N11073

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 561 OF 2022 (IECMS)

BETWEEN:
CEDRICK KALEP YANIS
Plaintiff

AND
SIMON YANIS
Defendant

Waigani: Wood J
      2024: 15th April, 7th November

CLAIM FOR MAINTENANCE – claim made for maintenance by the plaintiff who claimed to be the biological son of the defendant – no claim was previously filed in the Family Court for maintenance – the defendant denies he is the biological father of the plaintiff – the plaintiff commenced the proceeding when he was 21 years of age

Claims for this type of action must be initiated in the Family Court before a child attains the age of 18 and in accordance with the provisions of the Lukautim Pikinini Act 2015 - the jurisdiction of the Family Court under the Lukautim Pikinini Act 2015 shall be exercised by a Family Court Magistrate

Cases Cited:

Papua New Guinea Cases
Minol v Salika (2019) N8149
Minol v Salika (2020) SC2015
Morgan v Faith [1994] PNGLR 273
PLAR No. 1 of 1980; Request by Principal Legal Adviser on a Point of Law arising in a case where a Person tried upon Indictment has been Acquitted [1980] PNGLR 326
Scott v Scott (2009) N3881
SCR No. 1 of 2000: Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council (2002) SC693

Legislation Cited
Child Welfare Act (Chapter 276)
Constitution of the Independent State of Papua New Guinea
Deserted Wives and Children's Act (Chapter 277)
Frauds and Limitations Act 1998
Lukautim Pikinini Act 2015
Matrimonial Causes Act 1963 

Counsel
Mr S Inisi, for the Plaintiff
Mr L Tangua, for the Defendant

JUDGMENT

7th November 2024

1.	WOOD J: BACKGROUND: As part of the plaintiff’s Writ of Summons and Statement of Claim filed on 30 November 2023 (the Statement of Claim), the plaintiff says that he was born on 26 June 2002 and claims, in effect, that the defendant is his natural father and has refused to provide child maintenance, welfare, custody and parental care, which has resulted in damage to the plaintiff’s education, nutrition, welfare and growth as a child. 

2.	In paragraph 10 of the Statement of Claim, the plaintiff pleads that the National Court’s power to deal with this matter is invoked by section 155(4) of the Constitution and section 166 of the Constitution to claim ‘... dues and maintenance claims and damages owed to him through the Lukautim Pikinni Act 2015 against the Defendant.’  In addition to the Lukautim Pikinni Act 2015 (the Act), the plaintiff also claims that he is entitled to damages under other International Conventions on the Rights of Children, however, it should be noted that while there is a United Nations Convention on the Rights of Children (which I note is also referred to in section 4 of the Act), it was not pleaded and particularised how that Convention was relevant to the claim. 

The defendant’s application to dismiss the proceeding
 
3.	The application before the Court on 15 April 2024 was the defendant’s Notice of Motion filed on 16 January 2024, which sought to dismiss the proceeding pursuant to Order 12 Rule 40(1)(a), (b) and (c) of the National Court Rules.  In support of the defendant’s Notice of Motion, he relied upon the affidavits of the following deponents:

a)	the affidavit of Debrah Koiam filed on 16 January 2024;
b)	the affidavit in support of Simon Yanis filed on 2 April 2024; and
c)	the affidavit of Lasen Tangua filed on 4 March 2024.

4.	In reply to the defendant’s Notice of Motion, the plaintiff relied upon the affidavits of the following deponents:

a)	the affidavit of Susan Kalep filed on 18 March 2023;
b)	the affidavit of Thresia Kalep filed on 11 April 2024; and
c)	the affidavit of Cedrick Kalep Yanis filed on 11 April 2024. 

5.	In the defendant’s Defence filed on 13 December 2023, he denies that he is the plaintiff’s father.  I note in paragraph 5 of the defendant’s above affidavit, where he responds to the claim by the plaintiff that he is the plaintiff’s natural father, the defendant denies the allegation.

6.	In the above affidavit of Thresia Kalep, she states that she is the plaintiff’s grandmother and she deposes that the defendant paid K10,000 in bride price in relation to their daughter (Susan Kalep).  However, I am not satisfied that this constituted any admission by the defendant that this meant that he was the father of the plaintiff.

