N10391
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA NO. 15 OF 2023

BETWEEN:
REX FRANK
Appellant

AND:
WONTI REX
Respondent

Lae: Dowa J
2023: 21st June & 06th July

APPEAL-Against District court orders for maintenance and custody-consideration of sections 102 and 108 of the Lukautim Pikinini Act 2015-interests and welfare of child is paramount consideration compared to conduct and wishes of parents- decision of lower Court can only be set aside on appeal  if there is obvious error showing substantial miscarriage of justice-there being no obvious error on the face of the record -  Appeal dismissed. 

Cases Cited:

Bean v Bean [1980] PNGLR 370

Counsel:

V Nbibe, for the Appellant
W Rex, Respondent in person

RULING

06th July, 2023

1.	DOWA J:	This is an appeal against a maintenance order issued by the District Court, Lae on 26th July 2022, in proceedings -FC 100 of 2022- Wonty Rex v Rex Frank.

District Court Orders

2.	The District Court made the following orders:

1.	The Appellant to pay maintenance for the three (3) children at K200 each totaling K600 per fortnight.

2.	The Appellant to pay educational and medical expenses.

3.	The Respondent shall have custody of the children while the Appellant shall have access and visiting rights to be agreed between parties.

4.	The Orders to remain until each of the children reaches the age of 18 years, or any of children dies, or the orders are varied by a Court of Competent Jurisdiction.

         Appeal Grounds

3.	The Appellant appeals the decision of the District Court on three grounds.  The Appellant abandoned ground 1, and pursued Grounds 2 & 3:  Grounds 2 and 3 read:

“(2) 	That learned magistrate erred in law and fact when finding that I deserted the children when I never deserted them.  It was the complainant, out of shame of her actions took the children with her.

(3)	That the learned Magistrate erred in law and facts when ordering the custody of the child to the complainant/respondent without taking into account the best interest of children.”

Issues

4.	Based on the grounds of appeal, the issues for consideration are:

a.	Whether the Learned Magistrate erred in finding the Appellant deserted the children without adequate means of support.

b.	Whether the Learned Magistrate erred in failing to consider the interest of the children in awarding custody to the Respondent. 

 Ground 1 

Whether the Learned Magistrate erred in finding the Appellant deserted the children without adequate means of support.

5.	The Appellant submits he did not desert his children nor left them without means of support. He always supported his children. It was rather his wife, the Respondent, who left the matrimonial home with the children after some allegations of her infidelity. He submits further that the Respondent failed to apply and account for the financial support he was giving for the upkeep of the children. He submits that there was no evidence presented for the learned Magistrate to make a finding that he was guilty of deserting his children as prescribed by section 108 of the Lukautim Pikinini Act 2015.

6.	The Respondent submits that the Appellant failed to provide for her and the children towards the end of 2020 after an allegation of extra marital affairs. They have separated since July 2020. She submits that except for two instances of payment totalling K600.00 in October 2020, the Appellant has not provided for the upkeep of the three children which resulted in the current proceedings. She submits that the learned Magistrate made no error in the ruling. 

Consideration

7.	I have considered the evidence and the submissions of the parties. This is one of those yet once again sad stories of family disharmony where the children become victims. The parties’ marriage lasted 14 years and born out of this relationship three beautiful children. Only recently, it is alleged, the Respondent fell prey to undesirable advances on the internet/facebook which led to the breakup of their marriage. They are now living apart. It appears the Appellant is engaged in jobs outside of Morobe Province and the Respondent is left with the task of looking after the children with her family in Igam Block, Lae.

8.	According to the Appellant, he did not desert his family, nor did he leave them without any means of support. He shifts the blame on the Respondent for causing the marriage breakup and for failing to account for the monies he sends her for the children. The Respondent on the other hand insists the help he gives is not enough. These are matters of perception and there’s nothing right or wrong about the positions taken by the parties. The real issue is whether the children’s daily needs in food and clothing are met by the parents and which parent is well positioned to look after the children. The evidence shows the Appellant has been the breadwinner for the family and has been paying for the medical and educational needs of the children, although there is no evidence of the periodical income or financial earnings of the Appellant. I also note the Appellant’s desire to have custody of the children as a responsible parent. These are his rights as a father having a competing interest to that of the Respondent.

9.	Having said that, let me make it plain to the parties that it is not the role of this Court to reassess the evidence and determine the credibility of evidence of the parties and arrive at a conclusion apart from that of the Learned Magistrate. That is the primary role of the lower Court. The duty of this Court is to determine whether the Learned Magistrate made an error in his decision that manifests miscarriage of justice on the face of the record. After perusing the evidence presented before the lower Court, I find no obvious error in the decision made. There is evidence that the children are living with the Respondent and that no regular support has been forthcoming from the Appellant. This entitled the learned Magistrate to make a finding in favour of the Respondent pursuant to and as envisaged by section 108 of the Lukautim Pikinini Act 2015. If the Appellant finds it difficult to keep up with the periodic payments due to financial difficulties, or that the factual circumstances change over time, the Appellant can make application for the variation of the orders. For now, there is no good reason to disturb the findings of the lower Court. 

10.	For the foregoing reasons, Ground 1 of the Appeal should fail and shall be dismissed accordingly.

Ground 2 
Whether the Learned Magistrate erred in failing to consider the interest of the children in awarding custody to the Respondent. 

11.	Section 102 of the Lukautim Pikinini Act provides that “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.”  Section 103 sets out the considerations that a Court can consider before a custody order is made.

12.	The law is also settled on this issue that the important or paramount consideration in custody application is that of the welfare and interests of the child. In Bean v Bean (1980) PNGLR 370, the Supreme Court, per Kidu CJ, (as he then was) said this in the judgment:

  “The welfare and happiness of a child are so important that they cannot be treated equally with other considerations, that is, conduct of parents and their wishes although these are important too in the interest of the infant.”

13.	In the present case, the Lower Court made custody orders in favour of the Respondent with access and visiting rights to the Appellant. The Appellant contends that the custody order was against the interest of the children because the Appellant provided a proper and stable home with a steady income whereas the Respondent is unemployed, has no permanent home, and is unable to materially maintain the children. 

14.	I note section 103 of the Act lists more than 10 items a Court can consider when determining the issue of custody. Parents of a child has equal rights. Where a family relation is broken, and the parents are separated it is unfortunate that the issue of custody must be determined to protect the interests and wellbeing of the children especially those in tender years. In the present case, the Magistrate determined that it is in the best interest of the children to be with their mother with visiting rights to the Appellant. Although the Respondent does not have a permanent job or home, she can, as the biological mother, provide love, affection, and protection from physical or psychological harm, which is one of the primary considerations.

15.	The Learned Magistrate exercised his discretion in the decision he made as allowed by law. For this Court to set aside the orders of the lower Court there must be an error that manifests miscarriage of justice. I find no obvious error manifested on the face of the record in the Magistrate’s decision. I will therefore dismiss this ground of appeal as well.

16.	 In summary., the two grounds of appeal are dismissed and as a result the entire Appeal shall be dismissed accordingly.

Costs

17.	An order for costs is discretionary. Generally, cost is awarded to the successful party. In the present case, the parties are equally concerned about the interest of their children. It is not for personal interest. To award costs against a party will not improve the situation nor is there a need for a personal vindication. For these reasons there shall be no order as to costs. 

Orders

18.	     The Court orders that:

1.	The appeal be dismissed.
2.	There shall be no order as to costs.
3.	Time be abridged

_______________________________________________________________
Public Solicitor:  Lawyers for the Appellant
Wonti Rex:	Respondent in person