S v K [1982] SBHC 14; [1982] SILR 133 (16 December 1982)

1982 SILR 133

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 10 of 1982

S

v

K

High Court of Solomon Islands
(Daly C.J.)
Civil Appeal Case No. 10 of 1982

16th December 1982

Affiliation - procedure on complaint - means of both parties to be before the court - Section 5 Affiliation, Separation and Maintenance Act 1971

Facts:

The Appellant applied for an order that the Respondent was putative father of her child and for maintenance. At a short hearing the Respondent did not dispute paternity but disputed the amount of maintenance. The court heard no evidence but only the submissions of counsel for the Appellant. The means of neither party were before the court.

Held:

Section 5 of the Affiliation, Separation and Maintenance Act 1971 only enables a maintenance order to be made "if it sees fit in all the circumstances of the case". This required the court to consider the mother’s means. Section 5(2) (a) required the court to have regard to the putative father’s means. As in this case there was neither evidence nor an agreed statement as to means the case must be remitted for hearing on these matters. Obiter dicta; the Act did not permit an order as to paternity by consent but required the court to "hear evidence".

For Appellant: G. Strang
Respondent: in person

Daly CJ: On 2nd December 1982 I stated that this appeal would be allowed and the case remitted to the Magistrates court for reasons which I would give later. I now give my reasons.

This is an appeal against an order made under Part II of the Affiliation, Separation and Maintenance Act 1971 (‘the Act’). On 26th August 1982 a magistrate sitting at the Central Court made an order adjudging K the Respondent to be the father of a child born to S, the Appellant. The magistrate ordered the Respondent to pay expenses incidental to the birth in the sum of $50; costs of $5; and $10 a month as maintenance for the child. The Appellant was not satisfied by the order for maintenance and appeals to this court.

The powers of a magistrate’s court in such a case as this are founded upon Section 5 of the Act.

This provides so far as is relevant:

"(1) On the hearing of the complaint, the court shall hear the evidence of the complainant and such other evidence as may be produced in support, and shall also hear any evidence tendered by or on behalf of the defendant.

(2) If the evidence of the complaint is corroborated in some material particularly by other evidence to the satisfaction of the court, it may adjudge the defendant to be the putative father of the child, and may also, if it sees fit in all the circumstances of the case, proceed to make against the putative father an order for the payment by him-

(a) of such sum of money monthly or weekly as the court, having regard to his means, considers reasonable, for the maintenance and education of the child;

(b) the expenses incidental to the birth of the child;

(c) the funeral expenses of the child if it has died before the making of the order; and

(d) such costs as may have been incurred in obtaining the order."

The hearing of this case before the Magistrate was brief. The appellant was represented by Counsel. The Respondent appeared in person. Counsel told the court that he had discussed the matter with the Respondent and that paternity was admitted. Expenses were agreed but the Respondent told the court that he agreed with what Counsel said and proposed that he should pay $5 maintenance a month. Counsel then made a short submission on maintenance touching on his client’s employment prospects. The magistrate then made the orders to which I have alluded.

Whereas an endeavour to keep court proceedings as short as possible is always laudable, these proceedings, having regard to the terms of the statute were perhaps too short. The appellant in her notice of appeal complains that neither the Appellant nor the Respondent was examined as to their respective means. I should observe that I have sympathy for the magistrate who has no formal legal qualifications and who had appearing before him a qualified advocate who made no application for his client to give evidence nor the Respondent be examined.

The section to which I have referred states that financial orders may be made "if (the court) sees fit in the circumstances of the case". If the court is not aware of the circumstances of the mother and the child then it is difficult, if not impossible, for this discretion to be exercised judicially. Thus the court should at least be told of these circumstances and, if there is a dispute, then evidence should be given on oath about them.

Equally with the means of the putative father. Section 5(2)(a) requires the court to have regard to the means of the putative father before deciding what it considers reasonable to order to be paid for maintenance and education. This requires that the court be put in possession of the relevant facts as to the means of the putative father either by an agreed statement or by evidence. To this extent the appeal is bound to succeed and an order for remission to the magistrates' court to hear and consider evidence on these matters must follow.

I have considered whether the order should, in fact, before the trial to start afresh from the beginning. I understand that it is common practice for the question of paternity to be dealt with by agreement. This would be wholly admirable if the Act permitted it. But it does not. Section 5(1) provides that "the court shall hear the evidence of the complaint and such over evidence as may be produced in support". Section 5(2) only permits adjudgment of the defendant as putative father "If the evidence of the complainant is corroborated in some material particular by other evidence to the satisfaction of the court". Thus the evidence must be heard in all cases. Where there is agreement the evidence will no doubt be brief and consideration might be given to admitting affidavit evidence under O.6r.18 of the Magistrates’ Courts Rules.

In this trial there was no evidence before the court and hence the order as to paternity should not have been made.

However the notice of appeal restricts the appeal in clear terms to "the quantum of maintenance" and there being no cross appeal I do not have power on this appeal to make any order in relation to the other matters dealt with by the magistrate. As this appeal was heard on the 2nd December 1982 and the case itself heard in the month of August this court is functus officio in respect of its review powers under section 50(2) of the Magistrates’ Courts Act by operation of section 50(3) of that Act.

Thus the order which I make is that the order made under section 50(1)(a) of the Act be set aside and the case remitted to the Magistrates’ Court to hear evidence as to the circumstances of the Appellant and means of the Respondent and determine the amount reasonable in this case.

Order Accordingly.