7.	I note in the above-mentioned affidavit of Susan Kalep she deposes that she has only ever had one sexual relationship, and that was with the defendant.  She states effectively, that as a result of that relationship with the defendant, she fell pregnant and the plaintiff was conceived.  While I accept the evidence of Ms Kalep that the defendant had promised to assist in the welfare and maintenance of the plaintiff, I cannot be satisfied from her affidavit that the defendant ever admitted or agreed that he was the father.  

8.	What is apparent from her evidence is that the defendant’s above-mentioned promises were never fulfilled and she should have taken action much earlier in the plaintiff’s life to seek maintenance from the defendant, if it was indeed her case that the defendant was the plaintiff’s father.    

9.	In the plaintiff’s above-mentioned affidavit he states that he is the defendant’s biological son, however, I am not satisfied in that affidavit that there is an evidence to support that allegation.

10.	In the Statement of Claim, the plaintiff refers to sections 155(4) and 166 of the Constitution and says that he invokes those sections to claim dues of maintenance claims and damages owed to him through the Act against the defendant.  He also says that he invokes sections 155(4) and 166 of the Constitution for the National Court to assume the jurisdiction of the Family Court to grant the relief he is seeking under the Act and ‘other International Conventions on the Rights of Children’.

11.	In this regard, section 155(4) of the Constitution provides as follows:

‘(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.’

12.	 Section 166 of the Constitution provides as follows:

‘(1) Subject to this Constitution, the National Court is a court of unlimited jurisdiction.
(2) In particular, the National Court has the jurisdiction set out in—
(a) Section 22 (enforcement of the Constitution); and
(b) Subdivision III.3.D (enforcement); and
(c) Section 155 (the National Judicial System),
and otherwise as provided by this Constitution or any other law.
(3) Subject to any Act of the Parliament and to the Rules of Court of the National Court, the jurisdiction of the National Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together.
(4) The jurisdiction of the National Court may be exercised by a Judge or Judges of that Court notwithstanding that it is being exercised at the same time by another Judge or other Judges.
(5) The jurisdiction of the National Court may be exercised either in court or in chambers, as provided by or under an Act of the Parliament or the Rules of Court of the National Court.’

13.	 Section 106 of the Act provides 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 authorised 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).

14.	 Sections 87 and 88 of the Act provide as follows:

‘Division 1. - Family Court.
87.	ESTABLISHMENT OF FAMILY COURT.
(1) The Minister, may on the advice of the Judicial and Legal Services Commission, may by notice in the National Gazette, establish a Family Court in and for an area specified in the notice.
(2) The jurisdiction of the Family Court under this Act shall be exercised by a Family Court Magistrate.
(3) For the purposes of Subsection (2), all District Court Magistrates shall be deemed as Family Court magistrates.
(4) The Cleric of the Family Court shall be appointed in accordance with the District Courts Act (Chapter 40).
(5) The practice and procedure of the District Courts shall apply to the Family Court with relevant modifications where necessary.

88.	JURISDICTION OF THE FAMILY COURT.
The Family Court has jurisdiction to hear and determine matters relating, to -
(a) child protection; and
(b) parenting orders (child custody); and
(c) maintenance of a child and parent; and
(d) access to a child; and
(e) guardianship of a child; and
(f) adopted child; and
any other powers given under this Act.
(2) A law may make provisions for further powers and functions of the Family Court.’

15.	In section 2 of the Act, the reference to “Court” means the Family Court established under section 87.

16.	Sections 105 to 112 of the Act provide as follows:

‘Division 6. - Affiliation Proceedings.

105.	APPLICATION OF DIVISION 6.
A proceeding under this Division applies to a child born outside of marriage.

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 authorised 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).

107.	CONFINEMENT EXPENSES.
Where a court issues a maintenance order under Section 108 the Court may order the defendant to pay for confinement expenses at a sum not exceeding K5,000.00 in cash or in kind.

Division 7. Maintenance Orders.
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.
(2) A maintenance order under Subsection (1) also includes an order for the medical and educational expenses of the child

109.	MAINTENANCE OF A SPOUSE.
Where the Court hearing a complaint under this Part in relation to maintenance of a spouse who is deserted by the defendant, the Court may Order the defendant to pay to the complainant a fortnightly sum or in kind as maintenance for the spouse.

