Nombri v Kaupa [2022] PGDC 44; DC8087 (14 June 2022)

DC8087

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY JURISDICTION]
FC No. 334 of 2021

BETWEEN

MARGARETH NOMBRI
Complainant

AND

NICK KAUPA
Defendant

Port Moresby: Magistrate Seth Tanei

2022: 14^th of June
      

CIVIL – Application for Maintenance Orders – Objectives and Underlying Principles of the Lukautim Pikinini Act 2015 - ss 113 and 114 – Lukautim Pikinini Act 2015.

CIVIL – Complainant seeks maintenance for herself and her adopted Children –De Facto relationship - Parties separated – Children are not adopted - Application dismissed.

Cases Cited

Puri v Puri [1993] PNGLR 451
Kende v Kende [2022] PGDC 38; DC8049

References

Legislation

Lukautim Pikinini Act 2015
Adoption of Children Act 1968

Counsel

Nants, L. Ms – For the Complainant

The Defendant in Person

RULING

14^th June 2022

S Tanei (Magistrate): The Complainant sought maintenance Orders for herself and for her three purportedly adopted children through a Complaint dated 23^rd September 2021. This Complaint was later amended and filed on 22^nd March 2022.

2. This is the Court’s ruling on the Amended Complainant.
   
3. On 3^rd May 2022, the matter went for hearing through Affidavits.
   
4. On 19^th May 2022, the parties made submissions.
5. This is my ruling on whether the Court should grant maintenance orders against the Defendant.
   

FACTS:

6. It is the Complainants claim that she had a de facto relationship with the Defendant for 20 years. During that relationship, they adopted three children.
   
7. She claims that the Defendant is liable to pay maintenance for her and purportedly adopted children as he has left them without adequate means of support.
   

ISSUES:

8. The Court is faced with the issue of whether the Complainant and her adopted child are entitled to Maintenance by the Defendant.
   

THE LAW

9. The Complainant seeks Maintenance Orders under Sections 113 and 114 of the Lukautim Pikinini Act 2015.
   
10. Sections 113 and 114 of the Lukautim Pikinini Act 2015 provide that;
    

113. COURT PROCEEDINGS FOR ADOPTED CHILD.

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

(a) by the mother of the child; or

(b) by the Director; or

(c) by a person authorised 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.

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

114. ORDERS IN RELATION TO ADOPTED CHILD.

The court shall after hearing an application relating to the welfare of an adopted child, make appropriate orders in relation to that child.

11. The issue of maintenance for adopted children was dealt with in the case of Kende v Kende. Here the Court recognises adopted children and allows for their maintenance per the provisions of section 113 and 114 of the LPA.
    

EVIDENCE

12. At the hearing, the following Affidavits were tendered into evidence;
    

Complainant’s Affidavits

1. Affidavit of Margareth Nombri filed on 23^rd September 2021 (Exhibit “C 1”)
2. Affidavit of Margareth Nombri filed on 30^th November 2021 (Exhibit “C2”)
   

Defendant’s Evidence

1. Affidavit of Nick Kaupa filed on 15^th February 2022 (Exhibit “D1”)
2. Affidavit of Tau Abol filed on 11^th April 2022 (Exhibit “D2”)
3. Affidavit of Bikal Wemin filed on 11^th April 2022 (Exhibit “D2”)
   

DISCUSSION ON EVIDENCE

Complainant’s evidence

13. The Complainant stated in her Affidavits that she was in a de facto relationship with the Defendant up until November 2019. She stated that they adopted three children namely Agitha Kaupa (born 16^th October 2006), Agi Kaupa (born 5^th October 2006), Gambel Kaupa (born 16^th August 2010) during the course of their relationship as they were unable to have children of their own.
    
14. Her relationship with the Defendant ended on 30^th November 2019.
    
15. She says after their relationship ended, the Defendant stopped supporting them.
    

Defendant’s evidence

16. The Defendant denies the Complainant’s claim outright and says she is not entitled to the relief she is seeking.
    
17. He confirms that they were in a defacto relationship until November 2019. He also confirmed that they do not have any biological children.
    
18. However, he denies adopting the children as alluded to by the Complainant. He says the children were from the Complainant’s side of the family and stayed with them until their relationship ended in 2019 and the children went with the Complainant to their families when their relationship ended.
    
19. He stated that the village Court at Wildlife, 8 Mile, NCD issued orders that ended that relationship and he was ordered to pay the Complainant K 15,000 to which he did. He attached copies of the Village Court Orders and a receipt of payment to the Complainant in his Affidavit.
    
20. His witnesses swore Affidavits in support of his defence. The first witness Tau Abol deposed that he is a close friend of the Defendant but he was not aware that the Defendant has adopted children. The second witness, Bilken Wemin also stated that he is one of the Defendant’s closest friends but never has the defendant told him he had adopted children.
    

