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Kariza-Borei v Navurenagai [1965-66] PNGLR 134 (8 June 1965)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 134 - Kariza-Borei v Navurenagai

[1965-66] PNGLR 134

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

KARIZA-BOREI

V.

NAVU-RENAGI

Port Moresby

Minogue J

2-4 June 1965

8 June 1965

INFANTS AND CHILDREN - Custody - Legitimacy of children of native customary marriage - Welfare of children the primary consideration in custody proceedings - Marriage Ordinance 1963, ss. 6, 55 - Infants Ordinance 1956, ss. 6, 7.

K. applied for custody of the children of her marriage in 1954 by native custom to N. The children, the subject of the application, were two girls aged approximately eight and seven and a boy aged approximately two years, respectively. N., who had remarried before the application was made and whose new wife had borne a child, had lived in Port Moresby for some years earning good wages as a cook, but he intended to return to his home village (which was also his new wife’s village) in a cash economy area and there tend his gardens and grow copra. K. came from another Papuan village in a developing agricultural area and she intended after the custody proceeding to return there and live with her relations. Materially there seemed to be little difference between these two village environments. Both parties had been guilty of adultery; N. on numerous occasions with the woman he subsequently married and K. on one occasion with an acquaintance, after N. had forced her to leave him without making any adequate provision for her maintenance or for the maintenance of the children.

Held:

(1)      The children of a marriage celebrated according to native custom prior to the coming into force of the Marriage Ordinance 1963 are legitimate and custody proceedings may be taken in respect of them under the Infants Ordinance 1956.

(2)      Custody of the children should be awarded to K.

Application for Custody by Originating Summons.

The facts are sufficiently stated in the judgment.

Counsel:

Baird, for the applicant.

Ley, for the respondent.

Cur. adv. vult.

8 June 1965

MINOGUE J:  This is an originating summons under Order LXIV, r. 1 (2), of The Rules of the Supreme Court (Queensland adopted) by which the applicant seeks an order giving her the custody of the children of herself and of the respondent, namely Omu Navu, Ahamu Navu and Gaepe Navu.

Mr. Baird, who appeared for the applicant, submitted to me that the application was to the court to exercise its inherent jurisdiction because, so he argued, the children were in law illegitimate and the Infants Ordinance 1956 did not apply to them. That the court has an inherent jurisdiction to deal with the custody of illegitimate children is clear from Re L. (An Infant)[cxxix]¹ and other cases cited to me by Mr. Baird. As I understood him he based his argument for illegitimacy on the proposition that the applicant and the respondent having been married according to native custom the provisions of the Marriage Ordinance 1912 of Papua, which was the relevant marriage statute at the time of their marriage in 1954, prevented their union from being a valid marriage. Whilst there may have been considerable force in his submission prior to the coming into operation of the Marriage Ordinance 1963, in my opinion that Ordinance puts the validity of the marriage in question beyond doubt.

Section 55 of the Marriage Ordinance 1963 reads:

“(1)    Notwithstanding the provisions of this Ordinance or of any other law in force in the Territory or a part of the Territory, a native, other than a native who is a party to a subsisting marriage under Part IV of this Ordinance, may enter, and shall be deemed always to have been capable of entering, into a native customary marriage in accordance with the custom prevailing in the tribe or group of natives to which the parties to the marriage or either of them belong or belongs. (2) Subject to this Ordinance, for the purposes of any law in force in the Territory or a part of the Territory, a native customary marriage whether entered into before or after the commencement of this Ordinance, shall be as valid and effectual as a marriage under Part IV of this Ordinance.”

Although s. 6 purports not to affect the validity or invalidity of a marriage that took place before the date of commencement of the Ordinance, it cannot in my opinion derogate from the clear terms of s. 55 which is the first section of Part V dealing with native customary marriages, and so for the purposes of this application I regard the children as legitimate and as coming within the provisions of the Infants Ordinance. As has been said by the Chief Justice of this court in the case of Hevago Koto v. Sui-Sibi[cxxx]², the view has commonly been held that the European concepts of marriage and legitimacy are not held in and are not appropriate to native society. However the Infants Ordinance makes no discrimination between native and non-native children and I must take the law as I find it.

