Jopping v Solu [2007] PGDC 14; DC508 (16 March 2007)

DC508

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 395 OF 2006

BETWEEN

McPHYL JOPPING
Complainant

AND

SIMON SOLU
Defendant

Goroka: F MANUE
2006: February 8, 21
2007: March 16

Cases Cited
Nil

References
1. Child Welfare Act, s. 55

Counsel
Complainant: In Person
Defendant: In Person

March 16 2007

REASONS FOR DECISION

F Manue: The complainant comes to court to claim child maintenance on behalf of an infant Hennetta Simon, who was born on April 01 2006, as the defendant has not given adequate means of support. The claim has been lodged under section 55 of the Child Welfare Act.

2. The issue is whether the defendant is the biological father to the child as he disputes pertinity.

3. Initially the defendant disputed pertinity but it changed in the course of hearing evidence.

4. The complainant called two witnesses inclusive of her own evidence. She also tendered Exhibit ‘A’ and ‘B’ which are her own affidavit and the statement by her witness respectively.

5. A report by a Medical Health Extension Officer was also tendered.

6. She also tendered a Village Court mediation order and a diary which she kept records of secret matters including her relationship with the defendant. The diary also was referred to as to the dates she engaged intimate relation with the defendant. They are M.F.I as Exhibit ‘C’, ‘D’ and ‘E’.

7. She stated that the relationship between herself and the defendant commenced in April 2005.

8. No intimate relationship took place in April 2005, but they commenced intimate relationship in May, June and July 2005.

9. She also stated that on July 13, 2005 which was on a peak ovulation period she had intimate relationship with the defendant. Thereafter she missed her menstruation period, which meant that she had conceived a child.

10. In the Village Court mediation agreement the defendant was found to be the father of the child and was ordered to pay K400.00 to the complainant, which she says was for medical and confinement expenses.

11. The medical report states that the intimate relationship which took place on the 13th July 2005 was responsible for the conception of the said child Hennetta/ Henryetta.

12. The second witness of the complainant only stated that he recognized the parties to have been involved in a special relationship. They went around and did things as friends. He could not say whether they were involved in intimate relationship.

13. The defendant called two (2) witnesses inclusive of himself.

14. In his evidence, he stated admittedly that he had a relationship with the complainant but only for a short period. Although he admitted sexual relationship did occur in April he denied any other times they had such relationship. He said he distant himself from the complainant when he learnt that she had an older child, possible from another man. His witnesses evidence was irrelevant as it did not touch on the issue.

15. Having heard the evidence I now go into analysing it.

16. Is the defendant the probable father of the said child?

17. But before answering the question posed, I first ask whether the parties engaged in sexual intercourse which resulted in conception and consequently the birth of the said child.

18. The defendant does not deny engaging in sexual relationship with the complainant. He only disputes the time they engaged in that voluntarily activity with the complainant. He admitted having sexual relationship with the complainant in April 2005 but does not deny or confirm other times he had engaged in sexual relation with the complainant.

19. Whereas the complainant denies having any sexual relationship in April 2005, but admits to such activity in May, June and July.

20. I accept what the complainant said. She has kept a diary of her secret matters including the sexual relationship with the complainant. She had indicated the dates she had the intimate relation with the defendant as well as the dates she passes menstrual period.

21. She denied having sexual relationship with anyone else apart from the defendant during the period just before conception.

22. Biological science knowledge tells us that it takes nine (9) months from the time of human baby conception before delivery.

23. And so if conception took place in July 2005 the child should arrive in April 2006.

24. Evidence of the complainant is consistent with that scientific principle.

25. She conceived in July 2005 and gave birth on 01st April 2006, which is about nine (9) months from the time of conception.

26. The medical report could not use other medical or medical science means to confirm the pertinity issue because they did not have such facilities.

27. It would seem that the defendant may have had the suspicion that the father of the complainant’s first child could be responsible although he does not state so. If that was his implied or unmentioned reasons, then, he has not called evidence to rebut to that effect.

28. Neither has he given any more details of his sexual relationship with the complainant than what the complainant had done. He does not even rebut the claim by the complainant that they had sexual relationship in the months of May, June and July 2006.

29. On those basis, I must find on the balance of probability that the defendant is the biological father of the child Henryetta/ Hennetta Saimon.

30. As to the element of whether the defendant is giving adequate support, I noted that this issue was not contested.

31. And accordingly I find on the balance of probability that the Mr. Saimon Solu is over 16 years old and is the biological father of the said child Hennetta/ Henryetta Saimon and that he has not adequately supported the child.

32. I find further that by the Village Court mediation order, confinement expenses and medical expenses of the complainant have been met by that order.

Complainant: In Person
Defendant: In Person