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Abulo v Vivi [2021] PGDC 177; DC7030 (16 November 2021)

DC7030

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

CC NO. 07/2021
ANTHEA ABULO
(Complainant)

-v-

JIMMY VIVI
(Defendant)

VANIMO: B.Fehi

MAINTENANCE PROCEEDINGS: Claim for child maintenance brought pursuant to Section 106 of the Lukautim Pikinini Act 2015 – Two main issues to consider – whether the defendant is the father of the children – whether the defendant has neglected the children – forms of maintenance prescribed under Section 108 of the Lukautim Pikinini Act – whether defendant has the means to pay monetary maintenance on a fixed period – whether defendant is able to pay in kind and what should constitute maintenance in kind.

Statutes:

• Lukautim Pikinini Act 2015;
  

Case Law Cited:

➢ Police v. Mayani [2021] DC6028

Representations:

Complainant in person

Defendant in person

16^th November 2021

01. FEHI. B. DCM: This complaint is filed pursuant to Section 106 of the Lukautim Pikinini Act claiming maintenance from the defendant and the nature of which is as stated bellow:

“Since 2011 the defendant has left their children without any sufficient support, the children being:

1) Delma Vivi, female child, born on 16^th of April 2007 at Vanimo General Hospital;

2) Trixian Vivi, female child, born on 11^th of May 2009 at Vanimo General Hospital; and

3) Victor Vivi, male child, born on 04^th February 2011 at Vanimo General Hospital.

The Complainant Claims Maintenance for her children pursuant to Section 106 of the Lukautim Pikinini Act in the following manner:

i) That the defendant pays the sum of K150 monthly (K50 for each child) towards the maintenance of the children;

ii) That the defendant pays the children’s school fees if they go to school; and

iii) That the defendant take full responsibilities of any customary obligations that arises.”

RECORD OF PROCEEDINGS

02. The complainant commenced this proceedings by way of a complaint and summons upon complaint filed and dated 18^th of August 2021. First mention was on the 07^th of September 2021 were both parties appeared and the nature of the cause of action was read and explained to the defendant. In brief, the defendant was asked whether he would contest paternity of the children and he admitted to be the father of the children as named above. He only took issue against the claim that he has neglected his children. Defendant was than directed to file his defence statement and the matter was adjourned to 28^th September 2021. Defendant was unable to prepare and file his affidavit when matter came before me, in light of this matter was than adjourned to 07^th October 2021 for trial. Trial conducted and completed with matter set down for decision and adjourned to 16^th November 2021.

03. This is now my full judgment on the matter before me.

BRIEF FACTS

04. The complainant and the defendant are both from Yako Village along the west coast of Vanimo. They met in 2004 and entered into a de facto relationship, out of this relationship they had three children namely Delma Vivi who was born on 16^th April 2007, Trixian Vivi who was born on 11^th May 2009 and Victor Vivi who was born on 04^th February 2011. They enjoyed a normal family life until 2011, when the defendant left them to go to Aitape, while there he got into a relationship with another woman and brought her back to Yako Village. He had since neglected his responsibilities as a father to the above named children therefore; the complainant brings these proceedings to claim maintenance against him for her children.

APPLICABLE LAW

05. The complainant brings her claim under Section 106 of the Lukautim Pikinini Act which the whole provision appropriately appears as follows:

106. COURT PROCEEDINGS AFTER BIRTH OF CHILD.

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

(a) by the mother of the child; or

(b) by the Director; or

(c) by a person authorized 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; and

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

06. The above section provides for standing of interested person who are eligible to bring actions under the affiliation proceedings division of the Lukautim Pikinini Act. It also provides for the form and relevant contents that should be contained within the complaint documents when filing before the District Courts Registries. The court upon being satisfied of the above requirements and in the event of it granting a maintenance order must do so in accordance with Section 108 of the Lukautim Pikinini Act. This section appropriately reads:

108. MAINTENANCE OF A CHILD.

(1) Where the Court hearing a complaint under this Part in relation to the maintenance of a child is satisfied on the evidence, it may order the defendant to pay to the complainant a fortnightly sum or in kind as maintenance for the child.

07. I note as per the above provision that I am allowed to consider and award maintenance be it sum of money of in kind on a fortnightly basis. I beg to defer from the interpretation as it appears because it is in my view to restrictive and will denied this court the option of doing justice to cases before it when circumstance are that a fortnightly award would not be realistic. In Police v. Mayani [2021] DC6028, at paragraphs 29 to 30, I discussed the rules of interpretation and noted the difference between the literal and liberal ways of interpreting provisions of legislation. Relying on my discussion as per Mayani’s case, I will apply the liberal or purposive rule of interpretation and interpret Section 108 as to what I believe the legislature intended. For maintenance purposes, it is in my view not the intention of the legislature for me to confine myself to the description “Fortnightly”, as such I have the option of considering a monthly award of maintenance.