110.	DURATION OF MAINTENANCE ORDER.
(1) An order for maintenance under Section 108 applies until -
(a) the child dies; or
(b) the order is discharged by a Court of competent jurisdiction; or
(c) the child attains the age of 18 years,
which ever first occurs.
(2) An order for maintenance under Section 109 applies until -
(a) the spouse dies; or
(b) the spouse remarries; or
(c) it is varied; or
(d) the order is discharged or varied by a Court of competent jurisdiction, which ever first occurs.
(3) If in the opinion of the Court, there are special circumstances including his education, medical and other special needs, and having regard in particular to Part II and the general principles prescribed in Section 5 of this Act, the order may be varied after the child attains 18 years of age.

111.	FUNERAL EXPENSES OF CHILD.
Where a child dies, the Court may, on application by a party under this Part, order a person admitting himself or adjudged by the Court to be the father or mother of the child to pay such sum to the applicant as the Court thinks reasonable for or towards the funeral expenses of the child.

112.	TIME LIMITS.
Notwithstanding anything in a law, a proceeding commenced under this Part shall not be commenced after the child attains 18 years of age.’

17.	 In submissions, the plaintiff’s lawyer stated that this Court should determine whether the plaintiff can sue the defendant under the Act after having reached the age of 21.  The plaintiff’s lawyer submitted that this issue has not been the subject of judicial consideration in Papua New Guinea before.  In this regard, the plaintiff’s lawyer submitted that this Court should adopt the purposive test in relation to the Act.  On this point, the plaintiff relies on the decision by Justices Wilson, Greville Smith and Andrew in PLAR No. 1 of 1980 Request by Principal Legal Adviser on a Point of Law arising in a case where a Person tried upon Indictment has been Acquitted [1980] PNGLR 326 and cited the following extract from that decision, where Justice Wilson stated the following:

‘.... there is no place in a developing country where the courts, as well as the Law Reform Commission, are given special responsibilities in the process of development, for the narrow interpretation of statutes without adequate regard to the social purpose of particular legislation. Development is difficult to achieve if courts adopt too conservative an approach to the interpretation of statutes. There has been a tendency in our National Judicial System, less evident in some recent decisions of the courts but still perceptible, to over-emphasize the literal meaning of a provision at the expense of the meaning to be derived from other possible contexts; the latter including the application of the mischief rule, the recognition of the general legislative purpose, as well as the obligations laid down under the Constitution such as, for example, the obligation upon the courts in interpreting the law to give paramount consideration to the dispensation of justice…’

18.	 The plaintiff’s lawyer also relied on the decision by Amet CJ, Salika, Kandakasi, JJ in SCR No. 1 of 2000: Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council (2002) SC693, where Justice Kandakasi (as he was then), stated as follows:

‘Going by this expressed dictation in the Constitution, it is now an accepted principle of both constitutional and other statutory interpretation, that provisions of the Constitution and all Acts of Parliament must be given their fair and liberal meaning. This is so as to give effect to the intent of Parliament behind the provisions in question.’ 

19.	 The plaintiff’s lawyer also relied on the decision of Justice Kandakasi (as he was then) in Scott v Scott (2009) N3881 and stated in the written submissions that ‘... a parent can still maintain the child beyond the age of 21 through a matter through Matrimonial Causes Act .....’.    

20.	 While the Court in Scott v Scott (supra) made reference to the Matrimonial Causes Act, Deserted Wives and Children's Act and the Child Welfare Act, the facts in that case where different because Mr Scott was applying to effectively end his payment of maintenance toward his child (Jack Scott) who has reached 18 years of age.  Mr Scott argued that the normal dependency period initially of 16 years and later changed by case law of 18 years should apply as the cut off period for maintenance.  The boy’s mother opposed the application arguing that the father’s maintenance of the son should continue until he had reached age 21, which is the limit provided for in section 73 (4) of the Matrimonial Causes Act.
 
21.	 In other words, in the Scott v Scott (supra) decision, it was not in dispute that Mr Scott was the father of Jack Scott.  In addition, he had been paying maintenance for his son.  It should also be noted that the Matrimonial Causes Act is an Act relating to divorce and causes, and, in relation to such matters as parental rights and the custody and guardianship of infants and for related purposes.  The Matrimonial Causes Act also provides in section 4 that it does not apply to or in relation to a customary marriage.  The facts in the proceeding before me are vastly different to Scott v Scott (supra) because the defendant and Susan Kalep were never in a common law marriage, the defendant has never paid maintenance in relation to the plaintiff, the defendant denies he is the biological father of the plaintiff and the plaintiff has now attained the age of 21.   Also, the provisions of the Matrimonial Causes Act are different to the Act.  

