Michael v Opa [2017] PGDC 46; DC3073 (14 September 2017)

DC3073

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY COURT JURISDICTION]

FC 21 Of 2017

BETWEEN

CHRYSTAL MICHAEL

Complainant

AND

JERRY OPA

Defendant

Goroka: Lorna Sani, Magistrate

2017: September 14

FAMILY LAW: Affiliation Proceedings–Child Maintenance - Division 6 Sections 106-108 of L.P.A No 45 of 2015.

Cases Cited:
Nil

References:
Nil

Counsels:

Lawyer for the Complainant, In Person

Lawyer for the Defendant, In Person

14^th September, 2017

DECISION

L SANI, Magistrate: The proceeding under this division applies to a child born outside of marriageor wedlock. Actually the complainant applied for child maintenance under section 109 of the LPA 2009 not knowing that it has been repealed. I have amended it and allowed her to take it up due to the seriousness in the subject matter in considering the circumstances and to the best interest of the child.

BRIEF FACTS:

2. Complainant Chrystal Michael entered into a relationship and started dating with Jerry Opa in 2007. Sometime in 2009 she became pregnant and gave birth to a male child namely Zebulon Michael on 5^th of May, 2010. When Jerry was told about the pregnancy, he denied having been the father of the baby thinking the baby could belong to someone else.

3. The complainant’s father being a Pastor of PNG Bible Churchwith Chrystal’s mother took the complainant and her son into their custody and reared the child to date. The child at the time of this proceeding is 7 years old.The defendant never visited and supported the said child in cash or kind from the date of his birth to date. On the 19^th of September, 2016 the defendant’s family gave K4, 500.00 cash and two pigs as a form of compensation to the complainant’s parents.

4. However, according to the complainant, the compensation was not for maintenance of the child it was for denying the said child and restoring his good name. The complainant’s father supported that in paragraph 8 of his Affidavit. He also stated there that the compensation was for his daughter as well.

5. Therefore the complainant says that since the defendant realizes that the child is his, he should now assist me to look after his child with regular support.

LAW

6. Sections 105-108Where a child is born out of marriage (wedlock). After the birth of a child and the child has been left without any means of support, the affected person may apply to the court (Family) for an order for such means and custody upon an affidavit in writing.

ISSUES

7. Whether or not the defendant is the father of the child? And whether the defendant has left the child without any sufficient or adequate means of support?

EVIDENCE

8. The question of paternity is solved as the defendant admitted that the child is his so the evidence as to paternity is not disputed. However the defendant contested so vigorously that the compensation he paid to the family of the complainant is to off-set the past 6 years he failed to make it up. But the complainant disputed saying that the compensation he paid was not for the maintenance, it was for denying the child in the first place and to restore his good name. The court will discuss and decide on the disputed facts only.

9.Complainant – Chrystal Michael – After the birth of the child in 2010 she left school to look for odd jobs to assist her parents to take care of the child. Neither Jerry nor his family visited or contributed anything in cash or kind at the time before and after delivery. The complainant and the baby lived with her parents whilst they assisted her to raise the child. The said child turned 7 years old on the 5/5/2017. Last year on the 19/9/2016 the defendant’s family decided to restore peace with the complainant’s family with K4,500.00 cash and kind worth of 2 pigs. According to Chrystal’s father (Pastor Michael Talina) this happened to compensate the complainant for having denied paternity when they told him of the pregnancy. He told the court also that after this compensation both families and the said child can move freelybetween the two groups. The complainant and the child is still living with her parents to date. She said she is working now and supporting her parents to look after her child. The said child has reached his school age, therefore needs the defendant/father to assist with his general upkeep and school fees. The complainant says that the compensation was not for the said child’s general welfare and upkeep, therefore a maintenance order must be made to cater for it.

10. Defendant – Jerry Opa-Defendant after admitting paternity argued that the compensation worth of the amount stated above is for the Hard Work they did to look after the said child for the past 6 years to take care of his child. He also contested vigoursly that he did not deny the said child but he wanted to wait and prove by the face after the said child was born. In paragraph 4 of his Affidavit – “The child isnow 7 years old and confirms that the child is mine and I make the decision to take my child into my custody”. He stated in paragraph 7 of his affidavit that the compensation payment covers for the maintenance and the confinement expenses.