Section 6 of the Infants Ordinance enacts that subject to s. 7 the father and mother of an infant are jointly and severally entitled to the custody of the infant. Section 7 gives power to the court on the application of the father or mother of an infant to make such order as it thinks fit regarding the custody of that infant and the right of access thereto of either parent having regard to the welfare of the infant, the conduct of the parents and the wishes of each parent. By sub-s. (7) of this section any order made under the section ceases to have effect when the infant in respect of which it is made attains the age of sixteen years. Interesting questions could arise concerning the powers of the court in relation to infants over the age of sixteen years but it is not necessary in this case to attempt to solve those questions. Both these sections must be read subject to the Native Custom Recognition Ordinance of 1963 but I have not had before me any evidence of native custom contrary to the provisions of the Infants Ordinance to which I should give effect.

Kariza and Navu were married by native custom early in 1954. Kariza comes from Girapu, an inland village in the Rigo Sub-District, where subsistence agriculture has until recent times been the main mode of existence. However it is rapidly developing and produce is now being sold both locally and in Port Moresby in increasingly quantities. Navu comes from Kerapuna, a coastal village in the Abau Sub-District. It has developed more towards a cash economy as there is very little land available for agriculture. Fishing is a major means of livelihood, although there is some copra growing and some gardening done. Kariza and Navu met whilst they were both patients at the hospital at Kwikila, the headquarters of the Rigo Sub-District. At some time later in the year 1954 they both came to live in Port Moresby.

According to Kariza they lived in Boroko for three years and were in Port Moresby until some time in the year 1958. This period I have no doubt was punctuated by visits back to Girapu village. The children, the subject matter of this application, were described in Kariza’s affidavit sworn on 26th July, 1964, as being about eight, seven and two years old respectively, and from my own observation of them I would think her estimate reasonably close to the mark. Omu and Ahamu are girls, the one born about 1956 and the other about 1957, and Gaepe is a boy born about mid-1962. Navu is a cook and has earned and is able to earn good wages. In his last employment he was paid £17 per fortnight.

From the 1st August, 1959, to the 11th May, 1960, and again from the 18th July, 1960, to the 26th April, 1961, he worked as a cook at the D. C. Watkins mess. Here there was only single accommodation and I am satisfied that for most of the time Kariza was back in her village with the two girls and that she occasionally came up for short periods to stay with Navu. I am unable to say where the parties lived between April, 1961, and July, 1962. From July, 1962, to January, 1963, Navu was employed at the Skyline Drive-In Theatre as a cook and here again only single accommodation was provided. Consequently Kariza was back in her village and it was during this period that Gaepe was born.

It is very hard for uneducated natives to be in any way precise about times. As far as I can gather, after his employment at the Skyline Theatre was terminated Navu went back to Girapu in about January or February, 1963, and he and Kariza lived there as man and wife and as part of the Girapu community. I think it probable that he was there for about two months. During this period one or two minor quarrels developed and I think that by this time, at any rate on Navu’s side, the bloom had worn off the union. Then there was a more serious quarrel triggered off apparently by Ahamu’s falling over and Navu’s allegation that Kariza was not looking after the child properly. One word led to another and Kariza told Navu to go back to his village and marry another woman. Something of the same sort was said by Navu to Kariza. In evidence Kariza stated that at this time she meant what she said. Mr. Sharp, a very experienced assistant district officer from this district, informed me that this type of talk between husband and wife is common and in such a case the husband usually accepts the wife’s hot words as an invitation to depart for a while and solace himself with another woman. It is then apparently quite common for the husband to return after a week or two and for normal relationships to be resumed. However, in this case Navu returned to his own village and his own people at Kerepuna. There Gauke resided with her husband and two children. Years earlier it seems she had wanted to marry Navu but was persuaded or compelled by her parents to marry her then husband. At the time of Navu’s return she had one child about twelve months old still at the breast and one about six or seven years old. After about two weeks Navu returned to Girapu but then went off again to Kerepuna. Somewhere about this time he and Gauke must have revived their association for in about April, 1963, they both travelled to Port Moresby as man and wife and in about July, 1963, Gauke became pregnant to Navu. The child of this union was born on 22nd April, 1964. The association of Navu and Gauke caused trouble in Kerepuna and, according to Gauke, complaint was made by her then husband to the local government council, which held some sort of a court and decided that the two children should be handed to her husband’s line. I am unable to say whether or not it was because of this trouble that the two of them left Kerepuna and came to live in Moresby. I rather think not because, according to Navu, a short time after his return to Kerapuna he married Gauke and a bride price of £200 was agreed upon. No part of that bride price has yet been paid.

