and Childrens Act.


Facts


The respondent is the appellant's legal wife. She applied for maintenance for herself and the 3 children of the marriage. The application was made in the District Court under the Deserted Wives and Childrens Act. Upon ordering maintenance, the District Court also ordered that the respondent have custody of the children of the marriage. The District Court further ordered that the maintenance amounts be attached to the appellant's salary.


Issues


  1. Did the matter proceed ex parte and was the appellant given the opportunity to be heard?
  2. When can an attachment of earnings order be made?
  3. Can the District Court make an order for custody?

Reasons


  1. The evidence is that the learned Magistrate had before her affidavits from both the appellant and the respondent and the appellant's Defence which she considered. The matter did not proceed ex parte.
  2. An attachment of earnings order can be made;

OR


(ii) Where there are arrears due, owing and outstanding under the maintenance order – s.13 of Maintenance Orders Enforcement Act

.

  1. An order for custody immediately follows after an order for maintenance is made as it is automatic. – s.5(1)(2)(3) of Deserted Wives and Childrens Act.

Counsel:


M. Pokia, appearing in person as the Appellant
No appearance for and by the Respondent


DECISION

3rd June, 2011


  1. DAVANI .J: Before the Court for hearing is Notice of Appeal filed by Muriso Pokia (the 'appellant') on 16th June, 2010. The appeal by the appellant is against the decision of the Port Moresby District (Family Court) Court made on 18th and 25th May, 2010. The respondent Lena Pokia is the appellant's legal wife (the 'respondent'). I discuss the effects of a "legal wife" later below.

District Court proceedings


  1. The orders of 18th May, 2010 are that the appellant shall pay K400.00 per fortnight for maintenance and upkeep of the respondent and the children of the marriage. The breakup of the maintenance monies is as follows;-
  2. The children of the marriage between the appellant and the respondent are Dorothy and Teremu Pokia, referred to above (the 'children').
  3. The Court further ordered that the following take effect from the date of the orders of 18th May, 2010 which orders I set out below;

"...


2. This maintenance order to pay PGK400.00 per fortnight is backdated to 9/10/09, being the date of filing of this case from the date of judgment (18.5.2010). The backdated amount of K6,800.00 minus payments made during that period is payable in affordable instalments within three (3) months from judgment date, in default, appropriate enforcement proceedings under the District Court Act ('DCA') or the Maintenance Orders Enforcement Act ('MOEA') shall apply.


3. The defendant shall also pay PGK350.00 for reasonable rental accommodation for the complainant wife and the children starting from first fortnight from today, such amount to be deposited to the complainant's bank account and appropriate receipts be kept, in default, the enforcement provisions under the DCA or the MOEA shall apply.


  1. The maintenance payment shall be deposited to the complainant's bank account number, details which the complainant shall provide to the defendant and the Clerk of Court for salary attachment.
  2. The defendant shall also continue to pay one hundred percent (100%) of all reasonable medical and educational expenses whenever they fall due, in default, appropriate enforcement proceedings under the DCA or the MOEA shall apply.
  3. The children's physical custody is placed with the complainant and defendant has reasonable access – times to be sorted by the parties. As custody extends to other matters relating to the children's upbringing such as which school or church to go to, etc., these are to be discussed by both parents.
  4. The defendant shall comply with the orders until;

whichever first occurs.


  1. Any maintenance arrears accruing for the any child/children shall be recoverable even after the child/children reaches/reach 16 or 18 years or any age extended by law, under the various enforcement provisions relating to enforcement of Court Orders under the District Courts Act chapter 40, or under the Maintenance Orders Enforcement Act, chapter 279.
  2. The defendant shall also include the complainant and the children in any superannuation scheme which he is a member with appropriate apportionment for benefits and they shall receive such benefits whenever they become due for payment.

