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Kane v Kane [2013] PGNC 203; N5449 (11 December 2013)

N5449

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MC NO. 10 OF 2012

BETWEEN:

HALU KANE
Petitioner

AND:

DOROTHY KANE
Respondent

Mendi: Kassman, J
2012: 6 December
2013: 6 & 11 December

MATRIMONIAL CAUSES – petition for divorce – defended – decree nisi for dissolution of marriage granted – no joint property – interim orders for custody and access – orders for home visit and report by welfare division of Southern Highlands Provincial Administration – decree absolute granted – principles applicable of exercise of discretion as to custody - orders for custody

Cases Cited:

Bean v Bean [1980] PNGLR 307

Legislation Cited:

Matrimonial Causes Rules sections 51(3), 52, 159
Matrimonial Causes Act c.282 sections 4, 14(3), 17(m), 33(1), 27, 28, 58 and 74
Marriage Act c.280 section 36
Constitution Schedule 2.1.1
Customs Recognition Act c.19 section 3
Village Courts Act c. 1989 section 46
Summary Offences Act c.264 section 11
Criminal Code section 121

Counsel

Halu Kane, Petitioner in person
Dorothy Wasun Kane, Respondent in person

DECISION

11th December, 2013

1. KASSMAN J: Halu Kane ("the petitioner") petitions this court for a decree of dissolution of his marriage to Dorothy Kane ("the respondent"). The Petition was filed on 30 May 2012. The petitioner has also filed a Notice of Petition, Affidavit in Support of the Petition, and Affidavit Verifying the Petition. He has obviously obtained some legal advice and assistance with preparation of his documents, all of which substantially follow the prescribed forms in terms of their content and format.
   
2. The Court notes Mendi is a small town located in the highlands of Papua New Guinea. There are no lawyers or legal firms resident in the town. Lawyers who do make appearance in this court travel in by road from Mount Hagen or by air from Port Moresby. Access to legal services is limited so most people have no choice but to appear as litigants in person. They make the most from knowledgeable people in the community and some, at great risk, rely on 'bush lawyers" or persons who may have practiced before or have had some legal experience but who are not properly registered and certified to practice. In this matter, the petitioner and respondent have appeared in court in person and have relied on affidavits they themselves have prepared and filed. There is nothing wrong with this. They have the right to speak and represent themselves in court. The court room is not exclusively for lawyers although when lawyers do appear, the court would certainly benefit from assistance they offer to their clients and as officers of the court.
   

The marriage

3. The petitioner and respondent agree there was a lawfully registered marriage celebrated in the Tente United Church in Mendi on 25 March 1995. The petitioner has not filed the original Certificate of Marriage as required by section 51(3) of the Matrimonial Causes Rules and he has not provided an explanation. A copy of the marriage certificate dated 25 March 1995 is annexed to the petitioner's affidavit sworn 14 May 2012 and filed 1 June 2012. This states that David Mesulam Sikar (Reverend), having the authority under the Marriage Act to solemnize marriages, did, on 25 March 1995 at Tente United Church Mendi solemnize the marriage between Halu Kane and Dorothy Wasun in the presence of witnesses. The respondent's maiden name prior to the marriage was Wasun. The two official witnesses, commonly called the best man and bride's maid, have applied their signatures on the marriage certificate across from the signatures of the groom and bride. The form and content of the certificate follows the prescribed form of a certificate of marriage.
   
4. The marriage is what is commonly called a church marriage being a marriage where the union of a man and woman as husband and wife is solemnized or blessed in a religious ceremony by a minister of religion whether a priest or pastor or other authorized celebrant. Further, such ceremonies are performed in accordance with the rites or requirements of the church of both or one or the other partner. This union is at the same time referred to as statutory marriage being a union duly registered in accordance with the requirements of the Marriage Act Chapter 280. Under section 36 of that Act a statutory marriage can also be recorded in a civil marriage ceremony before the Registrar-General or such other person as authorized.
   

Jurisdiction

5. This being a marriage registered pursuant to the Marriage Act Chapter 280, its dissolution can only be granted by the National Court based on grounds set out in section 17 of the Matrimonial Causes Act Chapter 282. It is noted the petitioner commenced proceedings in the Mendi District Court and that court correctly refused to deal with the matter for the reason the District Court lacked jurisdiction.
   
6. It is an accepted fact that both the petitioner and respondent are citizens of this country and are also resident and domiciled in the country. That is a further prerequisite to this court assuming jurisdiction in this matter as provided by section 14(3) of the Matrimonial Causes Act.
   

Service of the petition

7. The petition and the petitioner's documents described in paragraph 1 above were served on the respondent on 24 July 2012 and this is confirmed in the affidavit of service of Luke Hetaiya sworn 25 July 2012 and filed 3 September 2012. The respondent does not take issue with service.
   

