Unreported National Court Decisions
N256
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
BETWEEN
YONGOMAN TONGOLE
PETITIONER
AND ALFRED TONGOLE
RESPONDENT
AND 3 OTHERS
RESPONDENTS
Waigani
Narokobi AJ
8-9 September 1980
NAROKOBI AJ:  The petitioner is Yongoman Tongole. She is seeking an order for dissolution of marriage on the ground of adultery of her husband, Alfred Tongole, the first respondent. The parties were first married by custom. They later married by the United Church rites on December 18th, 1971 at Tari, Southern Highlands. By this marriage, the couple had two children, Kili and Jackson Tongole. Kili, a girl was born on the 13th September, 1972 while Jackson Tongole, a boy was born in October, 1974. The petitioner and the respondent are two automatic citizens of Melanesian stock. They are both residents of Papua New Guinea and have the domicile of P.N.G. These are matters not in dispute and I so find.
I am satisfied there is no likelihood of reconciliation.
The petition is contested, although one allegation of adultery, relied upon by the petitioner was admitted.
Much of the facts relied upon in the petition by the petitioner was not strongly alleged in examination in chief. Adultery with Elizabeth took place prior to the marriage under the Marriage Act. It would be relevant for dissolution of a customary marriage. It is not necessary for me to make any positive finding on this allegation to allow the petition. However, it is a matter for consideration in terms of character when I come to deal with the question of custody of the children and access.
In any case, it would appear from the petition, in paragraph 11, that the matter has been condoned when the respondent offered to mend his ways in 1975.
In the statement of facts, it is further stated that in January, 1976, the respondent committed adultery with the first co-respondent, Sigum Makape. This was admitted to by the respondent but that it was conduced to by the petitioner by her dissension, leaving him lonely, thus forcing him to the company of the first co-respondent. The petitioner, it was claimed by the respondent condoned the respondent by resuming cohabitation and submitting to sexual intercourse.
Again, if I were to believe the respondent on this point, I may still in considering custody, refer to this factor in considering the character and suitability of each parent.
The significant fact here is that the respondent has admitted to adultery. I think it is fair to conclude that the respondent’s adultery forced the petitioner out of the matrimonial house in the first place. Her absence offered another excuse for Alfred Tongole to commit adultery with the second co-respondent.
There is nothing in the allegation that the first respondent committed adultery with the second co-respondent H.A. Mr. Donigi for the first respondent properly applied for the dismissal of this co-respondent. This order was not opposed and I made the order sought.
However, on reflection, I must say, that the co-respondent did admit to having formed a non sexual friendship with the second co-respondent. I find the relationship was not sexual. It is certainly indiscreet and tells ill of the co-respondent in the assessment of his overall character.
The allegation that the co-respondent stated in public to a village court gathering that he intends marrying the third co-respondent has been denied. It was not further strengthened and I think it unnecessary to make any finding against the first co-respondent on this point.
The respondent admits to adultery with the third co-respondent. He says this was because he was being locked out, denied sexual intercourse, refused admission to his own house, that his wife refused to cook for him and refused to wash his clothes.
These, says the first respondent, turned him to the company of the third co-respondent. I think it was a consequence of his previous misconduct and not because of his wife’s refusal to consummate or cook or clean or wash.
The respondent’s own evidence shows that he continued to commit adultery with the third co-respondent from October 1979 to some time before Christmas 1979. This occurred after the petitioner had left the matrimonial home and before this petition.
Clearly, the petitioner is not at fault such as would bring a discretionary bar under s. 34 (d) of the M.C.A. against her.
If the previous adultery was conduced, which I think not, then certainly the adultery with the third co-respondent between October and December 1979 was not conduced by the petitioner.
I think it would be wrong to say that the first Respondent’s adultery with the third co-respondent had nothing to do with the conduct of the petitioner. I think it had a lot to do with adultery, that being the nature of man. But, looking at the sexual conduct of the respondent, it would be fair to conclude that the petitioner’s refusal to have sexual intercourse, to cook, to wash and to sweep was not the sole causal connection.
There is a misguided conception of the Melanesian woman that she is no more, no less than a cook, a laundry girl, a sweeper and a passing sexual outlet for the aggressive male. Traditional societies show the Melanesian woman as a partner in making a living out of the land.
