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Maintenance of Illegitimate Children Act

LAWS OF TONGA

[1988 Ed.]

CHAPTER 30

MAINTENANCE OF ILLEGITIMATE CHILDREN

ARRANGEMENT OF SECTIONS

SECTION
1 Short title.

PART I - AFFII IATION AND MAINTENANCE ORDERS

2. Procedure on application for affiliation order.
3. Affiliation proceedings before birth of child.
4. Attorney-General may make complaint.

PART II - GENERAL PROVISIONS AND PROCEDURE

5. Power of Magistrate to cancel, vary or suspend order
6. Evidence of mother in affiliation proceedings.
7. Recovery of arrears.
8. Person subject to maintenance order not to leave Tonga without permission.
9. Penalty for default in payments under an order.
10. When service of summons may be dispensed with.
11. Orders need not be served on defendant.
12. Magistrate may order possession of defendant's Tax 'api be given to complainant.
13. Rules for taking evidence of witnesses outside district of Court hearing complaint.
14. Operation of order not suspended by appeal.

PART III - ADOPTION OF ILLEGITIMATE CHILDREN

15. Illegitimate person may be adopted.
16. Application to be made to Supreme Court. Discretion of Court.
17. Person adopting illegitimate person shall be guardian.
18. Adopted person to bear name of guardian.
19. Re-acquisition by adopted person of Tongan Nationality.
20. Forms and fees.

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Acts Nos. 10 of 1906, 19 of 1926, 7 of 1955,
4 of 1967, 14 of 1974, 11 of 1987, 46 of 1988.

AN ACT TO PROVIDE FOR THE MAINTENANCE OF ILLEGIMATE CHILDREN

[29th July, 1926]

Short title.
1. This Act may be cited as The Maintenance of Illegitimate Children Act.

PART I - AFFILIATION AND MAINTENANCE ORDERS

Procedure on application for affiliation order.
2. (1) On complaint on oath made before a magistrate-

(a) by the mother of an illegitimate child that any person is the father of that child; or

(b) by any reputable person other than the mother of the child that any person is the father of an illegitimate child and has failed or intends to fail to provide for its adequate maintenance or to pay the expenses of and incidental to the birth or death of that child; or

(c) by the Attorney-General where he has reason to believe that any person is the father of an illegitimate child and has failed or intends to fail to provide for its adequate maintenance or to pay the expenses of and incidental to the birth and of and incidental to the death (if the said child has died) of that child and that no other person has made or is about to make complaint in accordance with this section.

(Amended by Act 46 of 1988.)

a magistrate may issue a summons against the person so alleged to be the father of the child to show cause why an affiliation order should not be made against him.
(Substituted by Act 7 of 1955.)

(2) The magistrate hearing the ,complaint, on being satisfied of the truth thereof, may make an order-

(a) adjudging the defendant to be the father of the child; and

(b) direct that the defendant's name be entered upon the register.

(Amended by No. 11 of 1989)

(3) In such order or in a separate order, unless the child is dead before the making of the order, the magistrate may also order the defendant to pay at such times as the magistrate thinks fit a reasonable sum of money at a rate not exceeding $15 per week towards the future maintenance of such child until it attains the age of 16 years and may also order the defendant to pay such sum as the magistrate thinks fit on account of the expenses of the birth of such child whether born alive or dead, and the expenses of and incidental to the funeral of the child if it is dead before the making of the order, and any sum not exceeding $50 on account of the past maintenance of the child before the making of the order.

(Amended by Act 11 of 1987.)

(4) The moneys ordered to be paid by the defendant on an application in accordance with section 2 shall be paid either into Court to the Clerk or to the person entitled thereto, as the Magistrate hearing the application shall direct. Moneys so paid into Court shall be paid out by the Clerk to the person entitled thereto.

(Added by Act 7 of 1955.)

(5) No affiliation order shall be made if the complaint is made more than 3 years after the birth of the child unless the person alleged to be the father has contributed in any way to the maintenance of the child or has since the birth of the child cohabited with the mother as man and wife, in which case the complaint may be made at any time after the expiration of 3 years if within the 12 months immediately preceding the making of the complaint the person so alleged to be the father has contributed in any way to or provided for the maintenance of the child or has so co-habited with its mother:

Provided always that if at any time the person so alleged to be the father of the child has been absent from the Kingdom, the period of his absence shall not be counted in computing the respective periods of 3 years or one year.

(6) No complaint or affiliation order shall be made if the child is over 16 years of age at the time of the complaint or has before that time married or died under 16 years of age.

