Kama v Gabriel [2004] PGDC 4; DC99 (17 June 2004)

DC99

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 10 OF 2004

BETWEEN

EMELDA KAMA
Complainant

AND

BRIAN GABRIEL
Defendant

Vanimo

J AUGUST
9 June 2004
16, 17 June 2004

DECISION

Cases Cited
X v Y [1977] PNGLR 34

June 17, 2004

This is an application by a single mother and complainant Emelda Kama for the defendant Brian Gabriel, a male over the age of 16 years to pay maintenance of child born out of wedlock to the complainant on the 31st January, 2003 at Vanimo General Hospital.

The complaint was that the defendant being the father of a child Rhus Katika Bonny born to the complainant has left the child without any means of support.

Both parties appeared before the court on the 09th June, 2004 and the respondent admitted paternity through a statement titled, "Admission of Facts from the Defendant" filed in court on the 9th June, 2004. Because of the admission of the defendant, the only outstanding issue is for the court to determine the quantum of maintenance the defendant is capable of paying. The court thought to be fair to the defendant and in the exercise of it's discretion, even though the matter was not of a criminal nature, directed the Community Base Correction Office (CBC) in Vanimo to provide to the court a Means Assessment Report (MAR) to assist the court.

The MAR was filed on the 16/6/2004. From the assessment the following information was obtained. Brian Gabriel Taihweng is from Lido (Vanimo) Village, a young man over the age of 16 years and unemployed. He has no income and supports a wife and child.

Brian has no assets, no bank account and no liabilities at this point in time. He has no capacity to pay in cash, goods or in kind. Furthermore, although the immediate relatives are willing to assist Brian care for the child, the report said most of them are unemployed and won't assist him financially.

On the other hand the complainant feels that a payment of K50.00 in cash or kind every fortnight would be reasonable amount to maintain the child.

The law applicable to this case is the Child Welfare Act PART 1X - AFFILIATION PROCEEDINGS, especially section 55 of the Act. Subsection (1) reads:

(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;

(iii) has left the child without any means of support,

the court may order the defendant to pay to the Director, weekly, such sum of money for maintenance of the child as the court thinks proper.

There is no scheme like the Adultery and Enticement Act, where certain factors are taken into account in assessing the amount of compensation to be paid to the wife or husband by the adulterous party (see section 16). The discretion is left to the magistrate to decide what he or she thinks is the proper amount of maintenance to be awarded. In this case my view is that the defendant does not only have an obligation to maintain the child, but I am inclined to believe that with a little more innovation and creativity, example fishing and gardening, the defendant is likely to receive enough income not only to feed his wife and one children, but this child as well. The defendant has decided to marry his present wife, so he now has a family unit of his own and the general expectation is that he should now start to fetch for himself and not rely so much on his natural parents.

The child in my view requires at least K50.00 every fortnight to survive in a place like Vanimo Village where my general observation is that some families live mainly on store goods. The child is not getting any financial support from any other source and would be a burden unless the complainant and defendant can share the responsibility of looking after the child.

Just two years after independence in a case X v Y [1977] PNGLR 34, Prentice Dep. C.J. ordered that maintenance of K30.00 per fortnight be reduced to K4.50 per week, that is K9.00 per fortnight as child maintenance. In contrast the mother in that X and Y case works in a Bank as Ledger Machinist and earns K52.00 per fortnight. After twenty seven years and after the devaluation of the Kina, what can K9.00 buy today? In the present case the complainant has no income and is a villager. In the exercise of my discretion, I am satisfied that the amount of K50.00 per fortnight as maintenance for the child would be sufficient, given the price of food, clothes and a little saving for school fees when the child starts attending school.

The defendant is a young man of 23 years of age and I am inclined to believe he has the ability find K50.00 to maintain the child he contributed to bring into this world. The defendant has a choice. If he chooses to be lazy, then he won't afford it, but if he chooses to work on the abundant resources in the sea and on the lands, then I believe he can afford the money to support the child.

I am therefore of the view that K50.00 maintenance every fortnight would be an appropriate amount under these circumstances.

Ordered accordingly.

For the Complainant: Emelda Kama by herself.
For the Defendant: Brian Gabriel by himself.