|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
MC NO. 32 OF 1995
MANICKAM NADESALINGAM
PETITIONER
AND:
ALIMA NADESALINGAM
FIRST RESPONDENT
AND:
PAUL SOLIEN
SECOND RESPONDENT
Waigani
Jalina J
14-22 October 1997
26 August 1998
INFANTS AND CHILDREN - custody of - mother factor - not decessive factor where child is not of tender years.
INFANTS AND CHILDREN - custody - Welfare of child paramounts consideration and demands assessment as to whether child will be better off with father or mother.
MATRIMONIAL CAUSES - Matrimonial property - distribution of property upon dissolution of marriage - distribution to be just and equitable S.75 - Matrimonial Causes Act Ch. 282..
Cases Cited
Bean -v- Bean [1980] PNGLR 307
Tangole -v- Tangole [1980] PNGLR 1
RG -v- MG [1984] PNGLR 413
Susan Tom -v- Mazion Kayiak [1992] PNGLR 171
Patrick Gallen -v- Natchepon Noan [1996] Unreported Judgment N1420
Counsel
K Kua for Petitioner
F. Alua for First Respondent
No appearance by or for Second Respondent
25 August 1998
Cur Adv vult
JALINA J: The Petitioner herein filed a Petition on 30th October 1995 seeking orders for dissolution of his marriage to the First Respondent on grounds of the first Respondents adultery with the Second Respondent. The Petitioner did not specifically seek custody of Johan Nadesalingan then aged 11 years and who was then residing with the Petitioner but under took to maintain Johan fully until he had reached adulthood or until he was able to look after himself independently. The petitioner did not seek orders as to maintenance or settlement of property.
The First Respondent filed an answer and cross petition on 1st December 1995 seeking orders for dissolution of her marriage to the Petitioner on grounds of adultery and desertion. She also sought orders for settlement and distribution of property as well as custody of the children of the marriage particularly Johan Nadesalingan who was then eleven (11) years old.
Decree Nisi for the dissolution of the marriage between the Petitioner and the First Respondent was granted by Los, J. on 15 April 1997 and as such it is no longer in issue. The issues that remain for my determination are therefore custody and distribution of property.
CUSTODY
Custody of the child Johan Nadesalingan has been sought by both the Petitioner and the First Respondent in their prayer for dissolution of marriage pursuant to the provisions of the Matrimonial Causes Act Ch. 282. Section 74 deals with custody:
“74. Powers urt in custody, etc, etc., proceedings.
(1)  proc edings with resperespect to the custody, guaship,are, cement or education of children of a marriage:
(a) < &160; #1660he Court shall rega regard the ints of hildr the paramouramount cont considensideration; and
(b) subject to Paragrap, (a) Cthe Court may make sucer inect ose matters aers as it s it thinkthinks proper”.
(2) The court may adjouon prineedings referred Subsn (1)l a report has beas been oben obtainetained from a Welfare officer on such matters relevant to the proceedings as the court thinks desirable, ae couy recthe report in evin evidencedence.
.(3) e ter couet makes an order rder placing a child of a marriage in the custody of a person, it may include in the order such provision as it thinks proper for access to the child by parties or ay to arria221;.
As I>As I do n do not prot propose to place the child Johan in custody of a person other than a party to the marriage the subject of these proceedings, subsections (3) and (4) are irrelevant.
Only subsection (1) and (2) are relevant.
The basic principles governing custody applications namely, the welfare of the child being the paramount or primary consideration are well settled in this country. A number of judges have pointed out various factors that apply when considering the “welfare” or “best interest” of the child.
In Tongole -v- Tongole (Narakobi, 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 can notes 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”.
There have been other cases in this jurisdiction where the above principles have been applied. These include Bean -v- Bean [1980] PNGLR 307, WP -v- DP [1982] PNGLR 1, RG -v- MG [1984] PNGLR 413 and Susan Tom -v- Mazian Kayiak [1992] PNGLR 171. These principles are best summarised by Los, J in Susan Tom -v- Mazion Kayrak (at p. 172-173).
