ADI v Maika [2011] FJMC 68; 0408.2010 (2 June 2011)

IN THE FAMILY DIVISION OF THE MAGISTRATES'S COURT
AT NASINU

CASE NUMBER: 0408/NAS/2010

BETWEEN:

ADI (Full name suppress)
APPLICANT

AND:

MAIKA (Full name suppress)
RESPONDENT

Appearances:
The Applicant appeared in person
Mr. Ram Chand for the Respondent, the Respondent present in the Court

Trial Details:
Date of Hearing: 27th April 2011
Date and Place of Judgment: 02nd June 2011, at Nasinu
Judgment of: Resident Magistrate Sumudu Premachandra

D.N.A. TEST RULING OF THE COURT

1. This is an application by the applicant for order seeking the respondent to pay child's maintenance (Form 5) and child custody 9 Form 9). Parties are not married. The applicant first filed form 12 application and sought absconding warrant and interim maintenance. Later she filed maintenance application during her pregnancy.
   
2. On her application, the absconding warrant was granted and the Respondent is prevented leaving Republic of Fiji Islands until further orders from the court.
   
3. On 22nd December 2010, the child was born and was named RATU (full name suppress) The Application was filed during the pregnancy to seek monetary assistance, but I note my predecessor has not granted any interim maintenance. Under the section 96 of Family Court Act 2003, the interim monetary relief can be granted to immediate need of financial assistance. I admit that The Applicant needs urgent financial support. But, the Respondent denied the paternity, thus this is a case of child born out of wedlock and the paternity needs to be proved before grant an interim order for maintenance. However, if the paternity of child proved after the DNA test or a hearing, court will grant the maintenance order with effect from the date of the application as maintenance is for day to day expenses.
   
4. This case was called on 17th February 2011 by form 9 application of the Respondent and both parties were present. The Respondent was represented by his solicitor, Mr. Ram Chand, and he denied paternity of the child categorically. The Respondent said if paternity issue is sorted out he is ready to pay maintenance. At this moment that the Respondent agreed to undergo a DNA test for paternity and pay the full cost of DNA test. The Court noted that the Respondent is a Lecturer of Fiji National University. Then, the Court ordered that Paternity test to be done and the parties will be abode/ bound by the result of the Paternity test.
   
5. Then the parties were referred to do a paternity test. On 19th April 2011, the Respondent filed form 9 application and asked firstly that the absconding warrant may be set aside or temporarily suspended to enable him to attend a Conference in Auckland, New Zealand from 02nd May 2011 to the 05th May 2011 secondly instead of DNA Paternity Test they be referred to the Colonial War Memorial Hospital for blood test to determine the paternity issue. The Respondent filed the supporting documents along with an affidavit to get this orders.
   
6. The applicant was noticed and served this form 9 application. This matter was supported in open court on 27th April 2011 and both parties were heard. The Applicant filed her written response( letter) to both application of the Respondent and Both Application were vehemently objected by the Applicant on that the Respondent is a flight Risk and The Cost of DNA is lower than as the Respondent mentioned and the Respondent is telling lies to the Court.
   
7. The Applicant verbally and her statement stressed that the Respondent is the biological father of the Applicant and she needs urgent monetary support to her child. The Court could identify the hardship, aches and pains of the Applicant. But, as this court mentioned earlier, The Respondent denies the paternity therefore both parties must be heard and on merits this court has to decide the paternity and if proved quantum of maintenance.
   
8. As a matter of urgency, I dealt with the first Application of the Respondent then and there. He produced his tour schedule and the invitation to the conference by supportive documents. The Court was satisfied with. The court held that he was not flight Risk. The Respondent was allowed to go to the Conference on $5000 surety bail and the travel banned order was suspended for two weeks.
   