22.	While I note that the Court in Scott v Scott (supra) referred to the Child Welfare Act, it should be noted that the Child Welfare Act (Chapter 276) was repealed by the Act.  In this regard, the plaintiff did not make any submissions in this proceeding about what issues under the Child Welfare Act in the Scott v Scott case (supra) might be relevant to this case. 

23.	 The plaintiff also referred to the National Court decision in Minol v Salika (2019) N8149, and said that on the appeal of that decision to the Supreme Court in Minol v Salika (2020) SC2015, the Supreme Court recognised the right of the National Court to the assessment of Orders for maintenance.  

24.	 What should be noted in the National Court decision in Minol v Salika (supra), and which was not addressed properly in the plaintiff’s submissions in this proceeding, is that the Minol v Salika proceeding was an appeal from the Family Court regarding an application for custody and maintenance.  In other words, the Family Court had the jurisdiction to deal with the issues of custody and maintenance and in circumstances where it was not in issue that the Pwapei Minol and Gloria Salika were the parents of the children, who were relevantly aged 6, 3 and 1 when the respondent (Ms Salika) filed her proceedings in the Family Court.  Clearly the Family Court had the jurisdiction in that matter to determine certain issues, and the jurisdiction of the National Court was only engaged when the Family Court matter was appealed to the National Court. 

25.	 In this proceeding, there was clearly no claim made first by the plaintiff or his mother for maintenance in the Family Court. 

26.	In reply, the defendant referred to the decision of Justice Woods in Morgan v Faith [1994] PNGLR 273.  While I agree with his Honour’s statement that a proceeding for maintenance must commence ‘... with a proof of paternity’, I do not agree with the trial Judge’s opinion in that case were he held that any claim for maintenance is statute barred after six years due to the provisions of section 16 of the Frauds and Limitations Act 1988.   I do not agree with his Honour’s decision on that point because there may be any number of reasons why a parent does not commence an action for more than six years, including that the parents were in a relationship for six years or more during the life of the child, or there was an imbalance in the relationship where one parent was fearful of commencing a proceeding to seek maintenance.  Notwithstanding my opinion on that point, I do agree with the point raised in the defendant’s written submissions when citing Morgan v Faith (supra), that the issue of paternity must be proved.  

27.	In this proceeding, I am not satisfied that paternity has been proved because there has not been any admission by the defendant that he is the biological father and indeed he denies he is the father.  Furthermore, there is no evidence that any DNA or other paternity test has been performed.  Nor have the issues of paternity and maintenance first been decided by a Family Court Magistrate.

28.	 The defendant also argues that based on the provisions of the Act, the mother of the plaintiff or an authorised person (namely the Director of Child and Family Services or a person authorised by the Director of Child and Family Services or other affected person with leave of the Family Court) are the correct person to have made the claim in the Family Court, and not the plaintiff.

29.	 On the basis of the above matters, when considering the plaintiff’s submissions that this Court should adopt the purposive test, I am satisfied that on the fair and liberal meaning of the Act, it was clearly intended that any applications for maintenance of the type sought by the plaintiff should have been brought by the filing of a complaint in the Family Court before the plaintiff attained the age of 18 years.  This is also reinforced by the fact that section 115 of the Act provides for an appeal process from any conviction, order or adjudication from the Family Court under the Act.  Furthermore, any proceeding of this type must be heard by a Family Court Magistrate.

30.	 While the plaintiff also sought to rely on sections 155(4) and 166 of the Constitution, I consider that those sections do not confer any original jurisdiction upon the National Court in this matter, because the jurisdiction to determine any maintenance claims of this type is clearly provided for under the provisions of the Act, which vest the jurisdiction, at first instance, in matters of this type in the Family Court.