08. I now will proceed to consider the respective parties arguments as per the testimonies provided in court during trial.

EVIDENCE BEFORE THE COURT

A) COMPLAINANT’S CASE

09. The complainant relies on her sworn affidavit filed and dated 18^th August 2021 and only called one other witness namely Serlian Koni who gave sworn testimony on 07^th October 2021. She herself opted not to give any oral testimony.

10. She claimed that she entered into a de facto relationship with the defendant in the year 2004 and that in 2007 they had their first child. They had their second child in the year 2009 and their third child was born in 2011. According to her, the defendant left them sometimes within the year 2011 and went to Aitape. While in Aitape he met another woman and engaged in a relationship with her. The woman is now with the defendant here at Yako Village, Vanimo West Coast. Upon his return from Aitape, he has provided no means of support to their 3 children. This was the case until the date of this proceeding. The Complainant is also living with another man and has two other children from that relationship. Their three children are currently living with her parents and elder sister. All three of their children are in school with the eldest one doing her grade 4, the second one doing her elementary 2 and the third one doing her elementary 1. She stated that the children’s daily needs, school fees and other related costs are provided by herself and her family with no support whatsoever from the defendant. Therefore she brings this proceeding to claim maintenance from the defendant. The defendant elected not to cross-examine the complainant and that ends her affidavit statements.

11. Her witness Serlian Koni mentioned in her oral testimony that since Victor their last born son was 2 months old, the defendant neglected the children until last year. According to her, defendant provided some food and money for the children when he was casually employed by a landowner company involved in loading logs onto ships in 2020, but the food and money he gave was not sufficient for the upkeep of the 3 children. At moments when he gave money or food to the children, it was not out of his own doing but because of the children going and asking him. She continued by saying that because all the children are now in school, she and her parents are currently providing for the children and they needed assistance from him to pay the school fees, she asked on previous occasions and waited for the defendant to assist with school fees but that never eventuated. She mentioned also that both the defendant and complainant are currently living with their new partners and that the children are with her and her parents. The Complainant usually assists with the children’s upbringing but not the defendant. Defendant elected not to cross-examine the witness and that ends her testimony.

B) DEFENDANT’S CASE

13. The defendant has filed no affidavit in his defence but only gave sworn testimony during trial on 07^th October 2021. This is what he mentioned in his defence; he was employed from 2018 to 2019 at Musu Log pond, when the logging operation was still ongoing. From 2020 till the date of this proceeding he was unemployed and only earns his living through roadside marketing and fishing. He is currently living with his new partner and they have two children of their own. The children live in the main Yako Village and he and his new family live some distance away at a small hamlet along the main highway leading to the border. He mentioned that, he usually wants to give money and food to his children but the complainant and his family are the ones who prevented them to come and see him. He on occasions give his children money and food when they meet away from the complainant’s family, he also mentioned that his family in the main village assist look after the children by giving them food and money. He also mentioned that his family always meets customary obligations when it comes to the children. He further mentioned that he has a garden and that he is a good fisherman and just recently the Open Member for Vanimo Green gave a boat and engine to their village group and he is currently looking after these assets for the group. The group according to him is involved in small scale commercial fishing to help sustain each member and their families.

14. Defendant called no other witness and the complainant elected not to cross-examine him which ends his case.

RELEVANT ISSUES AND DISCUSSIONS

15. The relevant issues for my consideration are set out as follows:

i) Whether the Defendant has neglected his children by not providing them with means of support; and

ii) If so, whether the defendant has the means to pay monetary maintenance on a fixed period; and

iii) If not, whether the defendant has the ability to pay in kind as maintenance and in what form should that be in; and

iv) Are there any other needs of the children this court should consider and make the necessary orders for the defendant to meet?

16. The first issue requires me to consider the evidence and confirm whether there is any reasonable explanation provided by the defendant on how he has maintained the children since 2011 to date. It is not disputed that both complainant and defendant lived together until 2011 when defendant left to start a new life with his current partner. The complainant has also moved on in life living the children with her elder sister and parents and she is also now with a new partner and children of their own. I have sat in throughout the course of defendant’s testimony in court and I am unable to satisfy myself with his explanation and find that he has not provided any means of support to the children. Therefore, I will answer issue number 1 with a yes to mean the defendant has neglected the children and has provided no means of support to them since 2011.