In their wisdom, the founding fathers of the Constitution called for “equal participation by women citizens in all political, economic, social and religious activities” (National Goals and Directive Principles - Equality and Participation 2 (5)).
In Directive (12) a recognition is made of the principles that a complete relationship in marriage rests on equality of rights and duties of the partners, and that responsible parenthood is based on that equality.
The family unit is the fundamental basis of Melanesian Society. Every step is to be taken to promote its moral, cultural, economic, and social standing. By his conduct, the respondent fell far short of duties expected of him as a husband and a father.
It is to be expected that a spouse might be attracted to another and thus fall to temptation. But repeated failure is, in my view, a failure to discharge parental and husbandly duties required under the Constitution.
A woman who demands equal rights must of course accept equal social obligations. She cannot take all the privileges or rights and not shoulder her duties.
For some it is difficult enough committing a single life to one spouse. It makes life more difficult for all concerned when, as in the respondent’s conduct, he involved himself with other women, outside marriage.
I find nothing in the conduct of the petitioner to stop me from exercising my discretion in her favour. On the basis of the respondent’s adultery with the third co-respondent, I grant in favour of the petitioner, dissolution of marriage.
This is done, not without sorrow. Here ends a relationship that seemed to have worked for almost 10 years. Through that relationship, two young citizens of this country have come about.
Whatever orders I will now make regarding the other matters, I wish to express my deep yearning that both parties will go out of this court without bitterness towards each other.
You have tried to make something of your lives. It has not worked. Respect each other, even if you cannot find the hearts to love each other. And please, help your children to grow up and respect both of you as their rightful and proud parents. Help them to understand their Constitution.
Adults do not own children. Parents are no more than the privileged custodians of their children. The children are sons and daughters of the universe. They belong to the world and the world belongs to them. Papua New Guinea is theirs. All we can do is help them grow up in the hope that where we fail, they may succeed, and that where we succeed, they may excel. Parents should help children grow up to choose either or both societies.
Now, I must turn to the specific requests of each of the parties.
CUSTODY
I deal first with custody of the two children. In resolving this issue, the welfare of the children is of paramount consideration.
At the outset, I would say that in my view, both parents are qualified to have custody of the two children.
There is certainly evidence to suggest that the father was inclined towards extra marital intercourse. However, in the urban sense of morality today, I could not say that this factor alone would exclude the respondent.
I ask myself whether paramountcy excludes all other considerations? What then is paramount welfare? Barry J. of the Supreme Court of Victoria was of the view that this means that all other considerations are excluded (see Curatero v. Curatero[cclxxx]1). This view was not shared by the Victorian Full Court in Priest v. Priest[cclxxxi]2. The N.S.W. Court of Appeal in Cantrill (Whatman) v. Whatman[cclxxxii]3 held the same view as the Victorian Full Court.
Finlay says in “First or Paramount? - The Interests of the Child in Matrimonial Proceedings”[cclxxxiii]4 that the dispute is largely semantic.
Judges in Australia have often emphasised the so called superior right of the so called innocent spouse. (See for example Priest v. Priest (supra)[cclxxxiv]5 and per Selby J. in Gallaghan v. Gallaghan[cclxxxv]6 and Chisholm v. Chisholm[cclxxxvi]7).
I think, in P.N.G., it would be wrong to exclude fault altogether at the present time of our social and cultural development. It must be a factor to consider against others. This point was adverted to by my former lecturer Hutly J.A. in Barnett v. Barnett[cclxxxvii]8. He says parenthood enters as a dominant, but not a dominating factor, in considering the welfare of the children.
The issue really is not what is just or fair to the parents but rather what will be in the best interest 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.
In J. v. C.[cclxxxviii]9 Lord MacDermott was of the opinion that 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.
The claims of one particular parent is to be considered. As far back as 1865, Romilly M.R. said in Austin v. Austin[cclxxxix]10 that a young child of either sex or a girl of any age is best placed in the custody of the mother. See also Hartnett v. Hartnett[ccxc]11. But a boy over 8 is best placed in the custody of his father, so says Dean J. in Priest v. Priest (supra)[ccxci]12.
I think the High Court of Australia was more accurate when it said in Kades v. Kades[ccxcii]13 that this is presumption based on experience. It is not a presumption of law.
