MAINTENANCE CLAIM.

Marlborough Express, Volume LIII, Issue 271, 18 November 1919, Page 2

MAINTENANCE CLAIM.

ORDER MADE Un A DEFENDED

CASE.

The following judgment in the case in whicjli the defendant was L. J. Hocking lias been delivered by Mr P. L. liolliiigs, S.M. :— In the ■case the complainant, alleges that the defendant is the , father of her illegitimate female child born in November, 1911. The facts proved ishow that int&maoy occurred in February, 1911, resulting in the birth of th > child in November, 1911. After the birth of the child, the defenedanti, on being approached about the matter by a witness who gave evidence, said: VI know I am the father of the child, but I woli't pay; the 'State can keep it.' " The 'gU'l's father threatened defendant yvith affiliation proceeding.% and in qrder to> keep the matiter .out. of Court the defendant signed a. deed (the girl's father being party to it) by which the .defendant made provision for. the maintenance at the rate of £1 12s 6d per month until the child should attain the age of fourteen ot die under that age. The child is stiU alive. In December, 1913, the complainant married her present husband—a working man with no means except his slender wages, and who no\w\ has four children of his own, the issue of the marriage, dependent) on him. ' The complainant has no means whatever.

In 1914 ' the defendant went to gaol on a conviietion for attempted ini'decent assault. on ■ another girl, and on his discharge in June, 1917, weno into.camp. The payments under the deed have not been kept up, and are greatly in arrear. The complainant lost trace of the defendant until he arrived in camp, and she tihen brought the master under the notice of the military authorities^, with the result that; y in December, 1918. she received frohi the Defence Department the sum of £32 Is 6d towards the child's1 maintenance, the Defence Regulations (Special General Order No. 230/1917 [30j) making children's allowance applicable to illegitimate children. JS'bithing; has been paid sinca. The complaint was lodged on 26th August, 1919. The defendant' admits the paternity of the child, but) seeks to escape on the plea that the complaint was not laid within six yea.rs after the birtjh of the child, under subsection 5 of section 8 of "Destitiite Persons Act, 1919," which provides that "no affiliation order shall be j made unless the complaint is made wit(hin six years after the birth of the child, unless the person so alleged to be the father of the cliikl cohabited with the mother as man and wife}, in which case the complaint may be made at any time aftw the expiration of the said six years, if within the. twelve* months immediately preceding the 4 making of the complaintt the person co .alleged to. be the father of the child has contributed to or provided. for the maintenance of the child, or has so cohabited w Tit<h its mother."

Tho dtefenoe^ set iip" 'is purely technical and has no merit on the facts. The defendant docs not deny that the child is. his, trat blocked progress in tihe first instance by signing the deed referred to. and then managed to keep gut of the girl's way for some years,: assisted mainly by his own wrong-doing, by which he, got himsedf into gaol for some yelu*s for tampering with another girl, aftler which he goes into camp and still succeeds in keeping out of the girl's ranch; ancl finally, when discovered, he seeks to; escape his obligations to tho child by tjho time limit in the Statute which has run out while ho ha© been keeping out of the way. : I' am noti inclined to accept a defence of this slort df itt, can be overcome; and I think in this case the defendant's objection may be met in"* two. ways. In the filrst place provision was made for the child by the execution of the deedi referred to which is a provision for the child until.silie arrives at tho age of fourteen, and was in full force from the time of its execution down tfo the present time, and was a provision di(ring the . (twelve months immlsditately. preceding the lodging of the complaint.- In the second place, tho payment in December, 1918. through the military authorities 'of £12 Is 6d, while the defendant was in their custody and control, and subject' to their discipline, was a contribution rfco or provision for the maintenance of tihe child within the twelve months immediately preceding the lodging of the complaint. The defendant says he did not know of the payment, but I ,don't believe him. It is not confKist'fenft with* the evidence of his own witness. Captain Logan, an officer who has had experience in the payments from camp to soldiers' / children, and who says that it is the military practice to letv the soldiers know what allow-vnco the children are getting from time to time. Moreover, defendant admittted in crossexamination that tho camp paymaster told him that provision was made b3 r which illegitimate children of soldiers would receive allowance, and tjhis child WrMiidi iuive .to be provided foV out 0? his pay. At any rate h© has taken no steps since he \&h camp to repudiate the payment, and non-repudiation is evidence of ratification. In tho case-Moor v. Mcllae, Gaz. L.R., Vol. 2, p. 726, his Honor the Chief Justice^ ruled tihat where an a-gont docs something •even witho.it authority, and there, is tho relation of principal and agent, and tho principal becomes aware of the act and does not repudiate it, there is evidence from which adoption of the agent?s act may Jbei presumed." I think that ruling is applicable to the present one. Tlitr defendant will be declared putative father of the child, and an order madie for payment of 15s per week for her maintenance until she attain the age of sixteen years; £25 allowed for past maintenance, payable within a month. Costs allowed, £2 2s solicitor's fee; payments of maintenance "to be made ■every four weeks to tho Clerk of th-3 Coui't, Picton: first payment, loth December, 1919.