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Dagu v Dikana [2006] PGDC 17; DC581 (20 February 2006)

DC581

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

FC 195 OF 2005

BETWEEN

KWARAGU DAGU
APPLICANT/DEFENDANT

AND

DAERA DIKANA
RESPONDENT/COMPLAINANT

Port Moresby: N Bingtau
2006: February 10th & 20th

CIVIL - Application for Variation of Maintenance Order – Section 100(1)(c)(2)(3)&(5) of the Child Welfare Act ch 276 PNGRL – This section should not be used by a Defendant as substitute to lodging an appeal against the Maintenance Order to the
District Court – "Maintenance" includes the provision of food, clothing, etc.....under s 1 Child Welfare Act therefore Defendant as a subsistence farmer must suggest alternative maintenance order – Application to be withdrawn – Defendant to suggest alternative maintenance payment in the revised application.

Applicant/Defendant in person
Respondent/Complainant in person

10 & 20 February 2006

JUDGMENT

Bingtau N This is an Application by the Defendant to vary the Maintenance Order of 9 January 2006 made against him under s 100 of the Child Welfare Act ch 276 PNGRL asking the Court to stay the Maintenance Order till he gets employment and also to stay the enforcement of the Maintenance Order till his application for variation is heard and completed.

Facts:

2. The facts of this case as I find from the Applicant/Defendant is her Affidavit filed in Support of Application for Variation of Maintenance Order and Stay of the Maintenance Order sworn on 19 January 2006 and his Witness’s Morea Aubo sworn on 30 January 2006, Dagu Gado sworn on 29 January 2006 and Daera Vada sworn on the 29 January 2006 were that, basically he was unemployed villager and he was having difficulty in complying with the Maintenance Order therefore sought orders by Staying the Order till he gets employment.

3. On plea, the Complainant/Respondent when the Application for Variation was read and explained, she objected to the application and asked the court to dismiss the application because the Defendant/Applicant had the means of complying with the Maintenance Order on the 10 February 2006.

Preliminary Issue:

4. The Applicant/Defendant’s Application for Variation posed this preliminary issue in my mind as to whether the Application be struck-out on the grounds that it is defective namely that the Applicant should be asking the court to order alternative maintenance payment rather than cash payment if he was unemployed rather than asking the court to Stay the Maintenance Order of 9 January 2006 till he gets employment.

5. However, I was not sure therefore adjourned for ruling on the 20 February 2006 at 9:30 am, for me to study the Child Welfare Act ch 276 PNGRL.

Examination of the Child Welfare Act Chapter No: 276 PNGRL:

6. The relevant sections of the said Act that I sought assistance were:

1. "Section 1", Interpretation.

"In this Act, unless the contrary insertion appears -

"maintenance" includes the provision of food, clothing, lodging, nursing, medical treatment, necessaries, training and education."

2. "Section 100, Variation etc – of maintenance orders -

(1) Where a maintenance order is in force under this Act -

(a) the Director, or

(b) the mother of the child in respect of when the order is in force, or

(c) a person liable to pay money under the Order, may apply to a court for the alteration, variation, suspension, or discharge of the order.

(2) An application under s100(1) shall be by way of Complaint -

(a) in writing, and

(b) on Oath, and

(c) stating the names of the Complainant, the child and all persons liable to pay for or contribute towards the maintenance of the child.

(3) A justice before whom a complaint is made under this section may summon all or any off the persons stated in the complaint to be liable to pay for or contribute towards the maintenance of the child to appear before a court at a time and place named in the summons.

(4) A Complaint under this section may be heard by -

(a) the court which made the original order, or

(b) the court nearest to the place or residence of a person liable to make payments that increased convenience would result to the parties by its hearing the complaint.

(5) At the hearing of a complaint under this section the court may alter, vary, suspend or discharge the order or make new order as it thinks just in the light of fresh evidence attached."

7. Upon examination of the above two sections of the Child Welfare Act quoted my interpretation was that:-

By the Virtue of s 100 (1)(c), the Applicant/Defendant, he can apply for the Maintenance Order of 9 January 2006 to be varied by suspending it till he gets employment, however, my view is that, the court found him liable to pay maintenance for the illegitimate child, found him that he had the means to pay so it ordered him to pay K100.00 fortnightly. However, if the Applicant thought otherwise he should appeal to the National Court against the Maintenance Order instead of applying for variation. Applicant according to the court record had not complied with the Maintenance Order so she issued a Summons to Debtor on him to pay up the arrears of K1,730.00.

8. In my view, s 100 cannot be issued by the Applicant/Defendant as a substitute to lodge Appeal in the National Court.

9. Furthermore, looking at s 1 of the Act, "Maintenance" includes the provision of food, clothing, lodging, nursing, medical treatment, necessaries, training and education therefore in my view, the Applicant/Defendant must suggest alternative maintenance for the illegitimate child say may be he could pay K20.00 fortnightly or bring K50.00 worth of food for the child per fortnight etc...Since he is unemployed and not earning regular monetary income. However, for the Applicant/Defendant to apply to vary the Maintenance Order by suspending the maintenance order till he gets employment, is in view not in the best interest and welfare of the illegitimate child because the child is growing up and it needs the support of both the father and mother not just the mother and her family while the father just relaxes. Obviously, the child will not stop growing and also her need for food and other necessaries will not stop, pending her father, the Applicant/Defendant to get employed.

10. Therefore, the end result is that the Applicant/Defendant’s application to vary the Maintenance Order of 9 January 2006, by suspending it till he gets employment is defective and must be withdrawn with direction to reapply for Variation Maintenance Payment because he is unemployed and not earning cash income.

The court then made orders accordingly.

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Applicant/Defendant, in person

Respondent/Complainant, in person