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T.L.R v S.M [2016] FJMC 233; Case Number 16.STK.0021 (15 December 2016)

IN THE FAMILY DIVISION OF THE MAGISTRATES’S COURT

AT SIGATOKA

CASE NUMBER: 16/STK/0021

BETWEEN: T. L. R

[APPLICANT]

AND: S. M

[RESPONDENT]

BEFORE : RESIDENT MAGISTRATE, TOMASI BAINVALU [Mr]

Appearances:

Ms.RatidaraMele of Legal Aid Commission for the Applicant.

Non-appearance of the Respondent.

Trial Details:

Date of Hearing : 06^th October, 2016.

Date and Place of Judgment : 15^th December, 2016 at Sigatoka.

Reportable Citation : T.L.R v S.M [16/STK/0021]

R U L I N G

Ex-Nuptial Child Maintenance- Undefended Proceedings-Determination of Paternity and Ability to Pay Maintenance-Evidence Adduced Notwithstanding Paternity and Ability to Pay Maintenance- Deemed Admitted-Quantum Assessed.

A. The Application

1. This is an application for ex-nuptial child maintenance of a child named A.M. V. R a male born on the 18^th May, 2015; at the sum of $100.00 per week;

And the Respondent/man is working for Fijian Resort, therefore seeking direct deductions.

2. The Applicant namely TORIKA LOTU ROKOMATU,is the biological mother of the said child named above, the birth certificate tendered in court with the applications had confirmed the same.
   

B. The Response

3. The Respondent only appeared once in court i.e on the 02^nd day of June 2016; he denied paternity; parties by consent were directed to go for blood test as Respondent could not afford DNA tests. And Respondent to file Response [Form 6] in 14 days.
   
4. On the 21^st July 2016, the Respondent failed to attend court and also failed to fileForm 6 response; further in court, the Applicant stated that Respondent had been giving excuses and till that date there were not able to go for blood test with the child.
   
5. The Respondent did not file his response nor attend court on the same date (refer para 4 above), the court adjourned matter on undefended hearing basis on the 06^th October, 2016.
   
6. Affidavit of service with the Acknowledgment (Form 21 and 21) pursuant to Rules 4.10(1); 4.13(2) and 6.06 [F21] and Rule 4.14(2) filed herein. The Respondent endorsed Form 21/Acknowledgments of service on 03/03/16.

C. The Law and Authorities

7. The law governing maintenance for children where parties are not married is provided for by Sections 100,101 and 102 of the Family Law Act, 2003.
8. The presumption of parentage arising from cohabitation relevant to this case is section132 of the Family Law Act 2003, which states:-

If-

(a) a child is born to a woman; and

(b) at any time during the period beginning not earlier than 44 weeks and ending not less than 20 weeks before the birth, the woman cohabited with a man to whom she is not married,

thechild is presumed to be a child of the man.

In other words if a man and a woman cohabited out of marriage at any time between 20 and 44 weeks before the women gave birth to a child, the man is presumed to be the father of the child.

Having stated thus, it must be understood that there is no minimum period over which cohabitation must have occurred, though the notion of cohabitation clearly implies an element of stability in the domestic relationship between the parties.

And the presumption of paternity through cohabitation is rebuttable by proof on the balance of probabilities.

9. And also the presumption of parentage would arise from findings of the court as section 134 of FLA states –

(1) If-

(a)during the lifetime of a particular person, a prescribed court has-

(i) found expressly that the person is a parent of a particular child; or

(ii) made a finding that it could not have made unless the person was a parent of a particular child; and

(b)the finding has not been altered, set aside or reversed,

the person is conclusively presumed to be a parent of the child.

10. The presumption of paternity may be rebutted by evidence that, at the date of conception, sexual intercourse between the unmarried parties could not have taken place or did not in fact take place;Cocks v Juncken [1947] HCA 16; (1947) 74 CLR 277 at 294; [1947] HCA 16; [1947] ALR 293.
    

