Disulu v Nute [2012] FJMC 336; Family Court 368.NAS.2012 (6 December 2012)

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

Family Court Case No. 368/NAS/2012

BETWEEN:

SERA DISULU,
Narere Stage 1, P. O. Box 17753, Muanikoso Village, Nasinu.
[Applicant]

AND:

MOAPE SAKIUSA NUTE,
Narere Stage 1, Muanikoso Village, Nasinu.
[Respondent]

Appearances:
The Applicant present appeared in person
Respondent absent and unrepresented

Trial Details:
Date of Hearing: 11th October 2012
Date and Place of Judgment: 06th December 2012
Judgment of : Resident Magistrate Sumudu Premachandra

RULING OF THE COURT

1. This is an application by the applicant for orders seeking the respondent to pay child's maintenance (Form 5). The child name is Master Moape Sakiusa. The Child was born on 26th June 2011 and out of wedlock.
   
2. As the per record, the Respondent was duly served Form 5 but he did not file response (Form 6). The court record further indicates that the Respondent never came to this court to refute this application.
   
3. The matter was heard on 11th October 2012. So far there is no interim orders is granted for maintenance. Issue of paternity to be resolved first. The Applicant gave evidence on oath. She stated that since 2010 they have been residing as husband and wife. She was conceived in October 2010. She gave a birth to a boy on 26th June 2011. She named the boy after the Respondent since he is the father of the child. Birth Certificate tendered as EX-1. In that no father's name was given. She stated they stayed till March 2012. Then the Respondent chased her out and brought another woman. The child is now 1 year 3 months. She is working at Mark I apparels and earning $80 per week. She said it is not sufficient to support her kid. The Applicant said that the Respondent is the father of the child she is asking $110 per month. She further said that though he is unemployed at the moment, but he can earn and pay. The Applicant said during their relationship she has not sexually contacted with another man. The Applicant said when they married the Respondent promised her to put his name to the birth certificate. She further said during their marriage the Respondent uncle supported them since the Respondent was studying.
   
4. The Applicant called Moape Ratusakiusaas next witness. He said that the Applicant was his nephew's de facto. When he came back in August 2011, they were living together and they had a child. The witness said that they have been living together and his nephew, the Respondent is the father of the child. He said the Respondent admitted the paternity of the child before him. Then the Respondent left and started living with another woman. The witness said the Respondent reach form 6 and has capacity to do a job and support the child. He also under gone a vocational training at John Wesley College.
   
5. Thereafter the Applicant closed her case.
   
6. This court must decide the issue of paternity first. The applicant said they stayed together in 2010 and 2011 and had sexual relationship. She said that she never had sexual relationship with another during this period. This application was filed and the Respondent did not file a response. If the Respondent denies the paternity of the child by now he could have contested the matter. It is seen by gesture the Respondent admitted the paternity of the child. The Applicant said that he admitted the paternity of the child after his birth. This seems that the Respondent has accepted the child as his child. In this case the respondent did not file the response for the application for maintenance. . He kept silence. He did not dispute the facts contained in the application. I apply legal maxim of "Qui Tacet Consentive videtur -the one who did not resist to a fact, deem to be consented". Therefore, by behaviour of the Respondent, he admitted that he is the natural father of the child and willing to pay maintenance as depicted in the application. Further the Applicant evidence strengthened by his uncle's evidence and he has experienced that they lived together without and disputes.
   
7. Aforesaid reasons, I have no reason to disbelieve the Applicant's evidence. Her evidence has not been impeached or discredited whatsoever by the respondent. I therefore hold that the Respondent in this case is the natural father/ biological father of Master Moape Sakiusa.
   
8. As to the question of maintenance, the Respondent is the putative father of the child. He has primary duty to maintain this child. I now draw my attention to the Section 100 of the Family Law Act 2003.
   

"If the father of a child is not married to the child's mother the father must make a proper contribution towards-

(a) the maintenance of the mother for the childbirth maintenance period in relation to the birth of the child;

(b) the mother's reasonable medical expenses in relation to the pregnancy and birth;

(c) if the mother dies and the death is as a result of the pregnancy or birth - the reasonable expenses of the mother's funeral; and

(d) if the child is stillborn, or dies and the death is related to the birth - the reasonable expenses of the child's funeral." (Underlining is mine)

9. Section 101 of said Act stipulates the Matters are to be taken into account consideration in awarding maintenance. I reproduce this section for clarity.
   

(1) In proceedings under this Subdivision in relation to the birth of a child, the court must, in determining the contribution that should be made by the father of the child, take into account the following and no other matters-

(a) the income, earning capacity, property and financial resources of the mother and the father of the child;

(b) commitments of each of those persons that are necessary to enable the person to support-

(i) himself or herself; or

(ii) any other child or another person that the person has a duty to maintain;

(c) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.

(2) In taking into account the income, earning capacity, property and financial resources of a person, the court must have regard to the capacity of the person to earn and derive income, including any assets of, under the control of or held for the benefit of the person that do not produce, but are capable of producing, income.

(3) Subsection (2) does not limit the matters to which the court may have regard in taking into account matters referred to in subsection (1).

10. Thus, common law is very clear those putative fathers are liable to maintain their children born out of wedlock. The next question is quantum of maintenance. The Respondent did not contest the facts and it seems that he has a capacity to earn. The Respondent created the obligation of maintaining his child and he cannot just idle with his responsibilities. He reached form 6 with vocational training and I hold he has a capacity to earn.
    
11. Normally, common law jurisdiction orders that maintenance orders to be paid with effect from the date of application. For example, In Sri Lanka, Maintenance Act, No. 37 of 1999 section 2(5) says "Where an order is made by a Magistrate for the payment of an allowance pursuant to an application made under subsection (I) or (2) or (3) or (4), such allowance shall be payable from the date on which the application for maintenance was made to such court, unless the Magistrate, for good reasons to be recorded, orders payment from any other date. Therefore this law is persuasive for me to decide the effective date of this order and I do not think it is unfair since the Applicant waited to get maintenance through cumbersome inquiry.
    
12. I am satisfied with the adduced evidence. Therefore, I hold the Respondent is the putative father of child Master Moape Sakiusa. The Respondent has legal duty to maintain the child until she attained age of majority or finishes education. Moreover the Respondent has means to pay and capacity to pay this maintenance. I make following orders;
    
    1. The Respondent to pay maintenance at the rate of $40 per week to the child with effect from the date of the application (Sealed date) until she attains age of majority or finishes education.
       
    2. If maintenance not paid by the Respondent, JDS to be calculated and in default the Respondent to be imprisoned 10days for every $100(One Penalty Unit).
       

Orders Accordingly.

SUMUDU PREMACHANDRA
RESIDENT MAGISTRATE

06-12-2012
Copies1. The Applicant
2. File 0368/NAS/2012.
3. Respondent; the Applicant to serve this order through Nasinu Police station and to file service document Form 21 and 22