Unreported National Court Decisions
N1573
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS NO. 405 OF 1995
BETWEEN
RAYMOND MURA - Plaintiff
And
DAN GIGMAI - Respondent
Mount Hagen
Injia J
1 October 1996
9 May 1997
INFANTS AND CHILDREN - Custody - Infant born of parents of customary marriage - Customary marriage not properly dissolved and parents since re-married - The father’s claim to custody based on non-refund of bride price payment - Whether a relevant consideration - Infants Act (Ch. No. 278), S. 4.
Cases Cited:
Bean v Bean [1980] PNGLR 307
Susan Tom v Maziok Kayak [1992] PNGLR 171
Counsel:
P Peraki for the Plaintiff
D Umba for the Defendant
9 May 1997
INJIA J: This is a contested custody application.  The trial was conducted by affidavit.  Both parties filed affidavits on which the deponents were not cross-examined on.  I saw no need to require them for questioning by myself.  I also saw no need to require the production in Court of the infant.  I accepted both lawyers’ suggestion that I deliberate on the affidavits and written submission which they would file and which they have done already.
The application is in respect of the female child Elisha Mura, who was born to the Plaintiff (father) and the Defendant (mother) on 1 November 1990.  The Plaintiff and the Defendant were married in accordance with Local “Melpa” custom on 24 December 1989.  At that time the Plaintiff was working with the Department of Civil Aviation whereas the Defendant was unemployed.  At the time these proceedings were filed, that is on 19 October 1995, Elisha was about 5 years old.  She would be over 6 years now.
Between 1990-1995, the parties had differences in their marriage life.  These differences began to surface some months after their marriage and continued up to the time Elisha was born.  The problems continued to grow soon after Elisha was born.  Repeated attempts by both parties to resolve their marital problem through various Village Courts, the Police and the Courts did not resolve their marriage problem.  Eventually, on or about August 1992, their marriage was purportedly dissolved by order of a Village Court.
The Plaintiff then proceeded to marry one Rachael Mura.  At the time of filing these proceedings, they had 3 children between them.  The Defendant married one Roy Dingu who is employed by Coffee Industry Corporation Research Institute at Aiyura, Eastern Highlands Province.  The Defendant went to live with him.  As at the time of trial, it is understood that they have had no children between them.  Roy Dingu himself was also married to another woman with whom they have several children.  Since their purported divorce, both parties have accepted and respected their re-marriages.
In this period of differences over their marriage life, Elisha has been the focus of much debate and infighting between the parties themselves and even their extended family members.  Elisha’s welfare and the right to look after Elisha featured in as early as when she was something like 8 months old.  There is a lot of dispute in the evidence as to what each party did to secure the welfare of Elisha in these troubled times.  In terms of the interest with which the parties have sought to secure Elisha’s interest, both parents have said and done many things which lead me to believe that they are both genuinely concerned about the welfare of Elisha and want to look after her.  I know that both parties have the best interest of Elisha at heart and want to care for her so that she grows up to be a good, healthy and responsible young woman when she attains maturity, that is, when she attains the age of 16 years: Infants Act (Ch. No. 278, S. 4(5).  The agonising task that I have is to make a decision between them as to who is the best person to provide for the future welfare of Elisha.  The conduct of each parent and the wishes of each parent are matters which I need to consider as required of me by law: S. Infants Act (Ch. 278), S. 4.  But the paramount consideration is always the welfare of Elisha.  In other words, what is in the best interest of Elisha: Bean v Bean [1990] PNGLR 307, RG v RG [1984] PNGLR 413, Susan Tom v Mazion Kayak [1992] PNGLR 171.
In deciding what is in the best welfare interest of Elisha, I consider the following factors to be relevant, important and determinative of the issue:
1.       Both parties have not been faithful to their customary marriage.  This marriage was entered into in compliance with all the stringent requirements which not only they went through but their people went through painstakingly.  A customary marriage, unlike a modern registered marriage, involves many people on each side.  Just as much as it is a marriage between the couple, it also marks the “marriage” between their two respective clans or tribal groups.  It involves the exchange of substantial material goods between the relatives on both sides.  As such it is not easy for couples to make and un-make customary marriages.  As events in this case have shown, it has been difficult getting divorced in accordance with local “Melpa” custom which requires the return of bride price.  Even in the face of a Village Court order dissolving the marriage between these two people, marked by an order to return the bride price, this has not eventuated.  It seems both sides are unsure as to who really is responsible for the break-up and whether the refund should be made.  Many people including the Defendant’s parents have got themselves hurt physcologically and physically as a result of this debacle.  For these two couple to go off and re-marry without satisfactorily resolving their pre-existing customary marriage shows why both of them can be seen with impunity by this Court or even their own people who brought them together.