The law is settled in the country that in any custody application the paramount consideration is the best interests of the children. In RG -v- MG [1984] PNGLR 413 the relevant matters for consideration were listed as:
(a) ـ The cla m of the mohe mother and what is often referred to as her preferred role; WP -v- DP [1982] PNGLR 1;
(b) ҈& The rele relative tive circumstances in whi is ied toe the cthe child;hild;
(c) ҈ The abie ability to provire for the child’s advancement in life
(60; <;&1600; The; The age oage of the child; and
(e) &##160;isiov forn for the mthe maintenance of ing ronshi>
In B Bean -v- Bean [1980] PNGLR 307, Kapi, J. (as he then was) said at d at 320:<320:
“...the welfare of the i is uy ref to as o as the cthe comforomfort, 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.”
In the instant case, the First Respondent submits that since she would end up with substantial property at the end of these proceedings, it would be sufficient to take care of the needs of the child. She further submits (see page 5 of her written submission) that the Petitioner may have the money and resources to cater for the child’s needs but he does not have the love and stability of a parent. The First Respondent, in so far as the love and stability of a parent is concerned, appear to be basing her submissions on the “mother’s factor” ie “because I am the natural mother I should have custody as I would be in a better position to give the child love and stability”.
In Tom -v- Kayiak (Supra) Los, J. said at p. 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 Patrick Gallen -v- Natchepon Noan [1996] unreported judgement N1420 I said:
“A natural mother is entitled to custody of the child much the same as the natural father. Where the child is breastfeeding the “mother factor&# becomes an important consideration for the simple reason that a child of that age cannot snot survive without the mother. When the child is not breastfeeding 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”.
The Petitioner submits that taking into account the welfare of the child as the paramount consideration he would be in a better position to provide for the child Johan and as such custody be granted to him. I have considered his submissions as against that of the First Respondent and an impressed by it.
He has already demonstrated this ability to care for the child by continuously providing for the child since the separation between the parties commenced in July 1995.
He is a highly qualified accountant with a successful professional business career behind him. This is evidenced by the growth of the various family companies between 1988 and now.
The Petitioner will be able to regenerate his asset based with his portion of the net family assets on settlement.
He is a man of sober habits and observes strict work and professional ethics. He does not indulge in the consumption of excessive alcohol, not does he frequent night clubs and parties unnecessarily or on a frequent basis.
Since the separation he has been the active party in ensuring that the two children were provided for. He has enrolled Mala at the Institute of Business Studies at time of trial of this case. He has enrolled Johan at the one of the best private schools in London at very substantial costs.
He is a naturalised citizen and has no intention of leaving this country. As between himself and the First Respondent, although they will be both left with certain proportions of the net family assets on settlement of these proceedings, given his professional background he is the most likely person to succeed in business with his share. He will therefore be in a better financial position to provide for Johan (and Mala) until such time as they are both able to complete their education.
If Johan continues his schooling past the age of 16 years, which is the most likely case, he will continue to need financial support, for instance, if he goes through colleges or universities. The Petitioner is in a better position to ensure that the financial support is there for him. With the First Respondent this is not a certainty. Her ability to be able to do this is at best in doubt.
Most of all, the Petitioner has demonstrated already that he is capable of providing the love and emotional support that Johan will need up until the time he is capable of looking after himself. For if he hadn’t Johan would have opted to stay with his mother rather than the Petitioner.
As for the First Respondent, her relationship with Johan in recent times had soured very badly. She admitted in evidence that a telephone was installed in her house at the expense of the Petitioner for the purposes of enabling her to maintain contact with Johan in England. However, between May 1997 and the hearing date (mid-October 1997, a period of over four months, the First Respondent made no attempt to communicate with her son by telephone. There was also evidence that she was provided with Johan’s postal address in April 1997, (see Exhibit “GG”), she failed to write to her son between she sent some gifts and Christmas card through Mala who was visiting Johan in England on Christmas of 1996.
When Johan returned in July 1997, for his summer holidays he had a fight with the First Respondent. Details of that fight are set out in Exhibit “AA”.
“Exh “AA”
30 July 1997
8.30 approx.
