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Papua New Guinea Law Reform Commission |
LAW REFORM COMMISSION
OF
PAPUA NEW GUINEA
THE LAW OF MAINTENANCE
IN PAPUA NEW GUINEA
WORKING PAPER N0.23
JUNE 1989
This paper was researched and prepared by Mr Sao Reigari Gabi, LL.B. (UPNG) LL.M. (MONASH), the Commission’s Principal Legal Officer.
1. Introduction
In Papua New Guinea three pieces of legislation deal with maintenance. A wife and children who have been deserted may claim maintenance in the District Court or the Local Court under the Deserted Wives and Children Act. A spouse of a statutory marriage may claim maintenance in the National Court under the Matrimonial Causes Act. In relation to an illegitimate child the claim may be made in the Local Court or the Children's Court under the Child Welfare Act. In terms of enforcement of maintenance orders, the National Court orders made under the Matrimonial Causes Act can be enforced under that Act and the National Court Rules. The orders of the courts of summary jurisdiction may be enforced under the Deserted Wives and Children Act, the Child Welfare Act and the Maintenance Orders Enforcement Act. Before instituting proceedings for maintenance or for enforcement of maintenance orders one needs to choose the particular court and the Act under which to proceed. Again in the case of enforcement one needs to chose the Court and the particular method of enforcement. This can be very confusing. In this regard there have been numerous instances of criticisms and requests for reform. The family law legislation in Papua New Guinea were introduced by the Australian Colonial Administration and while important and major changes have taken place in Australia our laws remain unchanged. To this end a number of changes are recommended in this paper. It should also be remembered that this paper is part of the Family Law reference.
2. The Nature of Maintenance
Under the existing law maintenance is governed by the provisions of the Deserted Wives and Children Act, the Child Welfare Ac and the Matrimonial Causes Act. Each statute confers maintenance jurisdiction on a different court:
(i) Deserted Wives and Children Act
The jurisdiction is conferred on a Local court[1] or a District Court[2]. Local courts have jurisdiction to entertain maintenance claims by wives or customary marriages only. District Courts have jurisdiction in respect of customary and statutory marriages.
(ii) Child Welfare Act
The jurisdiction is conferred on the Children’s Court.[3]However, where no Children’s Court is established, a District Court may exercise the jurisdiction of the Children’s Court. A local court may exercise jurisdiction in relation to maintenance claims by mothers of illegitimate national children.
(iii) Matrimonial Causes Act
Only the National Court has jurisdiction under the Act. [4]
It is an offence for a married man not to provide for his wife, and both a husband and a wife can be prosecuted for failing to provide necessaries – food, shelter, etc. – of life to their children.[5]
(a) Maintenance Under Customary Law
The literature on payment of maintenance indicates that the payment of maintenance is foreign to the customary family law of Papua New Guinea.[6] However, increasingly village courts, which are empowered to apply custom only, are making maintenance orders in conjunction with custody orders. [7]This seems to suggest development of a "new" custom in Papua New Guinea. If on the other hand, the village courts are applying the existing family law rules, the practice is clearly illegal. Whatever the argument, what is important is that, unless the practice of maintenance payment is or becomes a custom of the people, village courts have no jurisdiction to make maintenance orders. If payment of maintenance were to become a custom guidelines relating to the form of payment, liability and methods of enforcement should be clearly spelt out in the Village Courts Act.
(b) Who may bring maintenance proceedings?
The statutes[8] not only impose maintenance obligations but also impose sanctions upon parents to maintain their children and upon husbands to maintain their wives. [9]
Only a married woman may claim maintenance for herself and for the children by her husband. An unmarried woman or a de facto wife has no such right. She may be entitled to maintenance for four (4) months only if she choses to make her claim under the Child Welfare Act. [10]The right of a woman to claim maintenance is therefore determined by marriage, not by dependency or need for such maintenance. The rights of the children to obtain maintenance are not affected by the status of the parents' relationship.
A husband of a statutory marriage may claim maintenance in conjunction with divorce under the Matrimonial Causes Act. No such right exists under the Deserted Wives and Children Act. In fact, a husband or a wife cannot claim maintenance after dissolution of their customary marriage.[10A] The Act does not permit maintenance orders to be made against wives[10B]. Whilst proceedings for maintenance cannot be brought against the mother under the Act, it is nonetheless an offence for a mother to desert the children without means of support.
Under the statutes, child cannot claim maintenance independently of his/her parents or guardians. In other words, a child cannot bring separate action against the father or the mother. An action may be brought by the mother, a reputable person or! behalf of the child, the Director of Child Welfare or a person authorised in writing by the Director.[11] Whilst the status do not permit a child to bring maintenance proceedings, the Deserted Wives and Children Act enables a child in whose favour an order has been made to apply to the Court for the enforcement or the variation of the order. [12]
(i) PR V. SC (1986) PNGLR 68
This was an appeal from a custody and maintenance order made by a District Court under the Deserted Wives and Children Act. The magistrate found that the parties were not married and the appellant was the father of the child. His worship thereupon granted the custody of the child to the respond and ordered the appellant to pay a sum of K20 per fortnight for the maintenance of the child. His Honour, Justice Los held that under the provisions of the Deserted Wives and Children Act the District Court has jurisdiction to make orders for maintenance and custody of children born out of wedlock, that is, illegitimate children.
Prior to the decision in 1986 applications for maintenance for illegitimate children were made under the Child Welfare Act. Since the decision applications for maintenance for illegitimate children may now be made under either the Deserted Wives and Children Act or the Child Welfare Act. Dr Jessep[13] was critical of the decision of Judge Los in that case. After reviewing the history of the Deserted Wives and Children Act, he concludes that the decision is vulnerable and may not be followed in the future.