Kariza says it was a year and two months before she decided to come to seek Navu in Port Moresby and I am satisfied that it was at least twelve months. There seems to have been some travelling backwards and forwards to her village on her part. She first came up with the child Gaepe and then went back to her village; then she came back with the three children and went to the Civic Guest House, where Navu was employed as a cook and where married accommodation was provided for him. At this time Gauke was pregnant. Kariza and the three children slept in an open covered space adjacent to the room where Gauke and Navu were living. After a short time Kariza returned to the village, taking Ahamu and Gaepe and leaving Omu with Navu. After about two weeks she returned with the two children and lived for some time at the quarters in the guest house. Although Navu saw that she and the children had food and provided clothing and presents for them, I am satisfied that the situation was most uncomfortable, not to say downright unpleasant. I am satisfied too that there was some ill-treatment of Ahamu by Gauke, although this probably was not of a serious nature. Navu’s main thought at this time was the welfare of Gauke and her unborn child. He resented Kariza’s presence and kept telling her to leave. I have very little doubt that he was continuously prodded by Gauke in his attitude. Just prior to the birth of Gauke’s child both she and Navu left their quarters for about a month and left Kariza and the three children in undisputed possession of the quarters, although Navu was returning to work at the Civic Guest House every day. About the end of April or early in May, 1964, Navu, Gauke and their child returned to the guest house.

Shortly after their return Navu compelled Kariza to leave and she took the children with her to stay with her brother, who was living in quarters at the Boroko Hotel. Not long after her arrival there Navu came and took Gaepe from her but she retrieved him and then after a few days she went to stay with a sister of hers who was living in a boi house at Matirogo. At or about her time of departure from the boi house Navu gave her £2 but thereafter she seems to have had no money. She met up with a man named Aipu, from whom she borrowed £4 and, having no money with which to repay him, agreed to sleep with him. Somehow Navu got wind of this arrangement or association and early on a Saturday or Sunday morning some time in June, 1964, arrived at the boi house where Kariza was living, found her and Aipu together and took the three children away with him. This appears to be the only real complaint that Navu has in relation to Kariza’s conduct. He made much to me of the fact that she had intercourse with Aipu whilst still having her own child at her breast. Amongst people from the Rigo area, as indeed from amongst many other areas in the Territory, it is quite contrary to custom to have intercourse with a wife whilst she is nursing her child. I find Navu’s indignation a little difficult to understand in view of the fact that his conduct with Gauke at the time of the beginning of their association must have been of exactly the same order. However, I suppose that Papuans are no different to Europeans in the attitude that what is forgivable conduct in a husband is unforgivable in a wife.

Having taken the children away from Kariza, Navu left Gaepe with relatives of his some miles away from his place of employment and for a time kept the two girls with himself and Gauke at the Civic Guest House. In July Kariza made application to this court for custody of her children. On 26th August I made an order granting her interim custody of Gaepe and granting Navu interim custody of the girls with provisions for access. In July Gauke went back to Kerepuna with her own child and Omu and Ahamu and in January of this year Navu was dismissed from his employment at the Civic Guest House and returned to Kerepuna, where he has since resided.

I turn now to consider the matters which I am directed to consider by s. 7 of the Infants Ordinance 1956. The welfare of the children is of course the primary consideration. See Lovell v. Lovell[cxxxi]³, and Clingcleffer v. Clingcleffer[cxxxii]⁴. But I must also take into account the conduct of the parents and their wishes. There is nothing I think worthy of comment in the conduct of either parent prior to the separation in early 1963. They lived the sort of life that so many Papuans do; the husband working for long periods in Port Moresby and the wife remaining behind in her village looking after her garden, or gardens, and her children, coming up from time to time as occasion and opportunity offered to stay for periods with the husband and he I have no doubt, returning for short periods to her village. In the result, of course, the children in this sort of existence are with the mother for much longer periods than with the father. After the separation in early 1963, Navu does not on the face of it seem to have shown much concern for his three children left in Girapu, enmeshed as he was in his new marital life. Of course it may well be that he was afraid to return to his former household particularly after he realized that Gauke was about to have a child. I am of the opinion that the children were well looked after whilst they were with their mother at Girapu, and that she has a mother’s love and affection for them. It is difficult to say what led Kariza to come with the children to Port Moresby. She was probably imbued with a strong sense of resentment and a feeling that Navu should contribute to her children’s support. I find it difficult to assess her motivation in sleeping as she did with Aipu. There seems to be no real reason why she should not have returned with her children to her village when it was obvious to her that Navu did not intend to have her in the house or about the premises with him. Be that as it may, I do not regard her lapse on this single occasion as having the significance which centuries of Christian tradition have ascribed to such conduct. I am satisfied too that Navu is extremely fond of his three children and, within the limitations of his situation, did his best to look after them after they came to Port Moresby. True it is that he drove Kariza from his house but I cannot see that this menage a trois could ever have worked. It was an impossible situation from the beginning. On the other hand I feel that had Kariza not come to Port Moresby, Navu would probably have taken no steps himself to acquire custody of the children. His anger at Kariza’s conduct with Aipu I think was genuine although perhaps irrational in the circumstances.