D. The Issues

11. The issues to be determined by the court are:-

1. Whether the Respondent is the putative father of the child namely A. M.V. R, a male born on the 18^th May 2015;
   
2. If so, he is automatically liable; and then whether he has the capacity to pay any maintenance for the child; and
   

100. The financial contribution towards the financial support necessary for the maintenance of the said child.

12. In other words, the Applicant, through her counsel in obtaining child maintenance order, must first establish that the Respondent, namely S. M is the putative father of the said child, namely A. M.V.R;a male born on the 18^th May, 2015; and when paternity proved by Applicant that S.M/Respondent is the putative father of the child; then, Respondent automatically liable to maintain for child; to which the court then assess the quantum of maintenance suits the child current livelihood and expenses etc. for the said child.
    

E. The Evidence

13. The evidence of the Applicant derived from her sworn averment by way of Form 5 and her evidence under oath.
14. This was an undefended hearing and the courts had heard and consider the sole evidence of the Applicant, through Counsel; but she did not call any other witnesses.
    
15. The following are briefly of the Applicant namely T. R.of Navuevu Village, working at Shop & Save Supermarket as a cashier, [sworn on the Holy Bible in Itaukei language]; evidence in chief [first hand evidence]
    

“Yes, I recalled filling a Form 5 application and Respondent name is SairusiMatanatotoand in this application, I am seeking for child maintenance order at $100.00 per week .The name of this child is one, A.M.V.R and he is a male/boyand date of birth is 18^th May 2015; and I am registered as a mother.

[Copy of the birth certificate of child shown to the Applicant/mother and she was able to recognise & confirmed the same]

Yes, this is my son’s birth certificate, whose name on the birth certificate is A.M.V. R, and I am registered as a mother. Tendered as evidence.

[Mark as Applicant Exhibit 1-childs birth certificate]

In the child’s birth certificate, the father’s name is blank. But, I had namedRtS. S. M as the Respondent in this matter because we were going out for one year then. And when I said going out, exactly what I meant was sexual relationship.

[Paternity]

I had sexual relationship with the Respondent fromthe beginning of April 2014.

And this continues up until I found out that I was pregnant; this was on the first week of January 2015.

Yes, when I mentioned from April 2014 to January 2015; we often meet with the Respondent in all those months in between and continued to have sexual relationship with him. We usually meet once or twice in a week, meaning we meet almost every week. And in these meetings with the Respondent we always have sexual intercourse. And during this sexual intercourse we were not wearing any contraceptives.

In the month of January, 2015, on the first week, I found out that I was pregnant; initially it was through my mother as she was the one asking me and then later,

the second week of January was my first clinic.

This is when I found out, I was 22 weeks pregnant. And from 22 weeks, I figure out, I was conceived around August, 2014. I did not have any other sexual relationshipduring these months of August with any other person, accept S .M

I then gave birth to my baby boy on the 18^th May,2015.”

[Child Expenses]

“Yes. I am maintaining my child and I am working and earn $166.00 a week /gross depending on the hours. And this is not enough to maintain myself and my child.

As per my Form 5 maintenance application, Part F, I have stated that the sum of $50.00 worth of food is for the child per week; these foods includes chicken, sausage, vegis and his fruits.

And, I bought diapers [Soft Love-brand] worth $10.00 and at times, I also buy the $4.99 pack which is of 10 pieces and two packswould last for 1 week. I also buy Rewa milk powder and Rewa Life, weetbix, coconut oil for child at times and I do my shopping at Shop 2 Save Supermarket. I tender the shopping receipt from Shop 2 Save Supermarket which was purchased on the 10^th of May 2016, and some of the items listed for the child in the receipt are as follows:-

“Soft love diapers; Fruits and vegis, Johnson and Johnson baby cream, Rewa milk powder, Rewa life milk, potatoes, crest chicken, fruit juice, weetbix, meggi noodle, margarine and protex.”

The total sum spent on shopping that day was $70.45., and I need $100 per week child.

[Mark that Applicant exhibit 2-shopping receipt].

And apart from these expenses incurred for the child, we also share electricity and water bills with my uncle.