Order of 25 May 2010


UPON hearing of complainant LENA POKIA from the Defendant as to his earnings and resources and needs and the name and address of his employer:-


IT IS ORDERED that you the employer namely; THE OFFICER IN CHARGE, SALARIES SECTION, MIRUPASI LAWYERS, P.O. BOX 124, PORT MORESBY, NCD. Through your paymaster, cause to deduct the sum of K750.00 per fortnight and with such subsequent reductions as set put below and to pay this sum through to C/- COMPLAINANT'S ACCOUNT, A/C# 1001726168, BSP, BOROKO BRANCH, NCD for collection by the Complainant.


AND it is specified that the protected earning rate of the defendant after the normal fortnightly deductions, shall be K .00 per fortnight being the rate below and which the net earnings of the defendant on any payday shall not reduce by payment under this order.


NOTICE in writing shall be furnished to the Collector of Maintenance forthwith if you are not or are no longer the Employer of the said MURISO POKIA.


UNDER THIS ORDER the deduction of K750.00 shall commence on payday 02/06/10 continue unabated until and including pay / / begin a sum comprising maintenance of K750.00 per fortnight, and arrears of K .00 per fortnight, such arrears amounting to K .00.


Thereafter the deduction shall revert to the sum of K750.00 per fortnight being the amount of the original order of this Court, until the child attains the age of 16 years, or the order is otherwise varied by a Court of competent jurisdiction."


  1. The Court Order of 25th May, 2010 is an Attachment of Earnings Order which allows the automatic deduction of the sum of K750.00 per fortnight from the appellant's salary to the respondent's bank account.
  2. The deductions as ordered in the Attachment of Earnings Orders are to commence on 2nd June, 2010 and to "continue unabated". (See Court Order of 25th May, 2010), until the events stipulated in par. no. 7(a) to (g) of the orders occurs. The maintenance order of 18th May, 2010 is to continue until the children attain the age of 16 years, or the order is varied by a Court of competent jurisdiction or the child/children dies, which ever first occurs.

Grounds of appeal


  1. The appellant pleads 16 grounds of appeal, all in relation to the manner in which the learned Magistrate exercised her powers when making the orders of 18th and 25th May, 2010. Basically, the grounds of appeal are summarised as;

Analysis of evidence and the law


  1. The grounds of appeal can be discussed under several sub-headings which I set out below as follows;
  2. The appellant filed written submissions, which submissions address each ground of appeal. I discuss these grounds under the sub-headings listed above.