It was a fine morning I was happy not about going to my mums house but anyway my sister her friend and I. I went up with Mala and Mala called “mum”, mum came out and opened the door so Mala and I could get in then she told us take off your shoes but I said we won’t be staying here for long so my mum said how come your not staying here for long and Mala said that she had an appointment with the doctor so mum started asking her questions like how are you etc then I asked my mum can I take the radio (because when she left I was using her radio and I fixed it) but she said no because you and Vavine have better radio at home, Do you enjoy Vavine’s company at her village and I went mad for a few seconds, and said do you know why Vavine is staying at 14 mile and she said no and I said she stays in 14 mile to keep my dad and I company so were not board and then Mala went outside because she wanted her cousin my mum and I were still arguing about Vavine and a few other things and then she said one sentence which really hurt me Vavine is your step mother or something like that so I said you have a stone head the she slapped me across the face then for a split second I paused and thought this can’t be happening but by then her hands were all over me so I started punching her but she used both my hands to hold both my hands so I was pushing her hands on the fridge but the fridge didn’t seem to stable so it started rocking then Mala her friend came in Mala ran a held my mum and he friend held me and took me down stairs I was really made then I wanted to kill her but then I thought I wouldn’t want to end up in jail so I looked at her car thinking of breaking the glass but Mala’s friend kept on holding me so I looked up and saw mum with a bush knife in her hand but her sister and niece’s were stopping her from getting down then I started using the “F” word on her and I was about to get in the car when I heard mum say Mala get the car out of here and so Mala’s friend zoomed the car out of the 4 mile yard.
End.”
Reasons for not wanting to stay with mum are:
* She doesn’t really aare about me because if she did when I visited here on the second day of my holiday she didn’t asking any question on how are you?, hows school. I mean evedads e staked me that and there not rnot relateelated witd with me.
* ټ&##60;& A60; And Mrsd Mrs C.Davani had put deliver Johan to his mums house as soon as possible I told my mum that what did that woman say she’s just said so what.
Th
The Fire First Respondent is a trained steno-secretary. However she has had no formal employment for a long time. At best she will be able to obtain employment of a similar nature. The salaries paid for such employment cannot be sufficient to give Johan the life style that he is accustomed to and to ensure that he continues to go to a school in England, let alone, an international school in Port Moresby. The evidence is that the total costs of maintaining Johan in one year is about K30,000.00.
Whilst the First Respondent will end up with substantial property on settlement of these proceedings, she has already demonstrated that she is not a good financial manager and this casts doubt on her ability to manage her share of the property adequately so as to be able to continue to make sufficient income to maintain Johan in those institutions. For instance, the First Respondent took possession and control of the flats owned by Johan 1 Pty Ltd at Boroko since September 1995. The property contained four units capable of being rented out to generate income. Yet the First Respondent made no attempt to rent three units out. During the period that she had been in possession of the flats, she had allowed her relatives to live in each of the three other flats not occupied by her rent-free. This is not prudent business management. It is proof of the First Respondent’s inability to think on commercial and business line.
The other factors that hold unfavourably against the First Respondent are as follow:
* ;ټ < T60; The First Responclaimclaims the custody for Johan but wants the Petitioner to provide for Johan’s education and maintenance. Yet she is not prepared to make provision to assist the Petitioner in me thisncial responsibilsibility iity in the property settlement. She’s admitting that even if she gets equal share she will still be unable to maintain Johan.
* ;ɘ S6e has admitted oned on cross examination that she often goes to night-clubs and parties where she consumes alcohol.
* &ـʔ S60; She hase has permittla too nigubs without any rany restraestraints.ints. She attempts to explain this away by saying that Mala was involved in a modelling career.
*&##160;;ټ W60; Whilsthe Atrways Hote Hotel with Mala, she introduced to Mala to an Australian man as her own sister. This is deceitful and a bad example to her daughter.
* &ـ < O60; On a trip to Briswith with Mala in 1996, she openly carried out her relationship with the Second Respondent. On cross examination she casts the blame to the Petit on tsis the Petitionetioner was already seen by the children lien living ving with one Vavine. But the Petitioner’s unchallenged evidence is that Vavine is his adopted daughter.