[Respondents Financial Abilities]

From my knowledge when having a relationship with the Respondent, S.M, he is working at the Fijian Resort and from my knowledge; I know he is capable of paying child maintenance.

F. The Findings after analysing the Evidence

1. Issue of Paternity
   

16. The Applicant/lady told the court that they commence their sexual relationship from April 2014 and this continues almost once and/or twice every week till January 2015, when Applicant/lady realized that she was pregnant.
    
17. It was also revealed under oath that during this sexual intercourse between the parties, neither the Applicant nor the Respondent wore contraceptives. The Applicant attended her first clinic on the second week of January 2015 and from the hospital she found out that she was 22 weeks pregnant.

These 22 weeks is equivalent to 5 1/2 months, she said that she had conceived aroundAugust, 2014 anddid not have any other sexual relationshipduring these months with any other person, accept S. M, the Respondent. And finally gave birth to her baby boy on the 18^th May,2015.”

18. In calculating from the month the Applicant conceive or became pregnant i.eAugust 2014 to the second week of January 2015, would be close to five (5) months; and from the January to May when Applicant gave birth was a complete nine[9] months. There was no evidence adduced in court by Applicant that she gave birth prematurely, therefore the court concludes that it was a complete mature birth.
    
19. The child in question was conceived and born when the parties had these continuous sexual relations from the month of April 2014 up to January 2015. I accepted and believed the Applicants’ evidence that she had an exclusivesexual relationship with the Respondent.I therefore find that as a result of this continuous sexual relationship between the Applicant and Respondent, the said child was born to the Applicant on the 18^th May 2015.
    
20. If the Respondent had such strong dispute about paternity then he should have been in Court to defend the proceedings; and rebut the presumption of paternity through cohabitation. His non-attendance, the court may deem to accept that Respondent admitted paternity.
    
21. The court sought clarifications from the Applicant in court and she stated that the very first impressions the Respondent gave after the Applicant informed her of the pregnancy, he said for her to proceed aborting the unborn baby. If such is true then it is unbecoming and unbelievable to accept that the Respondent resort to taking a life of an unborn foetus in order to free from this financial and statutory responsibilities in maintaining the child.
    
22. Therefore, on the balance of probabilities, I found the Respondent namelyS. M is presumed to be the putative father of the said child in question.
    
    2. The Financial Support necessary for the Child
23. The Applicant told the court under oath and stated also in her Form 5, that she sought the sum of $100.00 per week for the child and in her F5 application the total expenses per week for the child alone was $145.00; however under oath in court it was evident that expenses for child per week would be from $70.45- $80.00.
    
24. The child is 1 year 6 months on the date of the hearing and no doubt the relevant items detailed in the Form 5 (Part F) for him are food, clothes and shoes. Obviously, you do not buy shoes and clothes every week, but food for the child is a necessity that the Respondent must adhered to in upholding his legal responsibilities after being adjudged, the father of the said child.
    
    100. The Financial contribution that should be made by the Respondent.
         
25. The Applicant did not produce any documentary evidence in court to ascertain the exact income of the Respondent. The court was only informed that the Respondent is currently employed as a waiter at the Shangrila Resort and Spa; and she is not aware of his weekly earnings. The court will make its own assessment on the latter, on what it thinks proper and reasonable as child maintenance at this early stage of the child’s life.
    
26. On the other hand the Applicant/lady is a working mother and she also, off course will share the same responsibilities as parents of the child.
    

G. The Orders

27. For the above reasons, I hereby adjudged the RespondentS. M as the putative father of the child, namely A. M.V R, born on the XX/00/ 2015
    
28. I therefore order that the Respondent to pay the sum of $60.00 per week with effect from the date of this judgment, and this to continue until the child attains the age of eighteen years.
    
29. If the child attains the age of 18 and he still needs financial support to complete his education then the applicant is at liberty to apply for the maintenance to continue.
    
30. The order must be sealed and served on the Respondent within 14 days and an affidavit of service in respect of the service of the order must be filed in Court.
    

Ruling accordingly.

..........................................

TomasiBainivalu[Mr]

Resident Magistrate

15.12.2016