Unreported National Court Decisions
N1047
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS NO 1 OF 1992
ENAKALI
V
ENAKALI
Mount Hagen
Woods J
21 January 1992
10 February 1992
4 March 1992
CUSTODY OF CHILDREN - parents divorced by custom - interest and welfare of child - customary law and brideprice - claim of father succeeds.
Facts
This is a claim brought by the mother for custody of the child of a customary marriage following a divorce by custom. At the time of the action, the child (then age 7) was in the custody of the father, though the father works in Mt Hagen and the child is with the father's relatives in the village at Kompian.
Issues
1.       What was best for the welfare of the chold.
2.       Whether the payment of brideprice has any bearing on the decision on who should have custody of children of a marriage.
Held
The Court was satisfied that the child would be equally well cared for by both parties.
The customary obligations and rights created by the payment of brideprice give the man's line, by virtue of having passed some wealth to the woman's line, the right of custody of any children of the marriage.
Custody of the child was ordered to remain with the father.
Counsel
Parties in Person
WOODS J: This is a claim for custody of the child of a marriage, the parents of the child Amos having been married according to custom and now apparently divorced by custom.
The mother of the child had filed this claim in the National Court although it is clear from documents shown to me that the parties have been to the village and District Courts a number of times over the past 2 years over matters concerned with the break up of the marriage. It is quite clear from all the proceedings that the break-up of the marriage has been a very unhappy affair.
The parties were married in 1982. The marriage was a customary one although it was held in Mount Hagen and not at either of the party's home areas, the woman coming from Kandep and the man coming from Kompian, both areas being in the Enga Province. There was some exchange of wealth made, some at the time of the marriage in Mount Hagen and some more at a later stage at Kompian, and on each occasion there were relatives of the woman present to receive the money and pigs. A male child called Amos was born in 1985 which makes the child aged 7 years now.
A major problem the Court faced with this case was that the parties came to the court themselves without employing lawyers to help them. This meant the Court had to try and elucidate all the evidence relevant from the parties and then adjourn and ask the parties to bring other witnesses to help their story and to help with understanding the custom.
The evidence given about the history of the marriage has included allegations from both sides about the other's behaviour. There have been allegations of neglect and lack of maintenance. Some of the lower court matters were disputes over control of the child. It is really because of all this continual arguing and litigation that the matter was finally brought to this court.
I will not recite all the allegations of neglect and lack of care as it is very hard for me to be really sure of what is the truth. For some of the marriage the parties lived together in Mount Hagen, then for some time and apparently at the time of the birth of the child the wife was at home with her relatives at Kandep.
At present the child is under the custody of the father although as the father works in Mount Hagen the child is with his relatives in the village at Kompiam.
The Court's main concern in custody cases is for the welfare of the child and I will not repeat the principles as enunciated in former cases as they are well known. Although there have been allegations of neglect by both parties I am satisfied that both parties would properly provide equal care and concern for the child. The father has relatives at Kompiam who can and are looking after the child and in the Papua New Guinean customary system I see nothing wrong with that care. The father has a regular job in Mount Hagen and would always be able to adequately provide fully for the child and for his future education. And on the other hand the mother has relatives at Kandep where she is able to and does live and her brother came to court to confirm the security that would be provided for the child by the mother and her relatives.
So I am satisfied that the child will be equally well cared for with all the traditional care and responsibility for a child in either party's families or village.
However, there is a customary principle that I cannot ignore. There has been some exchange of wealth made at the time of the marriage and at some time later. I am satisfied from my own knowledge acquired on the Bench and from what was put to me in evidence that such exchange of wealth called brideprice creates certain obligations and rights. And one of those rights is that the man's line having passed some wealth to the woman's line has a right and responsibility for the care of any children of the marriage. I cannot ignore the custom and right.
Therefore as the interests of the child would be equally well served under both parties, the custom of bride price and the fact that the man has seemingly secure employment weighs the advantage heavily towards the father.
So for these reasons and with respect to the custom of the area and as I am satisfied that the interest of the child will be served I order custody of the child of the marriage, Amos, to the father Eki Enakali. However the father must allow the mother to have the opportunity to visit the child when she wishes. I hope that this order will now stop the continual procession to the village court by the parties.