A problem a mother of an illegitimate child who decides to claim maintenance under the Deserted Wives and Children Act may face is that confinement expenses and 4 months maintenance for mothers are remedies specifically provided for under the Child Welfare Act and the Court may chose not to make orders in respect of these matters under the Deserted Wives and Children Act.
(ii) "Left" without means of support
A woman must show that she and/or the children have been "left" [14]without means of support before she and/or the children can obtain maintenance under the Deserted Wives and Children Act or the Child Welfare Act. The words, has "left" his wife or children "without means of support", has been defined to mean failure to support and does not mean "physical movement",[15] the "act of locomotion", [16] "motion or separation" [17]"physical departure" [18]or "going away or physically departing". [19] In Chantler v. Chantler, [20] Griffith C.J. said, "the words are, if he ‘has left’ his wife or child without means of support. That may be by actual desertion, going away from them and leaving them, or it may be, without committing any act of desertion in the ordinary sense, by leaving his wife and children in his house and making no provision for their maintenance". A wife can therefore obtain maintenance from a husband for herself and/or the children if the husband gives her no money or makes no provision for their maintenance even though they live under the same roof.
The debate on the meaning of "left without adequate means of support" began in Chantler v. Chantler and was settled in Ex parte Sharah; re Sharah v. Anor. [21] It means more than failure to support. "Left" requires "that there should be proved some fault on the part of the defendant which contributed to the wife or child being without means of support." [22]In other words, the liability to pay maintenance under the Deserted Wives and Children Act is dependent on failure to support and fault on the part of the defendant. [23] The earnings of the wife are not taken into account when determining whether or not she has been "left without means of support" but are taken into account when determining the amount of maintenance. [23A]
Generally the concept of fault is still prevalent in the family law of Papua New Guinea today. [24] Under the Deserted Wives and Children Act, an action for maintenance may be dismissed if the defendant shows reasonable cause for his conduct. [25]Similarly a wife’s application for maintenance will fail if it is shown that she has committed adultery or is of drunken habits unless the husband condoned or connived at the adultery or by his cruelty willful neglect or misconduct conduced to the adultery or drunken habits. [26]An order for a wife’s maintenance will be discharged if it is proven that since the making of the order she has committed adultery that he has not condoned. [27]
(iii) Can a wife apply for maintenance and custody of the children if the husband has taken them against her wishes?
The situation discussed is where the mother has been "left without means of support" and the children are with the father who looks after them or ensures that they are being looked after (eg. by sending them to his parent’s village or by enlisting the help of his relatives). In Nora Ume v. Martin Beni (1978) PNGLR 71, Pritchard J. said: [28]
"Jurisdiction to award custody under the Infant Act [chapter 278] [lies] only in the National Court and that under the Deserted Wives and Children Act [chapter 277] a court of summary jurisdiction had no right to make an order for custody unless it was consequent to a finding of leaving without means of support and the making of a maintenance order under that Act". In other words, the conditions precedent for awarding of custody under the Deserted Wives and Children Act is a finding of leaving without means of support. The ruling of Pritchard J. was adopted and applied in Esrom Toligur v. Ellerey Giwa N.133 (1978) and Agua Bepi v. Aiya Simon (1986) PNGLR 233.
Section 3 of the Deserted Wives and Children Act (omitting the irrelevant parts) provides as follows:-
"(1) On the hearing of a complaint under section 2, the Court shall inquire into the matter, and
(a) where it is satisfied that the wife is left without means of support ...may order the defendant to pay such allowance as it considers reasonable for the use of the wife and may commit the legal custody of a child of the marriage to a wife or some other person and order the defendant to pay such allowance as it considers reasonable for the support of the child, and
(b) where it is satisfied that a child of the defendant is left without means of support...may order the defendant to pay such allowance as it considers reasonable for the support of the child, and commit the legal custody to the mother or some other person".
An order for custody under the Deserted Wives and Children Act can be made under two (2) circumstances:
(1) Where the wife has been "left without means of support" (s.3(1)(a)).
(2) Where the child has been "left without means of support" (s.3(1)(b)).
Unless an order for maintenance is made, no custody order can be granted under the Act. Where a child is being looked after or maintained by the father it cannot be said that he/she has been "left without means of support". Accordingly, a complaint by the wife claiming maintenance for the children and custody will not be successful. In Nora Ume v. Martin Beni and Esrom Toligur v. Ellerey Giwa the children were either with the father or parents of the father. Maintenance and custody claims were refused in these cases as there were no evidence or finding of leaving the children "without means of support". In Nora Ume v. Martin Beni, after reviewing the order of the magistrate relating to custody, Pritchard J. stated: [29]
"On the face of the order, he had no right to grant custody of the child under [s.3(1)(b)] as he has not purported to deal with a complaint for leaving the child without means of support".
Approving the ruling of Pritchard J in Agua Bepi v. Aiya Simon, Cory J. said: [30]"The power to make an order for custody under the Deserted Wives and Children Act only arises under Section 3 on a complaint under Section 2 where a father has deserted his child or left him without means of support. In this case, there is no such complaint and no evidence or finding that the children were left without adequate means of support."