FINDING OF FACTS
Undisputed Facts

21. I will weigh out the evidence on the balance of probabilities as the case is with civil matters.
    
22. It is my finding that the Defendant and the Complainant were not married through any means whether by custom or law but were in a de facto relationship until 30^th November 2019.
    
23. I find that their de facto relationship started at around 1998 or 1999 since the parties say they were in a relationship for around 20 years.
    
24. I also find that three children lived with the parties until the time the relationship of the parties ended.

Disputed Facts

25. The disputed fact is that the children that are the subject of this proceeding were adopted by the parties.
    

APPLICATION OF THE LAW TO THE FACTS

26. Sections 113 and 114 of the Lukautim Pikinini Act 2015 deal with maintenance for an adopted child.
    
27. However, before the Court orders maintenance for the children the subject of this proceeding, it must first determine whether the children are adopted by the parties.
    
28. While the Lukautim Pikinini Act 2015 provides for Maintenance of Adopted children, it does not define what or who an “adopted child” is.
    
29. This leaves the Court to look elsewhere for the definition of the phrase “Adopted Child”.
    
30. The Child Adoption Act 1968 provides for the process to which a child can be legally adopted.
    
31. A child can be adopted through legal adoption under the Adoption of Children Act or through Customary Adoption.
    
32. In our case, there is no evidence that the children were legally adopted. However, they may still be Customarily Adopted.
    
33. Section 53 of Adoption of Children Act provides for Customary Adoption. It provides that;
    
    53. ADOPTIONS BY CUSTOM.

(1) Notwithstanding any other law but subject to this section, where a child is or has at any time been in the custody of and is being or has been brought up, maintained and educated by any person or by two spouses jointly as his, her or their own child under any adoption in accordance with custom, then for the purposes of any law the child shall be deemed to have been adopted by that person or by those spouses jointly, as the case may be.

(2) An adoption to which Subsection (1) applies takes effect in accordance with the custom that is applicable and is subject to any provisions of that custom as to limitations and conditions, including limitations and conditions as to the period of the adoption, rights of access and return and property rights or obligations.

54. In the case of Kendi v Kendi [2022] PGDC 38; DC8049, I dealt with the issue of maintenance of customarily adopted children and held that;
    
    33. In my view, it is normal in PNG societies for relatives to give away children to their relatives who are unable to bear children of their own without going to Court to obtain formal documentation. These children are looked after by their adopted parents as their own. They use their adopted parents’ surname and identify themselves as children of their adopted parents. The society recognises them as children of their adopted parents. In the case of Puri v Puri [1993] PNGLR 451, the National Court recognised customary adoption through recognition by the community or society.
    34. This happens to be the case in this proceeding. The child Hamogo Kende was adopted without formal documentation but was adopted with the Defendant’s consent and recognition from their families.”
        
55. In Kendi v Kendi, the facts are a lot different to the current case. In that case, the parties were married through customary marriage and the child the subject of that proceeding was adopted through custom from the woman’s side of the family with consent from both parties. Also, the parties in that case were still married at the time of the filing of that proceeding.
    
56. In this case, the parties were never married. They lived in a de facto relationship and had no children of their own and the children the subject of this proceeding were taken in form the Complainant’s side to live with them.
    
57. From my reading of sections 113 and 114 of the Lukautim Pikinini Act 2015 and section 53 of the Adoption of Children Act 1968 as well as from the case of Kendi v Kendi, for the Complainant to be successful in this case, she must show the Court that;
    
    1. There is legal documentation formalising the adoption of the children; or
    2. In the absence of legal documentation, the Complainant must show that Defendant agreed or consented to the adoption of the children through custom; and
    100. She must also show that there was recognition of the adoption by their family or community.
         
58. The evidence led by the Complainant do not lead me to any part which says that the Defendant agreed to the adoption of the children that are the subject of this proceeding nor does the evidence say that the families or community recognised the children as the parties’ adopted children.
    
59. On the other hand, the Defendant led evidence to show that the Community and his friends and family had no knowledge of the purported adoption of the children the subject of this proceeding.
    
60. I therefore find that the children that are the subject of this proceeding are not legally adopted children nor were they adopted through custom and as such they are not entitled to be maintained by the Defendant pursuant to sections 113 and 114 of the Lukautim Pikinini Act 2015.
    

CONCLUSION

61. From the above, the Court is not satisfied that the children that are the subject of this proceeding are the Defendant’s adopted children and as such they are not entitled to maintenance.
    
62. It would also be injustice to order someone who has moved on in life to pay maintenance to children who are not his relatives and whom he did not agree to adopt.
    

COURT ORDERS

63. The following are the formal orders of the Court;
    
    1. This proceeding is dismissed.
       
    2. Parties shall bear their own costs.
       

Lawyer for the Complainant: Legal Training Institute

Lawyer for the Defendant: Defendant in Person