N8149

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA No. 65 OF 2018

BETWEEN
PWAPEI MINOL
Appellant

AND
GLORIA SALIKA
Respondent

Waigani:  Thompson J
2019:   6th November, 5th December

Appeal from Family Court orders – exercise of discretion by lower Court - application for custody and maintenance

Counsel:

E Rere, with the Appellant in person
Ms. G Salika in person

5th December, 2019 
1.	THOMPSON J: BACKGROUND:	    The parties commenced their relationship in 2004, and separated in July 2016.  They had three children together.
2.	On 17 October 2016, the Respondent issued custody proceedings against the Appellant in the National Court on OS 701 of 2016.  The parties filed various affidavits in those proceedings, before they were discontinued, and on 19 June 2017 the Respondent issued custody proceedings in the Family Court on Complaint No. 207 of 2017.  In those proceedings, the Respondent sought orders for her to be given custody, for the Appellant to be given access, and for any other appropriate orders.
3.	In the National Court proceedings, both parties had filed various affidavits, most of which were annexed to the Respondent’s affidavit of 19 June 2017 which she filed in the Family Court proceedings, together with further affidavits by her, including her affidavit sworn on 18 April 2018.  The Appellant did not file any affidavits in the Family Court.
4.	According to the Respondent, the matter came before the Family Court on several occasions, at which the Appellant did not appear.  She says that on 14 June 2018 the Magistrate made initial orders for custody, the Appellant did not appear, and the Magistrate then adjourned the proceedings for further consideration of access arrangements.  She says that on 17 July 2018, she was informed by a court clerk that the Magistrate’s decision would be delivered on 18 July, she appeared on 18 July, the Appellant did not appear, and the Magistrate delivered a written court order dated 17 July 2018.  This order gave custody to the Respondent, and access to the Appellant.
5.	On 18 July 2018 the Appellant filed this Notice of Appeal and related documents.  Pursuant to S115 of the Lukautim Pikinini Act (“LPA”), the Family Court decision was thereby stayed until the determination of the Appeal.  No steps were taken to prosecute the Appeal until December 2018, when the Appellant was ordered by the Court to obtain the District Court Deposition.  This was not done, and in April 2019 the matter was referred by the Court for Summary Determination.
6.	In May 2019, the Appellant filed an application to dispense with the Family Court documents, and for an extension of time in which to file the Appeal Book.  On 15 August 2019 the Appellant was ordered to liaise with the Clerk of Court and obtain the depositions within 14 days, and to make an interim maintenance payment to the Respondent.
7.	On 30 August 2019 the Respondent filed an application for the transfer of the Family Court proceedings to the National Court, and for maintenance.
8.	On 3 September 2019 the Court ordered the Respondent’s application for maintenance be taken before the National Court, dispensed with the requirement for the Appellant to obtain the District Court documents, ordered the parties to file any further affidavits by 26 September, ordered the Appellant to serve the Appeal Book within 14 days, and set both the Appeal and the Application for maintenance down for hearing on 4 October 2019.
9.	The Appellant did not file or serve the Appeal Book, and on 26 September 2019 the Court ordered him to do this by 31 October 2019.  The Appellant still did not comply, and so the Respondent prepared the Appeal Book and filed it on 1 November 2019.  The matter was given another hearing date on 6 November 2019, and proceeded on that date.
10.	At the commencement of the hearing, the Appellant applied for an adjournment, which was refused. After the hearing commenced, the Appellant said that he wished to rely on an affidavit which he had filed the previous afternoon, on 5 November, and which was subsequently short-served on the Respondent.  Both the short-service and the contents of the affidavit were objected to, by the Respondent.
11.	Despite the Appellant’s failure to comply with the National Court Rules and the Court Order for filing of the Affidavit, he was given leave to rely on it, but only in response to the Respondent’s application for maintenance.  He was not given leave to use the affidavit in the Appeal, because pursuant to S229 of the District Court Act, it was fresh evidence which was not before the Magistrate, to which the Respondent objected, and which had not been filed in compliance with the Court Order of 3 September 2019.   
The Appeal
12.	The hearing then proceeded. In relation to the Appeal, the Appellant’s grounds were that the Magistrate erred in granting custody to the Respondent, because after considering all the evidence, she should have found that it was in the best interests of the children to grant custody to him.
13.	It is therefore necessary to consider the evidence which was before the Magistrate.  This comprised affidavits filed by the Respondent.  None were filed by the Appellant.  The Respondent’s main affidavit from 2017 annexed copies of affidavits filed by her and by or on behalf of the Appellant in the 2016 proceedings.   In her affidavit of 11 April 2018, the Respondent updated her position, and provided evidence and set out her circumstances since the 2016 proceedings.
14.	The material before the Magistrate was all provided by the Respondent.  The Appellant did not appear to take any active part in the proceedings at all.  The Magistrate was able to consider the material which the Appellant had filed in the 2016 proceedings, as well as the Respondent’s material filed in 2016, 2017 and 2018.