ANALYSIS OF EVIDENCE WITH FACT AND LAW

11. Both parties did not plead any custom or what the custom is in their society in regard to compensation for desertion of mother and child as to the question of paternity. It would be interesting to note if they did. Looks as though there is mixture of custom and Law in the arguments. I decide not to venture into that area unless it is specifically pleaded.

12. The fact that complainant did not receive any support prior to and after delivery of the said child is known to both parties. I will not go into that in detail too but the law is very clear on the “obligation and the responsibility” of either parents of the child once the paternity issue is admitted. As to the issue of whether or not there was adequate support from the defendant prior to and after delivery was nothing.The defendant admits it in his statement that the compensation he paid was to cover for the maintenance and confinement expenses in paragraph 7 of his reply to complainant’s affidavit. However whether the compensation can become the means of payment to cover for the maintenance and confinement expenses? The defendant admitted to both questions and the answer to that is NO, but it can only be a mitigating factorwhen considering the quantum of the maintenance.

COURT FINDINGS

13. There is enough evidence on the balance of probability that defendant’s compensation payment was intended to cover for everything that both of them alleges. In other words their reasons are reasonable but that is what they think and is not what the law intended.Simply put Compensation payment is not the means of support given during and after delivery, it’s a compensation of some sort for reasons known to defendant, where it’s not part of what the law requires and that it was not a specific part of the agreement reached between both parties prior to the birth of the child. There was no evidence of any support given in cash or kind for the upkeep and general welfare of the child on regular basis before and after the child was born.

COURT RULING

14. I find the defendant liable.It is decided that the defendant did leave the said child without such means of regular support in either cash or kind for a period of 7 years. Court also found on the balance of probabilities that the compensation for damages was the means to fulfill the customary obligation and not regarded as means of regular support for the child’s welfare.

15. Therefore, based on the foregoing findings I find that the defendant is liable to pay maintenance to support the complainant for the general welfare and upkeep of the child.

16. Antecedents: Defendant is married with a 10 month old baby. He is employed by the Care International as a Finance Officer and earns K625.00per fortnight with a K374.50 net pay after deductions.His wife is also employed.

Considerations

17. The said child is seven (7) years old from the date of birth, D.O.B – 5/5/2010. Child is in school age, he will need larger size clothing cost a lot more money to look after a big child that a 10 month old baby. School fees will defer depending on where the child goes. Private school would cost a lot more money than in Government run primary school.Both parents are not earning over K1000.00 in a fortnight so obviously cannot put the child in a private school.

18. In the interest of the child provisions can be in cash or kind and must be in proportion to the age of the child and the defendant’s financial capacity.Defendant provided only one pay slip. I am not satisfied with the defendant’s ‘Pay Advice Slip’. He could have also provided 2-3 pay slips and a bank statement to prove other deductions of which he did not. It seems to me thathe status quo is a FAKE one it does not have date ora company logo etc; to prove that it is a genuine pay slip. I presume that defendant wants to evade responsibilities.

COURT ORDER

19. It is hereby heard, adjudged and ordered that the defendant will pay K100.00 aschild maintenance each fortnight to the complainant for the child’s upkeep and general welfare, and

20. That such payment shall commence on the PPE 22/9/2017and shall continue every company fortnight until the said child reaches the age of 18 years, dies or when this order is varied by a court of a competent jurisdiction, whichever occurs first, and

21. That the custody of the said Child is to remain with the complainant/mother, and the defendant/father shall have the legal right of access to see the child at any time at any place that is convenient through agreement and arrangement by both parties, and

22. That the defendant shall make such payment to BMS-Goroka and receipted to the Child Maintenance Clerk of the District Court in Goroka for upkeep of the court records.

Orders accordingly,

Counsels:

Lawyer for the Complainant, In Person

Lawyer for the Defendant, In Person