DC505

PAPUA NEW GUINEA
[IN THE FAMILY COURT OF JUSTICE]

DCCi 141 of 2004

BETWEEN

SUSAN POPAU
Complainant

AND

JOHN POPAU
Defendant

Lae: C Inkisopo
2005: 14 September

Civil - Deserted Wife and Children’s Act,Chapter 277-Standing Maintenance Order – Variation application by complainant under Section 11 of Act – Factors necessitating variation in current standing order for maintenance allowance. 

Practice & Procedure:-Application for variation of maintenance order – seeking increase from present one hundred kina (K100.00) to three hundred kina (K300.00) per fortnight – conditions warranting increase – increase in basic costs of living for children – chidren’s entitlements as of right to benefit out of Respondent specific toiletry of better paying job-growing teenage female children needing extra & specific toiletry to cater for feminine personal hygiene needs – by nature mother better know and appreciate the specific needs of teenage female children that fathers by nature do not – the natural tendencies for growing children to eating more that when small.

Cases Cited
Wong –v-Wong [1998] PNGLR 338 

References
List Legislation in Alphabetical Order

Counsel
Susan Popau, The Complainant
John Popau, The Respondent

September 14 2005

C Inkisopo: This is an application by Susan Popau (Applicant) seeking a variation to a standing maintenance order made in her favour and the children for the payment of K100.00 per fortnight by John Popau, the husband and father of her children. She applies now to have that one hundred kina (K100.00) increased to three hundred kina (K300.00). In support of the application she has filed affidavits stating facts she claims justify an increase in the present maintenance allowance of one hundred kina (K100.00). Respondent on the other hand opposes the application and has also filed affidavits stating his reasons why. He in the main contends that the current maintenance allowance that he makes is sufficient contending that he lends additional supports and offers further supports. He further argues that in the event of extra expenses like school fund raising contributions etc.such must be communicated to him which never did happened – a factor Applicant includes as one of the causes warranting the variation. The parties have each responded to each other’s affidavits and have discreetly gone through each of their affidavits word for word and paragraph by paragraph leaving no paragraph or statement of the other side untested or unchallenged. It becomes obvious to the Court that there is an obvious unfortunate state of affairs when innocent children in between are involved.

2. The parties’ marital discord leading to this unfortunate situation is something this Court unfortunately is not about to delve into as it can not humanely put right the discord that is already present but (in this present case) this Court has the unenviable task of trying to reach a middle ground under the circumstances to ensure the innocent children’s welfare, interests and upbringing are best protected and promoted. The parents’ wrangles should not be allowed to get in the way of the children’s welfare and upbringing which factors always remain of paramount consideration in child welfare dispute cases.

3. In order to best approach this issue in this case, the Court feels inclined towards thinking that he welfare, interests and future of the children should be the most dominant deciding factor. As his honour Mr Justice Sawong in Wong –V-Wong [1998] PNGLR 338 (in which I incidentally was legal Counsel for the Defendant) said in the head note.

“Both mother and father must contribute equally to the maintenance of the children”

4. Both Susan and John in this case have the responsibility to provide equally for the children’s upkeep, but evidently Susan is unemployed and not in any better financial position to meaningfully contribute leaving only John to bear the bulk of the responsibility. The Court has therefore to consider this fact when reaching its decision in this case.

5. John Popau, the Respondent argues that what he provides by way of fortnightly maintenance allowance and occasional assistance are sufficient for maintenance, sustenance and the up-keep of the children. It is clear that there are teenage female children involved who need much more in terms of toiletries for their personal hygiene which only mothers by nature of their being females know and have a better appreciation of female toiletry needs. Next, there is an obvious increase in the costs of living, food and all especially when small children grow up the tendency to consume more increases as well as their eating habits and capabilities to eating more.

6. On the other side of the equation, Respondent has secured a reasonably better paying employment with the Wau Micro – Finance Bank and that his children deserve or are entitled to what his current employment can offer. The Court does not consider Applicant’s claim for bus fares to and from school as being a real necessity that of itself warrants inclusion as a reason for increase especially when Respondent has all along been offering to transport the children to school and back which Applicant has never permitted but opting for cash allowance as borne out in her current application. The additional funds the Applicant includes in her application on account of school fund raising contributions are considered as “one off” school requirements that occur once or twice in a school year which expenses Respondent says are something that he is ever ready and prepared to meet over and above the current maintenance allowance he pays provided such extra school fundraising requirements to Respondent who is very willing to pay so long as such a need is communicated to him within sufficient time.

7. Just on the basis of the afore-said reasons seeking variation, I am not inclined to granting the applicant BUT for what I am about to say here.

8. Parents have a natural inherent obligation to provide for their children’s well-being and upbringing by providing the necessities of life. The parents’ own life wrangles should not be allowed to adversely get in the way of the children’s right to life and to enjoying the best of what their parents can afford to offer. Leaving the Applicant’s and the Respondent’s own marital wrangle or feud aside, the children’s welfare, interests and upbringing militate in favour of granting a slight variation to the current maintenance allowance of one hundred (K100.00) to be increased to what I consider to being reasonable and not necessarily what the Applicant applies for. She asks for and increase to three hundred kina (K300.00) whilst Respondent offers an increase by an amount of fifty kina (K50.00) to total one hundred and fifty kina (K150.00) as borne out by paragraph number eight (#8) of his Affidavit. The Court that he is equally concerned about the children’s welfare and sustenance and why shouldn’t he be as concerned, for he is the natural father of these children. This Court indeed had a difficult time addressing this issue in order to arrive at what would be the best to do justice in the case. Resolving to striking a middle ground, this Court considers the following as being the best option available under the present circumstances.

9. I therefore make the following Orders:-

1. The variation application is granted to the extent of increasing only a one hundred kina (K100.00) to the current one hundred kina (K100.00) allowance payable totalling two hundred kina (K200.00) per fortnight.

2. The original maintenance order of 08 March 2005 remains in force and in full virtue except the one hundred kina (K100.00) order which is now henceforward changed to two hundred kina (K200.00) payable per fortnight.

3. This two hundred kina (K200.00) maintenance allowance is to be paid direct into Susan Popau’s BSP Bank account in Lae.

4. Each party is to bear his/ her cost of defending/prosecuting the Application.

Susan Popau Complainant 
John Popau Respondent