Generally – the petitioner and respondent

8. The respondent has done her best to respond to the petition, apparently without any legal assistance, and what is important is she has demonstrated respect for the processes of court. On 21 September 2012, the respondent filed a Notice of Intention to Defend. This is not a form prescribed by the Matrimonial Causes Act and Rules and, as such, has no bearing on the proceeding but that anomaly has no significant bearing on the proceedings and in particular the rights and responsibilities of the respondent in this matter.
   
9. The petitioner and respondent are members of the United Church with strong family and a steady upbringing as Christians in the United Church.
   
10. In his petition, the petitioner says he is from Takipa Village, Magarima in the Hela Province but in his affidavit sworn 14 May 2012 and filed 1 June 2012, he says he is from Perali Village, Magarima in the Hela Province. There was no issue raised with this difference. He says he was born on 3 March 1960 to parents both of whom are citizens of this country. The petitioner is an accountant by profession, pastor and evangelist of the United Church. He says he currently holds the position of treasurer of the Hela Region United Church and also Business Manager of Hela United Investment Ltd (formerly Menduli Ltd) which is owned by the Hela Region United Church. In performing those roles, the petitioner resides in Tari. Prior to that posting, the petitioner served in various similar administrative positions in the United Church in the Southern Highlands Province. He is certainly a long standing senior member of the United Church serving principally in the Southern Highlands Province and the Hela Province.
    
11. The respondent is from Tente Village, Mendi in the Southern Highlands Province and was born on 25 December 1975 to parents both of whom are citizens of this country. The respondent lives at her village outside Mendi Town. She is employed as Team Leader of the Mendi office of the Motor Vehicles Insurance Ltd, the country's compulsory third party motor vehicle insurance provider. MVIL confirmed her appointment on a permanent basis effective 26 August 2008 so she appears to have been with MVIL for a number of years prior and now heads MVIL's operations in the Southern Highlands Province.
    
12. When the petitioner and respondent had their marriage solemnized on 25 March 1995, they were both employed at the United Church Southern Highlands head office at Tente in Mendi Town.
    

Claim for refund of customary bride price and reconciliation payments

13. In his affidavit sworn 14 May 2012 and filed 1 June 2012, the petitioner says he paid bride price in the sum of Six Thousand Kina (K6,000) in cash, thirty pigs and one cassowary. The respondent says it was Three Thousand Kina (K3,000) in cash along with the thirty pigs and one cassowary. The petitioner wants that repaid to him. In his petition, the petitioner also wants a refund on his reconciliation cash payment of Nine Hundred and Eighty Kina (K980) and five pigs worth Six Thousand Eight Hundred Kina (K6,800).
    
14. These payments of cash and the pigs and cassowary allegedly given by the petitioner to the respondent were offered and accepted in accordance with customary practices and obligations of the petitioner and respondent. In most customary marriage ceremonies in this country, there is a mutual exchange of food and gifts. It is also normally the case that the groom and his family make a cash presentation to the family of the bride. Whether such a payment is accepted is a matter for the parents of the bride but once it is accepted, the union is then said to have gained recognition and acceptance by the family of both parties as a customary marriage. Any claim for reimbursement must be pursued in the appropriate forum where the exchange took place and that is in accordance with applicable customary practices and traditions. In that forum, the appropriate customary or traditional authority would have to consider all relevant factors including the fact that the parties did cohabit as husband and wife, both did participate in their respective family and society events according to customary obligations and from the marriage the respondent did give birth to and raised two daughters of the union with the petitioner. Above all, that customary authority would also have to be guided by the dictates of the Constitution Schedule 2.1.1 which provides that "custom shall be applied and enforced, as part of the underlying law" unless "...it is inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity."
    
15. Further, section 3 of the Customs Recognition Act Chapter19 provides that custom will not be recognized if injustice will result or if recognition will be contrary to the public interest, or contrary to the best interests of the child.
    
16. In this proceeding, the petition is filed and determined pursuant to the Matrimonial Causes Act and Rules. Section 4 of the Matrimonial Causes Act provides the Act does not apply to or in relation to a customary marriage. This court only has jurisdiction in accordance with the Matrimonial Causes Act and Rules and in respect of the laws that govern statutory marriages. This court has no jurisdiction in respect of these claims for refund of cash, pigs and the cassowary as claimed by the petitioner.
    
17. Under section 46 of the Village Courts Act 1989, it provides that in matters relating to bride price, "a Village Court may award such amount in compensation or damages as to the Village Court seems just". The petitioner's claim for refund of bride price and reconciliation payments may be pursued in the Village Court and not here in the National Court.
    

