Tobby v Metoni [2021] PGDC 181; DC7029 (16 November 2021)

DC7029

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

CC NO. 08/2021
NICHOLA TOBBY
(Complainant)

-v-

KUSEMA METONI
(Defendant)

VANIMO: B.Fehi

MAINTENANCE PROCEEDINGS: Claim for child maintenance brought pursuant to Section 106 of the Lukautim Pikinini Act 2015 – Two main issues to consider – whether the defendant is the father of the children – whether the defendant has neglected the children – forms of maintenance prescribed under Section 108 of the Lukautim Pikinini Act – whether defendant has the means to pay monetary maintenance on a fixed period – whether defendant is able to pay in kind and what should constitute maintenance in kind.

Statutes:

• Lukautim Pikinini Act 2015;
  

Case Law Cited:

➢ Police v. Mayani [2021] DC6028

Representations:

Complainant in person

Defendant in person

16^th November 2021

01. FEHI. B. DCM: This complaint is filed pursuant to Section 106 of the Lukautim Pikinini Act claiming maintenance from the defendant and the nature of which is as stated bellow:

“Being an adult male person over the age of 18 years and the father of two legitimate children namely Joneus Junior Metoni (M/C) born on 10^th October, 2008 and Shatisha Metoni (F/C) born on 20^th April 2015 and left the children without sufficient means of support.

The Complainant Claims Maintenance for her children pursuant to Section 106 of the Lukautim Pikinini Act in the following manner:

i) That the defendant be ordered to pays fortnightly maintenance in the sum of K400.00 for the support of the children;

ii) That the custody of the said children be vested with the mother; and

iii) Any other orders the Court deems it fit.”

RECORD OF PROCEEDINGS

02. The complainant commenced this proceedings by way of a complaint and summons upon complaint filed and dated 08^th of September 2021. First mention was on the 21^st of September 2021 were both parties appeared and the nature of the cause of action was read and explained to the defendant. In brief, the defendant was asked whether he would contest paternity of the children and he admitted to being the father of the children as named above. He only took issue against the claim that he has neglected his children. Defendant was than directed to file his defence statement and the matter was adjourned to 12^th October 2021. Defendant filed his affidavit when matter came before me, with parties’ consent; matter was set down for trial. Direction was also issued for the complainant to bring along her two children for them to give evidence before me as witnesses of the court. Trial conducted and completed and adjourned to 16^th November 2021 for decision.

03. This is now my full judgment on the matter.

BRIEF FACTS

04. The complainant entered into a de facto relationship with the defendant in 2007. The defendant at that time was already with his first wife and children. From that relationship, they had their first son who was born on 10^th October 2008 and their second daughter who was born on 20^th April 2015. They manage to co-exist without much issue until 2020, when the defendant stopped providing means of support to them. The defendant was formally employed with West Sepik Provincial Administration until 2016 when he left his employment and was jobless from 2017 to 2018. On or about 2018, he started his Small to Medium Enterprise Consultancy firm known as MK Consultancy which he operates to date. This affiliation proceeding is filed against the defendant by the complainant seeking maintenance because he has failed since 2020 to provide regular and reliable means of support for their two children.

APPLICABLE LAW

05. The complainant brings her claim under Section 106 of the Lukautim Pikinini Act which the whole provision appropriately appears as follows:

106. COURT PROCEEDINGS AFTER BIRTH OF CHILD.

(1) Where a child has been left without means of support, a complaint may be made, in accordance with this Part in the Family Court -

(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; or

(d) by an affected person by leave of the Court.

(2) A complaint under this section shall –

(a) be in writing and made on oath; and

(b) 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 or mother of the child has left the child without means of support; and

(c) be in the form as prescribed in the District Courts Act (Chapter 40).

06. The above section provides for standing of interested person who are eligible to bring actions under the affiliation proceedings division of the Lukautim Pikinini Act. It also provides for the form and relevant contents that should be contained within the complaint documents when filing before the District Courts Registries. The court upon being satisfied of the above requirements and in the event of it granting a maintenance order must do so in accordance with Section 108 of the Lukautim Pikinini Act. This section appropriately reads:

108. MAINTENANCE OF A CHILD.

(1) Where the Court hearing a complaint under this Part in relation to the maintenance of a child is satisfied on the evidence, it may order the defendant to pay to the complainant a fortnightly sum or in kind as maintenance for the child.