In McLeary v. McLeary[ccxciii]14, Williams J. preferred the view of Latham C.J. in Lovell v. Lovell[ccxciv]15 a view which he later adopted in Anis v. Anis[ccxcv]16. Latham C.J. said that “it is wrong to approach this case upon the basis that the welfare of the infant is the only consideration to be taken into account and that the conduct of the parents is immaterial”.
The Chief Justice in that case also said that 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, and so has a right which is superior to that of the father.
This view, His Honour held was not inimical to the common sense view that small children will be better looked after by their mother than by their father, particularly in the case of female children.
Parental behaviour is a consideration. As I have indicated, there is nothing to suggest either party is incapable of taking custody of both children, nor is there anything to suggest either spouse is disqualified.
Mere proof of adultery or immorality does not deprive a spouse of custody. (See Thomson v. Thomson[ccxcvi]17). But as I mentioned, I would be obliged by conventional morality, especially when children of tender years are involved, not to depart from conventional morality. I would certainly accept polygamy, but I would not allow free sexual associations. (See Chisholm v. Chisholm[ccxcvii]18). But that was a case in which the mother was living in a de facto relationship with a married man.
In Australia, there is a trend towards judicial neutrality in regard to sexual activity of the spouses; as illustrated by cases such as Campbell v. Campbell[ccxcviii]19. That was a case in which Bright J. granted custody to a lesbian mother.
Religion is another important factor. But of course in the face of freedom of conscience, whoever the children are given to is entitled to bring the children up in any or no religion of his or her choice. (See also Hanrahan v. Hanrahan[ccxcix]20). In the present case, both spouses were United Church members. The issue was not raised and I can only assume it is not of much concern to either party.
At the conclusion of the trial, I asked to be advised what the views of the parties would be if I tried to emulate King Solomon, in a sense it was mischievous of me to do so. But it was done innocently. It produced remarkable responses.
The petitioner said she considered the welfare of the children would require that the children be together. Naturally she would prefer both. The father also preferred both, but if he had to choose, he would naturally prefer his son.
I see nothing special in this case to warrant dividing the children.
As far as accommodation and earnings go, the father has an advantage. But it is an advantage that has no great superiority to that the mother has provided, much to her credit.
In spite of her modest salary, she is not seeking maintenance for herself, a view to my mind is consistent with Melanesian attitude towards divorce and would seem to be in line with any assertion to equality of sexes.
Both parents are within the school grounds at Korobosea. The father is closer, but the mother is not too far off at 2 Mile Hill. The present arrangements concerning school made by the petitioner are quite satisfactory indeed.
There is an aspect of the arrangements proposed by the respondent that are not altogether satisfactory, in my view and would appear to be inferior to what the petitioner can offer.
The respondent would bring his sister down from the village to care for the children. In a sense this would give them what they would miss from their mother.
But I see no sense in doing this when the natural mother is virtually next door. If the children are going to compete with Australian children in international schools, I think all must agree, they should be with their mother, who I believe will be in continuous contact with the children after school. She is educated and has shown she can care for the children.
This is what I propose to do about custody. I know it has never been done before in this country. But that is no excuse for not doing it.
I propose to grant joint custody to the parents of the two children. To me, custody is an aspect of guardianship or trusteeship by which parents or those granted custody will have personal care, control and duty, and authority over the children both physically, spiritually and materially.
This is to continue until each reaches 16 years of age.
ACCESS
Naturally, two divided parents cannot have joint custody at any given point in time. Thus, a carefully ordered programme of access is important to ensure that the actual physical control remains with a particular parent at any one time.
This is what I propose:
(1)      For the rest of this year, during the school term, the children are to be in the physical care and control of the petitioner.
(2)      That in this period, the father is to have access to the children, including taking physical care and control of the children any three week days a week between the hours of 4.30 p.m. to 7.30 p.m., and on Sunday from the end of Sunday service at 11.00 a.m. to 6.00 p.m.
(3)      The children are to spend all their vacation with the mother, but that by prior consent of the petitioner, the children may be taken out by the father for some part of that holiday.
(4)      For next year and the subsequent years, and so long as both parties remain in Port Moresby, the following arrangements concerning access are to apply:
(a)      The children are to be in the care and control or custody of the father in the first 6 months of 1981, with the mother having access in the same terms applying to the father in (2) above.
(b)      In the second half of the year, 1981, the children are to be in the care and control or custody of the mother, with access going to the father, but that they are to spend their Xmas vacation with the Petitioner.