There is also the aspect of Johan’s wish or desire as to which of the parents he wants to live with. To my mind this is an important factor where the child is no longer an infant. In cases where a child has made his wishes or desire known the court has to exercise great care in awarding custody against the wishes of the child, as the court may end up doing more harm than good to the child. An award of custody against the wishes of a child may not be in the “best interest” of the child as it may create disharmony rather than harmony between the particular person and the child. Johan is longer an infant but a teenager who was able to decide which of his parents he wanted to live with and he has chosen to live with the Petitioner. This is clear from his letter to the First Respondent which was sent by facsimile on 10 April 1997 and marked Exhibit “GG”
Exh “GG”
73 Franks Avenue
New Malden
Surrey KT3 5DD
To my Dearest and only mum,
How are thingr there? Are yAre you Okay? I’m fine. I’m sorry about not writing to you do you forgive me, any where I’ll always love you no matter what and even if I’m in a differenttry. “ll always have have somewhere special for you because you’re my only mum. When I come to Port Moresby during my holidays I guarantee I will visit you and stay with you. I’m staying well and am also improving my English. I would appreciate it if you don’t appeal for my custody. I’m not writing this letter because appa told me to I’ve written to you because I think it is important for my studies and I want to become somebody who is recognised by the society. I’m sure you wouldn’t want me to be like my sister, I’m also counting on you not to appeal for my custody. If you so it, it would just break my heart and destroy my faith in you so I’m asking you that I want to stay with my dad. Arther is taking good care of me she makes sure I have a cup of Milo in the morning and night. Although things didn’t work out when we were together as a family. I’m hoping that this time it will work out. So mummy if you really love me and care for my future please let me stay with my dad. I hope to see you soon when I come over there for my summer holidays.
With lots of love from
Johan Nadesalingam”
It should be noted that the letter in April was written obviously before the fight in July 1997 which means that the relationship between Johan and the First Respondent has now been aggravated. This strengthens his desire to live with the Petitioner.
In the circumstances of this case, and taking into account, the relative conduct, social standing and financial position of the Petitioner and the First Respondent as well as the express wishes of the child Johan which I have alluded to above, I am of the opinion that it would be in the best interest of the child that custody be awarded to the Petitioner and I so order on the following conditions:
1. & That at the e d of the 199e 1997 - 1998 academic year in England Johan be brought to Port Moresby forthwith.
2. ټt thetionell end Joh Joh Port Moresby InterInternationational Snal Schoolchool or a or another school in Port Moresby which teaches subjects similar to Port by Intionaool a commencement of the 1999 aca9 academicdemic year year wher where he shall continue until he attains the age of 16 years.
3. That thi Peterionallshllowallow the First Respondent to have reasonable access to Johan at times agreed by both parties or failing agreement at times sanctioned by the court until he attains the age of 16 years.
4. ; T60t tha Petitioner shallshall not allow Johan to leave Papua New Guinea without the consent of the First Respondent.
50;҈&ـ Earty shall be at liberty to apply on 14 days notice tice to thto the othe other paer party. SETTLEMENT OF PROPERTY The court is empowered under s.75 of the Matrimonial Causes Act Ch. 282 to sanction property settlement upon dissolution of a marriage.
That section provides: s. 75 P of cwith resp respect toct to settlement of property (1) ټ In proc proceedings under this Act, the Court may by order require the parties to the marriage, of eitf the make the
behe benefitnefit of all or any of the parties to, and the children of, the marriage, age, such settlement of property to which the
parties are, or either of them is, entitled (whether in possession or in reversion) as the Court thinks just and equitable in the
circumstances. (2) ـ In proc proceedings under this Act, the Court may make such order as the Court thinks just and equitable with respect
to the application, for the benefit of all or any of the parties to, and the children of, the mae, ofwhole or part of t of propeproperty
dealt with by ante-nuptial or post-nuptial settlements on the parties to the marriage, or either of them. (3) &ـ The powe power of r of the Court to make orders of a kind referred to in this section shall not be exercised for the
benefit of a child who has attained the age of 21 years unless the Court is of opinion that there are special circumstances that
justify the making of such an order for his benefit. Before apportionment of the properties can be made between the Petitioner, the First Respondent and their two children, it is necessary
to determine the total value of all the family properties including shares, business accounts, land, motor vehicles etc. Mr. Wardley, in paragraph 3 of his affidavit sworn and filed herein on 10 October 1997 (Def. Exhibit 2) lists the following family
companies and business. i. Johan 1 Pty Ldmite
iii. ټ I60; Institute of Businesd Studies
iv. ټ N& Amp; Associasociates
v. ټ&##160;; Nades Services Pty Limitedvi. ټ&1160; Ob0; Oboboma boma Investments Pty Ltd
dv
vii.&#ii. JoW. Cucstrn tio/pvi Various assets ownedowned by t by the above family companies and individamilyers aeir rtive tion ontained in Annexurnexure e “D220;D”
to Mr. Wardley’s affidaffidavit. vit. ThereThere have been differences in opinion as to the total value of these properties. The Petitioner’s own summary of the net value of the family assets was K914,249,00 (see Exhibit - M). This figure was extracted
from the financial statements of all the family companies and personal assets of the Petitioner prepared for the previous financial
year being 31 December 1996. The value of the properties were taken on their “quick sale value” as opposed to their “market
value”. The Petitioner sought to show through Mr Brian Singut that the ”market value” was normally the opening
price and the sales were normally concluded in the final analysis at levels which were comparable to their “quick sale value”.