Children of the marriage

18. From this marriage, the petitioner and respondent have two children. The first child of the marriage was a daughter Emelyn who was born on 19 January 1996. She will turn 18 years old in five weeks time. The second child is also a daughter Baronica who was born on 22 May 2000. She is now thirteen years old.
    
19. The petitioner and respondent lived together or cohabited as husband and wife until 2 June 2006 when the respondent left the matrimonial home.
    
20. The petitioner states two grounds in paragraph 9 of the petition as the basis for his petition for the dissolution of the marriage.
    

First ground of petition - adultery

21. In the first ground of the petition, the petitioner alleges the respondent committed adultery on two separate occasions. Although, in paragraph 9 of his petition, the petitioner names the persons with whom he alleges the acts of adultery were committed, the petitioner has not named them as parties or co-respondents to the petition. By section 33(1) of the Matrimonial Causes Act, the petitioner was required to make such persons parties to the petition and by section 52 of the Matrimonial Causes Rules, the petitioner was obliged to file and serve on the alleged co-adulterers a Notice of Proceedings. This court will not state their names and identities in this judgment as they have not been given the opportunity to respond to the allegations of the petitioner. This is to uphold fairness and ensure the processes of the court are just and are not abused which could result in the reputations of the respondent and innocent persons being unduly tarnished. This ground of the petition is dismissed and all statements in support of this ground are accordingly struck from the record.
    
22. One further aspect of non-compliance is the failure of the petitioner to file with his petition a Discretion Statement. In paragraph 12 of the petition, the petitioner says he will ask the court "to make a decree notwithstanding the facts and circumstances set out in the Discretion Statement to be filed herewith". By section 159 of the Matrimonial Causes Rules, a Discretion Statement must be signed and filed by a petitioner where the petitioner himself has been guilty of adultery, cruelty or desertion or such other conduct which caused or contributed to the ground on which the petition is based. In that statement, the petitioner would conclude with the request that the court should exercise its discretion and grant the divorce notwithstanding the facts disclosed in the statement. There is no record of such document being filed by the petitioner. For this further reason of non-compliance by the petitioner, the ground of adultery as claimed by the petitioner is dismissed.
    

Second ground of petition - Separation

23. In the second ground of the petition, the petitioner alleges the respondent left the matrimonial home on 2 June 2006 and she has failed to return to the matrimonial home and cohabit with the petitioner. As such, the petitioner says both he and the respondent have lived separately and apart for a continuous period of over five years. Further, the petitioner says there is no reasonable likelihood of cohabitation being resumed or there is no chance or prospect that the respondent will return to the matrimonial home to live as wife to the petitioner. In his own words, the petitioner says they "have gone their own separate ways for a long time and the marriage is as good as dissolved."
    
24. The Petitioner also says there have been numerous attempts at reconciliation but all such discussions have been in vain or unsuccessful. He refers to discussions in the family home, in the church with the help of members of the church congregation, in the village court and Mendi District Court but all such attempts at mediation and reconciliation have been futile.
    
25. In response to the petition, the respondent has filed a number of affidavits. The first is an affidavit sworn by the respondent on 3 October 2012 and filed 5 October 2012. The respondent essentially says the marriage was quickly arranged by the petitioner and despite objection at an early stage by her step-father in an angry and violent or destructive rage, she remained committed to the petitioner. The respondent says despite her best efforts to support and understand her husband, the relationship deteriorated with the petitioner repeatedly accusing the respondent of being unfaithful and behaving in a disrespectful manner when in contact with other men including family members. The respondent says the petitioner would constantly monitor her movement and conduct with work colleagues and even in public places.
    
26. This possessive and destructive conduct was too much for her to bear and she then left the matrimonial home on 2 June 2006 after the petitioner brought up allegations of adulterous affairs. The respondent admits there were numerous attempts at reconciliation but the petitioner maintained his abusive conduct despite a number of public commitments to change his cruel and wrongful conduct towards the respondent.
    
27. On 14 April 2009, the Village Court at Longo deliberated on a complaint of the respondent. That proceeding was presided over by five Village Court Magistrates George Tange Roti of Teta Village, Embayamu Eya of Wakwak Village, Francis Una of Umbimi Village and Tiambenda Yagiowa of North Kagua.
    
28. The depositions of that court proceeding are restated here as follows:
    

"Complaint of Dorothy Kane of Tente Village against Halu Kane of Tente Village

Statement of Complaint: Yu dispel ino save laikim lain bilong meri ikam long haus bilong yutupela marit. Taim meri toktok wantaim lain bilong em long rot, market or haus em yu save kros na tok olsem. Yu toktok wantaim man bilong yu na yu save kros nating olgeta taim. Dispela pasin bilong yu ino gutpela na em laik putim igo long kot.

