Babaua v Roselyn [1998] SBHC 66; [1988-1989] SILR 22 (31 October 1998)

[1988-1989] SILR 22

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 230 of 1988

BABAUA

-v-

ROSELYN

(Ward C.J.)

Hearing: 25 October 1988
Judgment: 31 October 1988

Affiliation, Separation and Maintenance Act 1971-putative father-amount of maintenance order reasonable needs of the child-means of the father.

Facts:

The appellant, having been adjudged the putative father of a child, appealed against the order of the Principal Magistrate (Central), requiring him to pay $80.00 per month maintenance for the child. The grounds of appeal were that -

1. $80.00 per month is excessive considering the appellant's income and expenditure and needs of the child.

2. $80.00 is substantially in excess of the normal level of maintenance awarded in similar cases.

Held:

(1) Section 5 of the Affiliation, Separation and Maintenance Act, 1971 gives the Magistrate a discretion, to make an order against the putative father, a discretion which like all discretionary powers must be exercised judicially and the two main questions the Magistrate should consider are:-

(a) the reasonable needs of the child; and

(b) the means of the putative father.

(2) The needs of the child should be assessed against such matters as its age, the environment in which it is being reared, schooling and any special requirements.

(3) Having considered the appropriate figure for the maintenance and education of the child, the court should then look at the father's income to assess his ability to pay.

(4) Where the father is a married man and has commitments for his immediate legitimate family, they must clearly be taken into account but in terms of priority, the illegitimate child must rank before all relatives save for his wife and children and any other relative who is solely and entirely dependent on him for support.

(5) The award of $80.00 for the maintenance of the child in this case was too high because the appellant had himself, his wife and five children, three of whom were of school age, to look after.

(6) Having the two questions in mind, the present needs of the child should not require more then $30.00 per month which was within his means to pay.

Accordingly, the appeal was allowed and the maintenance order was varied to $30.00 per month.

A. Radclyffe for the appellant
J. Hauriae for the respondent

WARD CJ: On 22 September 1988 the learned Principal Magistrate adjudged the appellant to be the putative father of a child, Elijah, born on 7 July 1988 and ordered that he pay $80 per month maintenance for the child.

There had been no dispute about paternity and the two grounds of appeal are confined to the award of maintenance:

1. $80 per month is excessive considering the appellant's income and expenditure and the needs of the said child.

2. $80 is substantially in excess of the normal level of maintenance awarded in similar cases.

Section 5 of the Affiliation, Separation and Maintenance Act, 1971, allows the court:

"if it sees fit in all the circumstances of the case to proceed to make against the putative father an order for the payment by him 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".

It is clearly a matter in the magistrate's discretion but, in many cases, is made particularly difficult by the meagre evidence available on which to base an assessment. However, as with all discretionary powers, it must be exercised judicially and there are two main questions to be considered; the reasonable needs of the child and the means of the father. It would seem logical to deal with them in that order.

The needs of the child should be assessed against such matters as its age, the environment in which it is being reared, schooling and any special requirements. The latter may arise, for example, in cases of permanent disability or long-lasting but temporary effects of a serious illness.

Having decided the appropriate figure from the point of view of the maintenance and education of the child, the court should then look at the father's income to assess his ability to pay. If he is employed, his income can be ascertained from his payslips. Where he claims substantial repayment of, say, a loan the court should be satisfied it is true before allowing for it even if this necessitates an adjournment to produce documentary support. If the father is unemployed, figures are far more difficult to assess but a figure must be reached based on the type of life style he is managing to maintain. A villager may rarely handle cash but will often have the means, if he wishes, to obtain cash by sale of produce. In such a case, it may be appropriate to order a relatively high proportion of that cash for the child because it is not so vital for the father's means of living.

Where the father is a married man and has commitments for his immediate legitimate family, they must clearly be taken into account but, in terms of priority, the illegitimate child must rank before all relatives save for his wife and children and any other relative who is solely and entirely dependent on him for support.

In this appeal, there is nothing in the record to say whether the learned magistrate allowed for the very young age of the child. This is important as the needs of a new born baby, especially one living in a village environment, are relatively modest. As it grows older they will increase and the mother must be free to come to the court for the maintenance to be re-assessed but, until those needs arise, the court should not anticipate them.

Counsel agree that the normal range of awards in such cases is in the range $25 - $35 where the father is earning and so $80 would appear unusually high. However, in an appropriate case, a high order may be reasonable and so that, in itself, is not wrong.

The evidence produced to the court was that the father earns $361 per fortnight which, after I usual deductions and repayments of a loan, leaves him with $240 per fortnight or $520 per calendar month. On that income he has to support himself, a wife and five children, three of whom are of school age. Such matters cannot be determined by set mathematical formulae but equally the court cannot fix a sum without some consideration of the figures involved.

In this case, if the net monthly income is divided by the seven people in the respondent's family irrespective of age or need, it yields $74 per head per month. If the extra child is simply added to the divisor that figure is reduced to $65, a figure well below the award.

Looked at the other way, if the awarded maintenance is subtracted from the available income and the remainder is then divided between the father's family, the figure for them is less than $63.

It will only in the most unusual circumstances be appropriate to make an award that leaves illegitimate child in a better position financially than any individual member of the father's legitimate family. Whilst the type of calculation I have done above is not suggested as a total basis for the calculation of the father's means because the picture is far more complicated, it does serve to show how disproportionate the award is. On the facts of this case I see nothing to justify that.

Having come to the conclusion that the sum is too high, I am left with little on which to assess the costs of maintaining the child. However, I feel it is better that I give an award now rather than delay the matter further.

Taking the two questions in the order I have suggested, I assess the present needs of this child should not require more than $30 per month.

Looking at the father's income, such a deduction is reasonably within his means and I have no doubt he can pay it.

The appeal is allowed. The order for maintenance is varied to $30 per month from the date of the original order.

No order for costs.