Home | Databases | WorldLII | Search | Feedback Papua New Guinea District Court

Liliura v Foxy [2022] PGDC 119; DC9058 (2 September 2022)

DC9058

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY COURT JURISDICTION]

FC 13 of 2020

BETWEEN

Aida Liliura

Complainant

AND

Michael Foxy

Defendant

Waigani: Hilda David Aipi Magistrate

2022:2^nd September

MAINTENANCE PROCEEDINGS: Claim for child maintenance brought pursuant to Sections 108 and 109 of the Lukautim Pikinini Act 2015 - Two main issues to consider - whether the defendant is the father f the children - whether the defendant has neglected the children - forms of maintenance prescribed under section 108 of the Lukautim Pikinini Act 2015 - whether the defendant has the means to pay in kind and what should constitute maintenance in kind.

Cases Cited:

Abulo v Vivi [2021] DC7030

References:

Lukautim Pikinini Act 2015

Counsel:

Complainant, in Person

Defendant, in Person

1. Hilda David Aipi Magistrate: This is my ruling regarding a case on child maintenance claim filed by the Complainant pursuant to sections 108 and 109 of the Lukautim Pikinini Act 2015 against the Defendant claiming maintenances for herself and her two children namely:
   
   1. Michaelin Foxy,born on 27^th December 2017 at Port Moresby General Hospital; and
   2. Eriana Foxy,born on 30^th March 2020 at Port Moresby General hospital.
      
2. The complainant claims that since 2020, the Defendant left her and her two children without any sufficient support and claims that the defendant pays maintenance pursuant to section 108 of the Lukautim Pikinini Act 2015, in the following manner:
   
   1. The Defendant pays K1000 each for the said female children pursuant to section 108 of the Lukautim Pikinini Act totaling up to K2000.
      
   2. The Defendant pays fortnightly maintenance of K500 for the complainant pursuant to section 109 of the Lukautim Pikinini Act 2015 to the Complainant’s nominated bank account.
      
3. The matter was before me for hearing on the 19^th of August 2022 and a hearing was conducted.
   
4. This is my ruling on whether or not the Court should grant maintenance orders against the Defendant.
   

FACTS

5. The Complainant is from Sima Village, Yongoru-Suasi District,East Sepik Province.
   
6. The Defendant is from Koiari, Hiri District of Central Province.
   
7. They met at Taipini New Block, 14 Mile of Central Province in 2016 and entered into a De Facto relationship.
   
8. The defendant at that time had a wife whom he had married under custom and accepted the Complainant as his second wife.
   
9. Out of the de facto relationship with the complainant, they have two daughters, who are Michaelyn Foxy and Eriana Foxy.
   
10. They lived a normal family life until 2018 when the Defendant’s first wife in the company of her friends and relatives physically and verbally assaulted the Complainant at 14 Mile, Central Province.
    
11. The Defendant took sides with his first wife and at times assaulted the Complainant and left her with the children.
    
12. However, the Defendant from time to time provided some form of support for the Complainant and her two children but it was not adequate for their upkeeping given their situation.
    
13. Hence, the Complainant brought these proceedings under sections 108 and 109 of the Lukautim Pikinini Act 2015 claiming maintenance for herself in the sum of K500 as well as for her two children in the sum of K2000 (K1000 per child) totaling up to a sum of K2500 to be paid into the Complaiant’s nominated account forthrightly.
    

RECORD OF PROCEEDINGS

14. The complainant commenced these proceedings by way of a complaint and summons upon complaint dated and filed the 1^st day of October 2020.
    
15. First mention was on the 16^th of October 2020 where both parties did not appear.
    
16. Second mention was on the 6^th of November 2020 were both parties attended.
    
17. The complaint was explained to the Defendant and the Defendant understood and generally denied.
    
18. The Defendant then filed a Notice of Motion and supporting documents dated and filed the 11^th of October 2020, to dismiss the matter for abuse of court process by bringing the proceedings under the Lukautim Pikinini Act as the Complainant claimed that she was the lawful customary wife of the Defendant and hence, the Lukautim Pikinini Act 2015 only applies to those children born outside of marriage.
    