Date of hearing: 14/4/09

Order: Olsem kot givim yu 1 yia (1 Year) oda long senisim pasin na yu ino bin bihainim dispela oda. Meri tokim kot olsem. Nauba sista bilong em indai long dispel kain pasin em bin indai. Lain bilong merit ok oraet long brukim marit. MERI yu iken marit nupela man, man yu ken maritime nupela meri. MARIT bilong yutupela em pinis nau".

29. This was translated by this court's Interpreter Mr Nelson Piane as follows:
    

"ORDER: The Court gave you one year to change your attitude but you did not follow this order. The woman has told the Court that her sister died because of this attitude. The woman's family have agreed that this marriage be dissolved. Woman you can get married to another man. Likewise, man you can get married to another woman. This marriage is now dissolved."

30. This clearly shows the community had accepted the separation of the parties but, as discussed above, this is a statutory marriage which can only be dissolved by the National Court. The Longo Village Court did not have the power to make an order for dissolution of this marriage.
    
31. What is clear from the affidavit evidence submitted by both the petitioner and the respondent and statements made in court are two essential things. Firstly, there is no dispute to the fact the parties have lived separately and apart for a continuous period of over five years. The petitioner's claim that the respondent left the matrimonial home and has not returned since 2 June 2006 has not been refuted by the respondent. There is no dispute the petition was filed on 1 June 2012 which is five years and three hundred and sixty one days from the agreed date of separation 2 June 2006. This is an agreed fact. Secondly, it is also admitted by both the petitioner and the respondent that they have each moved on in life and are now living in their own relationships with new partners. This is also an agreed fact. Thirdly, they make no claim for reconciliation and a resumption of the relationship as husband and wife. These are all the key elements to establishing the ground of separation.
    
32. Section 17(m) of the Matrimonial Causes Act provides that a decree of dissolution of marriage may be based on the ground that "the parties to the marriage have been separated and afterwards have lived separately and apart for a continuous period of not less than five years immediately preceding the date of the petition, and there is no reasonable likelihood of cohabitation being resumed."
    
33. On these agreed facts, the ground of separation is established. There is nothing further to address in this respect so this court is prepared to grant the petition for dissolution of the marriage.
    

Bars to dissolution of marriage

34. Under section 27 of the Matrimonial Causes Act, there are absolute bars to the dissolution of a marriage namely condonation and connivance but these bars do not apply to the ground of separation. "In short, condonation means active forgiveness, made with full knowledge of the circumstances. For instance, if a wife who knows of her husband's adultery tells him that she will overlook it if he changes his behavior, and they then continue their married life, she cannot normally rely on that adultery as a ground for divorce. It is possible, however, for the original offence of adultery to be revived, and the condonation cancelled, if the husband engages in further misconduct later. Connivance refers to a situation where one spouse actively encourages or at least acquiesces in the commission of a matrimonial offence by the other...". Jessop and Luluaki, Principles of Family Law in Papua New Guinea, Second Edition, University of Papua New Guinea Press 1994 at page 68.
    
35. Where the ground of separation is relied on in a petition, the applicable bar to the dissolution of the marriage is collusion under section 28. Collusion occurs "when the spouses have agreed, with the intention of causing a perversion of justice, to present false evidence or withhold evidence from the court, or to arrange for the commission of a matrimonial offence ... in order to provide the ground for a petition". Jessop and Luluaki, Principles of Family Law in Papua New Guinea, Second Edition, University of Papua New Guinea Press 1994 at page 68.
    
36. There does not appear to be any evidence of collusion by the petitioner and respondent in the presentation of this petition for dissolution of their marriage. This court is satisfied that there is no bar to the dissolution of this marriage.
    

Decree nisi of dissolution of the marriage

37. Having found that the ground of separation is established and on being satisfied that there is no bar to the dissolution of this marriage, there is nothing further to address in this respect so this court grants the petition for dissolution of the marriage. Pursuant to section 58 of the Matrimonial Causes Act, a decree nisi of dissolution of marriage is now formally granted.
    

Custody

38. Both the petitioner and the respondent seek custody of the two children of the marriage Emelyn and Baronica. Emelyn was born on 19 January 1996 and will turn 18 years old in five weeks time. Baronica was born on 22 May 2000 and she is now thirteen years old.
    
39. As the ground of adultery has been dismissed, all evidence filed by the petitioner which allege affairs and adultery on the part of the respondent will not be considered.
    
40. All the other evidence from the petitioner and respondent discussed above are certainly considered and that relates to their personal particulars and upbringing in the United Church, employment and work with the United Church and MVIL respectively, and their relationship and life together until the respondent left the matrimonial home on 2 June 2006.
    
