Maniwa v Hevehombo [2003] PGDC 41; DC431 (11 September 2003)

DC431

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 36 OF 2003

In the Matter of Child Welfare Act Ch. 276

AND:

In the Matter of Claim for Maintenance

BETWEEN

Scholar Maniwa
Complainant

v

Bernard Hevehombo
Defendant

Wewak: T. Morabang, Spm
2003: 28 August; 11 September

Affiliation Proceedings after birth of child - No evidence of abnormal birth - Normal Gestation period - Denial of Paternity - Evidence of Complaint ought to be corroborated in some material particular.

Cases Cited:
Nil

Statute
CWA Ch. 276
Complainant on her own behalf.
Defendant on his own behalf.
No attendance of Welfare Officer
No attendance of Lay Member.

DECISION

11 September, 2003

MORANANG, SPM: This matter came before me in the District Court as there are no longer Welfare Officers and Lay Members appearing to constitute the Children's Court.

The Complainant is claiming maintenance under the Child Welfare Act for her daughter who she claimed had been fathered by the Defendant. She claimed that the Defendant is over the age of 16 years and had left the child without means of support ever since her birth on 24 February, 2003. She seeks award of custody of the child to her.

The Complainant commenced these proceedings under Section 51 of Child Welfare Act Ch. 276 which prescribes procedures for seeking maintenance by mothers of illegitimate Children after birth of Children.

The facts before the Court are that the parties had been boy/girl friends since 1999 but had never engaged in any sexual relationships. Relatives of both parties knew about their friendship. From the Complainant's sworn affidavit and evidence on oath, the Defendant's relatives had refused his marrying Complainant. The Defendant however had manifested his wish to marry Complainant by approaching her and telling her of his relatives' objection and at the same time telling her that in order to make him marry her he should give her a child.

The Complainant stated in the affidavit that her first act of sexual intercourse with Defendant had been in 2000. The second act of sexual intercourse had been on 29 May 2002. The third occasion was on 09 June 2002. The fourth occasion was on 12 June 2002. The fifth occasion was on 14 June 2002 and in July 2002 she missed her menstrual period.

On 23 August 2002, the Complainant informed Defendant that she did not have her menstrual period in July. The Defendant kept visiting Complainant until she revealed to Council Committee that she was in her 3rd month of pregnancy in October, 2002. The Defendant objected to Complainant's revelation, became angry and decided to deny paternity.

The Complainant gave birth to her child ANCILLIA on 24 February 2003, at Wewak General Hospital at Boram.

At cross-examination, the Complainant denied having sexual relations with men other than the Defendant. She denied having sexual intercourse with the Defendant's younger brother Cletus Hevehombo.

When examined by Court, the Complainant stated that she usually has her menstrual periods from 21 to the end of each month. She stated that she had her Last Menstrual Period (LMP) in May 2002.

The Complainant stated she had not obtained a Medical Report from a Doctor. She says she had faced no complications during delivery but she did have a bit of malaria after her delivery.

She said the last time she had sexual intercourse with Defendant was on 14 June 2002. She then had her Last Menstrual Period (LMP) in July and not in May as earlier stated.

From the Baby Clinic Book, it is indicated that the child had been delivered normally weighing 2.810 Kg but a month early in her 8 month. She did not know the reason for early delivery.

The Complainant had called only one witness, her own sister Robina Maniwa. This witness told the Court she knew of the friendship between Complainant and Defendant. She told the Court Defendant used to follow her and her Complainant sister to the garden or to the creek. He would then take Complainant to a secluded place and stay a long time then he would leave.

Sometimes the witness got tired of waiting for complainant to return to her and she would start calling out until the complainant come. The witness says only defendant used to go to her sister and not defendant's younger brother.

At cross-examination she said the defendant had followed her and complainant to the garden only once on 23/06/2002. Twice he had followed them to the river but could not recall dates. Twice he went to the house but could not recall dates.

The defendant on the other hand had completely denied paternity of the child and countered that complainant and her cousin Christophilda had been involved in rivalry as to which of them would be lucky to marry him. And because of this rivalry the complainant had seen her lucky break by placing this burden on him to make him marry her. It is true complainant had been his girlfriend but he said he had never had any sexual relationship with her up to the present time.

He claims that his younger brother Cletus Hevehombo had given complainant the child in question. He says Cletus himself has owned up paternity of the child on 09 June 2003 during a meeting held in the village. At that time complainant and her lain had been summoned by 'garamut' message but would not attend.

Cletus however had returned to Vanimo where he is temporarily based.

The defendant called one witness, a village leader by the name of MARTIN WINGA. He told the court that sometimes in June 2002, complainant had instigated a mediation saying defendant was the father of her child but he was refusing to own up. During the meeting a fight almost broke out between members of both parties, so mediation were abandoned. Tangori Police were fetched to the village and mediation resumed. At that time, mediations went on smoothly but when Cletus' name was mentioned again the mediations were discontinued.

The witness himself had sent word to Cletus at Vanimo to come and clarify the situation. Cletus did come in June 2003 and claims that the child in question is his.