15.	Under S5 and under Division 4 of the LPA, when considering an application for a parenting order, the best interests of the child are the paramount consideration.  Section103 sets out all the considerations to be taken into account in determining the child’s best interests, including the importance of a positive relationship with the parents, and the extent to which each parent has fulfilled their obligations.
16.	The parties had presented evidence relevant to the considerations set out in S102 and 103 of the LPA.  The Respondent’s evidence of 2017 and 2018 had not been contradicted by any evidence from the Appellant. The parenting orders which the Magistrate made, were for custody to one parent and access to the other parent.  The orders were not manifestly unreasonable or irrational, and they disclosed no error on their face.
17.	The orders were made in the exercise of a discretion by the Magistrate.  That discretion had to be exercised in accordance with the matters set out in Division 4 of the LPA.  By considering all the material before her, from both parties, the Magistrate took into account all those matters put forward by the parties as showing the best interests of the children.  The custody and access orders which were made, showed that the Magistrate had attached more weight to the evidence and submissions provided by the Respondent, and less weight to the Appellant’s evidence without any submissions.
18.	The Appellant has not identified any error in this decision.  His only ground of appeal is that the Magistrate erred in not awarding custody to him.  This could only mean that the Magistrate failed to attach sufficient weight to his evidence, and attached too much weight to the Respondent’s evidence.  He has not identified any particular part of the evidence which he says the Magistrate failed to sufficiently accept, or any particular part of the evidence which she should not have accepted.  He has not identified any error in the Magistrate’s decision to prefer the Respondent’s up to date evidence, part of which was uncontradicted, to the Appellant’s 2016 evidence, which was contested.
19.	The parties gave their own versions of the type of behaviour shown by the other party when fulfilling, or failing to fulfil, their parental obligations to maintain the children.  All that evidence was before the Magistrate, and no ground was shown for finding that she erred in the exercise of her discretion when considering that evidence.
20.	In the Supreme Court case of Bean v Bean (1980) PNGLR 307, Andrew J said:
“In the absence of an error of law or mistake of fact, the exercise by the trial judge of discretion in the award of custody, ought not to be disturbed by reason of the particular weight attached by the trial judge to considerations arising out of the evidence in the trial and referrable, inter alia, to the character and demeanour of the parties or witnesses.... It follows that disagreement only on matters of weight, by no means necessarily justifies a reversal of the trial judge.... an appellate court should be slow to overturn a primary judge’s discretionary decisions on grounds which only involve conflicting assessments of matters of weight.”
21.	Kapi J set out the principles on matters of judicial discretion initially from the High Court of Australia and approved in subsequent PNG cases, thereby becoming part of the underlying law of Papua New Guinea.  Kapi J quoted with approval from House v the King (1936) HCA 40:
“The manner in which an appeal against an exercise of discretion should be determined, is governed by established principles.  It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course.  It must appear that some error has been made in exercising the discretion.  If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his .....  It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion ... .”
22.	In the present case, the Magistrate has not set out in the Order how she reached the result.  However, the Appellant has not identified any extraneous or irrelevant matters which were taken into account or any wrong principles which were followed, or any mistake of facts, or any failure to take into account some material consideration.  The order made, upon the facts in the material which was before the Magistrate, was not unreasonable or plainly unjust.  There is no basis on which this Court may infer that in some way there has been a failure by the Magistrate to properly exercise her discretion. 
23.	The Appellant has therefore failed to establish any ground showing that the Magistrate wrongly exercised her discretion and made orders which were not based on the best interests of the children.   
24.	Under S230 of the District Court Act, on the hearing of an Appeal, the Court may vary the order appealed from, and may make such order as the case requires.
25.	Having regard to the Family Court’s obligation to try to ensure that the children spend at least substantial and significant time with each parent where it is reasonably practicable, I have considered the access orders made by the Magistrate.  The Appellant is to have the children every second weekend, and for three days of each of the school holidays.   This would perhaps not ordinarily be regarded as substantial and significant time with the Appellant.  However, under S102 (4) of the LPA, the determination of substantial and significant time is at the discretion of the court.  Having regard to the children attending school on week days, and the evidence of the Appellant’s regular absences from Port Moresby, the Magistrate seems to have considered that spending more time with the Appellant was not reasonably practicable, as required by S102 of the LPA.  