41. When this proceeding was filed on 1 June 2012, Emelyn and Baronica were living with the sister of the petitioner at a family home in Magarima where they were also attending school. They seemed happy and content in that environment. There was certainly ongoing tension between the petitioner and the respondent. The petitioner admitted that he had kept the girls away from the respondent, his reasoning being the mother was conducting herself inappropriately and he did not want that negative influence being brought on to the girls. These accusations were all refuted by the respondent.
    
42. After conducting a preliminary hearing, this court on 11 December 2012 issued interim orders granting custody of the two girls to the petitioner with arrangements for access by the girls to the respondent in the month of January 2013 and after that on the last weekend of every month and all school term holidays.
    
43. When this matter returned for hearing on 6 December 2013, two critical things came to light. Firstly, the petitioner had chosen to ignore the orders of this court soon after they were issued. Instead of delivering the girls to the respondent in January 2013, they were left by the petitioner with his sister in Mendi at the beginning of the month without notice to the respondent who was informed the day after their arrival in Mendi. When the respondent attended with a sealed copy of the order of this court made 11 December 2012, the sister of the petitioner refused to release the girls to the respondent and the girls themselves chose to remain with the petitioner's sister in Mendi. Despite this situation, the respondent supported the girls during their stay in Mendi and the girls eventually moved and spent just one week with the respondent before returning to Magarima.
    
44. Since returning to the petitioner, he has not allowed the girls to return to spend time with the respondent in Mendi throughout the year 2013. This is a serious breach of the orders of this court. This was conceded by the petitioner and his explanation was travel between Magarima and Mendi is fraught with risks of criminal attacks and the girls were engaged in church work that required their constant stay in Magarima. This was not convincing as, although the risk of criminal attacks are an ever constant fear along this route, the people continue to travel along this highway and the petitioner has never seen fit to discuss this with the respondent and explore the possibility of the girls being flown to Mendi via Port Moresby which is possible with Air Niugini. As to the claim that the girls were heavily involved in church work, this is an unacceptable excuse. The orders of the court granting access to the respondent is not a right of the respondent but a right of the girls to have access to their mother the respondent. This appears to be a seriously misunderstood concept. The refusal to arrange the travel of the girls to Mendi to spend time with the respondent was a denial by the petitioner of the rights of the girls to have access to their biological mother the respondent. Further still, this was a serious violation of very clear orders of this court which is a factor that goes against the petitioner.
    
45. The other critical revelation was the fact the older girl Emelyn is now living with the respondent after she ran away from Magarima without advising the petitioner and his family. I will return to this below where I discuss the affidavit of Emelyn filed on 6 December 2013.
    
46. The petitioner has moved on and is now in a relationship with another woman namely Shelina, a fact that he disclosed rather hesitantly when asked in court. It appears he was unsure as to whether such a disclosure would prejudice or defeat his claim of adultery on the part of the respondent.
    
47. Further, the petitioner has not filed an affidavit sworn by Shelina. The court is not in a position to ascertain as a matter of fact that Shelina is in fact living with the petitioner. If that is a fact, the court should also be advised as to the facts and circumstances of that relationship and Shelina's conduct and attitude towards Emelyn and Baronica, the daughters of the petitioner.
    
48. In all cultural settings including Papua New Guinean, the motherly care of a young girl is a critical factor to their health, safety and wellbeing, regardless of whether that care is provided by the biological mother, an older sister to the girls, an aunt of the girls or even a grandmother and this is especially so with a step-mother who has had very little to do with the upbringing of the girls. That is not to say that a step-mother would not provide motherly care. A step mother may in fact provide the best care and guidance for a child whether a girl or boy. Without any evidence whatsoever from Shelina, this court cannot make any inference whether positive or negative to Shelina and, as a consequence, to the petitioner's position. The fact remains there is no evidence from Shelina and that does not do any favors for the petitioner now.
    
49. The petitioner says he lives at Tari with his new wife and he visits the girls at Magarima on average three or four days in a week. In the past the girls were under the care of the petitioner's sister in Magarima but she passed away early this year. The girls are now under the care of another relative of the petitioner but she has not sworn an affidavit to confirm this and provide details of all arrangements for the care and upkeep of the girls. He says he has taken care of the girls on his own for the last five years and says he will have no problem continuing to take care of them as they grow up. He says he earns sufficient money from the work he does for the United Church but he does not provide any particulars.
    
50. The petitioner's main evidence is contained in an affidavit sworn 2 December 2013 and filed 4 December 2013. The petitioner confirms he is now married to Shelina Balus Kane and he says Shelina has taken very good care of the girls and provides for their daily needs. This bare statement without any particulars is insufficient for this court to form any view on the current state of affairs of the petitioner's relationship with Shelina and Shelina's relationship with the girls. Further and most critically, the petitioner does not provide details of all current arrangements for the girls care and upkeep apart from stating that the girls live in a house in his village under the daily care of his relative and he takes care of all their needs while he resides in another town of Tari.
    
