Papua New Guinea Law Reports - 1990
[1990] PNGLR 322
N882
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
WAN
V
KAIL KOMUN
Mount Hagen
Woods J
6 July 1990
13 July 1990
INFANTS AND CHILDREN - Custody - Automatic citizens - Application of Infants Act - Relevance and importance of customary law - Strong evidence of custom in rural area - Claim by relatives of deceased father - Three year old female child - Claim granted - Infants Act (Ch No 278), s 2.
Held:
(1)      The Infants Act (Ch No 278) by virtue of the bringing into operation of the Revised Laws in 1982, applies to children who are automatic citizens.
Re Sannga Deceased [1983] PNGLR 142, distinguished.
(2)      In respect of an application for custody of an automatic citizen from an isolated rural area where the social structure is predominantly laid down by custom, the welfare of the child (in addition to other considerations) must include, his or her social security, relevance to the line in which born and security in belonging to a larger group.
Bean v Bean [1980] PNGLR 307 at 320, considered.
(3)      The welfare and best interests of a three year old female child from a rural community whose father had died, would best be served under the influence and demands of custom (as to which there was strong evidence) in the custody of the father’s line.
Cases Cited
The following cases are cited in the judgment:
Bean v Bean [1980] PNGLR 307.
Re Sannga Deceased [1983] PNGLR 142.
Tongole v Tongole (Narokobi AJ, N 256, 9 September 1980, unreported).
Application
These were proceedings transferred from the District Court and treated as a contested application for custody.
Counsel:
The applicant in person.
The respondent in person.
Cur adv vult
13 July 1990
WOODS J.: The original complaint in this matter was laid in the District Court under s 3(1)(a)(iv) of the Deserted Wives and Children Act (Ch No 277). In the circumstances that would appear to be a misapprehension.
The complainant has not been deserted; rather her husband had died and relatives of the husband have taken custody of the child of the marriage.
The District Court transferred the matter to the National Court on the basis that this was a child custody matter and therefore the District Court had no jurisdiction.
However, on what basis do I have cognisance of the matter? It would seem to be either under the Infants Act (Ch No 278) or under the inherent jurisdiction of the National Court. As it is the mother who is seeking custody of her daughter I will deem the matter to be a claim under the Infants Act.
I might note here for the record that neither party was represented by counsel, both parties appeared in accordance with the order of the District Court transferring the matter.
I am satisfied that I have jurisdiction to hear the matter as an application under the Infants Act. Whilst on one interpretation it may appear that the case, Re Sannga Deceased [1983] PNGLR 142, suggests that the Infants Act has no application to automatic citizens I am satisfied that that case must now be distinguished. That case arose when the original Infants Act 1956 with the original s 5 was still in force. However since then, in 1982, the Revised Laws have come into force and the original s 5 was omitted. I am satisfied that the redrafting of the Infants Act was to not confirm a law completely cutting out any application of customary law but clarifying the relevance of a law to the majority of the people and ensuring a balance between custom and more modern concepts of child custody, where applicable, to fit into the changes taking place in Papua New Guinea society.
The newly drafted Act in s 2(1), which provides: “This Act does not restrict the jurisdiction of the Court to appoint or remove a guardian or otherwise in respect of infants”, must be seen as wide enough not to exclude whatever principles apply in any situation whether customary or modern. I find that the Infants Act (Ch No 278) does not exclude automatic citizens but that s 2(1) has a wider meaning than may have at first been envisaged. Otherwise the Act would be a complete anachronism in a country where the great majority of persons are automatic citizens. I am not disregarding the Supreme Court in Re Sannga, I am saying that, by virtue of the bringing into operation of the Revised Laws in 1982, the situation is now clarified. Of course I am going to have regard to the principle stated in the Sannga case on the role of customary law in a custody situation and I am satisfied that this is covered under s 2(1).
I am satisfied therefore that I have jurisdiction and it is a matter under the Infants Act if not still within the inherent jurisdiction of the National Court. Section 2(1) of the Infants Act is wide enough to ensure that this Court is not bound by what could appear to have been, in the old s 5 as referred to in Sannga, a very limited power. I must adopt a broad interpretation of the power of the National Court.
The above preamble is necessary in view of the nature of the evidence in the case.
The applicant is Janet Wan from Tomba in the Western Highlands Province, an area adjacent to and which has close links with the adjoining Tambul area. She was married by custom to Thomas Pak who came from Alkena village in the Tambul area. Bride price had been paid at the time of this customary marriage. They had gone to Kimbe in the West New Britain Province for work; however, the husband Thomas Pak died there in August 1988. At the time of his death they had an infant baby aged about one and a half years and named Joyce. The mother returned to Tambul and apparently in accordance with custom went to five in Alkena with her deceased husband’s brother and line. However, following some disagreement between her and her husband’s brother she left there and went to live with her parents at Tomba. In March this year, her husband’s brother came and took the child from her parents’ place at Tomba and took her back to Alkena. On the day in question the applicant was away from Tomba at Goroka. The respondent, Kail Komun, the deceased husband’s brother states that he took custody of the child because according to custom the child should remain with the father’s line and also because he says the child was not being looked after properly.
Apparently, following the death of Thomas Pak in Kimbe, some moneys were paid through the Labour Office at Kimbe to the applicant. The applicant states she received K6,000 from the Labour Office and she says that when she came to Alkena to live with her husband’s relatives she gave them K1,600.