The Complainant and her relatives were then summoned but they would not attend a meeting with Councillor, Village Court Magistrate and other customary leaders. And after waiting in vain, Cletus decided to return to Vanimo.

The issue for determination here are whether Defendant is the father of Complainant's child and whether he had left the child without means of support.

To determine the issues, it is important to understand the human gestation period. It is a well known fact that a human foetus (baby) stays in the mother's body 9 months before it is delivered when it is a full term baby. This period is calculated from the first day of the Last Menstrual Period (LMP). Simply add 9 months, 7 days from that day to determine the Estimated Date of Delivery (EDOD).

Depending on the circumstances of the mother, the child could be delivered exactly on the estimated date of delivery, immediately before or some time after. Determination will be made by the Court after considering the evidence adduced and consulting the law.

The law which governs this matter is the Child Welfare Act Ch. 276.

As earlier stated Section 51 prescribes proceedings for commencing proceedings for maintenance by mothers of illegitimate children after birth of children. For a successful maintenance order the Complainant must prove the elements specified under section 55(1) of the Act.

5. Maintenance order on complaint after birth.

(1) Where a Court hearing a complaint under section 51 is satisfied

that –

(a) the child is illegitimate; and

(b) the Defendant-

(i) is the father of the child; and

(ii) is over the age of 16 years; and

(iii) has left the child without means of support.

The Court may order the Defendant to pay to the Director, weekly, such sum for the maintenance of the child as the Court thinks proper.

(2) A court ordering a Defendant to pay maintenance of a child under subsection (1) may at the same time order the Defendant to pay to the Director such sum not exceeding K150.00 for confinement expenses, as the Court thinks proper.

The next Subsection provides three specific defences pertaining subsection (1) (b)) above.

(3) A Court shall not make an order under Subsection (1) -

(a) on the evidence of the mother unless her evidence is corroborated in some material particular; or

(b) the court is satisfied that at the time when the child was conceived, the mother was a common prostitute; or

(c) if the evidence adduced indicates that it is impossible or unlikely that the Defendant is the father of the child.

The Complainant has told the Court that she normally has her menstrual period on 21st of each month and the cycle ends at the end of each month. She told the Court that she had her Last Menstrual Period (LMP) in July 2002 and she had had sexual intercourse with the Defendant on 14 June 2002.

Basing the gestation period on the aforesaid formula it can be seen that the LMP started on 21 July 2002 and ended on 31 July 2002. Adding 9 months plus 7 days to 21 July the estimated date of confinement or delivery would be about 28 April 2003. Now the Complainant had stated that she last had sexual intercourse with Defendant on 14 June 2002. If that is so then conception would have taken place then if that was a relevant period (14-21 June) and the Complainant would have missed her menstrual period in that month. Thus it would be that her last LMP would have been 21 May 2002 and her date of delivery would be about 24 February 2003.

From the Complainant's sworn affidavit and her evidence on oath she had her last menstrual period on 21 July 2002 but there is no evidence that she had had sexual intercourse at a relevant period before the 21 July 2002 with Defendant. She had had last sexual intercourse with Defendant according to her evidence, on 14 June 2002 and it can be assumed that on 21 June she had her menstrual period. This then places a different perspective to the whole issue of whether the Defendant could likely be the father of the Complainant's child.

If the Defendant had sexual intercourse with Complainant on 14 June 2002 as she claims which is supported by her sister's evidence then the Defendant is unlikely to be the father. Because if sexual intercourse had taken place on 14 June then conception should have taken place then and Complainant would have missed her menstrual period. In other words if she had missed her period on 21 June 2002 then by 21 July 2002 she would be in her first month of pregnancy.

If she missed her period on 21 July 2002, then the chances of Defendant impregnating Complainant are quite remote because sexual intercourse with Defendant was on 14 June 2002. And from Complainant's LMP, adds 9 months, 7 days and it can be seen that the probable date of confinement or delivery would be about 28 April 2003 and not February, 2003.

In the instant case, the child seems to have been delivered on its correct date of delivery. Basing this assumption on the weight of the child the child's Clinic Book clearly shows that at delivery, the child weighed 2.810kg which is .310 grams over and above the average weight of a Papua New Guinean child at birth average being 2.5 kgms. This means that the child was a full born baby. Now if this is so, then the child must have been conceived in May 2002 which preceded acts of sexual intercourse with Defendant in June 2002. This therefore exonerates the Defendant.

On the basis of the foregoing, I have warned myself of the dangers of making findings based on the evidence as adduced and make the following findings:

1. After considering all the evidence, I find that there is insufficient circumstantial evidence to corroborate Complainant's evidence that the Defendant is the father of the child;

2. There is insufficient circumstantial evidence that the Defendant had had sexual intercourse with Complainant at relevant period;

3. That the child was a full term baby when delivered;

4. That I am satisfied that there is a real likelihood that the child ANCILLIA was fathered by a man other than the Defendant;

5. That the Defendant although is over the age of 16 years, cannot be made liable for the support of the child;

AND make the following orders:

Complaint not proved. Matter dismissed.

In Person: Complainant
In Person: Defendant