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Ubuk v Darius [1994] PGNC 33; N1278 (25 November 1994)

N1278

PAPUA NEW GUINEA
[In the National Court of Justice]

Os. G6 of 1993

ROBSON UBUK

v

RACHEL DARIUS

Lae: Sevua J
21 October 1994 & 25 November 1994

Infants and children - Custody - Female child aged 20 months - Customary law - Infants Act Ch. 278 - Constitution, Schedule 2.1

On an application for custody of a female child aged 20 months by her mother pursuant to s.4 of the Infants Act Ch. 278.

HELD:

(1) The welfare of the infant is not expressed as the paramount consideration in S.4 of the Infants Act Ch. 278 although I view it as a very important consideration to be taken into account along with the other matters therein.

(2) The Mailan custom is repugnant to the general principles of humanity therefore inappropriate and inapplicable to this case thus the applicant can derive no assistance from such customary law.

(3) The mother factor is a deciding factor in awarding custody in this case.

(4) Custody of the infant should be granted to the respondent with the applicant to have access.

Cases cited:
Bean v Bean [1980] PNGLR 307
WP v DP [1982] PNGLR 1
Tom v Kayiak [1992] PNGLR 171
RG v MG [1984] PNGLR 413
Hobbs v Ludlow (1976) FLC 75, 536
Gronow v Gronow [1979] HCA 63; (1979) 54 ALJR 243

D. Poka for Applicant
P. Yayabu for Respondent

25 November, 1994.

SEVUA, J: This is an application pursuant to s 4 of the Infants Act Ch 268, for custody of a female child aged 20 months.

The facts are these. The applicant was married by custom to his present wife Naomi Keru in 1977. They have three children aged 11, 13 and 15 years respectively. His wife is from Kama Village in Goroka whilst he comes from Siassi Island in Morobe Province. They reside in Goroka. The respondent also comes from Siassi Island. She and the applicant began living together in a de facto relationship as a result of which the respondent gave birth to a female child (the subject of this application) on 14 December, 1992. This de facto relationship terminated on 2 September, 1993 and subsequently the respondent came to reside in Lae. The applicant still resides in Goroka with his wife and three children. On 3 September, 1993 the Goroka District Court granted temporary custody to the respondent until a permanent custody order was made. The applicant and his family reside in accommodation provided by the employer which is rent free and garbage, electricity and other public utility charges are free. There is no evidence of his earning capacity although he says between February and May this year he transmitted K50 to the child each fortnight, however the respondent had refused to collect the money from the post office. He also says, "Naomi has been a good wife to me and that she has been looking after the three children." Whilst it may seem he had a very good family, he commenced living with the respondent in a de facto relationship in 1991 until September last year. He has discussed this matter with his wife Naomi who is "happy to accept Anita and look after her like the other three children of our marriage."

The applicant attributed the problems with his relationship with the respondent to the respondent herself. He says she was a gambler who on many occasions had left the child in the house. She was always picking fights with his female colleagues which caused him embarrassment and shame. The respondent "deserted" him and despite all his attempts to reconcile, the respondent had made up her mind to leave. Really, all these problems were brought about by the applicant himself, in my view. He had a very good wife and three children why did he want another woman?

The respondent is a qualified Community School Teacher having graduated on 10 December 1980 from Balob Teachers College in Lae. She is also a trained theologian in parish work. Prior to her meeting the applicant, she was employed as Co-ordinator for Women's Work in the Lutheran Church in Siassi District. She left her work when the applicant promised to marry her so she went to live with him in Goroka. She eventually discovered that the applicant had a wife and three children. She regarded herself as a committed Christian, although I find this quite contrary to her principle. I mean, she became aware that the applicant was married with three children, why didn't she leave him before she had his child?

The child is still at it's infant stage and they live together in Lae. The respondent is employed as a script writer by the Lutheran Church of Papua New Guinea and she is involved in religious instruction programmes in community schools. She earns a net income of K147 a fortnight. Her employer has provided her with free accommodation, a two bedroom house at Balob Teachers College which is a few minutes walk from her office. During work, Anita is cared for by the respondent's niece who lives with the respondent and the child.

