[1999] PNGLR 58

PAPUA NEW GUINEA

[national court of justice]

PETER KOHOSE

V

JEAN ORU

popondetta: vagi aj
11, 18 March 1999

family law – Marriage under custom – Divorce by custom – Custody of children – Relevant considerations.

Facts

The applicant and the respondent were married and divorced according to their custom. They had two children by their marriage. The applicant sought custody of the children.

Held

1.	In dealing with an application for custody, the paramount consideration by the Court is the welfare of the child or children. These include the comforts, health, moral, intellectual and spiritual welfare: Bean v Bean [1980] PNGLR 307 applied.

2.	The Court in dealing with the welfare of the child or children must consider such matters as the circumstances of the parents; circumstances in which it is intended to raise the child or children; ability to provide for the child or children’s advancement in life; age of the child or children and maintenance of existing relationship: RG v MG [1994] PNGLR 413 applied.

3.	The applicant did not satisfy the requirements for custody of his children. The respondent did.

4.	Application refused. Custody awarded to the respondent.

Papua New Guinea cases cited

Bean v Bean [1980] PNGLR 307.
Kere v Bessi Timon and Family [1990] PNGLR 103.
Madaha Resene v PNG [1991] PNGLR 174.
Re James Allan Sannga [1983] PNGLR 142.
RG v MG [1984] PNGLR 413.
Tom v Kayiak [1992] PNGLR 171.
WP v DP [1982] PNGLR 1.

Counsel

J Uware, for the applicant.
Respondent on her own.

18 March 1999

Vagi aj. This is an application by Peter Kohose for custody of his children Graham Kohese and Isaiah Kohose, both male, as being about seven and four years old respectively. The respondent Jean Oru is their mother.

I must state at the outset that my task in determining this application has been made difficult by the respondent not having the benefit of legal representative in the application. However, I overcome this by almost verbatim, allowed her to respond to all matters the applicant has deposed to in his affidavit. To fully appreciate her, I read and explained paragraph by paragraph what the applicant has deposed to and obtained her response. I hasten to add that she fully understood them and presented before me all the necessary factual background of her marriage to the applicant and how their marriage came to an end. 

From all the materials the parties have presented, I see no point to adjourn the application and to allow the respondent time to seek legal assistance as well as finding a legal representative. This province has no legal practitioner in Popondetta. So any legal assistance or a representative can only be found outside of the province. Being villagers, I do think considerable cost may be incurred by them. With the assistance of counsel for the applicant, I think it is for their benefit that I should dispense with this application during this sitting.

Having said that I now deal with what I am required to do. I should start with the marital background of the parties. Although the parties originated from the Oro Province, their respective villages are some considerable distant apart. I understand same customs and traditional practices apply throughout. The applicant is from Koipa village, while the respondent is from Sasembata. Before the birth of their two children, they went through a customary marriage. Sometime in November 1996, the Anglican Church blessed their marriage at Koipa Village. I do not think this to be a celebration of a legal marriage but some form of ecclesiastical recognition. I find no consideration arises in respect of the legitimacy of the children. I find their marriage to be a valid one as far as Part IV of the Marriage Act goes. This Act stipulates that a customary marriage whether entered before or after the commencement of the Act, shall be as valid and effective as a marriage under Part IV of the Marriage Act. For the purpose of this application, the children are legitimate within the provisions of the Infant Act.

Since their marriage the parties lived at Koipa village, until July 1998 when the respondent went back to her village Sasembata. After a short while she returned to Koipa accompanied by a younger man who later became known to the applicant as the respondent’s present husband. She says in Court, the applicant caused her separation because while they lived as husband and wife, he was having an affair with another woman who now is his present wife. He gave no attention to her and the children. Consequently she took the children and went back to her village and met her present husband. I find their marriage is truly over.

There seems materially be little different in whatever environment these children are brought up. As villagers, no one parent is better than the other in terms of their livelihood. If the children are left with the respondent, as they presently are, they form part of a household consisting of the respondent, her mother, her mother inlaw, her husband and the two children. If with the applicant, the household apparently will consist of the applicant, his present wife, the two children and other relatives whom he did not disclose and such other children as may be born to him.