19. The Court heard the Notice of Motion on the 19^th of January 2021.
    
20. On the 15^th of Februrary,2021, the Defendant’s Notice of Motion was dismissed for being misconceived in law.
    
21. The Defendant’s submission basing on section 105 of the Lukautim Pikinini Act which states that section 105 of Lukautim Pikinini Act 2015 prohibits in mandatory terms the lawful wives to bring proceedings under the Lukautim Pikinini Act was rejected on the proposition that the same law (Lukautim Pikinini Act 2015) itself under Division 7 allows for married wives to bring proceedings as was done by the complainant in this case.
    
22. Hence, it was ruled that the Defendant’s submission was misconceived and that it was a proper claim for maintenance under sections 108 and 109 and was allowed to be continued.
    
23. The matter was then made returnable on the 17^th of March 2021, where the Defendant submitted that the Complainant was not his wife and that he did not father the Complainant’s children.
    
24. On the 14^th of April, 2021, the Court ordered for a DNA testing to be done for the issue of paternity to be resolved.
    
25. However, after several adjournments, the matter came before me on the 7^th of June 2022.
    
26. The parties both appeared in Court and submitted that they did not do the DNA testing as ordered by the Court because the Defendant later accepted that he is the father of the children and he also accepted that the Complainant and him are in a de facto relationship.
    
27. The court therefore decided that there was no issue on paternity and so the Order that was made for the parties to do the DNA testing was revoked.
    
28. This left the Court to decide on the issue of maintenance of the children and the complainant as per the complaint filed.
    

ISSUE

1. Whether or not the Defendant has neglected the complainant and the two children
2. If yes, whether or not the Defendant has the means to support them
   

APPLICABLE LAW

29. The Complainant brings her claims under sections 108 and 109 of the Lukautim Pikinini Act 2015 which are as follows:
    

108. MAINTENANCE OF A CHILD

(1) Where the Court hearing a complaint under this Part in relation to the Maintenance of a Child is satisfied on all the evidence, it may order the Defendant to pay the Complainant fortnightly sum or in case of maintenance for the child.

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.

EVIDENCES BEFORE THE COURT

1. COMPLAIANT’S CASE
   

30. The complainant relies on the following Affidavits to prove her case:
    1. Amended Affidavit In Support of Aida Liliura sworn an filed on the 4^th of November,2020
    2. Affidavit of Mike Kipe sworn on 16^th March 2021 and filed the same
    100. Joyce Sereve’s witness Affidavit sworn and filed the 12^th of April,2021
    4. Rosemary Rainford’s Affidavit sworn and filed the 12^th of April,2021
    5. Affidavit of Serah Liliura Eddie Simon sworn and filed the 12^th April,2021
    6. Affidavit of Everista Tami sworn and filed 12^th April 2021
    7. Affidavit of Francis Thomas sworn and filed the 12^th of April 2021
    8. Affidavit of Emelda Abawa sworn and filed the 12^th day of April,2021
    9. Further Affidavit In Support of Aida Liliura sworn and filed 12^th of April,2021
       

2. DEFENDENAT’S CASE
   

31. The Defendant relies on the following affidavits to prove his case:
    1. Witness Affidavit of Sam Maiva sworn and filed the 16^th of March, 2021
    2. Affidavit of Haki Michael sworn and filed the 16^th of March, 2021
    100. Affidavit of Catherine Vakore sworn and filed the 16^th of March 2021
    4. Affidavit of Elma Foxy sworn and filed the 16^th of March 2021
    5. Affidavit of Yavanda Berendi sworn and filed the 16^th of March 2021
    6. Affidavit of Makaranda Verendi sworn and filed the 16^th of March 2021
    7. Affidavit of Joel Eha sworn and filed the 16^th of March 2021
    8. Affidavit of Michael Foxy sworn and filed the 16^th of March 2021
       

RELEVANT ISSUES AND DISCUSSIONS

32. The first issue requires me to consider the evidence and confirm whether or not there is any reasonable explanation provided by the Defendant on how far the Defendant has maintained the children and the complainant from 2016 to date.
    
33. I note from the evidence produced before me that the Defendant is not living with the complainant and the two children.
    