07. I note as per the above provision that I am allowed to consider and award maintenance be it sum of money of in kind on a fortnightly basis. I beg to defer from the interpretation as it appears because it is in my view to restrictive and will denied this court the option of doing justice to cases before it when circumstance are that a fortnightly award would not be realistic. In Police v. Mayani [2021] DC6028, at paragraphs 29 to 30, I discussed the rules of interpretation and noted the difference between the literal and liberal ways of interpreting provisions of legislation. Relying on my discussion as per Mayani’s case, I will apply the liberal or purposive rule of interpretation and interpret Section 108 as to what I believe the legislature intended. For maintenance purposes, it is in my view not the intention of the legislature for me to confine myself to the description “Fortnightly”, as such I have the option of considering a monthly award of maintenance.

08. I now will proceed to consider the respective parties arguments as per the testimonies provided in court during trial.

EVIDENCE BEFORE THE COURT

A) COMPLAINANT’S CASE

09. The complainant relies on her sworn affidavit filed and dated 02^nd September 2021 and also gave oral testimony on 12^th October 2021. She also called one other witness namely Cynthia Laki who gave oral testimony on 12^th October 2021 in support of her claim.

10. She entered into a customary marriage with the defendant in 2007 and from that relationship they had two children namely Joneus Junior Metoni who is now 13 years old and Shatisha Metoni who now 6 years old. She currently resides with her two children at Salamei here in Vanimo Urban with her relatives and the defendant resides at Pewi also in Vanimo Urban with his first wife and children. According to her, the defendant stopped providing adequate means of support to them in the year 2020, they had to struggle to survive throughout the whole Covid19 lockdown period without the support of the defendant. She stated that the defendant through his consultancy company earns enough to provide for them as well as for his first wife and children, however, he usually spends his money on beer and other irresponsible social activities. She stated that both her children are in school and it is hard for her alone to support them and the defendant must provide sufficient and reliable support to their children, which according to her he has failed to do so. The defendant elected not to cross-examine her and that concludes her evidence.

11. The complainant’s second witness Cynthia Laki basically supported what the complainant gave without giving any new evidence that would require me to restate here. In my view it is unnecessary to restate her entire testimony in full.

B) DEFENDANT’S CASE

13. The defendant relies on his affidavit filed on 12^th October 2021 and also gave oral testimony before me on 12^th October 2021. He also called two other witnesses namely Lilly Metoni and Raphael Tarom who both gave oral testimonies on 12^th October 2021 in his support.

14. Defendant mentioned briefly that he was employed with West Sepik Provincial Administration until 2016 when he left and started his own consultancy firm which he now operates to date. According to him, he does not make enough through his consultant services and whatever little he makes he tries his best to manage it between his first wife and children and the complainant and her children. He mentioned his children from the complainant freely move to and fro his house at Pewi. However, the complainant and her family were the ones who prevented them from coming and seeing him. Despite that he still gives them money and food stuff whenever he meets them. On other occasions he provides food stuff and money through his uncle Raphael Tarom who on his behalf passed it on to his two children and the complainant. He is concerned that the complainant drinks a lot and gambles a lot and because of this he remains reluctant to give his children’s money to her, instead he gives it direct to the children. As for his children’s school fee, he mentioned that he is paying for all his children’s school fees, those from his first wife and the from the complainant and this has caused some delay not only for her children with the complainant but also from those of his first wife.

15. His second witness namely Lilly Metoni gave no new evidence from what the defendant gave, therefore it is unnecessary for me to restate all her testimonies.

16. His third witness namely Raphael Tarom also gave evidence to support what the defendant had mentioned, no new revelations which will require me to expound further on his testimony by restating it in detail.

17. Defence closed its case and I proceed to call the two children subject of this proceeding to give evidence as witnesses of the court. I opted not to collect their evidence in open court in the presence of their parents as I am of the view that their presence might affect the willingness of the child witnesses to speak their mind. Therefore, the court was adjourned and the Clerk of Court Ms. Marian Bauai was asked to bring the children to my chambers were I disrobe and conducted the session in an informal manner. Both were asked as to whether they go to church and both replied yes. The bible was shown to both and they understand that it is God’s word and is holy. I asked them whether it is wrong to tell a lie and both answered yes. I also asked them if you hold the bible what must they say and both replied that they must only tell the truth. Having satisfied myself of their competency, I proceeded on to collect their oral testimonies.

18. The child Joneus Junior Metoni mentioned that their mother the complainant struggles to look after them because their father the defendant does not provide sufficient and reliable means of support to them. Their mother usually gets help from their neighbor or relatives to take care of them and feed them. He mentioned that only on a few occasions their father gives them money, and when he does he tells them to finish it and not to go and give it to their mother. When they finished it and go to their mother to ask her for some money she gets cross at them for what their father did (giving them money behind her back). He mentioned also that he sees, his other half brothers and sisters spend K20 at the school ground and his father does not give him the same. He further mentioned that when he goes to the house of his father at Pewi without informing him, he usually gets angry at them and scolds them. Furthermore, when he tells them to go see him to get some money, he usually doesn’t turn up to see them. Finally, he promises him to buy him a bicycle after his return from Port Moresby which he never did.