Ex parte hearing


  1. The respondent commenced proceedings in the Port Moresby District Court by a Summons to a Person Upon a Complaint, being Form 18 of the DCA. Form 18 is the prescribed form for claims under ss.49, 50, 55 and 55 of the DCA.
  2. The Summons seeks or claims that the appellant had unlawfully deserted his lawful wife and children of his customary marriage to the respondent and had left them without any or sufficient means of support as provided under the Deserted Wives and Children's Act, chapter 277 ('DWCA').
  3. The Summons seek the following orders;
  4. The Complaint which supports the Summons, claims the same or similar orders.
  5. Was the appellant properly advised or informed of the hearing date?
  6. According to the District Court Depositions and the Magistrate's notes which are contained at tab 12 of the Appeal Book, there were 12 appearances before the Family Court Proceedings FC 507 of 2009. These appearances were on;
  7. Out of all these appearances, the Magistrate's notes show that the appellant was in Court on 28th October, 2009, 19th November, 2009, 3rd December, 2009, 21st January, 2010 and 11th May, 2010.
  8. The appellant was not in Court on 23rd March, 2010, 8th April, 2010, 14th April, 2010, 20th April, 2010 and 18th May, 2010.
  9. The Court Depositions also show that neither the appellant nor the respondent were in Court on 10th December, 2009 and 18th December, 2009.
  10. The appellant claims that the learned Magistrate heard the matter ex parte without first ruling that it should proceed ex parte and without first giving him the opportunity to be heard. He also submits that the Court did so, knowing full well that he had a good Defence.
  11. The DWCA provides for the appearance of both parties. In any Court hearing, the matter proceeds ex parte after the Judge/Magistrate has satisfied himself/herself that the plaintiff/defendant was properly served within the stipulated time period, and did not appear, that the matter can then proceed ex parte. The Court does so after having satisfied itself from affidavit material before it, which affidavit will depose to service upon the party not in Court. In this case, such an affidavit was not before the Court before the Magistrate proceeded to hear the respondent then make the final orders.
  12. Before I deal with the ex parte orders, I refer again to the Complaint and Summons. The Complaint and Summons plead that the respondent and the children were deserted and left without any means of support. The respondent relies on her two affidavits sworn on 14th December, 2009 to support that pleading.
  13. Another order the Magistrate made was the interim order of 8th April, 2010. On 15th April, 2010, the Court noted the service of the interim orders. The learned Magistrate then ordered that the matter be stood over to 20th April, 2010 at 9:30am for hearing. However, there is no affidavit of service in the Court Depositions showing that the appellant was advised of the adjournment date and that he was served with the interim orders.
  14. The interim orders, are directed at the appellant to pay school fees for the children. It further orders that they will remain with the respondent but for the appellant to have ready access. The interim orders were to apply pending the outcome of the substantive matter. In relation to that, the interim orders, taken out ex parte were done as far as I can tell, without a formal application supported by material facts. If these material facts were relied on, the Magistrate's notes which are contained in tab 12 of the Appeal Book do not state that the Magistrate had relied on affidavits or a Summons that was earlier filed. However, that is not a ground of appeal but I only mention it because this is the evidence on the Court file.
  15. A matter will only proceed to an ex parte hearing after the Court satisfies itself that the other party has been properly served and advised of the hearing date. Unless the Rules of Court specifically provide for dispensation of service, and such a rule is applied by the Court, that no matter should proceed ex parte without the other party having been advised of the hearing date.
  16. Although the appellant submitted that the hearing was conducted in his absence, the only good evidence before me that I can rely on in confirming this submission are her Worship's notes of the proceedings which are contained at Tab 12 of the Appeal Book. These typed notes are very brief and do not tell me if this matter proceeded to substantive hearing in the appellant's absence. The Court depositions do not contain the Magistrate's original hand written notes so it is impossible for this Court to verify one way or another, claims made by Mr Pokia. The only reliable evidence on the appellant's appearance are these typed notes. Pars. nos. 15, 16, 17 and 18 of these reasons contain my analysis of appearances by the parties in the District Court. The other reliable evidence is the Magistrate's reasons for decision. At pg.1 of the decision, she states;

"PARTIES. Both parties in person. (The defendant arrived late')".


  1. That is an indication that the defendant was in Court, albeit having arrived late. The only issue is whether this is a reference to being late to receive decision or being late for the trial.
  2. What about the appellant's right to be heard as he claims he was not heard? According to the learned Magistrate's reasons for decision, she did have before her affidavits and a Defence the appellant filed on 19th November, 2009. There is handwritten notation on the cover page of the Defence, "Sighted" and a signature at the bottom. I assume it is the learned Magistrate's signature. Although, the appellant claims that the matter was heard ex parte, the learned Magistrate has given thorough consideration to the Defence filed by the parties, together with the affidavits filed by the appellant in the District Court. This is demonstrated at par. nos.3 to 22 of her Worship's written reasons (Tab 7 of Appeal Book). In my view, the learned Magistrate gave thorough consideration to all the material before her.