From the evidence of Mrs. Strehlert, who was the manageress of the guest house during the period of Kariza’s living there, I formed the impression that Kariza was a fond and good mother to her children, and that Gauke, although giving some attention to them, was not prepared to look after them in the way in which their own mother did. Both from her evidence and from the evidence of Navu himself I also formed the view that Navu’s major concern was for the welfare of Gauke even to the point of over-indulgence and that in any conflict between the wishes or needs of Gauke and the welfare of Kariza’s three children the latter would take second place.

Materially there seems to be little difference in whatever environment the children are brought up. If they are left with Kariza they will form part of a household consisting of her father, her step-mother and her step-mother’s five children. If with Navu they will form part of a household consisting of Gauke’s father, her mother, her young sister, her baby and such other children as are born to her. Kerepuna has developed a cash economy to a greater extent than Girapu and Navu claims that he intends to devote his time to tending his gardens and growing copra. Already he has sold copra to the value of £100 this year. However he seems to have had no benefit from this in that he has handed the bulk of it to his brother, who conducts a trade store. I find it impossible to trace out the family relationships and transactions in a community of this sort. From his point of view when his daughters are of marriageable age if they are left with him he and his line will, under present conditions, receive a far greater bride price or rather a bride price consisting of a much higher cash content. I cannot but feel that this may be a powerful factor motivating his desire to have these children or at any rate the girls. There is quite an adequate school at Kerepuna and promising pupils from there are sent on to a high school at Kwikila in the Rigo district. At Daumagine, some fifty minutes’ walk from Girapu, there is also a very good junior school, pupils from which also progress to the high school at Kwikila. Both parents have expressed the strong desire to have their children educated and I believe each of them to be genuine in this desire. Girapu is a developing agricultural community and the children, if left there, will form part of and be accepted wholly into the community.

During the hearing I observed all three children as closely as I could and it was obvious to me that they were very attached to each other and also to their mother Kariza. I talked privately with Omu and Ahamu and whilst I was not able to communicate in any way with Ahamu because of her shyness, Omu impressed me as an intelligent, well-behaved child. She told me that she preferred to be at Girapu but I pay no attention to this preference because I was unable to elicit from her any reasons for her choice which would lead me to any decision as to what was better for her welfare. Both Navu and Gauke informed me that they intended to have further children and I feel that at any rate on Gauke’s part the child which she at present has and any others which may be born to her will naturally enough be given far more of her attention and care than will Omu, Ahamu and Gaepe. In all the cases it is said to be a good rule of common sense that children of tender years should be in the custody of their mother, and Barry J. in Harnett v. Harnett[cxxxiii]⁵ refers to material assembled by the World Health Organisation which leads to the same conclusion. It may be that this view has not the same strength when considering the welfare of children in communities such as those of Girapu and Kerapuna, where children are accustomed to regard several women of their clan or line as mother and where they are brought up in a close knit communal relationship. Although I am inclined to think that Omu should no longer be regarded as a child of tender years and in such need of the companionship of her mother, I do not think that Omu and Ahamu should be separated and, giving the best consideration I can to the matter, I am of opinion that Ahamu should certainly be left with her mother Kariza. It is inevitable in my view, living as he does with Gauke and in Gauke’s community, that Navu will defer to her wishes where any question of the future of the children is concerned and, with his long history of working for good wages in Port Moresby, I feel that the time will come when he will return there and take further employment with the probability that the children would be left with Gauke. I have no doubt that for some time to come Gaepe should be left with his mother and because of the considerations I have set out I think it is better for the two girls also to be with Kariza. Accordingly I order that Kariza have custody of the three children the subject matter of this application.

In this case it appears to me that the father ought to have fairly liberal access to his children but I leave it to the parties to decide between them what is reasonable. If they cannot agree I will make such orders as are necessary and I reserve to each of the parties liberty to apply.

Application for custody granted.

Solicitor for the applicant: S. H. Johnson, Crown Solicitor.

Solicitor for the respondent: W. A. Lalor, Public Solicitor.

[cxxix][1958] Qd.R. 489.

[cxxx]Ante, p. 59.

[cxxxi](1950) 81 C.L.R. 513.

[cxxxii][1959] Tas.S.R. 81.

[cxxxiii][1954] VicLawRp 33; [1954] V.L.R. 533.