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Dini v Tekwie [2021] PGDC 178; DC7036 (18 November 2021)

DC7036

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE]

CC NO. 13/2021
DOREEN DINI
(Complainant)

-v-

HEZRON TEKWIE
(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 child – whether the defendant has neglected the child by not providing any means of support – Maintenance proceedings should be made in the best interest of the child – Courts must ensure best interest of the child is protected and promoted – Age and status of parties to the proceedings relevant to determine their ability to provide means of support – Parents of teenagers engaged in relationships giving rise to birth of a child should participate in the raising of the child through consensus – affiliation proceedings should not be pre-maturely made and should only be instituted as and when situation warrants it – striking out of proceedings relevant to allow parties together with their parents to exhaust customary available process and avenues before coming to court.

Statutes:

• Lukautim Pikinini Act 2015;
  

Case Law Cited:

Representations:

Complainant in person

Defendant in person

18^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 June 2021 the defendant has left his child without any sufficient support, the child being:

1) Britiana Tekwie, female child, born on 21^st of May 2021 at Vanimo General Hospital;

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

i) That the defendant pays the sum of K200 fortnightly towards the maintenance of the child;

ii) That the defendant pay the child’s school fees if she go to school; and

iii) Any other orders the court deem fit.”

RECORD OF PROCEEDINGS

02. The complainant commenced this proceedings by way of a complaint and summons upon complaint filed and dated 13^th of October 2021. First mention was on the 26^th of October 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 child and he admitted to be the father of the child as named above. He only took issue against the claim that he has neglected his child. Defendant was than directed to file his defence statement which he already did and the matter was adjourned to 09^th November 2021 for trial. Trial conducted and completed with matter set down for decision and adjourned to 18^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 Lido Village, Vanimo West Coast. On or about the year 2020, they entered into a relationship. At the time of this relationship, the complainant was doing her grade 10 at Don Bosco Secondary School here in Vanimo Urban and the Defendant was back here in Vanimo after withdrawing from his studies at a technical college. The complainant became pregnant from this relationship and on 21^st `May 2021 gave birth to a daughter, the child subject of this proceeding. The defendant after the birth of their child left the complainant and their child at Dasi, Vanimo Urban where she resides with her parents and moved back to live with his mother at Daunda, Vanimo Urban. The defendant has since failed to provide any means of support to the complainant and their child. She brings this proceeding to claim maintenance for her child as a result of this.

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 13^th October 2021 and her written reply to defendant’s Statement read in court and sworn into evidence on 09^th November 2021. She only called one witness namely Nancy Dini (her mother) who gave sworn testimony on 09^th November 2021. She herself opted not to give any oral testimony.

10. She claimed that she entered into relationship with the defendant in the year 2020 while she was still attending Don Bosco Secondary School. According to her the defendant lived with her in her parents’ house until May 2021, when he left and returned back to his mother’s house. While defendant was with her, she saw her last monthly period on 26^th August 2020, that was when she realized that she was pregnant and she gave birth to their daughter on 21^st May 2021. She mentioned that, the defendant left after the birth of their daughter and has provided no support to her and the baby. She brought the defendant for counseling to Vanimo Green District Welfare Office 2 months prior to the matter first mentioned in court but the defendant continued to neglect her and the baby. She stated that the defendant last visited them on 08^th of June 2021; during his visit he assisted them with some food items. Apart from this, she mentioned that she had struggled to look after the baby for three months now without any means of support from the defendant and therefore brings this maintenance proceeding against him before this court. Defendant elected not to cross-examine the complainant and this ends her evidences before me.

11. Her only witness namely Nancy Dini gave very brief testimony to support her daughter the complainant. She mentioned that she is the mother of the complainant and according to her the defendant lived with them since 2020 when he befriended her daughter and that she did not in any one occasion argued with the defendant and removed him from their family home. She said it was the defendant who moved out at his freewill after her daughter gave birth to their baby, he left and did not return. Therefore she supports her daughter’s claim that the defendant after he left has not provided any means of support to the complainant and their baby. Defendant elected not to cross-examine the witness and that concludes her evidences.

12. Complainant made no submission and asked the court to make a decision based on the evidence she produced in court. This ends her case.

B) DEFENDANT’S CASE

13. The defendant relies on his affidavit dated and filed on 25^th October 2021. He also gave oral testimony in court on 09^th November 2021. He called one other witness namely Steven Tekwie (his father) who also gave oral testimony on 09^th November 2021.