Submission by the plaintiff that the issues in dispute should be heard at a substantive hearing 

31.	 The plaintiff submits that the issues in dispute should be heard at a substantive hearing.  When considering this issue, I have regard to the following extract from the decision of Justice Kandakasi (as he was then) in Lerro v Stagg [2006] N3050, who stated at paragraph 13 as follows:

1.	‘Our judicial system should never permit a plaintiff or a defendant to be "driven from the judgment seat" in a summary way, "without a Court having considered his right to be heard."  A party has a right to have his case heard, as guaranteed by the Constitution and the laws of the land. The Rules are designed to enhance those rights and to ensure the prompt and fair disposal of matters coming before the Court. That right cannot be lightly set aside. 
2.	At the same time however, the law such as the Rules under consideration provide for and the Court has an inherent jurisdiction to protect and safeguard against any possible abuse of the processes of the Court.
3.	The object of these rules are therefore "to stop cases which ought not to be launched — cases which are obviously frivolous or vexatious or obviously unsustainable."  In other words "the object of the rule was to get rid of frivolous actions." 
4.	A claim may be frivolous if it can be characterized as so obviously untenable that it cannot possibly succeed or that the claim or defence is bound to fail if it proceeds to trial.
5.	A claim or defence may be vexatious if the case amounts to a sham or one which cannot succeed and is one that amounts to harassment of the opposing party who is unnecessarily put to the trouble and expenses of defending or proving the claim. 
6.	With regard to the issue of disclosing a reasonable cause of action or defence, the Court must be clear that there are two (2) parts to the phrase "cause of action". First, it entails a right given by law such as an entitlement to reasonable damages for breach of human rights under s.58 of the Constitution, commonly referred to as the "form of action". Secondly, it entails the pleadings disclosing all the necessary facts which give rise to the form of action. 
7.	The phrase "cause of action" could thus be defined in terms of a legal right or form of action known to law with:
"every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court. It does not comprise of every piece of evidence which is necessary to prove each fact, but every fact is necessary to be proved." 

8.	A statement of claim or a defence (as the case may be) must therefore clearly plead the form of action by pleading the necessary legal elements or ingredients of the action and relevant and necessary facts (not the evidence) giving rise to the form of action. It follows therefore that, where a statement of claim or a defence is so ambiguous or lacking in particularity that it does not facilitate orderly and rational pleadings, which would enable the real issues to be identified,  and instead leaves it to guess work, it should be struck out. 
9.	These rules provide a summary judgment procedure or remedy which is available to a plaintiff or a defendant, and one which vests and calls for an exercise of a discretion by the Court.
10.	The discretion must be exercised sparingly and only in a case where the statement of claim or the defence (as the case might be) is "obviously and almost incontestably bad." In other words this discretion can be exercised only in cases that "are plain and obvious so that the master or Judge can say at once that the statement of claim [or defence] as it stands, is insufficient, even if proved, to entitle the plaintiff [defendant] to what he asks" for.’

32.	 For the reasons stated above, I do not consider it necessary that the plaintiff’s claim be determined at a trial.  It is clear from the evidence that there has not been any admission by the defendant that he is the biological father of the plaintiff.  He expressly denies he is the father.  The defendant has never paid maintenance in relation to the plaintiff and the process which should have been followed would be for a person who is prescribed under section 106 of the Act, to file a complaint in the prescribed form, before the plaintiff attained the age of 18 years old.  The plaintiff was 21 years old when he commenced the claim in the National Court.

33.	 Furthermore, one of the safeguards for matters of this type is that an aggrieved party may appeal the adjudication of the Family Court to the National Court in accordance with section 115 of the Act.

34.	 In the circumstances, I consider the claim would be bound to fail if it proceeded to trial.  For the reasons stated above, I consider there is no cause of action disclosed in this matter and the National Court does not have the jurisdiction to determine the substantive relief being sought.  Accordingly, the proceeding is dismissed as an abuse of process.
 
35.	 Even though I am not satisfied that the defendant is the biological father of the plaintiff, it is apparent that this proceeding has invoked a range of emotions for the plaintiff.  On this point, if his claim had been brought in accordance with the process that is prescribed in the Act and within the prescribed limit, then no doubt his claim could have been properly heard and determined by the Family Court.  For the reasons stated above, that did not occur.    

     Orders:

1.	The proceeding is dismissed for being an abuse of process.

2.	The plaintiff shall pay the defendant’s costs of and incidental to the proceeding on a party/ party basis, which shall be taxed, if not agreed. 

3.	Time is abridged.

Inisi & Lawyers: Lawyers for the Plaintiff
Tangua Lawyers: Lawyers for the Defendant