19. The child Shatisha Metoni remained quiet with nothing much to say, whatever little she mentioned was already stated by her brother.

RELEVANT ISSUES AND DISCUSSIONS

20. The relevant issues for my consideration are set out as follows:

i) Whether the Defendant has neglected his children by not providing them with means of support; and

ii) If so, whether the defendant has the means to pay monetary maintenance on a fixed period; and

iii) If not, whether the defendant has the ability to pay in kind as maintenance and in what form should that be in; and

iv) Are there any other needs of the children this court should consider and make the necessary orders for the defendant to meet?

21. The first issue requires me to consider the evidence and confirm whether there is any reasonable explanation provided by the defendant on how he has maintained the children since 2008 to date. It is not disputed that both complainant and defendant co-exist without much issue until 2020 when defendant failed to provide sufficient and regular means of support to them. The evidences are very clear and I find it more reasonable to believe the version given by the complainant and her two children. The complainant is not a simple village nor is he a vagrant without any prospect of seeking a paid employment. It is not disputed that the defendant owns and operate a consultancy firm, in my view he has special skill sets that gives him the ability to generate income through engagements. The methods used by the defendant as alluded to in his evidences which also corroborates that of the complainant, on how he claims to have maintained his children is far from satisfactory as in my view it is insufficient and unreliable. Therefore, to answer issue one; I must say yes the defendant has neglected his children from the complainant by not providing sufficient and regular means of support for their up-keep.

22. As for the second issue, it is clear from the evidences that the defendant has the means to pay monetary maintenance because he has the skill set and the platform to generate income, that is, through his consultancy firm. His excuse of not making enough money through this is in my view an excuse that does not hold water, it is not this court’s concern at this stage to weigh such an excuse rather what the court is required to satisfy itself with is the defendant’s ability to general income regularly, which I am satisfied he has, therefore, I will answer issue two with a yes.

23. Going to the third issue, answer to issue two renders this point irrelevant and I need not consider it in detail. I will say there is no need at this stage to consider maintenance in kind.

24. Lastly but not the least, the fourth issue requires me to consider whether there are other needs of the children that the defendant needs to meet, apart from their daily upkeep. From the evidence I note that the children are all in school. Therefore the defendant must meet school fees and other related costs. Also the defendant must meet all medical fees and associated cost of medical treatment should the two children require medical attention.

FINDINGS

25. I find the defendant to have neglected the children by not providing sufficient and regular means of support to them therefore he is liable under Section 108 of the Lukautim Pikinini Act to pay maintenance in the sum of K300 monthly. I am reluctant to consider this in fortnightly period taking into consideration, the nature of how defendant generates his income and also the needs of his first family, whom he must not be denied the responsibility to provide sufficient means of support to. I will direct that all payments be made to the Clerk responsible for collecting maintenance monies at Vanimo District Court Registry at the last Friday of every month.

CONCLUSION

22. As per the above, I will issue orders in favor of the complainant against the defendant and as per my orders the defendant will be required to comply fully to ensure the children’s interest and welfare are protected and promoted.

COURT ORDERS:

1. Judgment orders made in favor of the complainant;

2. Pursuant to Section 108 of the Lukautim Pikinini Act and subject to proceedings brought by way of Section 106 of the Lukautim Pikinini Act, the defendant on the balance of probabilities is found to have provided no means of support to the children namely Joneus Junior Metoni and Shatisha Metoni and therefore is ordered to pay a sum of K300 monthly as maintenance for upkeep of the children;

3. Defendant is also ordered to pay for all the school fees of the children and other related costs;

4. Defendant is also ordered to meet the cost of medical needs of the children;

5. All payments to be paid into the District Court House Registry before the Clerk responsible every last Friday of each month for Complainant’s uplift;

6. These orders are to extend until respective child attains the age of 18 years old or in the event of death or until such time it is varied or set aside by a court of competent or higher jurisdiction;

7. The complainant and her family are ordered to allow the children to have free excess to their father the defendant as and when the children desire to see him;

7. Defendant is at liberty to file variation proceedings before this court should he, upon sufficient evidence provide prove that the complainant has misused the maintenance money and has in a way failed to ensure the children get the full benefit of this allowance.

23. This concludes the matter before me.