"x x x.
So Delia already filed a complaint affidavit before the Cebu Provincial Prosecutor against Andersen for violation of Section 5 (e) (2) of R.A. 9262 otherwise known as “Anti Violence against Women and their Children Act” which considers “depriving or threatening to deprive the woman or her children of financial support due her or her family” as an act of violence against women and their children.
After preliminary investigation the Prosecutor charged Andersen before the Regional Trial Court (RTC) of “willfully, unlawfully and deliberately depriving, refusing and still continue to deprive his son of financial support legally due him.” Upon motion of Delia, after due notice and hearing, the RTC issued a Hold Departure Order against Andersen. Consequently, he was arrested and subsequently posted bail.
But subsequently on motion of Andersen, the RTC dismissed the criminal case since he is a foreign national and therefore not subject to our national law particularly the Family Code (FC, Article 195) in regard to a parent’s duty to give support to his child. Consequently, the RTC said he cannot be charged of violating R.A. 9262 for his alleged failure to support Rodger. Was the RTC correct?
According to the Supreme Court where the case was appealed via a petition for certiorari of Delia on purely a question of law, the RTC is correct in ruling that Andersen is subject to the laws of his country, not to Philippine Law (Art.195 FC) as to whether he is obliged to support his child as well as the consequences of his failure to do so.
This does not mean however that Andersen is not obliged to support Rodger altogether. Since he wanted to apply the national law of Netherlands in advancing his position he should have properly pleaded and proven said law. But in this case he never proved the same. And since the foreign law involved is not properly pleaded and proved, our courts will presume that the foreign law is the same as our local or domestic internal law which enforces the obligation of parents to support their children and penalizes non-compliance therewith. Besides, in the second page of the Divorce Covenant presented by Andersen himself, his obligation to support his child is specifically stated.
Furthermore, even if the national law of Netherlands states that parents have no obligation to support their children or that such obligation is not punishable by law, said law shall not be applied here because it is contrary to the sound and well established public policy of the Philippines as it would work great injustice to the child to be denied of financial support. So Andersen may be held liable under Section 5 (e) and (i) R.A. 9262 for unjustly refusing to give support to Delia’s son (Del Socorro etc. vs. Van Wilsem, G.R. 193707, December 10, 2014)
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E-mail: attyjosesison@gmail.com.
x x x."
Read more: http://www.philstar.com/opinion/2015/03/04/1429850/presumed-be-similar#ixzz3TOfVNKUV
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