However, s.3 (1) (a) makes it possible to argue that even if the child is not with the mother, custody can still be awarded to her. This is so if there is a finding under section 3 (1) (a) (i) that the wife is left "without means of support" the court can exercise the powers in s.3 (1) (a) (iii) and (iv) and (v). The obiter dicta of Pritchard J. in Nora Ume v. Martin Beni is of interest. As stated earlier the child was with the parents of the father and the wife was claiming maintenance and custody. His Honour Pritchard J. said: [31]
"It thus appears on the face of the Magistrate’s order in this case that he had not satisfied himself that he wife has been left without means of support for the simple reason, apart from the fact that he does not say he has so satisfied himself, that he made no order for maintenance in her favour. That being the case he could not go to make an order for custody of a child under [section 3 (1) (a)]". The implication here is that if the Magistrate had found that Nora Ume was left without means of support, he could have made an order for custody of the child despite the fact that the child was with the parents of the father. Where the child or children taken away are very young or all ill treated or are in a remote place away from schools, health services etc., the Court may grant custody to the mother despite the fact that the father is maintaining them.
(c) Cash or kind?
The statutes empower the courts to order monetary awards for maintenance. The matrimonial Causes Act calls for a lump sum or a periodical sum to be made. [32]The Deserted Wives and Children Act empowers the Courts to order the defendant "to pay such allowance as it considers reasonable for the use of the wife" or "for the support of the child". [33] In relation to an illegitimate child, the Child Welfare Act requires the defendant to pay to the Director "such sum for the maintenance of the child." [34]However, the Courts are not precluded from ordering payment in kind. In fact, the District Court [35] and the Local court [35A] are empowered to order payment in kind.
The 1980 National Census show that 87% of the people live in rural areas and 13% in the urban areas. Only 36% of the population are in the cash economy in urban and rural areas. This clearly shows that only just over one third of the population can afford to pay for things in cash. By implication, the unemployed or those outside the monetary economy, who are in the majority, are effectively precluded from seeking monetary awards for maintenance under the present legal system. Serious consideration should be given to the idea of permitting the Court to order allowance or maintenance to be paid in kind.
(d) Duration of the order
A maintenance order made in respect of a child under the Deserted Wives and Children Act or the Child Welfare Act ceases on death or on the child attaining the age of 16 years.[36] An order for a wife under the Deserted Wives and Children Act can be discharged if the husband and wife have resumed cohabitation and the husband is supporting the wife or the wife has committed adultery since the date of the order. [37]An order ceases on death of the wife. On grant of divorce under the Matrimonial Causes Act in respect of a statutory marriage, an order made under the Deserted Wives and Children Act ceases to have effect. Alternatively the National Court may, at any time before the granting of divorce, cancel an order made by a Court of Summary jurisdiction. [38]A wife in a statutory marriage is entitled to maintenance after divorce [39]where as a wife in a customary marriage cannot claim maintenance after dissolution of the marriage according to custom.
A child of a statutory marriage has the right to maintenance up to the time he or she attains the age of 21 years or beyond if there are special circumstances which warrant it.[40] In the case of children claiming maintenance under the Deserted Wives and Children Act they are entitled to maintenance only up to the time they are 16 years of age. The children of a customary marriage can only be maintained under the Deserted Wives and Children Act and therefore can expect to receive maintenance only up to the time they turn 16 years of age. Here the method of contracting marriage is used to determine the age limit, not the needs and interest of the children.
An order made by a Court may be varied subsequently. A person wishing to vary the order may apply to the Court for variation. An order may be varied if there are "good and sufficient reasons" [41] or if there is "fresh evidence" [42]or if the circumstances since the order have changed, or if certain material facts were withheld from the Court or if certain material evidence given at the hearing was false. [43]
(e) Factors to be taken into account in making an order.
The Acts dealing with maintenance, with the exception of the Matrimonial Causes Act, are silent on the question of factors that are to be taken into account when deciding the amount of maintenance to be paid. Considerable discretion is given to the magistrates to determine liability and the amount[44] to be paid.
Under the Deserted Wives and Children Act, a Court is empowered to "order the defendant to pay such allowance as it considers reasonable for the use of the wife" or "for the support of the child".[45] A father is required under the Child Welfare Act to pay to the Director of Child Welfare "such sum for the maintenance of the child as the court thinks proper." [46] The words "such sum as the court think proper" or a "reasonable allowance’ are vague and can lead to inconsistencies. In fact in his Report, John Pritchard, the Chief Magistrate (as he then was), reported that the Deserted Wives and Children Act and the Child Welfare Act "are badly in need of reform. They are certainly in many cases not appropriate to Papua New Guinea; they confuse many magistrates in the way they are worded and as a result many orders are made for questionable reasons, both as to liability itself and the amount ordered." [47]
Magistrates tend to treat maintenance payment as punishment and make orders without due consideration of the earnings or new dependency responsibilities of the husbands. In some cases the income of the husband have been reduced below subsistence level. [48] While a wife is entitled to be maintained at a standard as near as possible to that which she enjoyed before cohabitation ceased, the income of the husband should not be reduced below subsistence level: Anna Jacobs v. Albert Jacobs (1976) PNGLR 261.
The Matrimonial Causes Act requires the National Court to take into account the "means, earning capacity and conduct of the parties to the marriage and all other relevant circumstances" when assessing the amount of maintenance to be paid [49]This again gives the National Court discretion to determine the amount. Voluntary payments, earnings of the wife, the income of the husband, assets or any property capable of producing an income, expectation of future income, age and health of the parties, matrimonial misconduct of the parties and the husband’s obligation to his de facto wife and illegitimate children are some of the factors the court will be expected to consider when assessing the award.