Attachment of Earnings Order


  1. An Attachment of Earnings Order is made upon an original maintenance order and usually under circumstances where the original maintenance order has not been complied with or is partially complied with.
  2. In a hearing for maintenance and custody filed under the DWCA, the elements to be established by the complainant on the balance of probabilities are;
  3. In relation to these elements, the learned Magistrate found that;
  4. That does not mean that the appellant is now prevented from pursuing his application for custody in the National Court. He can do so meaning he will have to establish that the interests of the children will be best served if he is awarded custody of the children as it is in the best interests of the children as their welfare is paramount.
  5. I find the learned Magistrate did not err when she ordered that the respondent have custody of the children.
  6. Notwithstanding all the above, did the learned Magistrate properly exercise her powers when she made Attachment of Earnings Orders on 25th May, 2010?
  7. The learned Magistrate did not state the legislation she relied on when she decided that the appellant's salaries should be attached. But the Attachment of Earnings Order dated 25th May, 2010, is set out on a document titled "Maintenance Order Enforcement Act" (Chapter 27). So I can assume, the learned Magistrate relied on the MOEA when making the order.
  8. But under what circumstances can an applicant make application under the MOEA?
  9. Section13 of the MOEA is the relevant provision that governs Attachment of Earnings Orders. It reads;

"13. Attachment of earnings order


(1) Subject to this Division, a person entitled to receive payments under a maintenance order may apply to the Court for an attachment of earnings order.

(2) An application under subsection (1) may be made ex parte and without specifying the name of any employer of the defendant.

(3) If the Court is satisfied that the defendant is a person to whom earnings are payable or are likely to become payable and –

(ii) there was due under the maintenance order, and unpaid for not less than four weeks, an amount in respect of costs or an amount payable otherwise than by way of periodical payments; or


(b) that the defendant has persistently failed to comply with the requirements of the order,

the Court may, in its discretion, by order require a person who appears to the Court to be the defendant's employer in respect of those earnings or a part of those earnings to make out of those earnings or that part of those earnings payments in accordance with Section 14.


(4) The Court shall not make an attachment of earnings order if it appears to the Court that the failure of the defendant to make payments under the maintenance order was not due to his wilful refusal or culpable neglect.

(5) An attachment of earnings order shall specify a normal deduction rate or normal deduction rates, and where it specifies two or more such rates it shall also specify the pay-day or pay-days to which each of those rates is applicable.

(6) The rate to be specified as a normal deduction rate shall be the rate at which the Court thinks it to be reasonable that the earnings to which the order relates should, or should on the pay-day or pay-days to which the rate is to be applicable, as the case may be, be applied in satisfying the requirements of the maintenance order, but not exceeding the rate that appears to the Court to be necessary for the purpose of –

(7) An attachment of earnings order shall also specify the protected earnings rate.

(8) An attachment of earnings order shall provide that payments under the order are to be made to the Collector.

(9) An attachment of earnings order shall contain such particulars as the Court thinks proper for the purpose of enabling the person to whom the order is directed to identify the defendant.

(10) An attachment of earnings order does not come into force until the expiration of seven days after the day on which a copy of the order is served on the person to whom the order is directed."

(my emphasis)


  1. Section 13 makes it clear that before an applicant applies for an attachment of earnings order, there must have been due, unpaid and owing to the applicant from the defendant;
  2. But attachment of earnings orders will not be made if the non-payment of maintenance is not due to the appellant's "wilful refusal or culpable neglect". (See s.13(4) of the MOEA).
  3. In this case, the attachment of earnings order requiring the appellant's employer to deduct the sum of K750.00 per fortnight, was made on 25th May, 2010, a week after the original maintenance order was made on 18th May, 2010. Obviously, there could not have been any monies due, unpaid and owing to the respondent from the appellant.
  4. Applications for attachment may be made ex parte (see s.13 of the MOEA). Applications are supported by affidavits preferably from the applicant and the Collector of Maintenance whose duties are as provided under s.2 of the MOEA. The Collector's duties are, amongst others, to collect maintenance. But I do not know if such an office is still in existence, although that provision has not been repealed. Because the Collector keeps a proper account of all the monies received (see s.2(4)(a) of MOEA), he is the most appropriate person to file an affidavit stating, based on his records, the amounts due and owing to the applicant from the defendant. The Collector's evidence is the best evidence as it is independent, neutral and accurate. The District Courts, when faced with applications for attachment, must insist on this evidence.
  5. In this case, no such evidence was before the District Court. Also, the respondent had not filed an application supported by affidavits. It seems, the learned Magistrate made an attachment order, without there being any arrears owing.
  6. However, the learned Magistrate could have been exercising other powers available to her under the DWCA when she made orders on 25th May, 2010. I say this because in her reasons for the decision of 18th May, 2010, the learned Magistrate states at par. no. 9;