In relation to the earning capacity of each party, the applicant is a subsistent farmer, and at times drives PMV trucks. From these sources he does not disclose his earnings in terms of cash income. The respondent says she and her husband own a village level tradestore, cocoa and coffee blocks as well as other crops such as betelnuts and all types of garden crops. She estimates that the family earns about K150.00 occasionally and to her, this is quite sufficient to sustain her family. There is a school and a clinic at the village.

There is a strong desire expressed by them to educate these children. I understand the villages have developed agricultural communities and the children left at either community, I think will adopt and form part of that community. As the children are still of tender years I need not concern about their customary inheritance rights. Their upbringing while still young is the paramount consideration. 

There is one matter the applicant raised. In his affidavit he deposed that the respondent’s relatives have told him that the respondent neglects and mistreats the children. He also heard that the children live with other relatives other than with her. The respondent when questioned about these allegations, denied and says the children are always part of her and since their separation from the applicant, the applicant has not once provided any form of maintenance to them. The applicant further deposed that his present wife in a "good substitute to the natural mother". I am not convinced any woman is a good substitute to a natural mother.

There are a number of recent cases where "interest of the children" is discussed. In Susi Tom v Mazion Kayiak [1992] PNGLR 171, His Honour Los J considered and referred to other cases such as RG v MG [1994] PNGLR 413, Bean v Bean [1980] PNGLR 307, WP v DP [1982] PNGLR 1, Kere v Bessie Timon and Family [1990] N807, Re James Allan Sannga [1983] PNGLR 142, Madaha Resene v PNG [1991] PNGLR 174.

In the case of Tom v Kayik (supra) the Court awarded custody to the respondent, who was the father of the children on the basis that the welfare of the children be better served by him than their mother. That shows that the mother factor cannot be paramount when it is shown that she is not in a best position. The relevant matters for consideration are listed in RG v MG (supra). They are as follows:

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

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

(c)	The ability to provide for the child’s advancement in life; 

(d)	The age of the child; and 

(e)	Provision for the maintenance of existing relationship.

His Honour Kapi J (as he then was) in Bean v Bean (supra) said:

"… the welfare of the infant usually referred to as the comfort, health, moral, intellectual and spiritual welfare of the child. These elements, in turn are fundamental dependently on the existence of security, stability, 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 considering what is the best interest of the children in this case, I think all the matters spelt out in RG v MG (supra) and Bean v Bean (supra) would in my view favour the respondent. While these children are of tenders years, seven and four years respectively, and are well looked after at her Sasembata village, she exercises mother’s love and affection for them. I remember in my days as a Child Welfare Officer some thirty-one years ago, I learnt about a universal declaration of mother by the United Nations as best keepers of the young children. Over the years the circumstances have changed as parents of the children take up equal opportunities in work and so the courts as in the case of Tom v Kayik (supra) give less and less attention to the mother factor but weigh both parents of their capacity and ability to provide for the advancement of the children. 

In so doing the Courts does give careful consideration on matters raised in Bean v Bean (supra) and RG v MG (supra).

I do not consider the applicant’s new wife as a "good substitute" to the respondent who is the natural mother. His lack of concern for the welfare of his children when they are separated from him is one telling factor that ought not to be in his favour. He comes to this Court seeking custody when he in fact cannot provide for the children, even if he has ability and capacity to do. I am satisfied that within the limitation of her situation the respondent does her best to raise her children without the applicant’s support.

In this country, particularly in the rural setting, children often become accustomed to regard their aunts as mothers, uncles as fathers and cousins as brothers or sisters. They are brought up in very close relationship. I find these children need a very close contact with the respondent, their mother, and I do not think they should be separated.

I have no doubt the children knew who their father is and will seek him. Although, I am inclined that this will happen, but there will come a time when the respondent would wish that her children should return to their father who is the applicant. It is his moral duty; even the children are with the respondent, to continue providing for their needs in terms of finance, health, education as well as security.

For the foregoing reasons I refuse the application. Accordingly I order that the respondent has custody of the children Graham and Isaiah, the subject of this application.

It appears the applicant ought to have some access to his children but I think I would leave the parties what is reasonable to them. If they cannot agree between themselves I would leave the parties liberty to apply to the Court.

Lawyer for the applicant: The Public Solicitor.
No lawyer for the respondent.