3. Enforcement of maintenance orders
The Maintenance Orders Enforcement Act, the Deserted Wives and Children Act, the Child Welfare Act, the Matrimonial Causes Act and the National Court Rules provide various methods of enforcement in the courts of summary jurisdiction and the National Court. The Maintenance Orders Enforcement Act does not apply to orders made under the Matrimonial Causes Act. [50] It only applies to orders made under the Deserted Wives and the Children Act, the Child Welfare Act and the Matrimonial Causes Act 1959 of Australia. [51]Orders made under the Matrimonial Causes Act can only be enforced under that Act and the National Court Rules.[52]
An order of one court may be filled or registered and enforced in another court. An order of a court of summary jurisdiction may be filled or registered and enforced in another court of summary jurisdiction[53] or the National court.[54] Likewise an order of the National Court made under the Matrimonial Causes Act may be registered and enforced in a court of summary jurisdiction. [55]
METHODS OF ENFORCEMENT
1. Courts of summary jurisdiction
(a) Garnishment
Here the earnings of the defaulting party or the party against whom an order has been made are attached under a garnishment order. The garnishee, who may be the employer, owes money to the defaulting respondent. On application the Court may make a garnishment order directing the garnishee to make payment to the applicant. The source of income which may be the subject of a garnishment order are: [56]
A garnishment order directed at the earnings of the respondent must specify the "protected earnings rate." [57]This is the level below which the earnings of the respondent may not be reduced.
(b) Seizure of property
An application may be made for an order directing seizure of personal property belonging to a person who has failed or refused to comply with the order. Once seized the property is realized and the proceeds of the sale are applied towards the payment of expenses and maintenance under the order. [58]
(c) Imprisonment
In the even of failure or refusal to make payment, an application may be made to commit the respondent to prison for a period not exceeding 12 months. [59]
(d) Recognizance
On making a maintenance order or on default an application may be made for an order directing the respondent to enter into a recognizance with or without surety for the due performance of his obligations under a maintenance order. [60]
2. The National Court
The Matrimonial Causes Act and the Rules provide methods for enforcement of maintenance orders. The National Court Rules relating to enforcement of judgment also apply to enforcement of maintenance orders made by the Court. [61]
(a) Garnishment
A Garnishment order may direct attachment of the "earnings" of a defaulting party.[62] Apart from salary and wages, a sum standing to the credit of the respondent in a bank account may be the respondent in a bank account may be the subject of a garnishment order. [63]
(b) Sequestration
An application may be made for the sequestration of the estate of a person against whom an order has been obtained. [64] Sequestration involves the appointment of a sequestrator or receiver, who manages the property and receives the rents and profits. The sequestrator or receiver only takes possession. The owner-respondent is excluded from all possession of it during the period of sequestration.
(c ) Other means
Order 13, Rule 2 of he Rules of the National Court of Justice provides the following means of enforcement:
(i) Levy of property
(ii) Charging order
(iii) Appointment of a receiver
(iv) Committal
The collection system is based on voluntary payment. It is left to the party against whom an order is made to make payment. The duty to enforce payment is left to the person in whose favour the order is made. In nearly all cases it is the woman who ahs to enforce payment. The various methods of enforcement are employed after the respondent makes default in payment. The applicant must not only select the particular mode of enforcement, but also choose the particular court in which to commence proceedings. Information concerning the nature and extent of the respondent assets – personal property, bank accounts and land – would be useful. In order to enforce the order one needs the services and skills of lawyers. Private lawyers consider maintenance enforcement as uneconomical because the time and expenses spent on a case are usually greater than the returns to the lawyer or the client. [65] The Public Solicitor’s office provides assistance if the respondent is represented by a lawyer. In most cases they give advice only.
4. The problem of non-payment
Under the Deserted Wives and Children Act maintenance shall be paid "to such person and in such manner as the court orders". [66] The Child Welfare Act requires maintenance, confinement expenses and funderal expenses to be paid to the Director of Child Welfare. [67] In the event of a failure by the father to comply with an order for maintenance, the Director for a person authorized in writing may enforce payment. [68]
The Maintenance Orders Enforcement Act empowers the Minister for Justice to appoint a Collector of Maintenance and a Deputy Collector of Maintenance. [69]It also sets out the powers, authorities, duties and functions of the Collector of Maintenance. [70] Inter alia, the Collector is required to keep proper accounts of all moneys received, pay moneys to persons entitled to those moneys[71] and to enforce payment [72]. The clerk of the Central District Court, Port Moresby and the clerk of each District Court throughout Papua New Guinea are appointed Collector and Deputy Collector of Maintenance respectively. [73]
The Practice in Port Moresby
In affiliation proceedings under the Child Welfare Act the defendants are ordered to pay the allowance to the "Collector of Maintenance, Department of Finance, Konedobu". However, under the Deserted Wives and Children Act, the allowance is payable to "The Collector of Maintenance, Department of Finance, Konedobu" or "the Collector of Maintenance, Port Moresby Court House" or "the Collector of Public Monies, District Court House", or "Port Moresby District Court", or "the Deputy Collector of Maintenance, Port Moresby District Court." These kinds or orders made the task of collection extremely difficulty. Often women go from office to office, resulting in frustration and wastage of time. Some women collect their maintenance allowance from the clerk of court, Port Moresby District Court while the rest collect their allowances from the Trust Section of the Department of Finance, Konedobu.