The applicant is claiming custody of the child as she is the mother and therefore is entitled under the law to the sole custody, and further, that because the child is a female aged now just over three years she, as the mother, is the best person to take care of her. She says that she has her parents to help her look after the child and at this stage she is not considering getting married.
Kail Komun, the brother of the father of the child, is the respondent to this application and currently has custody of the child. He states that he and his family paid the bride price for his brother and that it is custom that the purpose for paying the bride price is to raise children and when a father dies the children should be with the father’s people and not with the mother’s people.
Both the applicant and the respondent brought witnesses to assist the Court with the custom that applies in the area.
The witnesses from the respondent did include close relatives of Kail Komun. However the general results of all the respondent’s witnesses can best be stated by what the provincial community development officer said when I asked him to assist the Court with a report. In his report he said as follows:
“It is the custom of Tambul as well as other parts of the Western Highlands province that when a man marries a wife his immediate family, the extended family and other clansmen contribute towards the Bride Price of the wife. The immediate and extended family members contribute in terms of cash, pigs and other valuables on the understanding that part of what they contribute will be refunded by the wife’s relatives.
It is also understood that in the long run it is a form of investment on this particular woman. She will bear children for the husband. The male children strengthen the number of men in the family and the clan as a whole. While the female children when they grow up and marry will bring wealth to the family and clansmen who have originally contributed towards the girls’ mothers bride price.
Now when a situation like the present one occurs the child remains in the fathers’ clan. The next of kin takes custody of the child and is adopted into the family. Whatever name was given in birth remains the same. The mother of the child has the freedom to chose. She may remarry a next of kin, a man from the same clan or she may remarry into another clan. If she remarries within the husband’s clan she may have access to her child. But if she remarries outside the husband’s clan then she cannot take her child with her. That is the normal custom rule.”
The witnesses brought to support the applicant did not really contradict the above analysis of custom of the area although they appeared to be more guarded in their evidence. One witness when asked what about the children, can the woman take the children away with her, said that if the husband had no brother or relatives to take care of the children then the wife can take care of the children. He also said that if the woman marries another man then the relatives of the husband have the right to look after the children. Another witness said that the relatives of the man’s clan have the responsibility to look after the wife and children.
I have, therefore, very strong customary evidence to support the respondent’s claim. And the rationale behind those customary principles (some of which are included in the analysis of the custom as stated above) are quite obvious.
On the other hand, I have the mother saying that she, as the mother, must have an overriding claim and such overriding claim is emphasised by the whole tenor of the Infants Act.
What is the overriding consideration when considering custody of children? The courts in Papua New Guinea have emphasised the welfare of the child as the paramount consideration. As Narokobi AJ said in Tongole v Tongole (Narokobi AJ, N 256, 9 September 1980, unreported):
“The issue really is not what is just or fair to the parents but rather what will be in the best interests of the children. The parents’ conduct in so far as it bears on the welfare of the children is of course important to look at.”
His Honour then quoted Lord MacDermott in J v C [1970] AC 668:
“the child’s welfare connotes a process in which all relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child’s welfare as that term has now to be understood.”
His Honour further noted that any concept that a young child of either sex or a girl of any age is best placed in the custody of the mother is only a presumption based on experience, it is not a presumption of law. He also noted Latham CJ in Lovell v Lovell (1950) 81 CLR 513 who said it is wrong to approach the case on the basis that the mother is entitled to custody in the case of a child of tender years.
Of course all cases considered have usually been cases of custody battles between the separated parents and the courts have been weighing up the respective rights and behaviour and conduct of the respective parents.
In the Supreme Court in Bean v Bean [1980] PNGLR 307, Kapi J noted (at 320) that:
“... the welfare of the infant is usually referred to as the comfort, health, moral, intellectual and spiritual welfare of the child. These elements, in turn, are fundamentally dependent on the existence of security, stability, wise discipline and genuine affection in the home.”
Further on his Honour noted that the fact that the mother had not remarried was not important, since her cousins, brothers and uncles could obviously be able to help look after the child. The reference in the case to the cousins, brothers and uncles is, I regard, as important as the consideration given to the solitary care that may be given by the individual parent. Family life is often the line of the wider family which still is important at least in the rural areas if not as strong in the urban areas.
So what is in the interests of the child. Her best interests must include her social security, her relevance to the line into which she has been born, the certainty and security of belonging to a larger group. Whilst I have no doubt that her mother and her mother’s relatives can give her love and affection and security there is no evidence before me to suggest that her father’s relatives will not equally give her all the love and affection and security she needs. It is all too easy for a Western cynic to seize on the words “while the female children when they grow up and marry will bring wealth to the family and clansmen who have originally contributed towards the girl’s mother’s bride price” and say she is just a chattel in a male dominated society and ignore the fact that as a possible future child-bearing member of the clan she must be of equal importance to the future of the clan or whichever clan she marries into.
I cannot ignore the custom of the area especially when it is an area still predominantly rural and well away from any large town and where the social structure is still predominantly as laid down by custom. There is nothing anathema in the custom that has been referred to me as applicable. The custom clearly is equally in the interests of the child. She will get security, and an equally loving and caring upbringing as she would get with her mother’s people. I find here that the influence and demands of custom must therefore predominate and this therefore means I must find in favour of the husband’s line. I award custody of Joyce Thomas to Kail Komun. Of course I expect that Kail Komun will allow Janet Wan to visit her daughter whenever she wants to.
Order for custody in favour of husband’s line