2.       In the early part of their differences, both parties had little faith in the offspring of their marriage.  Their struggle to rid each other became the primary focus of their endeavour in these years of turbulence.  The welfare of Elisha played a secondary role.  She was floated around between relatives on both sides in the very early stages of her childhood, that is as early as when she was 8 months old.  She did not feature prominently in their debacle until around June 1992 when the Defendant took the Plaintiff to Court under provisions of the Deserted Wives and Childrens Act (Ch. 277) seeking maintenance for herself and Elisha. The District Court ordered on 25 June 1992 that the Plaintiff pay the Defendant K40.00 per fortnight and Elisha K30.00 per fortnight until Elisha attained the age of 16 years or when she dies (which ever occurs first), or when the order is set aside by another Court of competent jurisdiction.  The District Court also awarded custody of Elisha to the Defendant.  That Court could not have made this custody order unless it found that the Plaintiff unlawfully deserted or left the Defendant and Elisha without adequate means of support:  See S.2 of Deserted Wives and Childrens Act.  In respect of Elisha, that is a finding which goes against the Plaintiff.  Despite the Plaintiff’s attempts in the District Court to vary that finding and order, it still stands to this day.
3.       Since the maintenance and custody order of the District Court dated 25 June 1992, the Plaintiff did not take issue with the order by appealing to the National Court.  He accepted the decision and made a few payments.  But on most occasions, he incurred substantial arrears.  He refused to pay because of alleged misuse of maintenance payments for Elisha by the Defendant.  The Defendant was forced to take out enforcement proceedings against him to recover the arrears.  On one occasion, the Plaintiff paid arrears under order of the Court.
4.       From 25 June 1992 onwards, the Plaintiff’s discontentment over the misuse of the maintenance money by the Defendant continued to grow.  This culminated in the plaintiff applying to the District Court seeking variation of the order, to set aside the orders.  Included in the application was a motion for custody of Elisha to be awarded to the Plaintiff.  On 30th March 1995 the Plaintiff moved the application. On 7th July 1995, the District Court dismissed the application and advised the Plaintiff to appeal against the decision of 25/6/92.  In my view, the application for custody before the District Court was misconceived by the Plaintiff’s lawyer who signed the Notice of Motion because that Court did not have any jurisdiction to make an order for custody whereas it had jurisdiction to make an order for custody consequent upon an order for maintenance:  See S. 3 (1) (b) (iv), of the Deserted Wives and Childrens Act.  From all these actions of the Plaintiff, I infer that he was raising the issue of custody as another avenue to cease the maintenance payments.
5.       The physical custody of Elisha between the date of her birth,  (1 November 1990) and up to early 1992 seems to have cris-crossed between the two parents at times but mostly with the Defendant as the child was very young.  At times, the child appears to have been left by both parties with their relatives.  The evidence is a bit unclear though.  As at 25 June 1992, that is the date of the maintenance order and the period immediately preceding that date, the child was with the Defendant, thus forming the basis for an action for maintenance under the Deserted Wives and Childrens Act.  From then up until 19 October 1995 when these present custody proceedings were filed, Elisha was always with the Defendant.  From 19/10/95 to the date of this trial, that is, 1/10/96, and up to the date of judgment, Elisha has been with the Defendant.  There are claims by the Plaintiff of neglect of Elisha by the Defendant and Elisha being left behind to live with the Defendant’s parents.  This is denied by the Defendant.  Whatever the real situation was, it is fair to say that Elisha has been with the Defendant continuously from say 1992 to the present time.  That is a period of 6 years.