A fairly high proportion of cases are dismissed on technical grounds or for non-appearance of parties. Between September 1986 and September 1987 a total of 332 cases were heard under the Deserted Wives and Children Act. We were able to find records of 157 cases only. Of the 157 cases, 76 cases were dismissed for non-appearance, 18 cases were dismissed on technical grounds and 14 cases withdrawn by the complainant. Technical grounds include lack of proof of marriage, lack of proof of service, lack of jurisdiction, defective summons or complaints or defendant unemployed or the children in father’s custody and therefore maintained by him. Even where a maintenance order is obtained, the time taken to obtain it after institution of proceedings may be anything from 3 months to 6 months. Due to court delays, magistrates hearing cases under the Deserted Wives and Children act have been making interim orders pending trial. A disadvantage of interim orders is that the husband may subsequently prove at the trial that the wife has committed adultery or has drunken habits, or he may show reasonable cause for desertion or leaving the wife without support. Where the magistrate refuses at the trial to make an order in favour of the wife any payment made to the wife under the interim order may have to be recovered.
Apart from court delays and technical matters, there are other reasons for non-payment.
5. Recommendations
May of the problems of enforcement of maintenance orders are institutional. Three different Acts – the Matrimonial Causes Act, the Deserted Wives and Children Act and the Child Welfare Act – deal with maintenance. Each Act confers maintenance jurisdiction on a different Court. The practices and procedures of the various courts exercising maintenance jurisdiction vary greatly. In terms of enforcement of maintenance orders in the National Court one needs to turn to the Matrimonial Causes Act and the National Court Rules. Whereas enforcement of orders in the courts of summary jurisdiction is governed by the Maintenance Orders Enforcement Act. The Matrimonial Causes Act, The Deserted Wives and Children Act, the Child Welfare Act and the Maintenance Orders Enforcement Act shall all be replaced by a single Act – the Maintenance Act.
Maintenance jurisdiction should be conferred on a new court – the Family Law Court, which would specialized in family matters. Maintenance orders and any other forms of obligation to a dependent should all be enforced in the Family Law Court. This recommendation is similar to the one proposed by the Commission in its Working Paper No. 9.
Where maintenance proceedings are pending the husband may attempt to defeat the wife’s claim by disposing of his assets so that they may not be proceeded against. This could be done by making gifts or by selling the property. The Matrimonial Causes Act allows the National Court to set aside or restrain disposition of property if it is done with the intention of defeating a maintenance claim. [74]
The Deserted Wives and Children Act and the Child Welfare Act are silent on the matter, which means that a Children’s
Court, a Local Court or a District court have no jurisdiction and therefore cannot prevent disposition of assets intended to defeat
a maintenance claim. The remedy is therefore not available to a de facto wife, a customary wife or a mother of an illegitimate child.
However, where an order against the husband has been made for maintenance under the Deserted Wives and Children Act ant he husband
appeals against that order the District Court is empowered to order him to pay a specified cash sum to the court for the prosecution
of the appeal and so avoid misuse of appeal procedure as a means of avoiding maintenance payments pending the hearing of the appeal.
[75] The power to set aside or restrain disposition of property should be conferred on the Family Law Court or any other court which may
exercise maintenance jurisdiction.
Enforcement of unsecured periodical payment is unreliable and problematic because each new act of disobedience calls for separate court proceedings. Continually having to pursue payment in Court is time-consuming and in some cases costly. In making an order for maintenance, the Courts should ensure that payments are secured. Secured provision may be made by putting aside a fund for future payment or a charge on the assets of the person against whom an order for maintenance is made.
All the Courts – the National Court, the District Court, the Children’s Court and the Local Court – are empowered to order security for payments or to order that periodical payments are to be secured. [76] Apart from a charge on land and other assets the Courts should ensure compliance by directing that the applicant have a charge for payment over the respondent’s contributions to the Public Officers Superannuation Fund or the National Provident Fund.
The traditional garnishment order may be too complex and difficult a procedure to be much use to the average person seeking to enforce a periodical maintenance payment. In addition, the amount involved may be relatively small and the expenses of lawyer are usually high. In some cases the arrears may be fairly substantial and accrue over a period of more than 12 months. In making a maintenance order, the Court should be empowered to order permanent garnishment of wages and other income of the person against whom an order has been made. It would only apply after the husband has been one month (4 weeks) in arrears.
The traditional role of a court after having made an order is to leave its enforcement to the successful party. A person may have an order in his or her favour, but until that person takes the initiative to approach the Court for enforcement, the Court will take no steps to ensure that it is paid. To enforce the order, the applicant would need the services of a lawyer. Given the fact that lawyers are expensive, the relatively small amounts involved and the resentment between the parties when enforcement proceedings are commenced, new methods of collection and enforcement should be considered. Below are some options.
(i) The Collector and the Deputy Collector of maintenance and the Director of Child Welfare.
Presently the Director of Child Welfare and the Collector and Deputy Collector are empowered to enforce payment. However, these powers are rarely exercised. They would be able to enforce maintenance orders made by courts of summary jurisdiction under the Child Welfare Act and the Deserted Wives and Children Act. They have no authority to enforce orders made by the National Court under the Matrimonial Causes Act. Generally the default rate in the lower Courts is quite high and perhaps more attention should be given to the orders made in the courts of summary jurisdiction. The Director, the Collector and Deputy Collector of Maintenance should be encouraged to exercise their existing powers. Funds and manpower should be allocated to them to enable them to carry out the task of collection and enforcement.
(ii) An Agency Attached to the Clerk of Court.
The second option would be to establish a body, which would be attached to the Clerk of Court. It would be funded separately. The funds would either come from the state or from fees charged by the body for services rendered. The body would work closely with the Public Solicitors Office.