14. The defendant stated that he is unemployed and currently a student waiting for placement in tertiary institutions, he will on or about this month sit for his entry tests with the University of Technology in Wewak East Sepik Province. If successful he would continue his studies at that tertiary institution. He mentioned that the complainant knew of his status when they first entered into their relationship. While together the complainant was pregnant and gave birth to a female child whom he accepted as his daughter. He confirmed that he resided with the complainant and her parents until the time his daughter was born, and because it was his Lido custom that the father must not stay with the mother of his first born child, he left them and returned back to his mother’s house at Daunda. According to him he had stayed with her during the time of her pregnancy and assisted her throughout that period. He claimed through his evidence that complainant’s mother removed him from their house and also that the complainant was too over possessive and controlling which made it really difficult for him to return to them. He also produced a letter from Vanimo Green District Welfare Office, (which was accepted into evidence without objection), marked as Exhibit “A” (2 page letter) in support of his defence. The defendant also stated that his parents, that is, his father, step mother and biological mother all step in to assist him provide means of support to the baby. Because he is still a student, his parents are taking the responsibility to support the complainant raise their child.

15. His father through his oral testimony mentioned that because his son is still a student, they as parents are taking the responsibility to support the complainant and their granddaughter. He usually gives money, food stuffs and fish to the complainant to support her with the baby. He confirmed that, his son the defendant was present when their granddaughter was born and his family provided baby stuff for the mother and child while they were in hospital. He strongly mentioned that, the defendant is still a student and does not have the means to pay maintenance and as parents they want him to continue his education. Because of this they are taking that responsibility to support the complainant and the baby until such time the defendant secures a paid employment so that he can by himself support his child. Complainant elected not to cross-examine the witness and this concludes his evidence.

16. Defendant made no submission and closed his case.

RELEVANT ISSUES AND DISCUSSIONS

17. 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?

18. The first issue requires me to consider the evidence and confirm whether there is any reasonable explanation provided by the defendant on the claim made by the complainant, that is, he has provided no means of support for the child. I must say this case is one of such cases becoming prevalent in our communities and making its way into the courts under this jurisdiction. I am mindful that the intent of Affiliation Proceedings under the Lukautim Pikinini Act is to ensure the interest of the child is protected and promoted. However, it is also a responsibility of the community and the family unit to discourage teenagers still in school to part take in relationship that will placed them in such situations where child birth is unplanned and the status of marriage is forced upon them. At such teenagers are not ready to take on the full responsibilities of raising a family, emotionally they are not prepared to face the pressure of such a commitment. The evidence before me confirmed that the complainant was still in school when she entered into the relationship with the defendant; they moved in and resided at her parent’s house like couples when in effect they see they see their relationship as boy-girl relationship. The complainant’s parents encourage the situation by not taking the necessary steps to end this relationship rather allowing it to go on until the birth of the child. On the other hand the parents of the defendant has accepted what their son has gotten himself into at this stage of his life and have in my view made all their attempts to support the complainant in whatever way they could knowing full well that their son is not in a position to support a family of his own.

19. Taking all these factors into consideration, I find that the defendant does not have the means to pay monetary maintenance sum on a fortnightly basis and also he is still under the care of his parent’s and therefore does not in my view have the means to support his child in kind. Whatever that is provided on his behalf to the complainant and their daughter is from the sweat of his parents. In light of the above observations, I cannot find and hold the defendant liable for neglect of the child given the fact that both the complainant and defendant are still dependents under the roof of their parents when conceiving and giving birth to the baby came about, partly due to their parents neglect and encouragement. I will answer issue one with a no, because I am not satisfied that the defendant in his current state is capable of providing any means to the complainant and their baby.

20. As for the second issue, it is unnecessary for me to answer given my findings as discussed under issue one.

21. I find it also not necessary for me to answer the third issue given my answer to issue number one.

22. I will also not answer issue number four given the above positions.

FINDINGS

23. I find the defendant not to be in a position to provide means of support to the child subject of this proceeding. I will however leave the responsibilities to the respective parents of the complainant and the defendant who in my view have directly played a hand in what the parties have been through over the course of 2020 to 2021. I am of the opinion that, such step should be taken to ensure parents play their role to ensure their children are fit and ready before they decide to make a family of their own. Given the age of the child and considering all factors surrounding her interest and wellbeing, both parties with their respective parents to agree on an arrangement on how best they will share the responsibilities of raising her.

24. I find it to be pre-mature at this stage to bring this proceeding under Section 106 of the Lukautim Pikinini Act, and this court should allow parties to use customary avenues to decide on how best to raise the child. In future, as and when situation warrants it, complainant is free to institute affiliation proceedings against the defendant.

CONCLUSION

22. As per the above, I will issue orders in favor of the defendant and have this proceeding dismissed.

COURT ORDERS:

1. Judgment orders made in favor of the defendant;

2. Affiliation proceedings file pursuant to Section 106 of the Lukautim Pikinini Act is struck as it is made prematurely before this court;
3. In future complainant is at liberty to file fresh affiliation proceedings as and when the situation warrants it; and

4. Parents of both the complainant and defendant are encourage to use available customary process and avenues to decide on how best to assist parties raise their baby daughter through an arrangement agreeable by both parties and also to decide on the future of the relationship between complainant and defendant given their current educational status.

23. This concludes the matter before me.