Affiliation proceedings before the birth of child

3. (1) On complaint on oath made by any person that the complainant is an unmarried woman and is with child and that any person is the father of that unborn child, a magistrate may summon the person so alleged to be the father of that unborn child to show cause why an affiliation order should not be made against him.

(2) The magistrate hearing the complaint on being satisfied of the truth thereof may make an affiliation order adjudging the defendant to be the father of the unborn child.

(3) If at the time of the making of the order the child is already born the magistrate may also make an order for the payment of maintenance and other moneys as in the case of an affiliation order made under section 2 hereof, but no order for the payment of maintenance or other moneys or the supply of any food shall be made until after the birth of the child.

(4) At any time after the birth of the child and whether the child is then alive or dead, a magistrate on the complaint on oath of the mother of the child or some reputable person that an affiliation order has been made as aforesaid and no order for maintenance has yet been made, may summon the person adjudged to be the father of the child to show cause why a maintenance order should not be made against him to provide adequate maintenance for the child and the expenses of and incidental to the birth or death of the child; and any such complaint shall be heard and determined before any magistrate who need not be the magistrate by whom the affiliation order was made.

(5) At such hearing the affiliation order shall be conclusive proof of the paternity of the child and the magistrate hearing the complaint may make an order against the defendant ordering him to make such payments whether on account of the maintenance of the child or otherwise as might be ordered to be made on a complaint under section 2 hereof.

Attorney-General may make complaint.
4. (1) If, at any time after the birth of an illegitimate child relating to which an affiliation order has been made but no order has been made for the maintenance of or the expenses of and incidental to the birth or the death of such child, the Attorney-General has reason to believe that no person has made or is about to make complaint in accordance with section 3(4) hereof it shall be the duty of the Attorney-General to make such complaint himself or by his representative.

(2) On the hearing of such complaint by the Attorney-General or his representative the Court shall have power to make any order or orders it could have made under sections 2 and 3 hereof.
(Added by Act 7 of 1955, and Amended by Act 46 of 1988.)

PART II - GENERAL PROVISIONS AND PROCEDURE

Power of magistrate to cancel, vary or suspend order

5. (1) Any magistrate may at any time on the complaint on oath of any person make an order cancelling varying or suspending any maintenance order (whether made by himself or any other magistrate) or substituting a new order therefor on the ground-

(a) that the order so made was obtained by fraud or perjury; or

(b) that since the making of the order new and material evidence has been discovered; or

(c) that since the making of the order circumstances have so changed that the order ought to be cancelled, varied or suspended or that a new order ought to be substituted therefor.

(2) The powers conferred by subsection (1) to cancel or vary any order, shall include the power to remit wholly or in part any arrears due under the orders and any such arrears may be remitted either on the grounds hereinbefore in this section mentioned or, if the magistrate in his discretion thinks fit, on the ground that the person liable is not of sufficient ability to pay the same.

(3) When any complaint is made under this section, a summons to answer the same shall be issued to such person or persons as the magistrate directs.

Evidence of mother in affiliation proceedings.
6. (1) The evidence of the mother of an illegitimate child or of any woman who is with child as aforesaid shall not be necessary for the making of an affiliation order or maintenance order.

(2) No person shall be adjudged to be the father of an illegitimate child upon the evidence of the mother or of a woman who is with child as aforesaid unless her evidence is corroborated in some material particular to the satisfaction of the magistrate

Recovery of arrears.
7. (1) All moneys payable under a maintenance order shall as soon as they are in arrear and unpaid constitute a debt due by the person against whom the order was made to the person to whom the moneys are payable in pursuance of the order, and may be recovered by action in any Magistrate's Court or in the Supreme Court if over the sum of $500. The Court shall have the power to award the plaintiff costs of any action and proceedings hereunder and the return of all fees paid.
(Amended by Act 11 of 1987.)

(2) Such action for the recovery of arrears as aforesaid may be taken by the Attorney-General or his representative in the name of the complainant but this subsection shall not be construed as in any way affecting the right of the complainant to bring such action in person should the Attorney-General or his representative fail to do so.
(Added by Act 7 Of 1955 and Amended by Act 46 of 1988.)

Person subject to maintenance order not to leave Tonga without permission.
8. Every person against whom a maintenance order has been made and who while any moneys payable under the order are in arrear and unpaid or with intent to disobey a maintenance order leaves or attempts to leave the Kingdom without the permission in writing of a magistrate, shall on conviction thereof before a magistrate be liable to imprisonment for any term not exceeding 2 years. In any prosecution for such offence the burden of proof that the permission of the magistrate was given shall be upon the accused.

