N9123
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CIA NO. 43 OF 2019

BETWEEN:
ALIA HININI
Appellant

AND:
MELODY MARK MOKONDO
Respondent

Waigani: Miviri J
2021: 23rd June, 19th July 

PRACTICE & PROCEDURE – Judicial Review & appeals – Appeal – District Court – Section 102 Lukautim Pikinini Act 2015 – Joint Custody – Variance in of – Whether Identifiable error in law & fact  – Whether breach of Section 42 Constitution  –Maintenance order maintained – Paramount Interest of Child – Orders relevant to – No error of law or fact demonstrated – Appeal dismissed – Orders at first instance confirmed – cost follow the event.

Cases Cited:
International Finance Company v K K Kingston Limited [2019] SC1872 
WP v DP [1982] PNGLR 1
Ubuk v Darius [1994] PGNC 33; N1278
Silvia Fungke v Jacob Popuna [1995] PNGLR 171.
Hevago-Koto v Sui-Sibi [1965-66] PNGLR 59 
K and K v Director of Child Welfare [1981] PNGLR 333 
H and H v Director of Child Welfare [1980] PNGLR 89
Counsel:

L. Aigilo, for Appellant
In person respondent
					RULING 
19th July, 2021
1.	MIVIRI, J: This is the ruling on the appeal of the appellant who appeals against the decision of the Port Moresby District Court presided by Magistrate Laura Kuvi in the proceedings FC No. 04 of the 2019 between Alia Hinini against Melody Mark Mokono where orders were made for the joint custody and access of the child. The orders the court issued were:

(1)	Pursuant to section 102 (3) of the Lukautim Pikinini Act 2015 joint custody was granted to the defendant and complainant;
(2)	The Complainant will have the child live with her from Sunday 05;30pm to Friday 05;30pm;
(3)	The Defendant will have the child live with him from Friday 05 30pm to Sunday 5.30pm;
(4)	On the event that the Defendant is on duty travel or deployed, the child will continue to reside with the Complainant;
(5)	Upon school age, the Complainant shall inform the defendant of all events and dates that are important to the child;
(6)	When it is the child’s birthday, the defendant and Complainant shall alternate to spend time with the child. The defendant will celebrate the child’s birthday next year 2020;
(7)	The medical and educational expenses are to be shared equally;
(8)	The defendant shall pay K150.00 into the Complainants account as child maintenance;
(9)	The Complainant’s bank account details are Bank of South Pacific Branch Port Moresby Town, Name Melody Mark Account number 7006675149.

2.	The appellant contends that the learned magistrate committed an error of law and fact when it committed by its orders for the joint custody of the child between both the appellant and respondent.

3.	That it was unreasonable and deprived the liberty of the parties hence breach of their rights under section 42 of the Constitution.

4.	It was harsh and oppressive in so ordering.

5.	And further the learned Magistrate erred in law and fact because the custody of the child was already with the appellant, he was better positioned in the best interest of the child and that respondent was entitled only to reasonable access.

6.	It is upon the appellant to show that there are apparent and identifiable errors on the face of the Judgement or decision at first instance to vitiate it succeeding the appeal: International Finance Company v K K Kingston Limited [2019] SC1872 (13 November 2019) and Mupang v Independent State of Papua New Guinea [2014] PGSC 43; SC1397 (30 October 2014).

7.	The subject child GH was born on the 18th April 2018. At the date of the District Court proceedings, she was 2 years 8 months old. She is the natural child of the parties to this proceeding. Both were united in law by custom in December 2017 the father having paid bride price and therefore a valid relationship in law. It came to an end on the 09th November 2018. Appellant is a PNGDF officer attached at Murray Barracks National Capital District. Custody was sought by the appellant father but not granted initially.

8.	Section 102 Considerations by the Court,  Lukautim Pikinini Act 2015 is in the following terms: 
 “(1) In deciding whether to make a particular parenting order in relation to a child the Court must ensure the best interests of the child as the paramount consideration. 
(2) In making a decision under this Division, the Court must ensure that the child spends equal time or substantial and significant time with each parent.
(3) If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the Court must -
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
(4) The determination of "substantial and significant time" is at the discretion of the Court but includes weekdays and weekends, holidays, occasions in the child's life, occasions in the parents' life and an opportunity for the parent to be part of the child's daily routine.
9.	This section set it very clear the human factor fundamental to the life of a child depended primarily on the parents together especially a young child of 2 years 8 months old. Which was the evidence before the primary court on the basis of which came out the orders as it did. The case relied WP v DP [1982] PNGLR 1; spells that each case is dependent on its own facts. The facts in that case do not apply here because there were school age children of 8 and 10 years which is not the case here given the age of the child. It is the more reason for the child to have access to both parents in her development stage. The BEST INTERESTS OF THE CHILD section 103 is clear definition that was in the mind of the primary court in the orders that it made evidenced above.
(1)	In determining what is in the child's best interests, the primary considerations are -(a) the importance for the child's development of a positive relationship with a parent or guardian and a secure place as a member of a family; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect, or family violence.
(2) Additional considerations are -
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child's views; and
(b) the nature of the relationship of the child with -
(i) each of the child's biological parents; and
(ii) other persons (including relatives of the child); and