9. On that day, I reserve order regarding DNA test which I now deal with it. The Respondent was represented by counsel and nature and cost of the order to be known to the Respondent. He is a Lecturer of a University and I think it is affordable to the Respondent. The sole reason for refusal of DNA test is cost involving with it. The Respondent says it will take $4000 to perform a DNA test in SUVA PRIVATE HOSPITAL. But the applicant confirmed the cost which is only $2665 by letter dated 26th April 2011by SUVA PRIVATE HOSPITAL. In this period of time, the court searched through the web (Website: http://www. genetechlanka.org) and found an institution in Sri Lanka called Genetech-Sri Lanka and the cost for the paternity test will be US$ 165 ( Total cost will be around or less than FD$500 including packing and postage ) per paternity test as they informed by e-mail. As a Judge from Sri Lanka, I know this institution is well reputed and experienced in worldwide and Sri Lankan Courts' DNA Tests involving and accuracy is well established. Comparatively, it is lesser than the SUVA PRIVATE HOSPITAL and I hope this is affordable.
   
10. The DNA test is the most conclusive test to resolve paternity of a child. This test will prove paternity of the child and court's time and resource will be saved. On the other hand Blood test based on Rhesus factor is not conclusive and lead to uncertainty. In most of jurisdictions, they do DNA test to decide the issue of paternity. It is time to switch new methods rather than using cumbersome, orthodox methods. I admit that the cost involve Fiji is bit high. But once the Respondent agreed to undergo a DNA test, he cannot go back his own words. This is somewhat like doctrine of Approbation and Reprobation.
    
11. I apply the doctrine of approbation and reprobation, or election to this case. It simply says "A person cannot blow hot and cold". This principle was based on Latin legal maxim "Quod approbo non reprobo – you may not approbate and reprobate". This is a Scottish Principle widely accepted in English Courts of Law. This maxim was applied in Lissenden v CAV Bosch Ltd [1940] AC 412. This is the law on election. Once the Respondent elected to go for a DNA Test, he was bound to do it as his decision which is binding on him and enforceable unless revised by the court for good reason.
    
12. I have no good reasons to revise this decision and election of the Respondent. But, in my judgment, I give two options to the Respondent. I make following orders;
    
    1. The Respondent shall pay full cost of DNA test.
       
    2. He can opt to do this DNA test in one of following institutions and option to be made within two weeks of this order and notify the Senior Court Officer of the Court;
       
       1. To perform in Suva Private Hospital or;
          
       2. Genetech-Sri Lanka, 54, KitulwatteRoad, Colombo, 00800, Sri Lanka.
          
       100. After the option the Senior Court Officer to act accordingly to get the DNA test Report.
            
    3. If the Respondent opted to do this test in Sri Lanka, following formalities to be observed.
       
       1. Blood samples to be drawn by CWM Hospital Doctor before a Authorised Court Officer.
          
       2. All parties must be present at that time and consent letters to be signed and identification of the parties to be done and certified by the Court Officer or the Doctor.
          
       100. Blood Samples to be taken to filter papers and each of the samples to be put to a separated small government of FIJI envelope and to be pasted, full name of the owner of blood sample to be written on top of the each envelope and the court seal to be put each envelope. These procedure and Seals to be done then and there in front of the parties and the Doctor and to be followed as instructed by the Genetech Sri Lanka.
            
       4. Then all blood samples( Three; Putative Father, Natural Mother and the Child) ) along with consent papers and the copy of this order to be put into a big Government of Fiji envelope and to be thoroughly pasted and sealed as earlier. Then Court seal to be put.
          
       5. Thereafter Court Officer shall post the parcel by registered Air mail or send through courier service as the Respondent prefers.
          
       6. All Payments to be done by the Respondent directly to the Genetech by way of bank International telegraphic transfer and original copy of the bank receipt of the payment to be handed over to the Nasinu Court Registry to file the same. In addition to that Handling, Travelling and postage charges to be borne by the Respondent. Details of the Bank Account and Instructions could be obtained from the Senior Court Officer of the Nasinu Magistrate Court. Drawing (Taking) of the Blood samples to be done after payment of the DNA Test charge to the Genetech and the Respondent ordered to pay this charge within two weeks and produce the bank receipt. Then within one week blood samples to be taken and send to the Genetech lab for DNA test.
          
       7. The Genetech-Sri Lanka to perform the DNA test and full report to be submitted to this court on priority basis. The Senior Court Officer will notify the next date to the Genetech.
          

Orders Accordingly.

SUMUDU PREMACHANDRA
RESIDENT MAGISTRATE

26-05-2011
Copies1. Mr. Ram Chand, counsel for the Respondent
2. The Applicant Ms. ADI ( suppress)
2. File 0212/NAS/2010.