Robert v Hato [2008] PGDC 12; DC659 (18 March 2008)

DC659

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

DCCi 361 of 2007

BETWEEN

ROSEN ROBERT
Complainant

AND

CHARLES S HATO
Defendant

Goroka: F MANUE
2008: March 18

CIVIL - Child Welfare Act – Child born outside wedlock – child taken into custody temporarily – a sign of accepting – customary obligations by defendant not met whether there are provisions in law for this Court to exercise into making alternative orders other than child maintenance.
Section 21 and 22 of DCA examined
Section 53 and 54 Adoption of Children Act 1968 explored and applied.

Cases Cited
Nil

References
Section 55 of Child Welfare Act
Section 21 and 22 of District Court Act
Section 53 and 54 of Adoption Act

Counsel
Complainant: In Person
Defendants: In Person

18 March 2008

REASONS FOR DECISION

F Manue: This is a claim for Child Maintenance under Section 55 of the Child Welfare Act.
2. The issue is whether the child Annirose (Annie Rose) has been left without adequate means of support and if so whether there are alternative orders the Court may exercise in view of the given situation and circumstances.

3. Summary of Facts

The facts are that the complainant and the defendant were not friends but had sex one time when the defendant was drunk when coincidentally and unfortunately, the complainant became pregnant and gave birth to the said child. Initially, the defendant did not accept the child to be his, but eventually accepted the child to be biologically his. He took some responsibility and even took custody of the child with the consent of the natural mother for some two (2) years.

4. In attempting to resolve the pertinity issue, the parties did take the matter to the Asaroufa Village Court on two (2) separate occasions.

5. On the first occasion in about July 1998 the defendant denied the child to be his before the village court. And because the Court was in an uncertain position of the pertinity issue, it decided to allow the matter to be brought up again on a later date.

6. On that second occasion, the defendant accepted responsibility and took some measures to show that he was the biological father of the child Annie Rose.

7. Was the Child Neglected

There was no dispute that the child was taken into custody by the relatives of the defendant and cared for over a period of some years.

8. There is also evidence that the defendant himself did take custody of the child by consent of the complainant for some times. There is also evidence that the child’s school fees were paid by the defendant, when she commenced elementary school education.

9. As far as taking care of the child goes, I am satisfied on the balance of probability that the defendant did not totally neglect her. He did support the child one way or another to date. I come to that conclusion, because firstly, the parties are from the same village and they see each other and the child regularly, and secondly, what was raised in terms of the support and care taken by the defendant towards the child has not been disputed.

10. Having analized the evidence, I believe the complaint was brought to Court with ulterior motives. That motive seems to be related to customary obligations which the defendant has not fully met.

11. It seems that by custom, the defendant is obliged to pay Johnson Robert, the uncle of Annierose, as he had been responsible for the upbringing of the child from birth. This stand was taken by the Asaroufa Village Court when the pertinity issue was brought up to it on the second occasion.

12. To date, the defendant has met only part of the obligation, whether there was a formal order by the Village Court or not, is not known, as there was no documentary evidence to that effect.

13. It is my suggestion that this is the crux of the Court action and not so much on the lack of support given by the defendant to the child.

14. Having said that, and given the circumstances and situation of the mater, is there alternative orders this Court can exercise in law other than child maintenance.

15. The complainant was laid under Section 55 of the Child Welfare Act. It reads:

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) 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.

16. I have considered that the child has not been neglected nor has the defendant totally failed his moral obligations towards the child.

17. The circumstances in the instant matter is that the defendant has taken measures to take the child as his own being the biological father, and taken care of her by means of paying for her school fees and others.

18. The District Court has general ancillary jurisdiction under Section 22 which states:-

22. General ancillary jurisdiction.

Subject to this Act, a Court as regards a cause of action for the time being within its jurisdiction, shall, in proceedings before it—

(a) grant such relief, redress or remedy, or combination of remedies, whether absolute or conditional; and

(b) give the same effect to every ground of defence or counterclaim, whether equitable or legal,

as ought to be granted or given in a similar case by the National Court and in as full and ample a manner.

19. These general ancillary jurisdiction can only be applied subject to the District Court provisions and jurisdiction conferred by any other law in all personal actions at law or in equity, under Section 21 of the District Court Act.

20. It’s my view that the defendant has not only an equitable interest in the child but has a moral obligation to the child, and so am obliged to grant conditional and eventually absolute relief orders.

21. This is not a child adoption issue, but given the circumstances, the parties have an option of reaching a compromise if and when they opt to apply, adoption provisions under Section 53 and 54 of the Adoption of Children Act 1968. And I so direct them accordingly.

22. Order:

i. The complaint of Child Maintenance against the defendant be dismissed.

ii. The complainant Rosen Robert of Asaroufa village and Charles Sesil Hato of Asaroufa village are hereby directed to apply the provisions of Section 53 and 54 of Child Adoption Act 1968, to have Annierose adopted by Charles S. Hato.

3. That as a condition of Adoption the defendant Charles S. Hato is to comply with customary obligations of paying Johnson Robert the remaining compensation within 3 months.
4. That as a condition of Adoption the complainant Rosen Robert has reasonable excess to the child.
5. That the Adoption process and the conditions be met within three (3) months from the date of this order in default the matter returns to status quo.
   

Complainant: In Person
Defendants: In Person