(iii) Officer-in-charge of Trust Section as Collector
The third option would be to appoint the officer-in-charge of the Trust Section of the Department of Finance as the Collector of Maintenance. All maintenance moneys are to be paid directly into the Native Monies Trust Account (NMTA) for collection. The recording system of the Clerk of Court leaves much to be desired. Currently the system is not functioning efficiently and it confuses a lot of people. The Clerk of Court has never done any enforcement work and perhaps a new person with funds, manpower and the necessary legal powers would be able to perform the task better.
The success of options 1, 2 and 3 is dependent, to a large extent, on funds and manpower being available. The funds may come either from the state or from fees charged, or a combination of the two. The body would employ the traditional court-based recovery procedures to enforce payment.
(iv) An Agency Similar to the Australian Child support Agency
The fourth option would be a system of Collection that does not depend on voluntary payment. Like the Australian system, the agency would be established within the Taxation office and would be empowered automatically to deduct maintenance from the salary or wages of liable employees. Appropriate arrangements could also be made for other liable persons, who may be self-employed. Under the system the party in whose favour an order for maintenance is made does not need to go to Court to enforce payment.
The concept of fault is still prevalent under the present family law. There should be a major shift away from fault as it tend to generate resentment between the parties. The rights and obligations of support should be based on the needs of the parties for such support.
As far as children are concerned, the age limited should be fixed at 18 years of age. The order should continue beyond that age if the child needs to complete his/her education or if she/he mentally or physically ill or handicapped and is dependent on parental support. Children should also be permitted by law to commence maintenance proceeding in their own behalf and to enforce maintenance orders in their favour.
At present the law does not allow a wife or a husband in a customary marriage to sue for maintenance after divorce. Whereas a wife or a husband in a statutory marriage is entitled to maintenance after divorce. The Courts should be given discretion to determine whether or not to make maintenance orders in favour of a wife or a husband whose customary marriage has been dissolved.
9. Factors for Computing Maintenance Allowance.
The factors that are to be taken into account should be clearly spelt out in the Act. The idea is that the order should be fair to all the parties. In this respect S.75(2) and Part VII of Family Law Act 1975 (as amended) (Australia) would be of assistance.
10. The Recovery of Maintenance Arrears
Payment of maintenance is a purely personal matter and the Court has discretion in determining whether or not to enforce payment of arrears. The general rule is that maintenance arrears covering a period of more than 12 months may not be enforced. The reasons behind the 12 months rule was explained by Samuels J. A. in Biggs v Dienes: [77]
"There has been for many years a practice in courts both here and in England exercising Family Law jurisdiction that generally payment of arrears of maintenance which have accrued over a period longer than twelve months will not be enforced by the process of the court. The reasons for the practice seems to me clear enough. It is that maintenance is intend to be of a stipendiary nature to enable the wife to meet the ordinary regular outgoings necessary for her support. It is not intended that they should accrue into a lump sum which a wife, after a considerable period of inaction, may then seek to recover."
The idea is that the allowance is intended to meet the immediate needs of the dependents and if the dependents have managed to meet those needs from other sources then the recoverable amount should be limited.
Recovery of arrears is a discretionary matter and the court will consider a wide range of matters. These include the reason for failure to pay by the respondent, the financial position of the parties, the capacity of the respondent to pay, the applicants need for such arrears of maintenance and the attempts made by the applicant to enforce the arrears.[78] The rule, however, is not designed as a reward for disobedience of the maintenance order nor should it been seen as displacing the discretion in relation to arrears. The law pertaining to arrears of maintenance was discussed in the Marriage of Hamilton and Nowak (1988) 12 F.L.R. 704. In this case the Court ordered the enforcement of maintenance arrears of $19,139 which built up over a period of more than 7 years. The conduct of the parties, the financial position of the husband and the needs of the children were some of the matters the Court took into account in exercising its discretion. In that case the husband and wife had 3 children. The husband remarried and had 2 children from the second marriage. In 1980 an order was made for child maintenance of $15 per week per child. The order was varied in 1981 to $22 per week per child. In 1984 the husbands was in arrears and the wife commenced proceedings to enforce arrears and the husband commenced proceedings to enforce access. She obtained an order for arrears and a garnishee order was made. In 1985 the husband appealed and went overseas. The appeal was dismissed in his absence. In 1986 the husband returned and in 1987 the wife took enforcement proceedings learning of his return. The husband applied for discharge of the arrear and deduction of maintenance to $10 per month per child. The Court held that the whole of the arrears amounting to $19,139 should be enforced for the following reasons:-
1. The wife had made all reasonable efforts to collect the arrears. The husband knew that the wife sought payment of the arrears. However, she was prevented from enforcing the order by the husband’s appeal and her lack of knowledge of his whereabouts.
2. The husband had the resources to pay the arrears.
3. The wife and the children were living throughout the period of arrears in serious need.
In exercising the discretion whether or not enforcing maintenance arrears in excess of 12 months the Court will have regard to the circumstances of the case. There is no hard and fast rule.
Assuming, however, that some arrears can be enforced, the question arises whether they can be recovered after death. A creditor is entitled to claim against the estate of a deceased person. [79]If the law treats maintenance arrears as debts they can be recovered from the estate of the deceased. However, the law does not treat arrears of maintenance as legal debts. They are liabilities enforceable solely in the manner provided by the statute.[80] The General rule is that no liability or obligation of a purely personal nature can be enforced against the estate of a deceased person. No claim can be maintained against the personal representatives either for arrears or for future payments under a maintenance order. Further, the obligations and rights as to arrears up to the date of death ceased.[81] However, where an order for secured provision or an order to secure periodical payments is made the person in whose favour the order is made has an enforceable claim against the estate of the deceased. [82]
S.87 of the Matrimonial Causes Act deal with recovery of maintenance arrears after death. It is intended to set out the provisions in full.
