Unreported National Court Decisions
N925
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 179 OF 1990
IN THE MATTER OF OWEN MESI AND PETER MESI JNR
AND: IN THE MATTER OF THE APPLICATION OF MARIA BABOB
PLAINTIFF
AND: WILLIAM MESI & BUTU MESI
DEFENDANTS
Lae
Doherty J
24 August 1990
2 October 1990
5 October 1990
CUSTODY OF CHILDREN WHEN FATHER DECEASED - s 5(1) Infants Act applies to automatic citizens.
Two of the plaintiffs four children were taken or detained by the brothers of their deceased father. She asked for their return.
Counsel
Plaintiff in person.
Defendants in person.
Held
Since passing of the Infants (Clarification of Application) Act (Ch 278) the mother was guardian of the children by virtue of s 5 of Infants Act (Ch 278). There being no evidence of custom giving guardianship to any other person guardianship was vested by law in the mother. Custody awarded to the mother.
DOHERTY J:  The plaintiff has sought orders for the return of her two infant children Peter Mesi Junior, and Owen Mesi who have been in the custody of the defendant brothers. Both parties were self represented and gave evidence about events leading up to the present situation.
The plaintiff was married to Peter Mesi, a High School teacher formerly of Sio Village. The plaintiff is from Karkar Island in Madang Province. Peter was the elder brother of William Mesi and Butu Mesi and according to Butu Mesi, as the eldest in the family he would have certain land rights in Sio.
I do not know when the parties were married but there is no dispute that they were married and had three children. Owen Mesi Junior was the eldest then two girls who are not the subject of these proceedings and Peter Mesi Junior the subject of these proceedings who was born after his father’s death. Peter Mesi, the deceased father was a school teacher and in the course of his employment was transferred to various parts of the region. His last posting was to Bugandi High School in Lae. Butu Mesi also lived in Lae and is in the Police Force and subsequently William Mesi came to stay with Butu’s family.
There is no suggestion from any of the evidence that the marriage between Maria Babob and Peter Mesi was anything but a normal happy family relationship. Similarly there is no suggestion that there was any strained relationship between Peter Senior and his brothers’ families.
Peter Mesi Senior was killed in a car accident August 1987. The plaintiff was approximately two months pregnant at the time. The child eventually born was Peter Mesi Junior.
By all accounts the plaintiff then lived with William and Butu Mesi at the Police Barracks until claims for compensation for Peter Mesi’s death were settled. The exact nature of the compensation and the amount has not been stated.
In 1988 or 1989, the evidence differs somewhat, there was a traditional family feast or gathering for the death of Peter Mesi held in Sio Village. The plaintiff and her children were there and members of her family attended from Karkar Island. According to the evidence her eldest brother was present and in the course of the ceremony he made a commitment that the plaintiff and her children would remain at Sio, her late husband’s village. This announcement appears to have come as a considerable surprise to the plaintiff and there is no suggestion that she was consulted about it or a party to the decision. She was unhappy with this decision made on her behalf but remained for a while. She says ‘I hated Peter’s family’.
At this funeral ceremony, William had asked if the eldest boy, Owen could stay with them in Lae and later they would send him back to his mother. She agreed to this. She later went home to Karkar taking the other children with her.
When she asked for the return of Owen this was not forthcoming. She came from the village to Madang and subsequently to Lae. She was staying with the Mesis and sending funds home to the village to feed the two small girls. While there she formed a liaison on with an unnamed man.
This appears to have enraged the defendants. The plaintiff says she did this in an order to trick the defendants so she could get away from them that she was not interested in the other man, she told them she was going to Bundi Camp but instead went to Taraka. She said ‘it is true I tricked them’ ‘I hated my husband’s people so I just did that to escape from them and go back home’.
Apparently this action annoyed the defendants to the extent they then took Peter Junior from the plaintiff. She says that she had gone down to the Police to see Butu when William, in a drunken state, walked up, pulled Peter out of her hands and had a policeman close the gate disbarring her from getting Peter back. William Mesi says that he was not drunk, he was drunk during the night, he did not organise the closing of the gate but he concedes that has happened. He says his actions were due to hearing about the new man and in custom if a widow goes off a new man “the father’s line get the children and settle everything together and we say who the children will go to ...’
The defendants refused to return Owen and he has remained with the defendants since the time he was voluntarily sent to them at their request and on the understanding he would be returned. Peter Junior was sent to Sio village and was not returned until the interim order of this court.
There is no suggestion by either party that the other mistreats the children are unkind or negligent to them in any way or that their thoughts are other than for the welfare of the children.
I notice that Owen has been in court and he appears happy and well-dressed.
There has been no talk or action concerning the two infant daughters who have been left with their mother. The defendant’s interest appears to be solely in the sons of the family.
I have asked the defendants if they have attempted to settle this matter since the last hearing but that has not eventuated. I have also asked the parties if evidence concerning custom is to be relied upon. No evidence concerning custom has been adduced other than the statement I have quoted above which was introduced by way of a question in cross-examination of the plaintiff. The plaintiff replied ‘he is talking of the custom, I do not know their custom, I know if my husband dies, I have a right to get a new husband to look after me and the children’. Neither party has brought any other evidence concerning custom other than these statements.
I find that this is inadequate evidence as to a custom and that neither party adduced evidence of custom that would enable me to find what the custom is in relation to these children in either Sio or Karkar.
The law relating to infants is contained, inter alia, the Infants Act (Ch 274).
After the hearing and decision of the Supreme Court in Derbyshire v Tongia (1984) PNGLR 148 it was held that the Infants Act may not apply to the children of automatic citizens.
This situation was remedied by the passing of Infants (Clarification of Application) Act (Ch 278A) in 1986. This provides that the Principal Act applies to ‘all infants’. The Principal Act is the Infants Act (Ch 278) there is no doubt that children, the subject of application, are infants.
The Infants’ Act s 5(1) provides that on the death of a father the mother becomes the guardian of the children:
5.       Mother as guardian on death of father.
(1)      Where the father of an infant is dead, the mother of the infant, if surviving, is the guardian of the infant:
(a)      alone where a guardian has not been appointed by the father; or
(b)      jointly with a guardian appointed by the father.
There is no suggestion in the evidence before me that either of the defendants was appointed as a guardian to the two infant male children by the deceased father. There is no suggestion that either is vested by custom with guardianship of the two infant male children. I find as a fact the younger child was taken by force and the elder was detained contrary to a consensual understanding between the parties.
I consider that this is a case in which the law should apply. I have considered the welfare of the children which I am bound in law to do. There is no doubt that the welfare of the children must be paramount. In the this situation before me the family has been broken up. The youngest child is barely two years old. The boys have been separated from their sisters. The plaintiff has said that she has support and help from her own family in the village and that she intends to use the deceased father’s compensation to assist education of the children. The boy Owen has been living with the children of William Mesi and the children of Butu Mesi. There is no suggestion that he would be worse-off either physically, morally or emotionally if he was returned to his mother, his sisters and brother. Hence I find that in this case it is appropriate for the welfare of the children that the Infants Act s 5(1) be enforced. I find the mother is guardian of all the children. I order the return of both these male children to their mother. I give custody of those children to their mother. I ask the parties to amicably arrange access for the defendants to see the children and if access cannot be agreed in an amicable manner I order that the defendants have access to the children for one week at Christmas one week at Easter and for two weeks in the month of July.
Plaintiff in Person.
Defendants in Person.