6.       It is fair to say that Elisha has come to closely associate with the Defendant in this period and not the Plaintiff.  Elisha has got used to the Defendant, her way of life, her friends and associates  including her new husband, Roy Dingu.  The Defendant claims that Elisha has come to know Roy Dingu as her father partly because of Roy’s treatment of her.  I do not know if this is true.  But Roy Dingu in a letter to the District Court, dated 20 November 1995, (Annexure “A” of Bosip Aipe’s affidavit sworn 1 December 1995), has made his position clear.  He agreed to continue to look after Elisha and allow access to the Plaintiff.  He said  he was prepared to look after the child’s requirements including education.  He said he had been hospitalising both the mother and Elisha with all provisions of hospitality love, care and discipline.  The evidence also is that he has accommodated the Defendant and Elisha in a separate home and his first wife with her six (6) children in a separate home.  His first wife is a teacher at Aiyura High School.  It is not as if I have not heard from Roy Dingu.  From what he says, he appeals to me to be a responsible and caring man who is prepared to take on the Defendant as he finds her and make suitable arrangements for the Defendant and her child at his own expense.
When I compare the period of time and social and physical environment in which Elisha has been raised in the past, all these favour the Defendant.  If Elisha were to be introduced into a new environment after all these years, such as that of the Plaintiff, it would be totally new to Elisha and she would encounter adjustment problems.
7.       As for the future, economic, social and spiritual welfare of Elisha, the parties are somewhat unequally placed.  The Plaintiff is the Managing Director of Kare Electrical Pty Ltd.  I have no doubt that he is a man of sufficient means and sound social and spiritual discipline to provide for Elisha’s economic, social and spiritual needs.  On the other hand, the Defendant is unemployed and does not appear to have any sources of income.  But I have no doubt about her ability to provide a sound social and moral and a caring environment.  Her economic shortfalls are supplied by her new husband.  I have no doubt that her new husband is a professional man with sufficient means, a man with a sound social discipline to be able to give Elisha and her mother the support they need.
8.       There are some cultural factors which the Defendant relies on.  The Plaintiff says because his bride price was not repaid, he should have custody of the child.  However, that is not and should never be a relevant consideration in a custody case.  The future socio-economic welfare of the child never depends on the question of whether bride price is repaid to end the marriage under local customary laws.  It is not a relevant consideration under the Infants Act.  Both natural parents have equal rights of custody of their child (Infants Act, S.3) irrespective of whether or not there is a subsisting customary marriage.  To award custody of a child to a father because his pride price paid for the mother of a customary marriage which has since come to an end, has not been repaid, is to recognise and uphold a principle of customary law which is devoid of the provisions of the Infants Act relating to the welfare of the child.
9.       Considering the fact that Elisha is a female child of tender age, it is only fitting that she remains with her mother with whom she has spent most of her 6 years.
Having considered all these factors, the evidence before me and the submissions put to me by both counsels, I consider that it is in the best interest of Elisha that she remains where she has been in the last six (6) years or so and that is with the Defendant.  The Plaintiff shall have reasonable access on times as mutually agreed between the parties.  If the parties are unable to resolve the question of access mutually, then either party may apply to this Court for further directions or orders.
On the question of continued maintenance of Elisha, there is no provision in the Infants Act for this Court to consider the question of maintenance.  That is a matter which should be properly dealt with by the District Court upon an application for variation of the existing maintenance order.  Until such application and variation is granted by that Court, the Plaintiff is required to comply with the existing maintenance order.
The formal orders of the Court are:
1.       The Plaintiff Raymond Mura’s, (father) application for custody of ELISHA MURA, born 1 November 1990 at Mount Hagen, is dismissed.
2.       The Defendant, Dan Gigmai, (Mother) is granted custody of the said ELISHA MURA.
3.       The Plaintiff, Raymond Mura, is granted reasonable access at times to be mutually agreed between him and Dan Gigmai.
4.       If such times of access are not mutually agreed between the parties, I grant liberty to either parties to apply to this Court for further orders.  The party making the application shall give twenty-one (21) clear days notice of the application to the other party before the application is made in Court.
5.       Each party shall meet their own costs of these proceedings.
Lawyer for the Plaintiff: Peraki Lawyers
Lawyer for the Defendant: Acanufa & Associate Lawyers