Henry v Morova (Moruwo) [2007] PGDC 29; DC512 (11 May 2007)

DC512

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

DCCi 85 OF 2007

BETWEEN

MARGRET HENRY
Complainant

AND

JAMES MOROVA (MORUWO)
Defendant

Goroka: F MANUE
2007: April 20, 26; May 07

CIVIL - Child Welfare Act – Affiliation proceedings.

Village Court Act – Divorce proceedings – village court, divorce granted, child awarded to defendant on appeal order reversed by District Court – No specific maintenance order given, whether the proceedings be by way of review of District Court Appeal decision. Relief orders made.

Cases Cited
Nil

References
1. Section 49 - 55 of the Child Welfare Act
2. Section 96 (4), 94 of the Village Court Act

Counsel
Complainant: In Person
Defendant: In Person

11 May 2007

REASONS FOR DECISION

F Manue: This is an affiliation proceeding under Section 55 of the Child Welfare Act by the Complainant for and on behalf of the male child MESEK.

2. The issue is whether the District Court has jurisdiction in the matter particularly when the initial proceedings were instigated in the Village Court at Asariufa. After hearing both parties I find that the facts are not disputed.

3. Both parties told of how their relationship started and eventually lead into the complainant conceiving the child. In their evidence, after the child was born they commenced living together in or about April 2005.

4. After about a year, the parties ended up in a domestic quarrel which lead to the complainant packing up and leaving and has been living with her relatives since.

5. After separating for about six (6) months the defendant instigated a Village Court proceeding where they were ordered to remain together in an existing marital status.

6. However, the complainant decided to leave the defendant when she discovered that he was having an affair with another woman.

7. They then ended up in Asariufa Village Court for divorce proceedings which was granted on 31 July 2006.

8. The order is:-

“Court decision tupela parties wanbel long brukim maret. Compensation K700.00 Kot fine K50 paid. Pikinini stap aninit long care bilong papa”.

9. The Village Court decision was appealed on in the District Court which made an order on the 19 September 2006. The order is in these terms:-

“Appeal is upheld. The child MESEK MORUO is to be handed back to the natural mother Margret Henry and she is to have custody of the child until the child is able to walk around. Margret Henry is not to take the child out of Goroka permanently. James Moruo can have access to the child on a fortnightly basis”,

10. The affiliation proceedings are allowed under Sections 49 – 55 of the Child Welfare Act.

Part IX – AFFILIATION PROCEEDINGS

49 Interpretation of Part IX

(1) In this Part –

“court” includes a Local Court exercising jurisdiction by virtue of Section 17 of the Local Courts Act (Chapter 41);.

“magistrate” means a magistrate of a court.

(2) In this Part, unless the contrary intention appears, a reference to a birth or the date of a birth shall be read with the necessary modifications, as including a reference to, or to the date of, a stillbirth or a miscarriage (other than a wilful abortion).

50 Affiliation proceedings before birth of child

(1) In this section, “man” means a male person over the age of 16 years at the time of the making of the complaint.

(2) Where a single woman is pregnant by a man who has not made adequate provision for the payment of confinement expenses in connexion with the birth of the child, a complaint may be made, in accordance with this section, before a magistrate –

(a) by the woman; or

(b) with the consent of the woman, by –

(i) the Director; or

(ii) a person authorized in writing by the Director to make a complaint under this Part

(3) A complaint under this section –

(a) shall be –

(i) in writing; and

(ii) on oath; and

(b) shall state –

(i) that the woman is pregnant; and

(ii) the name of the man by whom she is pregnant; and

(iii) that the man by whom she is pregnant is over the age of 16 years and has not made adequate provision for the payment of the confinement expenses in connexion with the birth of the child

(4) In any proceeding under this Part, an allegation in a complaint under this section that a specified person was at the time of the making of the complaint over the age of 16 years shall, in the absence of proof to the contrary, be deemed to be proved.

51 Affiliation proceedings after birth of child

(1) Where the father of an illegitimate child has left it without means of support and is over the age of 16 years, a complaint may be made, in accordance with this section before a magistrate –

(a) by the mother of the child; or

(b) by the Director; or

(c) by a person authorized in writing by the Director to make a complaint under this Part.

(2) A complaint under this section –

(a) shall be –

(i) in writing; and

(ii) on oath; and

(b) shall state –

(i) the name of the mother of the child; and

(ii) the name of the child; and

(iii) the name of the father of the child; and

(iv) that the person named as the father of the child is over the age of 16 years and has left the child without means of support

(3) In any proceeding under this Part an allegation in a complaint under this section that a specified person was at the time of the making of the complaint over the age of 16 years shall, in the absence of proof to the contrary, be deemed to be proved.

52 Summons or warrant on complaint

Where –

(a) a complaint is made under Section 50 or 51; and

(b) the complainant produces evidence on oath; either oral or on affidavit, in corroboration of some material particular as to the paternity of the child,

the magistrate before whom the complaint is made may –

(c) summon the person complained against to appear before a court to answer the complaint; or

(d) if satisfied that the circumstances require it, issue a warrant for his apprehension.