Section 87 provides as follows:-
"(2) A decree made under this Act may be enforced, by leave of the Court and on such terms and conditions as the court think proper, against the estate of a deceased party."
No provision for recovery of arrears after death exist under the Deserted Wives and Children Act or the Child Welfare Act. Section 87 (2) is identical to S.104(2) of the repealed Matrimonial Causes Act 1959 (Australia) Section 104(20 was interpreted and discussed in Johnston V. Krakowski (1965)[83] and Lake v. Quinton (1973). [84]In Lake v. Quinton the Court approved the opinion of the majority (Kitto, Windeyer, Owen and Taylor JJ) in Johnston v. Krawoski that section 104(20 apply to enable arrears which had accrued during the lifetime of the party to be recovered. In other words, a decree may be enforced but only in respect of liabilities that arose under the decree before the death. Applying the ruling of the majority in Johnstons v. Krawoski, s.87(2) has limited application. It is suggested that the 12 months rule should be retained and any arrears at the time of death should be treated as a legal debt recoverable against the estate of the deceased.
11. Persons looking after the children.
The law allows a wife, a husband, a mother, the Director of Child Welfare or a "reputable person" to apply for maintenance for children. It is not clear whether a "reputable person" would apply to grandparents or relatives who are looking after the children. The grandparents or relatives should be specifically empowered to claim maintenance against the parents.
12. Wives and mother to support children
Under the Matrimonial Causes Act a maintenance order may be made against the mother for the support of her children. No such rights exist under the Deserted Wives and Children Act or the Child Welfare Act. It is suggested that wives and mothers should be eligible to have maintenance orders made against them for support of their children. In the case of wives, they should also be eligible to maintain their husbands.
[1] Local Court Act (Chapter No. 41), ss.2 & 17
[2] Deserted Wives and Children Act, s.1.
[3] Child Welfare Act, s.1
[4] Matrimonial Causes Act, s. 1
[5] Criminal Code, ss.283, 284, 323 & 362; Deserted Wives and Children Act, ss.22 & 23; and Child Welfare Act, s. 94:
[6] Law Reform Commission Working Paper No. 9, Family Law (1978); Heather McRae, "Reform of the Laws Relating to Marriage and Divorce
in Papua New Guinea: An Analysis of the Law Reform Commission’s Working Paper No. 9 on Family Law" (unpublished 1980); Jessep
and Luluaki, The Principles of Family Law in Papua New Guinea (U.P.N.G. Press 1985).
[7] Barbara Mitchell, "Family in Village Courts: The Women’s position". In "From Rhetoric to Reality? Papers from the 15tth Waigani
Seminar". P King, W Lee & V Warakai (eds.). UPNG Press, 1985; Susan Christine Bradley, "Tolai Women and Development" (Ph. D Thesis,
1982) p.196 – 197.
[8] Deserted Wives and Children Act; the Child Welfare Act; and Matrimonial Causes Act
[9] See Note 5 (supra).
[10] Child Welfare Act, s.1 "Confinement expenses" includes maintenance of the mother one month before the birth of the child and three
months after its birth
[10A] Igua Nou v. Karoho Vagi (1986) PNGLR 1, Martha Aeara v. Oa Ikupu (1986) PNGLR 65. See also Luluaki, John "Maintenance Dispute Settlement Institutions in Papua New Guinea" (1982) 10 Melanesian Law
Journal pp46 – 70.
[10B] Igua Nou v. Karoho Vagi (1986) PNGLR 1, Martha Aeara v. Oa Ikupu (1986) PNGLR 65. See also Luluaki, John "Maintenance Dispute Settlement Institutions in Papua New Guinea" (1982) 10 Melanesian Law Journal pp46 – 70.
[11] Deserted Wives and Children Act, s.2(1); The Child Welfare, ss.50, 51, 68(1).
[12] Ibid, ss.5 (2) (a), 6 (20 (a), 11
[13] See Jessep, no 10B Supra p. 5 - 8
[14] Deserted Wives and Children Act, s.3; Child Welfare Act, ss. 51 & 55
[15] Chantler v. Chantler (1906 – 07) [1906] HCA 82; 4 C.L.R. 585; Zacher v. Zacher (1954) V.L.R. 204; Ex parte Sharah; Re Sharah v. Anor (1957) SR (NSW) 51
[16] Renton v. Renton (1918) 25 C.L.R. 291.
[17] Borg v. Borg (1934) V.L.R. 75
[18] Walker v. Walker (1937) 57 C.L.R. 630
[19] Yirrel v. Yirrel (1939) 6z C.L.R. 287
[20] (1906 – 07) [1906] HCA 82; 4 C.L.R. 585 at p.592
[21] (1957) S.R. (N.S.W) 51
[22] Per Macquire J. in Ex parte Sarah [1957] S.R. (N.S.W.) 51 at 55
[23] Ex parte Pullen (1899) 15 W.N. (N.S.W.) 269; Chantler v. Chantler (1906 – 07) [1906] HCA 82; 4 C.L.R. 585, Reakes v. Reakes (1928) 45 W.N. (N.S.W.) 123; Ex parte Powter, Re Powter (1946) 465 R (N.S.W.) 1; Hutchins v. Hutchins (1953) 53 SR (N.S.W.) 228; Zacher v. Zacher (1954) V.L.R. 204; Ex parte Sharah, Re Sharah v. Anor (1957) S.R. (N.S.W.) 51
[23A] Jacobs v. Jacob (1976) PNGLR 261
[24] See for example the grounds for dissolution of marriage under s.17 of the Matrimonial Causes Act.