51. What is however alarming are the bold statements of the petitioner, especially the sentence I have underlined below, in the affidavit where he maintains his claim that in Hela society, the man who is now living with the respondent must repay the bride price the petitioner paid to the respondent's family and "Unless all my bride prices are refunded the release of the girls (Emelyn and Baronica) is not negotiable." The petitioner goes on to say "In the highlands society, man or the father is the final authority as head of the family and any decisions made by the head concerning properties, marriage, animals, lands, gardens, trees, valuable items, business and children are respected by the society as final."
    
52. This attitude by a man towards a woman and children, particularly the man's wife and children, by classifying their treatment and regard in the same manner as the treatment and regard of land, property, animals, gardens etc is way out of step with the circumstances of this country. The Constitution provides that we must at all honour and uphold the customs, traditions and cultures of the people of the country but in so doing, we must also respect the basic rights of women and children and treat them with dignity at all times.
    
53. The respondent says that from the time of their birth, both girls were in the care and custody of both the petitioner and the respondent. For a while the petitioner was unemployed and the respondent took care of all the needs of the family including the needs of the girls.
    
54. Since the separation, the girls have been in the care of the petitioner but this arrangement was not made by consent or on a mutual understanding but at the command of the petitioner. The respondent says she has tried in vain to have the girls brought to her but the petitioner has been steadfast in his refusal to allow the girls to be taken by the respondent. Despite this distance away from her daughters, the respondent says she has continued to support them with money passed on to them by family and friends travelling from Mendi to Magarima. The respondent has assisted with school fees and medical costs. The respondent has also maintained communication with the girls through mobile phone and by exchanging letters and she produced copies of such correspondence as annexures to her affidavits.
    
55. The respondent has a three bedroom house in her village and commutes daily to work. She has her own garden from which she produces vegetables. She looks after chickens. The produce from these projects and small income from market sales supplement her fortnightly income. She owns a motor vehicle for private use. She also runs business as a Proma consultant.
    
56. From her employment terms and conditions, the respondent contributes superannuation to Nasfund and has included her daughters as beneficiaries. The girls are also included in the respondent's medical insurance cover with Pacific MMI Insurance. She also receives housing allowance from her employer.
    
57. The respondent says she has moved on in life since the separation from the petitioner. She is in a relationship with another man namely Jack Lama who is from Pangia District in the Southern Highlands Province. Mr Lama confirmed this in a signed statement annexed to the respondent's affidavit. He says he is also from a Christian upbringing and grew up in a large family where his father, as a deacon, took care of neglected or orphaned children. He works with a non government organization PNG-DK Friendship Society coordinating global studies through cultural and education exchange program between PNG and Denmark funded by the European Union through the Danish government. Mr Lama has made a commitment to take full responsibility for the daughters of the respondent and to act as a bridge for the children to have access to their father the petitioner.
    
58. Throughout the course of proceedings in this matter in 2012 and this year, the court has noted the presence of Mr Lama in support of his partner the respondent. Just from observing his conduct, it is evident he fully supports the respondent and is fully aware of the difficult past experienced by the respondent. By his presence in court sitting with the respondent, he gives this court the assurance he is aware of the responsibilities someone in his position will encounter and he appears confident in playing a fatherly role to the girls in support of both the respondent and the petitioner.
    

Statements formulated by petitioner for others.

59. I will now deal with certain statements relied on by the petitioner to make his claim that the respondent was an irresponsible mother and did not have due care for the education of the girls and their orderly upbringing. The petitioner confirms he formulated and wrote or had the statements typed up including the statements on the school and church letterhead.
    
60. The first statement was signed by the respondent's father Reverend Wasun Koka who makes quite disparaging or negative comments about his own daughter cheating on the petitioner and being irresponsible as a mother to her daughters. The court did not hear from Mr Koka.
    
61. There were two statements on Tente Primary School letterhead, the school attended by the girls when they were living in Mendi town. Miss Essie Lora, the class teacher for Emelyn talks of the respondent "unnecessarily" removing Emelyn from class "for no good reason" and that she was taken to Mount Hagen missing seven days of school. She describes the respondent as having an "uncaring attitude" and "abusing the rights of the child's education and future." This teacher denies reading this letter and says she just signed the letter after the petitioner had persistently asked her to sign on a number of occasions and that disturbed and irritated her. Mr Joe Kembo was the school headmaster and he made similar remarks. He was called to give evidence and he confirmed he had signed the statement but he said even though he had signed the statement, the statement was prepared and typed up by the petitioner and he just signed the statement as requested by the petitioner. The other statement was from Reverend Clarence Kapali who is a relative of the petitioner. He also made damaging remarks about the respondent. The Reverend subsequently swore an affidavit saying he does not recall signing the statement.
    
