Toua v Sepa [2008] PGDC 31; DC707 (24 June 2008)

DC707

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

FC 90 OF 2008

BETWEEN:

DAI AKO TOUA
Complainant

AND:

ANTHONY SEPA
Defendant

Port Moresby: Ms. Nerrie Eliakim
2008; 24th June

REASON FOR DECISION

1. A Complaint and Summons was filed on 11th March, 2008.

The initial Complainant in this matter was named " Aileen Sepa". She is about twenty one (21) years of age and is the elder biological daughter of the Defendant. She had instituted the Complaint through the authority of Director of Child Welfare as her mother, had also remarried and was no longer taking care of the Children. However, the Complainant was unable to provide a copy of the said authority and also, since her biological mother turned up in Court during the cause of the proceedings, a formal application was made by the Complainant’s counsel to substitute with her biological mother, Dai Ako Toua. This was made pursuant to order 5 Rule 11 of the NCR (substitution which is not specifically provided under the DCA) and section 138 of the District Court Act (giving the Court power to grant amendments were necessary). Hence, the Court in finding that substitution will not prejudice the Defendant in any way, granted leave for substitution.

2. The undisputed evidence before the Court is that the Defendant has deserted the Complainant and their four (4) children without any means of support whatsoever. He deserted them sometimes in 1996 where they have been single handedly brought up by their mother, the Complainant, who took care of them until 2001 where she remarried and moved away with her new partner. From 2001 to date, the children, especially the youngest child, Miria Sepa, have been taken care of by their maternal aunty and uncle and just recently by the eldest child to their marriage, Aileen Sepa who is also now married.

3. As Aileen ha deposed to her affidavit, she made numerous attempts to get the Defendant to assist with putting the youngest sibling in school but the Defendant ignored her pleas. To date, the youngest sibling who is now about thirteen (13) years old has never been to school. Aileen, also was unable to complete her education due to school fees.

4. The Defendant on the other hand, since deserting the Complainant and their four (4) children in 1996, has moved on with his current partner and has three (3) children. He is one of the senior mangers with Protect Security & Communications Limited.

5. Parties agree and have confirmed that the Complainant, Dat Ako Toua, had initially sued the Defendant in this same Court for Maintenance sometimes in 2003. However, there was an indication by the Defendant to reconcile and as such, parties just left it at that. The Complainant stated that after the proceedings then, the Defendant did not reconcile and as such, she just gave up trying.

6. The Court finds it very hard to comprehend how the biological father can just completely neglect his duties and responsibilities as a father of four (4) young children for more than ten (10) years. He holds a very senior position in the company he works in and therefore has no excuse has to why he has allowed his own flesh and blood to suffer like this. The youngest child should be in Grade six (6) or seven (7) now, but he has not even started school yet. The eldest child, Aileen is only twenty one (21) and has already got herself married, a obviously the family situation has compelled her to do that.

7. I am dumbfounded has to how the Defendant can continue living the more comfortable lifestyle that he current enjoys with his new family whilst his other four (4) children have been silently suffering. One can only imagine what this children have gone through, especially the fact that the eldest child was only nine (9) years old then and the youngest was two (2) years old.

8. In considering the circumstances surrounding this case and the Defendant’s financial means, the Court now makes the following orders.

1. The Defendant is hereby ordered to pay K140.00 per fortnight being maintenance for the daily up bringing of the child, Miria Sepa, born on 13th March, 1994.
   
2. The above order of K140.00 per fortnight is back dated to the time of filing this summons which is 11th March, 2008, a total of eight (8) forty nights by week ending 17th June, 2008. The Defendant is hereby further ordered to pay K1, 120.00 in back dates.
   
3. Order No. 2 will be paid to the Complainant in installments of K20.00 per fortnight up until the amount of K1, 120.00 is fully settled.
   
4. Maintenance monies is to be paid to Ms. Aileen Sepa, who has the day today care and control of the child.
   
5. Orders 1 and 3 totally K160.00 fortnightly deduction is to be attached to the Defendant’s salary with the Protect Security & Communication Limited.
   
6. Custody of the child remains jointly with the Complainant and Ms. Aileen Sepa with reasonable access to the Defendant.
   
7. The Defendant meet all medical and educational expenses of the child’s whenever they fall due.
   
8. This order is effective until either:-
   
   • (i) the child dies, or
     
   • (ii) the child reaches the age of sixteen (16) years and is no longer at school, or
     
   • (iii) the order is discharged by a Court of competent jurisdiction, which ever occurs first.
     

Complainant: In Person
Defendant: In Person