In support of his claim for custody, the applicant claims he is entitled to custody pursuant to the customs of the Siassi Island people. He relies on the affidavit of Kauk Akes who is an elder of Malai Village, Siassi Island, who claims to be well conversed with the traditional customs of the Siassi people known as Mailan. The deponent says that the Mailan customs allows for a man and a woman to live together for sometime without the payment of bride price. This, he says, is to allow for assessment of whether or not the woman: can make a good house wife, respect the customs of the man's community and be able to bear children. If the woman satisfies these requirements, a customary marriage will then take place and bride price will be paid. Where the man and woman have lived together over a period of time and the woman bears a child but no bride price is paid and she leaves with the child, the Mailan customs allow for no payment of bride price and the mother forfeits her right to claim for custody of the child. Custody is given to the man on condition that some compensation is paid to the woman for bearing the child. I will discuss this further at a later stage.

Section 4 of the Infants Act Ch 278 provides that on the application of the father or mother of an infant, the Court may make such order as it thinks proper regarding the custody of the infant and the right of access of either parent having regards to:

(a) the welfare of the infant; and

(b) the conduct of the parents; and

(c) the wishes of each parent.

There is no statutory definition of the phrase, "welfare of the infant" however, in Bean v Bean [1980] PNGLR 307 at 320, Kapi, J (as he then was) said, "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. In every custody application, when considering the welfare of the children, the Court must have regard to all these matters."

Mr Poka for the applicant has submitted that I refer to the affidavit of his client because his client is able to provide for the welfare of the child in the manner alluded to by His Honour. By implication, Mr Poka is asking me to treat the welfare of the infant as the paramount consideration in this case. Similarly, Ms Yayabu for the respondent has submitted that the welfare of the child is the paramount consideration and therefore I should consider her client as the suitable parent to award custody of the child to. To say the welfare of the infant is the paramount consideration is erroneous because the welfare of the infant is not expressed in s.4 of the act to be the paramount consideration (my emphasis). See WP v DP [1982] PNGLR 1. The welfare of the infant is one of three matters the Court would have regard to when considering the question of custody. These three matters are provided for under s.4 of the Act which I have already referred to.

The applicant has emphasised his wife's willingness to care for the child however he completely ignored the fact that the child, the subject of this application, was the product of this adulterous relationship with the respondent. I do not believe for a moment that his wife can accept the child when the child was born as a result of his extra marital affairs with the respondent. In this country, where adultery is a major contributing factor in domestic disharmony, I do not consider that it will be that simple for the applicant to say his wife is willing to care for the child. Surely, under such circumstances, the applicant's wife may well be antagonistic about the whole idea of her having to care for a child, the product of her husband's adulterous relationship. I would rather prefer the respondent's argument that, " Naomi will regard the child as the product of adulterous relationship between the applicant and the respondent therefore may not treat the child properly." I consider that there is some sense in this argument and I can see why the respondent in her affidavit, is quite apprehensive about the applicant's idea. Besides, the applicant's evidence is hearsay. If it is true that his wife is willing to accept the child, then it would have been more appropriate and acceptable if she had deposed to that in her own affidavit.

What I have discussed above is, in my view, significant to the question of conduct of the parents. The applicant was married with three children yet he was having an affair with the respondent for approximately two years. What guarantee is there he would not repeat his adulterous relationship with another woman? He has not been totally loyal to his wife and three children so how is he going to rear this infant if he cannot be a trusted father. In my view, his past behaviour is tantamount to him being an unsuitable father therefore unfit to care for a very young infant. Whilst I acknowledge his wish to have custody of this child, I am of the view that his conduct in the past is indicative of the sort of father he is and the interest of the infant cannot best be served by him. In any case, his wish is to be considered along with the other two matters in s.4 (a) and (b) of the Act and of course, the wish of the respondent.

In Susan Tom v Mazion Kayiak [1992] PNGLR 171, Los, J said at 172, "the law is settled in the country that in any custody application the paramount consideration is the best interest of the children." His Honour cited the decision of McDermott, J in RG v MG [1984] PNGLR 413 where His Honour in the latter case stated the following as relevant considerations;

(1) The claim of the mother and what is often referred to as her preferred role, WP v DP [1982] PNGLR 1;

(2) The relative circumstances in which it is intended to raise the child;

(3) The ability to provide for the child's advancement in life;

(4) The age of the child; and

(5) Provision of the maintenance of existing relationships.

His Honour McDermott, J in RG v MG was dealing with the custody application of an illegitimate female child, aged three years, by the mother. His Honour in that case awarded custody to the mother with access to the father.