53 Order for payment of confinement expenses

(1) Subject to Subsection (2), where a court hearing a complaint under Section 50 is satisfied –

(a) by the evidence of a medical practitioner, or by the certificate of a medical practitioner admitted as evidence with the consent of the defendant, that the woman is pregnant; and

(b) that the defendant –

(i) is the person by whom the woman is pregnant; and

(ii) is over the age of 16 years

the court may order the defendant to pay to the Director for confinement expenses such sum, not exceeding K150.00, as the court thinks proper.

(2) 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) if 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.

54 Order for payment of maintenance

A court ordering a defendant to pay for confinement expenses under Section 53 may at the same time order the defendant to pay to the Director, at such intervals as to the court seem proper, such sum for the maintenance of the child as the court thinks proper.

55 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 maintenance of the child as the court thinks proper.

(2) A court ordering a defendant to pay for maintenance of a child under Subsection (1) may at the same time order the defendant to pay to the Director such sum, not exceeding K1500, for confinement expenses, as the court thinks proper.

(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) applies to the maintenance of the child from the date of birth of the child until –

(i) the child dies; or

(ii) the order is discharged by a court of competent jurisdiction; or

(iii) the child attains the age of 16 years, whichever first occurs

11. In the present matter the issue is not whether the defendant is over 16 years nor is the issue relating to paternity. The issues are rather whether this is the right forum for the complainant to have brought the complaint.

12. And if it is, whether I can make a specific monetary order as allowances for the upkeep of the child.

13. I raise a jurisdictional issue because the matter was initiated in the Village Court and the processes of the Village Court Act should be applied to get a final outcome.

14. So far, the complainant had lodged an Appeal against the Asariufa Village Court order, particularly in relation to custody order.

15. She had succeeded partially when the District Court hearing the appeal granted to her care the child.

16. However, the order did not specify the monetary allowances to be made for the upkeep of the child.

17. Part II of the Village Court Act spells out various scenarios which may be raised as defences in the Village Courts or other courts, especially when other courts have dealt with certain cases.

18. This division particularly, Section 96 (4) gives an exception to the general rule. It is in this terms:-

96 Matters dealt with or being dealt with in other courts

(4) Nothing in the proceeding provisions of this section prevents proceedings for relief (whether by way of compensation or otherwise) being taken in a Village Court or other court after a decision has been given in a Village Court or other court, where proceedings for such relief were not disposed of in the first proceedings.

19. The complainant had applied to review the Village Court order. At the District Court which heard the appeal, an order has been granted in her favour.

20. Having heard from her, she is seeking relief orders in that although there was a general order for the defendant to maintain the child, the order was not specific and that such support has not been consistent and regular.

21. In my view, although the provision of review by the Provincial Supervision Magistrate under Section 94 of the Village Court Act is available to her, Section 96 (4) may also be used for the purpose of seeking a relief order, particularly where the substantial order given by the Appeal Court is not contentious.

22. Having said that and exercising the powers under Section 55 of the Child Welfare Act coupled with Section 96 (4) of the Village Court Act. I now analyse the evidence. As I said, the issue is not whether the defendant is over 16 years or whether he is the father of the child. The issue, having considered the jurisdictional aspect, is whether the defendant has been consistently and regularly giving support to the child.

23. The complainant stated that she is normally given K10.00 and no more for the upkeep of the child. That kind of support is not regular and at times it comes after 2 or 3 weeks. She said, at one point she raised the concern to the defendant who had then stopped completely in visiting the said child with financial support.

24. The complainant lodged in her complaint that such lack of support commenced on 24 April 2005.

25. The defendant denied that he had not been visiting and supporting the child since 24 April 2005. He stated that every time he visits the child, sometimes twice a week and at times once a week. He visits with less then K50.00 on every visit.

26. During cross examination he said he gave K40.00 once. More than three (3) times he gave more than K20.00. And on countless occasions he gave K10.00.

27. He also stated that for the last twelve (12) weeks he has not visited the child and had not given any support.

28. He explained that he had stopped visiting the child because the parents of the complainant were unfriendly to him.

29. Although the complainant has alleged that the child had not been support since 25 April 2005, I do not accept what is alleged.

30. I do not accept what she says. There is evidence that the defendant did give some support although inconsistent and irregular. In my view this was in compliance with the District Court Appeal order, which did not specify the amount of allowance to be given to the child. I do not wish to contemplate on what had happened since those various court proceedings and orders. What I think is fair is for the purpose of ensuring those court orders to be more effective in that a relief order be granted.

31. I intend to grant relief orders in addition to the District Court sitting as an Appellate Court which made orders on the 19 day of September 2006.

32. Orders Accordingly.

Complainant: In Person
Defendant: In Person