The “quick sale value” the Petitioner says is a conservative and more realistic valuation. As is clear from paragraph 11 of Mr. Wardley’s affidavit he concluded from analysing the Financial Statement of Accounts and
answers provided by the Petitoner the family companies and assets put together was worth in the lower range, K964, 403.00 and in
the upper range, K1,444,403.00. His calculation as based on market-value. The Petitioner has submitted that the true valuation of
the family assets should be as calculated by the Petitioner which is K914,249.00. The First Respondent submits I accept Mr. Wardley’s
valuation. I have considered the submissions on this respect and I am not prepared to accept that put forward by the Petitioner for two reasons.
Firstly the valuation was done by the Petitioner himself. He obviously has an interest in ensuring that the companies pay out as
little as possible to the First Respondent through a lower valuation. Secondly, the Petitioner has not been forthcoming or open to
various information sought by Mr. Wardley in relation to most of the family companies/financial standing as can be seen from paragraph
12 of Mr. Wardley’s affidavit (Def. Exh 2). Had the Petitioner provided all the information or at least made some comments
on the information sought by Mr Wardley, at least Mr Wardley may have been able to make a more realistic valuation. I also prefer
Mr Wardley’s valuation to that of the Petitioner because Mr Wardley is a person who has no interest in these proceedings. Considering
that certain information has been withheld from Mr Wardley may have been able to make a more realistic valuation. I also prefer Mr.
Wardley’s valuation to that of the Petitioner because Mr. is a person who has no interest in these proceedings. Considering
that certain information has been withheld from Mr. Wardley as I have pointed out above, the valuation I find as a fair valuation
of the family properties is that of Mr. Warally which is at the upper range namely K1,444,403.00 . As it is not disputed that half (50%) of the total value namely K722,201.50 shall be reserved for the children Mala and Johan Nadesalingam,
the remaining fifty percent (50%) shall be apportioned between the Petitioner and the First Respondent equally which means that the
First Respondent would be entitled to property to the value of K361,100.75. This shall include the four (4) x 2 bedroom flats at
Section 26 Lot 11 Boroko (which has been valued by Century 21 Real Estate at K250,000 - see Annexure to Mr. Wardley’s affidavit)
which shall be transferred to the First Respondent free of any encumbrances. Any outstanding rentals in the property shall be met
by the Petitioner. The costs of such transfer including stamps duty, registration, filing and legal fees shall be met by the Petitioner. The Petitioner shall take steps to effect such transfer within 6 months from the date hereof. In the meantime the First Respondent
shall be at liberty to occupy herself or rent all or some of the flats. The balance of K111,100.75 shall be paid to the First Respondent in such manner or form as determined by her. As I am satisfied in the circumstances that proper arrangements have been made for the welfare, advancement and education for the
children of the marriage, particularly Johan Nadesalingam who is under 16 years of age, I order that decree nisi granted by Los,
J. on 15 April 1997 for the dissolution of the marriage between the Petitioner and the First Respondent be made absolute forthwith. As the First Respondent is unemployed and considering her level of education and her limited professional experience which means that
she is unlikely to obtain employment, she would have difficulty paying her legal and other costs of these proceedings. Consequently
I order that her costs be met by the Petitioner. Lawyers for the Petitioner: Fiocco, Posman, Kua Lawyers for the First Respondent: Narokobi Lawyers
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/1998/82.html