34. The complainant and the children are living with the Complainant’s relatives.
    
35. I also note that the Defendant lives with his first wife and children, but visits the Complaint and the children once in a while and gives them food and money.
    
36. The defendant is not readily available when the complainant and the children need him.
    
37. He visits them at his own convenient.
    
38. He only visits them when he feels like to and not out of a feeling of obligation as the complainant’s partner and father of the two children.
    
39. I find on the balance of probabilities that the defendant has neglected the complainant and her two children.
    
40. This finding therefore concludes issue number one (1) where on the balance of probabilities, the defendant is found to have neglected the complainant and the two children by not providing sufficient means of support.
    
41. Therefore, the defendant is liable under section 108 and 109 of the Lukautim Pikinini Act 2015 to pay maintenance to the complainant and his children.
    
42. This brings me to the next issue of whether or not the defendant has the means to support the complainant and the children?
    
43. I find on the balance of probabilities that the defendant does not have the means to pay monetary maintenance in the sum of K2500 on a fortnightly basis as claimed by the complainant for the upkeep of the two children and herself.
    
44. However, from the evidence provided, I note that the defendant has the ability to provide maintenance in kind on a monthly basis.
    
45. The defendant also has the ability to pay the children’s’ school fees, other related costs and medical expenses for the complainant and the children as and when the need arises.
    
46. I further note that the defendant is not employed in any formal job. Hence, he does not receive any fortnightly salary or wage.
    
47. However, the defendant is the chairman of Moya Incorporated Land Group and receives royalty at the end of every month.
    
48. This proves that the defendant has the ability to provide maintenance in kind on a monthly basis.
    
49. This now leaves me with the question: what should be the form of maintenance in kind take?
    
50. To answer the above question, I adopt the view taken by my brother Magistrate B Fehi, in the case of Abulo v Viri [2021] DC 7030, where his Worship stated and I quote:

“...I will apply the liberal or purposive rule of interpretation and interpret section 108 as to what I believe the legislator intended. For maintenance purposes, it is in my view not the intention of the legislature for me to confine myself to the description “Fortnightly” as such I have the option of considering a monthly award of maintenance.”

51. His Worship continued in the same case as follows:
    

“As to what should be the form of maintenance in kind, it should include in my view the basic needs of a child, that is, clothes and a balanced meal three times a day.”

CONCLUSION

52. I will now follow His Worship’s ruling in the aforementioned case award the following in favor of the complainant against the defendant, and as per my orders, the defendant will be required to comply fully to ensure the children’s interest and welfare are protected and promoted.

COURT ORDERS

1. Pursuant to sections 108 and 109 of the Lukautim Pikinini Act 2015, the defendant is found to have provided no means of support to the complainant and the children namely Michealin Foxy born on the 7^th December 2017 and Eriana Foxy born on 30^th March 2020.
   
2. The complainant’s claim for K2500 to be paid into her nominated account on a fortnightly basis for the maintenance and upkeep of herself and the defendant’s two children are refused as the defendant does not have the means to support them fortnightly.
   
3. Alternatively, pursuant to sections 108 and 109 of the Lukautim Pikinini Act 2015, the defendant is ordered to comply with the following maintenance orders:
   1. To provide on every three (3) months period clothes including panties, shirts, skirts and shorts for the two children; two pairs each for the two children;
   2. To provide every three months period clothes including panties, bra, shirts, skirts and shorts for the complainant, two pairs each;
   100. To provide at the beginning of each month 1 x 20KG bag of ric;1 x 10KG bag of cooking plain flour;5 Liters of cooking oil x 2;2 x 500G salt;3 x 1kg Sugar and 3 x 1 Large Tea Bag.
   4. For laundry purposes,1 x large packet of powder soap(Omo);1 x 500 mls of bleech and 12 x bar laundry soap
      
4. The defendant is also ordered to pay for all the school fees of the children and other related costs.
   
5. The defendant is further ordered to pay for the medical expenses of the complainant and the two children as and when the children desire to see him.
   
6. These orders are effective and are enforceable until the children turn 18 years old or if either of the children complete school or die or if these orders are varied or discharged by a court of competent jurisdiction.
   
7. Parties to bear their own costs.