26.	The separation of parents is inevitably stressful, and it is relevant to note that both parties have acknowledged the important contribution made by the Respondent’s parents.  The parties have been fortunate that the grandparents have been willing and able to provide a loving and familiar environment for the children, whenever the need arose.
27.	By this Appeal, the Appellant sought orders that custody of the children be given to him, with no provision for access by the Respondent.  That is clearly not a type of parenting order which a court would make, except for such cases as might involve violence against, or abuse of, the children, which is not the present case.   
28.	The Appellant has a senior management position which requires him to be away from Port Moresby frequently.  Indeed, his absences on travel commitments were given as the reason for his non-attendances on numerous interlocutory applications.  His failure to take part in the Family Court proceedings in the District Court, and his failure to diligently prosecute the Appeal, may indicate either absences for work travel, or a lack of real interest in the District and National Court proceedings.  Neither explanation lends support to his submission that the Magistrate erred in not awarding sole custody to him.
29.	The Respondent referred to a principle called the “mother factor” in support of her application.  This is said to be a presumption that a young child, especially a young female child, is best left in the custody of the mother.
30.	In the case of WP v DP (1982) PNGLR 1, the court considered this issue, and quoted with approval from Australian High Court decision in Gronow v Gronow (1979) 54ALJR243:
“... The Family Court was in our opinion correct ... in describing the mother factor as “an important factor” because human experience demonstrate that it is so.  The effect of the alteration in the division of parental responsibilities to which we have already referred, reduces the strength of the factual presumption on which the courts formerly acted, but it does not ... eliminate the mother factor or reduce its significance to a consideration which is less than important...”
31.	The court went on to find that the precise weight to be given to it as a factor, necessarily depends upon the circumstances of the particular case.
32.	In the present case, the children including one girl, were aged 6, 3 and 1 when the Respondent filed her proceedings in the Family Court.  While it certainly does not displace the father’s role, I regard the mother’s role, especially in the case of young children, as an important factor to be taken into account, and this is consistent with the exercise of discretion by the Magistrate in the award of custody.
33.	It was said from the bar table that if the Appellant had “won the District Court Case” he would have been prepared to take on an office role which did not require him to regularly travel out of Port Moresby, to be closer to the children.   The inference from this is that unless he has sole custody, he will continue to regularly travel away from Port Moresby, and be unable to be closer to the children.   There was no evidence by the Appellant on this issue.
34.	The Appellant has not specifically challenged the access orders in his Appeal.  He only seeks sole custody, with no access by the Respondent.  It therefore appears that if he is not awarded sole custody, he is content with the existing access arrangement.
35.	Under the LPA, the practice and procedure of appeals from the Family Court, are as prescribed.  Section 87 of the LPA prescribes that the practice and procedures of the District Court shall apply to the Family Court.  Pursuant to S230 of the District Court Act, an Appeal shall only be allowed where there has been a substantial miscarriage of justice.  The Appellant has not produced any evidence to show that the Family Court decision was a substantial miscarriage of justice.
36.	For these reasons, the appeal is refused, and the orders of the Family Court made on 17 July 2018, are affirmed.
Maintenance
37.	The next issue was the application for maintenance.
38.	Pursuant to the LPA, maintenance means the provision of adequate means of support for the general upkeep of children or a spouse.
39.	Pursuant to Division 7 of the LPA, maintenance may be ordered by fortnightly payments, and applies until the child attains the age of 18 years.  It may be varied after that age.
40.	There is no application for spousal maintenance.  Both parties are well educated and employed, and are able to maintain themselves.  The Respondent is seeking orders that the Appellant pay all the maintenance expenses for the three children.  The Appellant is proposing that the expenses be paid equally.
41.	The children are young, and the expenses associated with their education and upkeep will increase as they get older.  Instead of making a single order for a fixed amount of fortnightly maintenance, it will therefore be more practical to make separate orders for medical and educational expenses for the children.
42.	In relation to financial capacity, the Appellant earns approximately K420,000.00 gross p.a., while the Respondent earns approximately K180,000.00 gross p.a.  The Appellant lives in his parent’s house, does not pay rent, and has few expenses.  The Respondent lives in a house with her partner and other children, pays rent, and has a number of other expenses.  Both parties maintain a comfortable standard of living, and expect their children to be maintained to that same standard, including private schooling, holidays, and airline travel.  
