Morgan v Faith [1994] PGNC 159; [1995] PNGLR 273 (22 April 1994)

PNG Law Reports 1995

[1995] PNGLR 273 - Veronica Morgan v Damien Faith 

[1995] PNGLR 273

N1207

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

VERONICA MORGAN

V

DAMIEN FAITH

Mount Hagen

Woods J

22 February 1994

22 April 1994

INFANTS & CHILDREN - Maintenance proceedings - Illegitimate child - Time of action - Frauds and Limitations Act 1988.

Facts

The appellant laid a complaint in the District Court for maintenance of an illegitimate child fifteen years after the birth of the child. The Court held that although the obligation to pay maintenance continues until the child is 16 an affiliation order was first necessary and that action was statute barred. The appellant appealed against the decision of the magistrate.

Held

Affirming the decision of the magistrate, a claim for maintenance of an illegitimate child is an affiliation proceeding which must commence with proof of paternity.

Counsel

P Kunai, for the appellant.

A McDonald, for the respondent.

22 April 1994

WOODS J: This is an appeal from a decision of the District Court at Mount Hagen which held that the appellant’s action for maintenance under the Child Welfare Act, Ch 276, instituted 15 years after the birth of the child was statute barred pursuant to the Frauds and Limitations Act, 1988 and the action was thereby struck out.

The ground of appeal is that the magistrate erred as the cause of action was founded under the Child Welfare Act and was not subject to the time limit provisions in the Frauds and Limitations Act.

This matter commenced with a complaint laid under s 51 of the Child Welfare Act, Ch 276 in the District Court on 13 January 1992 for the maintenance of an illegitimate child born on the 31^st August 1977. This type of proceeding is commonly referred as an affiliation proceeding. And the Act provides that maintenance can be ordered until a child attains 16 years.

The Magistrate found that as there is no reference to any time period within which actions can be brought the Frauds and Limitations Act, 1988 s 16 must apply:

Section 16. Limitations of Actions in Contract, Tort Etc.

N2>(1)      Subject to sections 17 and 18, an action:

(a)      that is founded on simple contract or on tort; or

(b)      to enforce a recognisance; or

(c)      to enforce an award, where the submission is not by instrument under seal; or

(d)      to recover any sum recoverable by virtue of any enactment, other than a penalty or forfeiture or sum by way of penalty or forfeiture,

shall not be brought after the expiration of six years commencing on the date on which the cause of action accrued.

In his reasons the magistrate noted that the complainant has brought this matter as a fresh complaint after 15 years of it being undisputed. He said it is against public policy because she had no interest in the matter for that 15 years.

It has been submitted before me that the wording of the provision under the Child Welfare Act by allowing such maintenance to be claimed for the first 16 years of the child’s life means a claim can be brought any time during that 16 years, such claim being enforceable until the child attains 16 years. However this submission overlooks the fact that such a claim for maintenance or as it is called an affiliation proceeding must commence with the proof of paternity. The cause of action is the paternity. There is nothing in the Child Welfare Act which specifically states that such a proceeding can be brought at any time, s 56 only says the order for maintenance is enforceable till 16 years, this does not mean actionable, so the limitation in the Frauds and Limitations Act must apply to the action to obtain the order, being an action for an order to recover a sum recoverable by virtue of an enactment. There must be valid public policy and practical considerations why the time limitation of 6 years should apply. Firstly if a party waits for more than 6 years can we really be sure that they are serious about the claim or merely being opportunist, I mean it appears that they have not needed the maintenance during that delay. Secondly, a limitation period is put into place to give parties a chance to defend actions before too many years have passed and memories have faded. It is an exceptional hardship for a person suddenly without any forewarning to have to try and remember exactly what they did many years ago. And the Magistrate referred to this in his reasons.

I rule that the Frauds and Limitations Act, 1988 applies to maintenance proceedings under the Child Welfare Act and that the Magistrate made no error in striking out the proceedings.

I dismiss the appeal.

Lawyer for the appellant: Kunai & Co.

Lawyer for the respondent: Warner Shand.