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Jackie v Steven [2007] PGDC 138; DC771 (1 January 2007)

DC771

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

FC 184 of 2007

BETWEEN

ELVINA JACKIE
Complainant

AND

JACKIE STEVEN
Defendant

Lorengau: G. Madu, PM

2007: 01 January
G. Madu, PM: This is an application by the Applicant seeking order for imprisonment of the
Respondent for failing to pay up in full the outstanding maintenance  arrears  in the
amount of K3, 640.00.

1. This application is intended to enforce the order under the Maintenance Order
Enforcement Act. The facts set out in the chronological order are as follows;

2. On the 29 of December 2004 the Lorengau District Court made a Maintenance Order
against the defendant/respondent to pay the complainant/applicant K50.00 and the male
child Lorderick Steven K20.00 per fortnight as both spouse and child maintenance
allowances.

3. The District Court payment of records shows that the Respondent commenced payment
on 2 of January 2005 up to 27 of May 2007 the Respondent did not make any further
payments and is in  arrears  in the total of K3,640.00.

4. The issue is (1) whether the Respondent has the financial capacity to pay the  arrears 
? (2) whether it would be justified to imprison the Respondent for his failure to pay the
 arrears  ?

5. The Law

Section 4 of the Maintenance Order Enforcement Act provides for imprisonment where the
defendant fails to comply with the Maintenance Order, the provisions states:-

Section 4 -Imprisonment for disobedience of order

(1) where the defendant, being a male person, has disobeyed or failed to comply with a
maintenance order and a sum of money (in the section referred to as “  arrear  ”) due
under the order is unpaid, application to commit the defendant to prison may be made to
the Court by or on behalf of the person for whose benefit the order was made.

(2) subject to Section 66, on application under subsection (1), the Court may order the
defendant to be committed to prison for such period, not exceeding twelve (12) months as
the Court thinks proper.
(3) .............

6. The Applicant submitted that the Respondent failed to comply with the maintenance
order and has fallen in  arrears  in the sum of K3,640.00. The Respondent in response
stated that he is not in a position to pay the  arrears  . He has two (2) children which he
is taking care of who are attending High School. He stopped making payment whilst he pays
attention to the two (2) children in High School ensuring their school fees are paid.

7. He further stated he is now a villager and cannot afford to raise K70.00 each fortnight to
pay maintenance. For the above reason, the Respondent submits that he has alternatively
resorted to providing food and taking care of the children as his contribution to pay
maintenance.

8. Applicant in her reply stated that what the Respondent has submitted are all lies
therefore, this Court should imprison him for failing to pay the  arrears  .

9. Considerations

10. Although it may be true that the Respondent has failed to comply with the maintenance
order under Section 4 of the Maintenance Order Enforcement Act, the Court is duty bound to
look at the reasons why the Respondent has failed to pay maintenance.

11. Section 5 sets out the restrictions where by the Court must consider not to commit a
defendant to imprisonment if the Court is satisfied that the defendant does not have the
means and ability to comply with the order.

12. The Respondent has given his reasons why he has fallen in  arrears  saying that he
is now unemployed. He finds it difficult to raise K70.00 each fortnight to pay maintenance.
Further he states that he also two (2) bigger children who are in High School and has to
ensure that their school fees are paid. Considering the difficulties the Respondent is facing
it seems to me that it is a struggle for a village man to comply with the Court order.

13. I am inclined to accept his reasons for falling in  arrears  of K3, 640.00. It seems to
this Court that he does not have financial capacity to pay the maintenance of K70.00 each
fortnight. In this case I am of the view that the Respondent is in no better position to pay
the  arrears  within a very short period of time since he is not a regular income earner
and therefore imprisonment is not justified .I therefore apply Section16 of the Maintenance
Order Enforcement Act to suspend or stay the order and further apply Section 8 of the Act to
place the Respondent on Recognizance.

14. In this instant case, the Court wishes to exercise discretion so that Respondent will be
able to perform his parental obligation.

The following are the orders:

(1) The maintenance order made by the District Court on 29 of December 2004 is temporary
suspended for a period of twelve (12) months as of the date of this order.

(2) The Respondent is ordered to enter into a Recognizance and shall be of a good conduct
and character (for a period of twelve (12) months) in which the Respondent shall pay the
total  arrears  of K3, 640.00 in cash or alternatively provides goods either store good or
garden food including meat and fish to the value equivalent to total  arrears  of K3,
640.00 within the period of twelve (12) months.

(3) Upon failing to paying the  arrears  of K3, 640.00 either in cash or kind (in store
goods or garden food) the suspension of twelve (12) months will be lifted.

(4) The maintenance order of 29 of December 2004 shall not have retrospective effect on
the suspended period from 02/07/07 to 03/07/08.

(5) The Maintenance Order of 29 of December 2004 will take effect from 03/07/08 in its
entirety.

Orders accordingly

For the Applicant -In Person

For the Respondent -In Person

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