62. I found this very strange indeed. I do not understand why educated persons holding responsible positions of a headmaster and a teacher and a church reverend would sign statements that make such serious statements but they later refuse to take responsibility for the words and effect or consequences of their own signed statements. Such persons who hold respectable positions in society should never sign a document that contains a statement of fact or opinion that is not factually and effectively correct or is untrue.
    
63. These statements will not be given any weight. They were formulated and signed under very strange circumstances and without any real care. They were purposely written by the petitioner to damage the reputation of the respondent and the petitioner sought to rely on that to destroy the respondent's claim for custody of the girls. The statements cannot be taken as a true reflection of the views and opinions of the authors. Clearly these statements were prepared in bad faith on the part of the petitioner.
    
64. In the ordinary course, the authors of such documents would be held accountable for these damaging statements and expressions of opinion where the statements are found to be factually untrue or made in bad faith. The law of defamation provides relief in a claim for damages for any person affected by such harmful statement. Under section 11 of the Summary Offences Act Chapter 264, a person who spreads false or willfully misleading reports tending to cause trouble or ill-feeling amongst people or between groups of people or between individuals is guilty of an offence. Under section 121 of the Criminal Code, "a person who in any judicial proceeding, or for the purpose of instituting any judicial proceedings, knowingly gives false testimony concerning any matter that is material to any question then depending in the proceedings or intended to be raised in the proceedings, is guilty of the crime of perjury."
    

Daughter Emelyn has run away from petitioner

65. Emelyn is now 17 years old and will turn 18 in five weeks time. She is a young woman. She is no longer a child. She has sworn an affidavit which was filed on 6 December 2013. She admits to running away from her father the petitioner due to alleged ill treatment from the petitioner's new wife. Emelyn confirms the petitioner does not live with her and her younger sister Baronica in Magarima. He lives with his new wife in Tari and he occasionally visits them but he does not live with them to see to their daily needs. Sometimes, they go without food and have to fend for themselves. Emelyn expresses the view that she wants to remain with her mother the respondent and when she is ready she will visit her father the petitioner.
    
66. On discovering that his daughter Emelyn had run away, the petitioner reported the incident to police claiming there was a "conspiracy" on the part of the respondent. This response by the petitioner raised concerns from this court considering the petitioner is supposedly a religious man. Instead of speaking direct with his daughter in person or by mobile phone to hear for himself her explanation as to why she suddenly left Magarima without informing him, the petitioner contacted police to investigate the "conspiracy" and forcefully pick up and return his daughter to him. He was steadfast in his explanation in court and insistence on the police taking appropriate action against the respondent as if a major crime had been committed by the respondent and his own daughter. This court will not tolerate this irresponsible and self serving conduct. This court is also pleased to note police did not rush to act on the petitioner's request. Experience has shown that intervention by police in marital and family or social issues without proper consideration of the interests of all parties concerned only leads to an escalation in tension which leads to violence and unnecessary loss of life and loss of property. In her statement, Emelyn says the respondent was surprised to see her when she arrived in Mendi.
    
67. It would be unfair to rush to any conclusions on the bare statement of Emelyn to draw any adverse comment towards the petitioner and his new wife. This court notes the sensitivity of such comments and bears in mind the future conduct of relations between the daughter and her father the petitioner and also his new wife. Above all, it is noted Emelyn is about to turn eighteen years old. Custody orders cease to have effect when a child turns 18 years old.
    

Welfare Report

68. This court has perused two documents signed by a Mr Maris Sapunaik. The first document is in the form of a letter addressed to this court dated 1 October 2012. It was produced as an annexure to the respondent's affidavit filed 3 December 2012. He signs off as Provincial Child Protection Officer and the letterhead is of the Division of Community Advancement Services, Office of Child Protection, Southern Highlands Provincial Administration. Here, there is general discussion of the relevant facts and circumstances of the petitioner and respondent as they concern the children, much of which was provided by the parties and is discussed above. The report recommends the respondent be awarded custody of the children and the petitioner be allowed access. Weight is given to the children being young girls needing their mother's close care and attention and that after separation the girls were with the respondent for a number of years and the petitioner, without speaking with the respondent, then took the girls to Magarima in the year 2010 and has kept them away from the respondent since then.
    
69. The second document is in the format of a court document titled Field Visit Report. This was provided following orders this Court issued on 11 December 2012. The Report is dated 19 April 2013 and was filed directly in the registry by Mr Sapunaik. There is more detail and discussion in the report on a wide range of issues much of which favors the petitioner and he recommends custody be given to the petitioner. The only problem is although he says he visited the homes of both the petitioner and respondent, the respondent says Mr Sapunaik did not attend at her home to conduct a home visit. The petitioner did not comment and neither did Mr Sapunaik refute this even though he was present when the respondent mentioned this in court. This Court takes note of the discussion in the report but will not give serious weight to the recommendation.
    