I agree with McDemortt, J and Los, J that on an application for custody, the paramount consideration is the best interests of the child. And I also agree with Kapi, J (as he then was) that the Court must have regard to all those matters he alluded to pertaining to the welfare of the infant in Bean -v- Bean. I further agree with Andrew, J and Los, J that the mother factor can be a decisive factor in an award of custody in fact, for my part, I would adopt and apply the rationale applied by the Full Court of the Family Court and the High Court in Hobbs v Ludlow (1976) FLC 75, 536 at 539 and Gronow v Gronow [1979] HCA 63; (1979) 54 ALJR 243 at 249 respectively as cited by His Honour Andrew, J in WP v DP. Whilst the mother factor is not a rule of law, I cannot say Their Honours, (Mason and Wilson, JJ) erred in saying that it was a cannon of common sense founded on human experience. I agree, it is a matter of weight or value and I cite my learned brother Andrew, J in WP v DP at 3:

"in the circumstances of this case I think it deserves much weight ------. To my mind they are in need of a mother's care and special relationship of mothers and daughters of that age. If custody were granted to the applicant, they would be deprived of that care -----------."

I consider that in the present case, the mother factor should be in favour of the respondent especially where the infant is 20 months and is still breast feeding. The special relationship of mother and daughter weighs heavily against the applicant.

The applicant has produced evidence that by custom he is entitled to the custody of the child although he has not argued this point. I assume he wants me to consider it pursuant to Schedule 2.1 of the Constitution. In the evidence he produced, living together between a man and a woman serves three purposes. The woman must satisfy firstly, that she can respect the custom of the man. Secondly, that she can be a good housewife and finally that she can bear children. In my view, the first requirement does not apply in this case because the parties are from Siassi Island. The other two requirements are of some concern to me. During the living together period, the woman is expected, no doubt, to do all the usual domestic chores and not only that but I suppose, she indulges in free and voluntary sexual intercourse as well. In other words, she is seen and used as a sexual object. Furthermore, if she cannot bear children, that's it, she cannot marry the man. In my view, she is being used as a vehicle for child bearing because the only time you know if she can bear children or not is when she becomes pregnant. Whether one views it subjectively or objectively, the woman is a sex object. So where is the morality and value of humanity in this woman? How does the custom accords with the general principles of humanity? How does a woman in such a situation free herself from this seemingly sexual domination? I consider the Mailan customs is repugnant to the general principles of humanity therefore inapplicable to the present case. The applicant can gain no assistance from that customary law.

I reiterate that the child in the present case is 20 months old and is still being breast-fed by the respondent. The pharmaceutical advice referred to by the applicant that the child can be bottle-fed is not only inconclusive but hearsay. If he has sought that advice then he must produce it in admissible form. Besides there is a suggestion that when the respondent tried to bottle-feed the child, she vomited and disliked it. Obviously, this means that the child could not be bottle-fed, at least, not at this stage anyway. There is evidence by the respondent that she has her three meals a day with the child and that accommodation provided to her where she is currently residing with the child and the baby-sitter is within minutes of walking distance to her place of employment. A point was made by the applicant that the respondent was a gambler and on many occasions had left the child in the house whilst she went gambling. I consider this as mere accusation because there is no evidence to support this and I gather that in view of the animosity between the applicant and the respondent, one party tries to discredit the other. I therefore take no further issue on this point.

I have already adverted to the relevant provision of the Infants Act and the principle to which regard should be had under the Constitution as regarding customs. I have also adverted to the evidence produced by the applicant in relation to the issue of custody in accordance with the customs of the Siassi people and I have made a finding that, that custom is not applicable in this case.

In all the circumstances of the case, I consider that the welfare of the child at this stage be best served if she remain with her mother. I will reiterate that she is only 20 maybe 21 months now and that she is still breast-feeding. In my view, the mother factor would outweigh any other consideration in so far as the applicant is concerned. I am satisfied that the respondent can properly provide for the child and I award the custody of the child, Anita, to the respondent. I order that the applicant have access to the child, Anita. Such access is to be decided by mutual consent and satisfactory arrangements between the parties. I will make this remark which I feel I ought to because I believe there has been a certain degree of animosity between the parties in relation to the issue of custody. I understand that in the past, the respondent has made it difficult for the applicant to see or have access to the child. I will say this to the respondent that if she disobeys my order as to access in favour of the applicant, this Court may consider forfeiting her right to custody. I trust that this will not be necessary and I hope that both parties will act in the best interest of the child and I will leave the happiness of the child to both parties as responsible parents of this child.

I order the applicant to pay the respondent's costs to be taxed if not agreed upon.

Lawyer for Applicant: Milner & Associates.
Lawyer for Respondent: Yayabu Lawyers.