Penalty for default in payments under an order

9. Every person who without reasonable cause makes default for 14 days in the payment of any money payable by him under a maintenance order shall be guilty of an offence and shall on conviction thereof before a magistrate be liable to a fine not exceeding $50 and in default of payment to imprisonment for any period not exceeding 6 months and no such fine or imprisonment shall operate so as to extinguish or affect the liability of the accused under the maintenance order.
(Amended by Act 11 of I 987. )

When service of summons may be dispensed with

10. When any complaint has been made under this Act or any summons issued and it is proved to the satisfaction of the magistrate that the defendant is absent from Tonga or that he keeps himself concealed or away from his usual place of residence so that he cannot be found, the magistrate may hear and determine the complaint in the same manner as if the defendant had been duly served with a summons.

Orders need not be served on defendant

11. It shall not be necessary to serve a copy of any order made under this Act on the defendant.

Magistrate may order possession of defendant's tax api be given to complainant.
12. Should the magistrate make any order for maintenance against any person and such person either refuses or neglects to obey such order or is absent from the Kingdom, the magistrate may order that the possession for the time being of the tax api of such person be given to the mother of such illegitimate child or other person applying on behalf of such child, and the produce of such tax api shall be used in support of such illegitimate child. No order under this section shall in any way relieve the taxpayer from his obligations under the law in regard to such tax api.

Rules for taking evidence of witnesses outside district of Court hearing complaint.
13. (1) If it appears to the magistrate by whom any proceedings taken under this Act are to be heard that any witness in such proceedings resides or is in any district other than that in which the proceedings are to be taken, the magistrate when issuing a subpoena to such witness may in his discretion order such witness either to attend before him and give evidence or to attend and give his evidence before the magistrate of the district where such witness resides or is.

(2) A magistrate on making any order under this section for the taking of the evidence of a witness before a magistrate of another district shall cause a copy of such order to be transmitted to the magistrate before whom the evidence is to be so taken.

(3) The magistrate to whom the copy order has been transmitted shall on receipt thereof cause the witness named therein to be served with written notice of the day and place of the taking of the evidence of such witness.

(4) On completion of the taking of such evidence, a transcript thereof shall be prepared and the magistrate before whom such evidence was taken shall sign and seal such transcript and forward it (together with any documents given in evidence) to the magistrate by whom the order for the examination of the witness was made.
(Amended by Act 46 of 1988.)

(5) The magistrate by whom the proceedings are to be heard may accept and act on the evidence so taken as if such evidence had been given before him at the hearing of the proceedings.

Operation of order not suspended by appeal.
14. On any appeal to the Supreme Court by any person, the operation of an order made under the provisions of this Act by any magistrate shall not be suspended by any such appeal and such order may be enforced in the same manner in all respects as if no such appeal was pending.

PART III - ADOPION OF ILLEGITIMATE CHILDREN

Illegitimate person may be adopted

15. (1) An illegitimate child under the age of 21 years may, with the consent of the mother, be adopted by another person.

(2) The Supreme Court may, in the interest of the child, dispense with the consent of the mother where the mother-

(a) has abandoned, neglected or persistently ill-treated the child;

(b) cannot be found;

(c) is incapable of giving her consent; or

(d) unreasonably withholds her consent.

(Substituted by Act 4 of 1967.)

Application to be made to Supreme Court. Discretion of court.
16. (1) Any person desiring to adopt an illegitimate person shall apply to the Supreme Court for Letters of Adoption.

(2) The Court may refuse to grant Letters of Adoption to any person whom it may consider not fit or proper.

Person adopting illegitimate person shall be guardian

17. The person to whom Letters of Adoption have been granted by the Court in respect of an illegitimate person shall be the legal guardian of that person and shall be responsible for the maintenance and education of such illegitimate person.

Adopted person to bear name of guardian.
18. The adopted person shall bear the name of and be deemed to be of the same nationality as the person to whom Letters of Adoption have been granted by the Court.

Reacquisition by adopted person of Tongan nationality.
19. Any adopted person of Tongan nationality by birth who has attained the age of 21 years and has by reason of his adoption become of other nationality may apply to the Supreme Court for Letters of Admission to be again admitted as a Tongan subject.

Forms and fees

20. (1) The forms to be used in respect of proceedings under this Act shall be as set forth in the Schedule.

(2) The fees payable in respect of proceedings under this Act shall be as set forth in Part VI of the Schedule to the Court Fees Act.

(Inserted by Act 46 of 1988.)

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