17. As for the second issue, it is clear from the evidence that defendant has no steady means of income. He is currently unemployed and earns a living through road side marketing and fishing. The complainant did not in my view provide any evidence to confirm with me that defendant has excess to a steady flow of income. Therefore, to answer issue 2, I will answer it with a no because the defendant is unemployed and cannot afford to pay monetary maintenance on a fixed period.

18. Going to the third issue, I am satisfied from the evidence that the defendant is in a position to provide in kind maintenance for the children. It is clear from the evidence that both defendant and complainant are from the same village. The defendant has all his extended family to assist him meet orders for maintenance in kind. As to what should be the form of maintenance in kind, it should include in my view the basic needs of a child, that is, cloths and a balanced meal three times a day. For instance, the defendant will provide every 3 months, 3 pairs each of children’s under cloths (panties) for each child, 3 pairs each skirts and shorts for each child and 3 pair each top and shirts for each child. Also the defendant to provide in a month 1x 5kg bag of rice, 1x 5kg bag of cooking flower, 2 liters of cooking oil, 500g salt, 1kg sugar and 1x large tea bag box. Also for laundry purposes, 1x large packet of powder soap, 3x bar laundry soap and 1x 500ml of bleach. Defendant to provide every 2 weeks in a month 5 medium to large fish caught from the sea, K10 worth of banana, K5 worth of taro, K5 worth of kaukau and K5 worth of greens. Taking the above into consideration I am satisfied that the defendant has the ability to meet the maintenance orders in kind.
19. Lastly but not the least, the fourth issue requires me to consider whether there are other needs of the children that the defendant needs to meet, apart from their daily upkeep. From the evidence I note that the children are all in school. The first child is in grade 4, the second child is in Elementary 2 and the third child is in elementary 1. It is in my view the defendant’s responsibility to pay for the respective children’s school fees and other related costs. Apart from that, the defendant will also be required to meet medical expenses of the children as and when the need arise. I will answer this issue with a yes for it is the responsibility of the defendant to ensure the children have excess to schools to be educated by paying for their school fees and also that they have excess to medical services by paying for such services.

FINDINGS

20. I note from the evidence that the complainant is not with the children, she is currently with her new partner and their children. Despite this I am satisfied that she has the standing as per Section 106 of the Lukautim Pikinini Act to make this claim because the children are with her family and that she only moved on after the defendant left them for another woman. Her sister and parents are currently looking after the children and in my view there is no need to change this arrangement.

21. I find the defendant to have neglected the children by not providing sufficient means of support to them therefore he is liable under Section 108 of the Lukautim Pikinini Act to pay maintenance, however, I am satisfied that the defendant does not have the means to pay monetary maintenance in the sum of K150 monthly but rather he has the ability to provide maintenance in kind on a monthly and weekly basis.

CONCLUSION

22. As per the above, I will issue orders in favor of the complainant against the defendant and as per my orders the defendant will be required to comply fully to ensure the children’s interest and welfare are protected and promoted.

COURT ORDERS:

1. Judgment orders made in favor of the complainant;

2. Pursuant to Section 108 of the Lukautim Pikinini Act and subject to proceedings brought by way of Section 106 of the Lukautim Pikinini Act, the defendant on the balance of probabilities is found to have provided no means of support to the children namely Delma Vivi, Trixian Vivi and Victor Vivi and therefore is ordered to comply with the following maintenance orders;

(i) To provide every 3 months period, 3 pairs each of children’s under cloths (panties) for each child, 3 pairs each skirts and shorts for each child and 3 pairs each top and shirts for each child;
(ii) To provide at the beginning of each month 1x 5kg bag of rice, 1x 5kg bag of cooking plain flower, 2 liters of cooking oil, 1x 500g salt, 1kg sugar and 1x large tea bag box. Also for laundry purposes, 1x large packet of powder soap, 3x bar laundry soap and 1x 500ml of bleach; and

(iii) To provide every 2 weeks in a month, 5 medium to large fish caught from the sea, K10 worth of banana, K5 worth of taro, K5 worth of kaukau and K5 worth of greens.

3. Defendant is also ordered to pay for all the school fees of the children and other related costs;

4. Defendant is also ordered to meet the cost of medical needs of the children;

5. Ward Councilor and Village Court Magistrate of the Village in which parties’ reside to ensure these orders are complied with and assist to mediate between parties should some issues arise as to its compliance;

6. These orders are to extend until respective child attains the age of 18 years old or in the event of death or until such time it is varied or set aside by a court of competent or higher jurisdiction;

7. The complainant and her family are ordered to allow the children to have free excess to their father the defendant as and when the children desire to see him;

7. Enforcement of these orders will be subject to the reports provided by the Ward Councilor or Village Court Magistrate on their assessment of whether the orders were complied with by the defendant

23. This concludes the matter before me.