(c)      The parties are to alternate in having custody and access of the children until each reaches 16 years of age, in six monthly periods where one party has physical custody, the other shall have access.
(d)      In the event that one party should leave Port Moresby or should they cease to live close to each other, they shall apply to the National Court for a new order.
MAINTENANCE
I will make an award for maintenance in the following manner:-
In the period in which the children are in the care and control or custody of the petitioner, the respondent is to pay the petitioner a sum of K20 per week per child, until 16 years of age and K10 per week for rent and accommodation.
In addition, the respondent is to meet 90% of the school fees of the children while the petitioner is to meet 10% of the cost of education of each child each year.
When the children are in the custody of the respondent, the respondent shall not pay any maintenance or rental or accommodation in respect of the children.
The petitioner shall not be obliged to pay any maintenance towards the children when they are in the custody of the father.
LAND RIGHTS
In my view, Mr. Donigi was right in describing land rights according to the lineal descent in patrilineal societies. The rights automatically flow to the male sons, with no automatic rights to daughters. But a father may by a positive act deny a son, if that son fails to fulfil obligations expected of him.
But Ms. Thompson is also right in that land rights don’t really extinguish upon granting to custody to say the mother. Those rights are natural and automatic. But if the children do not make any contact with the father, then they are presumed to have refused their would be rights.
The approach I have taken ensures that the children have close contact with their father and may lay claim to and obtain rights over land, if they should meet other requirements by Huli custom.
I think it would be unfortunate if their rights to their father’s land were denied merely because custody was granted to the mother. Naturally of course, if children grow up away from close association with the father, they lose close contact and would be strangers on their father’s land.
As far as the return of bride price payments are concerned, I do not have enough facts to decide on this point. The petitioner’s evidence was that her line owes nothing to the respondent. This was not challenged. However, she did not appear to know a great deal about bride wealth payments beyond the fact that a day or so after the bride price was paid, the woman’s line also paid an amount in pigs to the man’s line.
My experience suggests that usually the woman’s line pays less and if she faults after marriage, her line pays the balance. If the man faults, the bride price is forfeited upon marriage ending.
In this case, I find that it was the Respondent’s adultery which led to the dissolution of marriage. Accordingly I would rule that so much as custom would apply to prevent recovery of the rest of the bride price, if any, apply. The respondent is therefore denied the right, by his adultery, to lay claim to the balance, if any of the bride price.
In deciding this case, I have made liberal and extensive use of the National Constitution, the Native Customs Recognition Act, the Matrimonial Causes Act and the Schedule to the Constitution.
COSTS
As far as costs are concerned, I make the following orders:
The Respondent is to pay his own costs and in addition he is to pay three-quarters the taxed costs of the petitioner.
Solicitor for the Petitioner: Young & Williams.
Counsel: R. Thompson.
Solicitor for the Respondent: Ikenna Nwokolo & Co.
Counsel: P.D. Donigi.

[cclxxx](1968) A.L.R. 249
[cclxxxi]9 F.L.R. 384 (at 393 - 397 per Herring C.J. at 404-405)
[cclxxxii]15 F.L.R. 10
[cclxxxiii]42 A.L.J. 96
[cclxxxiv]9 F.L.R. 384 (at 393 - 397 per Herring C.J. at 404-405)
[cclxxxv]9 F.L.R. 331 at 336 per Selby J.
[cclxxxvi]7 F.L.R. 347 at 351 per Selby J.
[cclxxxvii](1973) 2 A.L.R. 19 at 25
[cclxxxviii](1970) A.C.668 at 710 -711
[cclxxxix](1865) 34 Bear 257 at 263.
[ccxc](1954) V.L.R. 533
[ccxci]9 F.L.R. 384 at 405, 406
[ccxcii](1961) 35 A.L.J.R. 251 at 254
[ccxciii]Unreported judgment 737 of 3rd May, 1973.
[ccxciv](1950) 81 C.L.R. 513
[ccxcv](1977) P.N.G.L.R. 5 at p. 9.
[ccxcvi](1966) 2 N.S.W.R. 534, 548 per Jenkyn J.
[ccxcvii]7 F.L.R. 347
[ccxcviii](1974) 9 S.A.S.R. 25
[ccxcix](1972) 1 F.L.R. 262 at 266-267.