(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity -
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and

(d) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child; and
(e) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from -
(i) either of his parents; or
(ii) any other child, or other person (including relatives of the child), with whom he has been living; and

(f) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis; and
(g) the capacity of -
(i) each of the child's parents; and
(ii) any other person (including relatives of the child), to provide for the needs of the child, including emotional and intellectual needs; and
(h) the child's cultural, racial, linguistic, and religious heritage; and
(i) the principles under Section 5(2) of the Act.
10.	It is primary that the child develops between the parents together; section 103. And where they are separated as was the subject of the orders of the court considering section 102 which no doubt is read together with section 103 of the Act. The words of the section rhyme that the evidence called that the best interest of the child was that it developed between the parents. Each had a part to the eventual growth and development. It was not concerned that the child was entirely with the appellant or with the respondent. What was ultimately the best interest of the child given her age was custody access between the parents to see out her development wholly as opposed to one sided.  In this regard the case sighted Ubuk v Darius [1994] PGNC 33; N1278 (25 November 1994) bears no resemblance to the present and therefore has no application given. 

11.	Similarly, would be Silvia Fungke v Jacob Popuna [1995] PNGLR 171. Payment of customary Bride price is important consideration but not the determining consideration because it is the child who is at the centre not the parents by their custom, Hevago-Koto v Sui-Sibi [1965-66] PNGLR 59. The best interest of the child determined where custody lay in law. The views observed by the primary Court is better position because it was firsthand which is not the case here. And there are no reasons evident identifiable or apparent upon which drawn by the appellant upon which it can be disturbed. 

12.	Because the evidence relied on affidavit of the mother’s, respondent’s grandmother depicts the ability of the respondent to look after the child hence swayed the orders at first instance. There is no error in the undertaking and observation of that evidence so that the judgment and orders at first instance should be set aside. It would not equate that the best interest of the child lies in the payment of bride price. That is a matter between the parents’ appellant and respondent and not of the child, its best interest is not that it was complied or not complied and what consequences flow from it as observed in. The development of the child both physically, mentally and spiritual is at the heart to bear out as the best interest of the child not without. Any matter that would be submerging or subduing the proper development of the child as a human person will not be within the confine of the law to uphold. This is clearly the dictate of the read of both sections 102 and 103 of the Lukautim Pikinini Act. 

13.	Any allegation as to the mother’s credibility as such was considered by the primary Court and it was held in favour of the orders current. There is nothing apparent or identifiable to sway other than what was seen in the primary. That view is firsthand and it would not be in law for the appellant court to differ given. This contention is dismissed as without merit. In this regard custom is taken account of but does not replace the written law in this case section 102 and 103 of the Lakautim Pikinini Act. It is accepted common fact that every human being derives from a mother and father and that relationship is personal to the child that nothing will replace amend or erase, it is by nature and by creation. 

14.	Therefore, the spirit of section 102 and 103 of the Act set out above incorporates that fact. The learned Magistrate took heed and considered that what was in the best interest of the child was a relationship between both parents despite their separation. There is no injustice nor inequity. Unless and until one of ether is declared of mental insane, or incompetent beyond all reason such that the welfare and best interest of the child is seriously irreparably impaired can she be denied her natural parents. One or the other cannot deny that fact. She is a separate individual apart from the parents and the law recognizes by the concept of Best Interest by this sections jointly.

15.	The best interest of the child was to be adopted and to live in Australia though she was a Papua New Guinean Child K and K v Director of Child Welfare [1981] PNGLR 333: “The welfare and interests of the child are the paramount consideration. The court is not required to decide what is the best for the child in any combination of circumstances which may reasonably be seen as possible.” There is in this respect no evidence setting out clearly the assertions of the appellant as in H and H v Director of Child Welfare [1980] PNGLR 89 as to life looking ahead for the child. That was an adoption case but the principles are relevant here when the argument by the plaintiff is that it is in her interest to keep away from the mother and to be with him. He has not filed evidence to advance this argument as there observed by the Supreme Court either at first instance or here by the Rules of Court.

16.	The aggregate is that this appeal is without merit considering and is in that respect dismissed in its entirety forthwith with Costs. Because there is no breach of section 42 of the Constitution what is primary and at heart is the best interest of the child not the parents per se. There is no rights under the Constitution that is breached except that serious considerations have been exerted to give effect to of the child by the Court at primary in its orders. There is no error nor breach on this ground contended. The decision at first instance with the orders accompanying are confirmed in total.

17.	The orders of the Court are:

(i)	The appeal is dismissed as without merit.
(ii)	The decision at first instance is affirmed.
(iii)	The cost of the proceedings follows the event forthwith.
Orders Accordingly.
__________________________________________________________________
Gibson Bon Lawyers: Lawyer for the Appellant		
Alia Hinini                  : Respondent in Person