"The maintenance payment of K400.00 per fortnight for the family's upkeep will be backdated to 9/10/09, the date of filing of this matter from today (18/5/10). The defendant's salary will be attached. The Complainant will give her bank account details to the Clerk of Court for salary attachment." (my emphasis)


  1. This means that at the date of her decision (18th May, 2010), the learned Magistrate had already decided that the appellant's salaries will be attached. Can she do that?
  2. The total amount to be attached on the 25th May, 2010 Court Order, is K750.00, the total amount ordered on 18th May, 2010. The only provision that gives a magistrate the power to order attachment at the time of the making of maintenance orders is s.5(1)(2)(3) of the DWCA. It reads;

"(1) In making an order under Section 3 for the support of a wife or child, the Court, instead of or in addition to any other order for relief under this Act, may direct some person to demand and receive –


(a) an annuity or other income payable to the husband or father; or

(b) moneys received or receivable or held by a person in trust to be paid periodically or by instalments or otherwise to or for the husband or father; or

(c) such portion of the annuity, income, or other moneys as the Court thinks proper,

and to appropriate the proceeds towards the support of the wife or child in such manner as the Court directs.


(2) While an order made under Section 3 for the support of a wife or child remains in force, a Court –


(a) on application made by or on behalf of the wife or child, and

(b) on notice given, in such manner as the Court directs, to all parties affected by acting under it,

may, by order, give a direction referred to in Subsection (1).


(3) A payment made under a direction under this section is as valid as if made to the husband or father or by his authority, and the direction protects and indemnifies a person acting under it."

(my emphasis)


  1. It appears the learned Magistrate was exercising her powers under s.5 of DWCA because on 18th May, 2010, she ordered an attachment of earnings and on 25th May, 2010, formalised that order. In my view, she need not have made the orders of 25th May, 2010, because the orders of 18th May, 2010, more particularly par. no. 9 of her reasons, are sufficient in themselves. Therefore, I find the learned Magistrate did not err when she ordered an attachment.
  2. I note also that the backdated maintenance is assessed at K6,800.00 (re par. no. 2 of the Court Order of 18th May, 2010; Tab 18 of Appeal Book). The appellant was ordered to pay this amount within 3 months, failing which enforcement proceedings will be taken under the District Courts Act or the MOEA. I note also the stay orders of 11th March, 2011, taken out in this Court, pending the hearing of this appeal. Which means the appellant is presently not paying.
  3. Having found that the learned Magistrate did not err in the manner in which she dealt with the proceedings before her, I will dismiss the appeal.
  4. If the appellant is aggrieved by the amount he is paying, he can return to the District Court and apply to vary these orders under s.11 of the DWCA. This also applies to the order directing him to include the respondent and the children in any superannuation scheme. If he is a member of any such schemes, he need only bring the Policy to Court as evidence to show who the lawful beneficiaries are and who can benefit under that scheme. As for variation of the amount to be paid, he will bring evidence of his earnings to show that he cannot afford to pay the amount ordered. I note such evidence was not before the District Court and is not before me now. Therefore, I am unable to make any orders on the amount to pay as I do not have evidence of the appellant's earnings. The appellant has to return to the District Court for that purpose.
  5. As for the custody proceedings pending in the National Court, if the appellant is genuine about these proceedings, then he should immediately progress the hearing of that application.

Formal orders


  1. These are the formal orders of the Court;

_____________________________
Lawyers for the Appellant : Appearing in person
Lawyers for the Respondent : No appearance for and by the Respondent

PacLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2011/56.html