[25] Deserted Wives and Children Act, s. 3 (4).
[26] Ibid, s.3 (5).
[27] Ibid, s. 11 (7).
[28] (1978) PNGLR 71 at p. 74
[29] Ibid, p.76
[30] (1986) PNGLR 233 at p.239
[31] (1978) PNGLR 71 at p. 76
[32] Matrimonial Causes Act, s.76 (1) (a) & 4 (b).
[33] Deserted Wives and Children Act, s. 3
[34] Child Welfare Act, ss. 54, 55
[35] District Court Act, s. 22
[35A] Local Court Act, s. 15 (2)
[36] Deserted Wives and Children Act, s. 3 (3); Child Welfare Act, ss. 14, 56 and 69
[37] Deserted Wives and Children Act, s. 11 (60 & (7).
[38] Matrimonial Causes Act, s. 3
[39] Ibid, s. 76 (1) (h) and (j).
[40] Ibid, s. 73 (4).
[41] Deserted Wives and Children Act, s. 11 (1) & (8).
[42] Child Welfare Act, s.100 (5).
[43] Matrimonial Causes Rules, Reg. 214
[44] The Child Welfare Act stipulates that an order for confinement expenses shall not exceed K150.00 (s. 53) and an allowance for a destitute
child shall not be greater than K7.00 per week (Reg. 15). Apart from these amounts, the legislation fixed no amount to be paid
[45] Deserted Wives and Children Act, s. 3 (1) (a) (iii) & (v).
[46] Child Welfare Act, s. 54
[47] 1976 Annual Report, p.21
[48] See for example Pierre Ware v. Roga Ware N. C. App. 63 of 1978
[49] Matrimonial Causes Act, s. 73 (1) & (2).
[50] Maintenance Orders Enforcement Act, s. 3
[51] Ibid, s. 1
[52] Matrimonial Causes Act, ss. 86 – 91, Schedule 2; Matrimonial Causes Rules, Rules 237 – 256; and National Court Rules, Orders 12, 13 and 14
[53] Local Court Act, s. 35; Child Welfare Act, s. 101
[54] Maintenance Orders Enforcement Act, s. 7
[55] Matrimonial Causes Act, s. 88
[56] Maintenance Orders Enforcement Act, s. 11
[57] Ibid, s. 13; See also Deserted Wives and Children Act, s. 5
[58] Ibid, S.10; See also Deserted Wives and Children Act, s. 6
[59] Maintenance Orders Enforcement Act, s.4; Deserted Wives and Children Act, s. 8; and Child Welfare Act, s. 61
[60] Maintenance Orders Enforcement Act, s. 8; and Deserted Wives and Children Act, S. 4
[61] Matrimonial Causes Act, s. 90; and Matrimonial Causes Rules, Reg. 251
[62] Matrimonial Causes Act, s. 89, Schedule 2. The definition of "earnings" in Schedule 2 is similar to that under the Maintenance Orders
Enforcement Act
[63] Rules of the National Court of Justice (National Court Rules), Order 13, Rules 53 – 65
[64] Ibid, Order 13, Rules 2, 3, 4, 5, 7, 18, 20; Matrimonial Causes Act, s. 86
[65] Personal Communication from a partner of a leading law firm in Port Moresby
[66] Deserted Wives and Children Act, s. 3 (2).
[67] Child Welfare Act, ss.53, 54, 55, 58, 59, 60
[68] Ibid, s. 61
[69] Maintenance Orders Enforcement Act, s. 2
[70] Ibid, ss. 2, 21, 28, 39, 40, 41, 42, 43, 47, 48, 49, 54, 56, 58, 61, 72.
[71] Ibid, s. 2 (4).
[72] Ibid, s. 72
[73] Gazette No. 8, February 3, 1972
[74] Matrimonial Causes Act, s. 93
[75] District Court Act, s. 222
[76] Matrimonial Causes Act, s. 76(1); Deserted Wives and Children Act, ss. 4, 7; Child Welfare Act, s. 61 (2).
[77] (1977) 12 ALR 590 at 599 – 600
[78] Hardingham, I. J. and Neave, M.A., Australian Family Property Law (Law Book Company, 1984) p627
[79] Public Curators Act, ss. 20 – 24; Wills, Probate and Administration Act, ss. 60 -71
[80] In re Hedderwick, Mortion v. Brinsley [1933] ch. 663
[81] Re Harrington, Wilder v. Turner [1908] 2 Ch. 687; Re Hedderwick, Morton v. Brinsley [1933] Ch. 669; Re Woolgar, Woolger v. Hopkins [1942] Ch. 31, [1942] 1 ALL ER 583; Re Bidie, Bidie v. General Accident Fire and Life Assurance Corpn. Ltd. [1949] Ch. 121, [1948]
2 ALL ER 995. Sugden v. Sugden (1957) P.120; (1957) 1 ALL ER 300; Johnston v. Krakowski (1965) 113 C.L.R. 552.
[82] Hyde v. Hyde [1948] P 198, [1948] ALL ER 362
[83] (1965) 113 C.L. R. 552
[84] (1973) I.N.S. W.L.R. 111
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