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K v B [1985] SBHC 7; [1985-1986] SILR 39 (10 April 1985)

1985-1986 SILR 39

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 40 of 1985

K

v

B

High Court of Solomon Islands
(Wood C.J.)
Civil Case No. 40 of 1985

10 April 19S5 at Auki
Judgment: 10 April 1985

Affiliation, Separation and Maintenance Act 1971 s.5(2)(a) - whether payment of customary compensation may be considered in computing maintenance payments.

Facts:

The appellant, who had obtained a maintenance order against the respondent from the Principal Magistrate (Malaita), appealed that part of the Principal Magistrate’s ruling reducing the maintenance payments by $8 per month for 6 years. The Principal Magistrate so ruled on the ground that approximately $500 in customary compensation had been paid to the appellant’s father by the respondent pursuant to an order of the Local Court.

Held:

1. Under s.5(2)(a) of the Affiliation, Separation and Maintenance Act 1971, the payment of customary compensation may be taken into account if it has affected the putative father’s means or ability to pay.

2. The payment of customary compensation to the appellant’s father in this case was for loss of bride price, not for maintenance. As such, it was a completely separate and distinct action between different parties which could not be taken into consideration in the subsequent action brought by the appellant under s.5(2)(a) of the Act for maintenance of their child.

Accordingly, the Principal Magistrate’s order was varied from $12 to $20 maintenance per month.

No cases considered.

Andrew Shipley for the Appellant
The Respondent did not appear and was not represented

Wood CJ: On February 7, 1985 the appellant successfully obtained an order from the Principal Magistrate Malaita that the respondent was the putative father of her child and order the respondent to pay her $12 per month maintenance for six years and thereafter $20 per month, $100 for birth expense and $15 court fees.

The appellant now appeals against that part of the learned Principal Magistrate’s ruling reducing the maintenance by $8 per month for six years on the ground that approximately $500 had been paid to the appellant’s father following an order in the Local Court in March 1984. She also appeals against the order for $100 birth expenses when the expenses were in fact proved in the sum of $157.10.

Mr Shipley has submitted that the learned Principal Magistrate had no power in terms of s.5(2)(a) of the Affiliation, Separation and Maintenance Act 1971 to take such compensation into consideration as his discretion was limited by that section to the “means” of the father of the child. It has been held that in criminal cases customary compensation may be taken into consideration in mitigation of sentence but in a civil case customary compensation may or may not be a relevant factor, I would not agree with Mr Shipley on his restrictive interpretation of the word “means” in s.5(2)(a) of the Act as if the putative father has paid compensation that fact may well have affected his means or ability to pay. However I think Mr Shipley is on stronger ground where he points out that the compensation ordered by the Local Court was paid to the appellant’s father as compensation for loss of bride price and not by way of maintenance for the child. It is s.5(2)(a) of the Act which provides for maintenance and education of the child. It seems to me that the action brought in the Local Court by the father against the respondent for loss of bride price under customary law is a completely separate and distinct action between different parties and cannot therefore be taken into consideration in the subsequent action brought in the Magistrates’ Court by the appellant against the respondent for maintenance of their child.

In the circumstances of the mother and father both employed as nurses $20 per month was a reasonable order for the maintenance of the child without any deduction.

As far as the birth expenses are concerned on the face of the record these were $157.10 and this figure has not been challenged in any way. The items listed appear to be reasonable and the learned Principal Magistrate gave no reason for reducing that figure to $100.

I accordingly vary the learned Principal Magistrate’s order to read as follows:-

1. Respondent to pay the Appellant $20 per month maintenance for the child Merilian.

2. Respondent to pay the Appellant $157.10 for the expenses of birth by instalments of $10 per month.

3. Respondent to pay the court fee of $15

4. Payments with effect from February 28 1985 and monthly thereafter.

5. Costs of this appeal.