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Gallen v Noan [1996] PGNC 4; N1420 (12 April 1996)

Unreported National Court Decisions

N1420

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 71 OF 1996
PATRICK GALLEN
V
NATCHEPON NOAN

Kavieng

Jalina J
1 April 1996
12 April 1996

INFANTS - Custody - Mother factor - mother factor only relevant when child is still sucking milk from the mothers breast.

INFANTS - Custody - Welfare of child is paramount consideration and demands assessment as to whether he would be better off with father or mother.

Cases Cited

Tongole v Tongole Unreported Decision No N256 of 9 September 1980

Bean v Bean [1980] PNGLR 307

Tom v Kayiak [1992] PNGLR 171

This application for custody was contested by the defendant.

Counsel

S Madana for Plaintiff

Defendant in Person

12 April 1996

JALINA J: This is an application pursuant to s. 4 (1) of the Infants Act Ch 278 (previously s. 7 (1) of the Infants Act 1956) by the father for the custody of the child Roland Patrick Gallen (“Roland”) born on 27 October, 1990.

S. 4 (1) provides:

“On an 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 regard to:

(a) The welfare of the infant; and

(b) The conduct of the parents; and

(c) The wishes of each parent.”

The child was born out of a casual relationship between the parties herein. The father is an Australian by decent and the mother is an indigenous Papua New Guinean.

The mother has two other children from two different men while the father has a child from another indigenous Papua New Guinean woman. Roland has been living with the father and his other child (Clarissa) since he was 18 months old and then continued living with his father and his father’s wife Elizabeth when she moved in about 3rd July, 1992. In January, 1996 the Welfare Officer in Kavieng ordered the stepmother (Elizabeth) that custody of Roland to be given to his grandmother. The mother who was living outside of Kavieng then returned to Kavieng and the dispute got out of hand resulting in an application by the mother in the District Court for custody which was dismissed and then this application by the father to put the dispute as to Roland’s custody to rest.

The father has a home as well as a job with the Sugar Industry in Australia. He enrolled Roland at St Rita’s Convent School in Cairns prior to Roland returning to Kavieng in October 1995. The father’s present wife Elizabeth has been looking after Roland since 1992 and has undertaken to take care of Roland and raise him as her own child. This is supported by Elizabeth’s own affidavit and the affidavit of John Nombe sworn on 15 March 1996.

The mother however does not have her two other children living with her. Her children are living with other people and at the present time she lives and works with Securimax (Security Service) in Rabaul. She is living with a man in Rabaul. There is nothing however by way of evidence from this man as to whether he is prepared to take care of Roland and raise him as his child.

The basic principles governing custody applications namely, the welfare of the child being the paramount or primary consideration, are well settled in this jurisdiction. Different judges in both the National Court and the Supreme Court have pointed out various factors that apply when considering the “welfare” of the child.

In Tongole v Tongole (Narokobi AJ N256 9 September 1980 unreported) said:

“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 child is of course important to look at.”

His Honour went on to quote Lord McDermott in J v C [1969] UKHL 4; [1970] AC 668.

“the child’s welfare cannotes a process in which all relevant facts, relationship, 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 been understood.”

In Bean v Bean [1980] PNGLR 307 Kapi J (as he then was) said at 320:

“...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 dependant 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.”

The essence of the submission by Mr Madana for the father is that it is in the best interest of the child that custody be granted to the father as the father has not only cared for Ronald since he was 18 months old but also that he is employed and as such he is in a better position to provide a secure and stable home. His present wife Elizabeth has not only undertaken to care for Roland as her own child but has in fact lived and cared for him since 1992.

The essence of the mother’s submission is that because she is the natural mother, she is entitled to custody. She also says that her present husband is willing to look after Roland. She further says that she only wants custody of the child until he reaches the age of 10 years at which time he could go to school in Australia. Pending his attainment of the age of 10 he could go to school at the OLSH International School in Kavieng and for such education Roland could live at Bagail Village with his grandparents. She also says that Roland could go to school in Rabaul if not for the continuous fall-out of volcanic ash.

On the material before me, I am inclined to reject the mother’s submission that she is entitled to custody of the child because she is the natural mother. A natural mother is entitled to custody of the child much the same as the natural father. Where the child is breast feeding the “mother factor” becomes an important consideration for the simple reason that a child of that age cannot survive without the mother. Where the child is not breast feeding however, (as in this case) the “mother factor” is not a major factor. Other factors must be taken into account in determining the person to whom custody of the child should go. In Tom v Kayiak [1991] PNGLR 171 Los J said at 173:

“The mother factor can be a decisive factor in an award of custody, like in WP v DP [1982] PNGLR 1, but I consider that if it is shown that the mother is not in a best position then that factor cannot take a paramount role.”

In the case before me, the factors that weigh against the mother are firstly that her two other children are not under her immediate care but are with other people. This has no doubt caused her motherly love and care for their immediate needs to diminish. She is also no doubt becoming a stranger to them. With the volcanic ash preventing Roland from living with her would no doubt result in Roland being placed in a similar situation to her other two children. The father however will be living with Roland and attend to his immediate physical and spiritual needs including his education.

I do not consider the proposal by the mother whereby Roland would live with her and go to school in Papua New Guinea until he is about 10 years old to be desirable and to be in the best interest of the child as he would most likely encounter difficulties in adjusting to a new environment both in school and with his father and his father’s relatives let alone his step mother Elizabeth in Australia after being separated for five (5) years.

There is also the “new man” in the mother’s life. It seems to me that they have begun living together recently in Rabaul. In regard to the “new man” Kidu CJ said in Bean v Bean (Supra) at page 312:

“The welfare of the child demands that assessment be made of any person who is to have a hand in looking after an infant.

As Selby J said in Chisholm v Chisholm [1966] 7 FLR 347 at 350:

‘It is most important in a situation such as this that the Court should be placed in a position in which it can assess for itself the character of the man who may become the stepfather of the child, the subject of the application, or who will on the respondent’s own case stand to some extent in loco parentis to her. But I have been given no opportunity to make any such assessment and I am not disposed to accept the judgment of the respondent on so important a matter.’”

Whilst the mother says that her present husband is also employed, there is nothing before me as to the salary he earns. There is nothing before me as to whether he has been previously married and if so whether he has any children and whether he is required to pay maintenance for them as this may well affect the welfare of the child particularly if the step father is required to pay maintenance for his own children. There is also nothing before me as to his character. Unlike Elizabeth who has undertaken through her affidavit to raise Roland as her own child, there is no such undertaking from the mother’s present husband.

In all the circumstances of this case I consider it in the best interest of the child Roland Patrick Gallen that custody be awarded to his father Patrick Joseph Gallen which I do now. In the absence of the father custody shall be given to Elizabeth Gallen to take Roland to Australia with the right of access to the mother Natchapon Noan.

The father shall ensure such access by sending Roland to his mother in Papua New Guinea for four (4) weeks during school holidays at the end of each year. Return airfares and moneys for Roland’s subsistance while in Papua New Guinea shall be provided by the father Patrick Joseph Gallen.

I order that each party shall pay his own costs.

Lawyer for the Plaintiff: Madana Lawyers

Defendant in Person