70. This is the first time to hear of the Office of Child Protection, Southern Highlands Provincial Administration and hopefully this is not the last time as the people are crying out for services that this office should be providing
    

Decision on custody

71. This court is reminded of the principal guiding factor and provided in section 74 of the Matrimonial Causes Act which is that 'the court shall regard the interests of the children as the paramount consideration". In Bean v Bean [1980] PNGLR 307 at page 320-321, Kapi J (as he then was), said "the welfare of the child 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, wise discipline and genuine affection in the home".
    
72. As to what the court should consider in making the assessment, the parties must provide "evidence as to the present circumstances of the child, and the parties proposals for the child's future. This evidence includes details of diet, health, clothing, accommodation and surroundings, caretaking arrangements, significant persons and relationships affecting the child, daily activities and educational progress, and any relevant wishes of the child... Details of the parents behavior and conduct may be important, if it throws light on any aspect of the child's welfare..." Jessop and Luluaki, Principles of Family Law in Papua New Guinea, Second Edition, University of Papua New Guinea Press 1994 at page 134
    
73. In this judgment, the court has discussed the relevant facts and circumstances of both the petitioner and respondent and has commented generally and on specific matters including those as to their current employment and benefits, their homes, their contact with their children, the children's upkeep and welfare and their current personal relationships with new partners.
    
74. The petitioner has had the custody of the children for the longest time. Most of that time, the petitioner had forcefully taken control of the children without any real consultation with the respondent. The petitioner has also been insensitive to the needs, wishes and aspirations of the children.
    
75. In the time the children have been in his custody, the petitioner has in fact left the children in the daily care of his relatives while he has been in another town of Tari, some hours away by road from Magarima. This arrangement was carried out by the petitioner without consulting the mother of the children. The children were held away from their mother against their wishes.
    
76. When the court granted the petitioner interim custody of the children with rights of access to their mother, the petitioner flatly ignored the orders of the court to allow them to spend time with the respondent on set days this year 2013.
    
77. Now, it has been revealed the eldest daughter Emelyn ran away from the petitioner and asks this court to grant custody to the respondent, her mother.
    
78. Considering all of these facts and circumstances, this court believes the best interests of the children will be served by the mother being granted custody of the children. She demonstrates that she is settled in her own home and in her responsible job at MVIL. She has a supportive husband which will be bonus to the children. The children will have more options with schools in Mendi. They will be familiar with many families and friends in Mendi as they lived in the town for a good number of years so it is not a move to a new location. The court is confident the respondent, with the support of her new partner, will honor any orders of this court granting the children regular access to their father the petitioner.
    
79. In the exercise of this court's discretion, the Respondent is granted custody of the children of the marriage.
    
80. The formal orders of the court are:
    
    1. This court finds the petitioner and respondent separated on 2 June 2006 and afterwards have lived separately and apart for a continuous period of not less than five years immediately preceding the date of the petition, and there is no reasonable likelihood of cohabitation being resumed.
       
    2. There is no evidence of collusion by the petitioner and respondent in the presentation of this petition for dissolution of their marriage and as such, this court is satisfied that there is no bar to the dissolution of this marriage.
       
    100. A decree nisi of dissolution of the marriage is granted forthwith.
         
    4. The decree nisi will become absolute in three (3) months from today in accordance with section 60 of the Matrimonial Causes Act unless this Court orders otherwise before then.
       
    5. On the decree nisi becoming absolute, the respondent may resume use of her full name as Dorothy Wasun.
       
    6. The respondent will have custody of the children of the marriage Emelyn and Baronica.
       
    7. On a date to be set in the month of January 2014 by Mr Maris Sapunaik, Provincial Child Protection Officer, Division of Community Advancement Services, Office of Child Protection, Southern Highlands Provincial Administration, the petitioner and respondent are directed to meet and discuss arrangements as to:
       

i. access to the petitioner; and

ii. maintenance, education, health and other expenses for the upkeep of the children to be shared between the petitioner and respondent and the method of payment of such funds.

3. and such discussion shall be chaired by Mr Sapunaik.
   

8. The petitioner and respondent shall return to this court on or at 9:30am on 7 February 2014 for submissions as to orders as to access, maintenance and the date for the decree nisi to be made absolute.
   
9. The time for entry of these orders is abridged to the time of settlement before the Registrar which shall take place forthwith.
   

Judgment accordingly
____________________________________________________

Petitioner in person
Respondent in person