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P v P [1990] PGNC 70; N931 (7 December 1990)

Unreported National Court Decisions

N931

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

AP 137 OF 1990
P
V
P

Mount Hagen

Woods J
21 November 1990
7 December 1990

APPEAL FROM DISTRICT COURT - Maintenance under Deserted Wives and Children Act Ch 277 - Amount excessive - standard appropriate for wife and child of a successful lawyer - Delays and prevarication by Appellant husband.

Counsel:

Appellant in Person

M. A. Pryke for Respondent

7 December 1990

WOODS J: The Apnt is appealing agai against an Order for Maintenance made by the District court at Mt Hagen on 26th March 1989 in favour of the Appellant’s wife and 2 children. This order was made following an Application under the Deserted Wives and Children Act Ch. 277.

It appears from the District Court papers there was problems in getting the original application heard and when the matter did come on for hearing following pressure from the Applicant the Appellant failed to appear. The original complaint was filed in November 1989 and the matter was finally heard in March following special arrangements to bring a Magistrate not resident in Hagen to hear the case. At the hearing on 26th March when the Appellant did not appear the Magistrate found that his non-appearance shows a lack of concern and a rudeness bordering on contempt for the Court. The Magistrate made an order for maintenance in the absence of the Appellant.

Whilst the Magistrate noted his concern at the amounts of the figures presented to the Court for the Maintenance he was persuaded that there being no disputing this from the husband the Court should accept the claim as being proper and in accordance with the real needs of the Applicant. The Magistrate had previously noted that the Applicant as the wife of a leading lawyer has been accustomed to living at a considerably higher standard than she now had to contend with. He also noted that the Appellant appeared to have a thriving business.

The Magistrate ordered a total of K500 per week for the maintenance of the Applicant and the 2 children and that order was to come into effect on Friday 30th March 1990. The amount was split up into K318 per week to the wife and K91 per week for each of the 2 children.

The Appellant did not comply with the Order and an order for Imprisonment under the Deserted Wives and Children Act was made. The Appellant has appealed against these Orders.

The Appellant has avoided bringing on the Appeal for hearing and it was only because of the actions of the Respondent wife that the Appeal has finally been heard.

The basis of the Appellants appeal is that the amounts awarded are excessive and the original order was made exparte.

The Appellant has filed affidavits attempting to set out his financial position but they are merely unconfirmed statements. They are not supported by appropriate audited accounts for his business practice nor by tax returns. As against his statements of his financial problems there is the statements in his affidavits about why he could not appear in Court when the various hearings took place and the various reasons seeking adjournments that he had matters in other Courts not only in Mt Hagen but also in Port Moresby and Wabag. These reasons clearly suggest a busy legal practice.

It is almost as if the Appellant is seeking it both ways - I was not able to come to court because of the demands of my clients in a busy practice; I cannot pay the maintenance at the level expected of my position because I do not have enough income as my practice is not flourishing.

Is there sufficient evidence before me to find that the Magistrate’s Order was excessive. There is one aspect of the Maintenance Order which can be considered by me, that is the maintenance for one of the children L who appears is not a child of the marriage but rather an informally adopted child. Further it appears she may now have returned to her real home. I am prepared to find that the Appellant is not legally bound to pay maintenance for her so I will quash that part of the Order that relates to her.

With respect to the balance of the Magistrate’s Order there is no evidence before me to suggest that it is not just in the circumstances. There is other material in the Affidavits and depositions before the Magistrate which are in effect allegations by each party about the other party’s behaviour and in effect seem to cancel each other out. They would in due course be relevant to any action for Divorce between the parties. But at present they do not really change the need of maintenance for the wife and daughter and as the Magistrate has said to enable the wife and child to live at the level of a wife of a leading lawyer in the country.

The Principles to be applied by an Appellate Tribunal have been repeated on numerous occasions in Papua New Guinea such as in the State v McLeary 1976 PNGLR 32 and in Pok v The State Unrep 1983 SC 254. I can only interfere if I find the Magistrate has applied a wrong principle of law or has made an inordinately wrong estimate of the amount appropriate and where there has been a substantial miscarriage of justice.

Apart from the one aspect where I have found an error for the child L, I am unable to find there has been an error or an inordinately high award given. Further the Appellant has himself shown a casual regard to the whole matter whether before the District Court and then on the Appeal to this Court.

I am therefore unable to find any error in the balance of the figures. I therefore confirm that part of the District Court award which states.

For (the wife) K318 per week if suitable accommodation not provided, to reduce to K118 per week if suitable accommodation provided by the said husband For R K91 per week.

There is the problem of back maintenance from 26th March 1990 which calculates at K318 plus K91 totalling K409 per week from 30 March to 7th December 1990 totalling 36 weeks being K14,724 less anything paid. There is some dispute as to what has actually been paid this year however I will take a figure of K1000. However the Appellant must still pay the Bill for legal costs which has been rendered at K1,892.55.

I will order that the back maintenance and costs above be paid over 12 months commencing e 2nd Friday in January namy namely 11th January and then every 2nd Friday at K1,301.38 per month.

Appellant in Person

Lawyer for Respondent: Henao Cunningham Priestly