Thomas v Sembere [2007] PGDC 33; DC510 (11 May 2007)

DC510

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

DCCi 68 OF 2007

BETWEEN

MARIA THOMAS
Complainant

AND

RICHARD SEMBERE
Defendant

Goroka: F MANUE
2007: April 12, 27, May 11

CIVIL - Child Welfare Act – whether the child is biologically the defendants – was there an act of sex on the alleged dated – the onus of proof is on complainant.

Cases Cited
Nil

References
1. Section 55 of the Child Welfare Act

Counsel
Complainant: In Person
Defendant: In Person

11 May 2007

REASONS FOR DECISION

F Manue: This is an affiliation proceeding or a claim for child maintenance under Section 55 of the Child Welfare Act. The Complainant alleged that the defendant is over the age of 16 years and is the father of a female child namely Gaita, born on the 21st of May 2003 to the Complainant and the child had been left without any lawful means of support. She is claiming on behalf of the child allowance for the child and for confinement expenses.

2. The issue is whether the said child is by the defendant.

3. The Complainant called two (2) witnesses including that of her own evidence.

4. The evidence of her witness was of very little assistance with reference to whether the child is the defendants. The complainant gave oral evidence. Her affidavit was not admitted as evidence as the contents are in English which she does not understand. It does not contain an interpretation clause either.

5. In her oral evidence, she stated that she was a girlfriend to the defendant and that the relationship is known to her relatives and to the defendants workmates. She said her workmates knew about their relationship because he usually takes her around in his work car.

6. Those claims have not been substantiated by independent witnesses or those who knew their relationship.

7. She stated that on the 21st August 2003, the defendant was drunk and sent word for her. Eventually they ended up at the Holiday Lodge, where they spent the night and had sexual intercourse.

8. She said prior to the sexual activity she had warned the defendant that it was her peak ovulation period. Despite that, she said the defendant brushed that aside and told her that he would be responsible for the child if she conceived.

9. She told the Court that after that time and onwards she knew all along that she was pregnant so she told the defendant of her pregnancy condition. The defendant denied the child to be his.

10. He however suggested that they wait until the child is born. She said one month after the child was born, which was on 21 of May 2005, she took the child to the defendant and asked for some support from the defendant. To date the defendant has not been maintaining the child in any way.

11. I might add that the defendant and the complainant had referred the matter for mediation before a Community Elders Court where he had paid K500.00 for personal damages.

12. The defendant gave evidence on his own behalf and called two (2) other witnesses. The evidence of the defendant was by way of tendered affidavit and oral during examination. In his evidence, he admitted having a sexual affair with the complainant, in the Holiday Lodge but not on the date as alleged by the complainant.

13. He stated that on the alleged dated, 21st August 2003, he was attending a course at the Lae Telikom Training College. Although he did not state here I assume that it was Lae through Exhibit “B” which he tendered.

14. He said the time he spent a night with the complainant was on either a Tuesday 2nd or Wednesday 3rd of July 2003.

15. Exhibit B as tendered contains Telikom officers from Goroka who were selected to attend those courses. The names include the defendants who attended to the Courses between 4th August 2003 and 29th August 2003. His first witness namely Sowin Losenamo’s name also appears on the Training schedule for the Telikom officers of Goroka.

16. The second defence witness is Sowin Lasenamo, and he also testified that the defendant did attend to a Course in their College on the 21st August 2003 and was not in Goroka that time.

17. The Law

For the benefit of the parties I set out the provisions relating to Affiliation proceedings, particularly Sections 49 – 55.

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

18. In the instant matter affiliation proceedings commenced after the birth of the child in compliance with Section 51 of the Child Welfare Act.

19. The essential elements to be proved on the balance of probability are that:

i. A person is a father to a named child

ii. The person is over 16 years of age

iii. That the child has been left without means of support

20. The issue of whether the defendant is over the age of 16 years is not being contested.

21. It would seem to me that the issue of whether the child has been left without any means of support is neither being contested. The reasons logically is that the defendant is totally denying that the child is his and because the child is not his, he says he has not given any means of support to the child.

22. The issue of an allowance to the child depends on whether the child is by the defendant.

23. Evidence by the complainant is that she had a casual sex affair with the defendant once, and that was on the 21 of August 2003.

24. The sexual affair is not denied by the defendant. However, the date on which the affair eventuated differs.

25. The evidence of the complainant is that on the relevant date in issue it was her peak ovulation period.

26. In answer to cross-examination, she stated that she usually discharges her monthly period on the 21 and 22 of each month. She had her last monthly period on those dates in September 2003 and that no one else knows about when she discharges her menstruation period.

27. If what she is asserting is correct then on the 21 of August 2003 was the date she was likely to have had her monthly period and therefore there was no egg to be fertilized. The egg would have discharged by then and the sexual act if there was one on the 21 August 2003 would have been a futile activity. If not the sexual act occurred during menstruation period. In other words no fertilization would have occurred and therefore no conception of a child.

28. However, the defendant has denied that the sexual encounter with the complainant occurred on the 21 August 2003. Rather, that activity occurred on either 2 or 3 of July 2003.

29. He testified and produced documentary evidence that he was attending a course at the Telikom College in Lae at that time. If he was in Lae he could not have been here enjoying a social gathering with his work mates on the night of 21 August 2003 and be at Lae the next morning in school, unless there was evidence to that effect but there was none.

30. He also called another workmate who confirmed that the defendant was not in Goroka on the alleged date of sexual encounter by the complainant.

31. In my view the date of the sexual affair as alleged by the complainant has not been properly established by evidence, on the balance of probability.

32. Therefore on the balance of probability I doubt that the conception of the said child was the result of the sexual encounter the defendant had with the complainant. Consequently the female child Gaita cannot be said to be the defendants.

33. I therefore find on that basis that the complainant has not been proven. The complainant therefore must be dismissed and the defendant discharged.

34. Orders Accordingly.

Complainant: In Person
Defendant: In Person