43.	Both parties have a responsibility to ensure that the needs of their children, including the emotional and intellectual needs, are provided for by each parent.  Although the Respondent has sole custody of the children, the Appellant is entitled to participate in decisions about major long term issues such as the choice of schools.  Children need stability and certainty in their daily lives, particularly with their schooling, which affects their capacity to make and keep friends.  A child who changes schools, particularly as they get older, may have difficulty in making new friends, and in adapting to new educational requirements.  Both parents have a responsibility to reach agreement on the choice of schooling. 
44.	The Appellant has not proposed any variation to the current schooling arrangements, and I will therefore proceed on the basis that these arrangements will continue, with the need for any future changes to be carefully considered and agreed by both parents.
45.	The Appellant’s financial capacity is much greater than that of the Respondent.  He also has the capacity to have some expenses paid for by his employer, such as Medical Insurance.  When not travelling, the Appellant lives with his parents, and has few expenses.  When the children are with him on weekends, he says that usually, the children go to their grandparents on Friday night, stay there until Sunday, and return with him to his parent’s house for the rest of the day.  He pays for the food and groceries when the children are with their grandparents.  
46.	The Appellant said that he paid K200.00 per week for a baby sitter at the Respondent’s parent’s house, even though the children did not live there.  The reason for this was not clear.  The Respondent said that she pays K250.00 per week for a live-in baby sitter, K250.00 per week each for two house meris, and K250.00 per week for a driver who takes the children to school in the mornings and picks them up in the afternoons.  I accept the Appellant’s submission that these payments are partly for the benefit of the two other children of the Respondent’s new relationship.
47.	The Respondent says that she also incurs weekly expenses for house rental, electricity, gas and cable TV.  The Appellant did not say that he had any of these expenses.   The Respondent had further general living expenses such as the cost of maintaining a motor vehicle, mobile phones, and so on.  The Appellant did not give evidence of such expenses being incurred by him, but it is reasonable to assume that he does have similar expenses.  There was no evidence that either party’s income would be likely to change in the foreseeable future.
48.	The Respondent may struggle to continue to pay for the school fees, particularly when they increase as the children get older and go to high school.  The children’s continuing education should not be subject to the risk of them having to leave or change schools if the Respondent is no longer able to afford the fees.
49.	Having regard to the financial capacity of the parties, and their respective incomes and expenses, I consider that it would be in the best interests of the children if the Appellant paid for the majority of the expenses associated with the children.  In particular, the certainty of having school fees being paid for, will ensure stability in their education. 
50.	Of course, circumstances may change in the future.  The Appellant may lose his employment or in some other way become unable to maintain his present income.  If so, the parties will need to reach agreement on different maintenance arrangements, having regard to the changed circumstances.
51.	The fortnightly expenses, excluding rent, Nasfund etc, incurred by the Respondent for a baby sitter, driver, fuel, food, groceries and so on, are all expenses which would have to be incurred by the Appellant if he had sole custody of the children.  These expenses should be borne equally by the parties.
52.	Doing the best I can, out of the total expenses provided by the Respondent, I apportion the sum of K4,800.00 per month as attributable to the three children.  This cost should be borne equally by the parties.
53.	After combining the costs for education and upkeep, each party will be paying nearly 20% of their respective gross incomes, for the children.
54.	In relation to the school fees which were paid from 2017 to 2019, it appears that the Appellant paid approximately K91,000.00 while the Respondent paid approximately K94,000.00 (including uniforms), and has received a part-payment of K25,000.00. I do not consider it appropriate for any further amount to be paid in reimbursement of past payments.
55.	From the material before me, I consider it appropriate to make the following orders for maintenance:
(a)	The Appellant is to pay the costs of the school fees, books, uniforms and sporting activities for the three children.
(b)	The Appellant is to pay for medical insurance for the three children, with any uninsured medical expenses to be paid equally by the parties. 
(c)	The cost of airfares for the children shall be borne equally by the parties.
(d)	The Appellant shall pay the sum of K2,400.00 per month into the Respondent’s nominated Bank Account, for the maintenance of the three children.
 (e)	The Appellant is to pay the Respondent’s costs of the Appeal, on a party/party basis, to be agreed or taxed.
(f)	Each party is to pay their own costs of the application for maintenance.
___________________________________________________________
Corrs Chambers Westgarth Lawyers: Lawyers for the Appellant
Lawyers for the Respondent:     In person