Bean v Bean [1980] PNGLR 307 (6 October 1980)

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INFANTS AND CHILDREN - Custody - Welfare of infant - Welfare paramount consideration under s. 7(1) of Infants Act 1956 - Meaning of “welfare” - Powers of court on appeal against custody order.

On appeal against an order for custody made pursuant to s. 7(1) of the Infants Act 1956, which section provides that such orders may be made by the court “having regard to the welfare of the infant, the conduct of the parents, and wishes of each parent”.

(1) Although not expressly stated, the welfare of the infant is the paramount consideration in applications under s. 7(1) of the Infants Act 1956.

(2) (Per Kidu C.J.) Consideration of the “welfare” of the infant requires that all matters conducive to the child’s interest should be considered.

It demands that assessment be made of any person who is to have a hand in the looking after of the infant.

(Per Kapi J.) “The welfare of the infant 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, stability, wise discipline and genuine affection in the home.”

Editorial Note: This was the first judgment delivered by Kidu C.J. after his appointment as the first Papua New Guinean Chief Justice.

This was an appeal by the mother of a seven year old boy, against an order awarding custody of the child to his father.

KIDU C.J.: This is an appeal from an order made by Bredmeyer A.J. on 27th June, 1980 which gave custody of J.K.B., an infant born on 21st November, 1972, to his father the respondent Ian Maxwell Bean, who now lives at Mt. Isa in Queensland with his second wife Furune Bean. The appellant, who was the respondent in the National Court, is the mother of the infant.

“This is an application under the Infants Act 1956 by Ian Maxwell Bean for the custody of his son Jeffrey Kenneth Bean now aged seven-and-a-half years. The application is opposed by the child’s mother Alina Sara Bean.

The applicant, who is an Australian, came to Papua New Guinea in 1968 as a young rural development officer. Prior to coming to this country he had completed a three year diploma course in agriculture in Victoria. In 1970 he married Alina Sarah a national girl with standard 5 education from Eretei Village which is about 5 miles from Lumi in the West Sepik Province. They were both aged 21. Their respective backgrounds and education were widely different. Two children were born of their marriage. Jeffrey Kenneth born on 21 November 1972 and Lisa Theresa born on 30th November 1974. Bean continued working as a rural development officer in the Department of Primary Industry until July 1979 working at Wewak, Pindiu, Lae, Finschhafen and finally Pindiu for three years.

Their marriage was a reasonably happy one until January 1978 when Bean employed a local Pindiu girl named Furune as secretary of the Pindiu Rural Development Association. Bean’s wife objected to his employment of this girl. She thought he should employ her instead. Bean’s wife also regarded the girl as a threat to the marriage and was jealous of her. I consider this in more detail later.

The applicant and his wife had arguments over Furune which culminated in Mrs. Bean assaulting Furune for which she was prosecuted and fined K30. Immediately after the assault Bean and his wife separated’Bean says by consent, his wife said she was forced out. I consider that in more detail later. Suffice it to say here that in July 1978 they separated. Bean established his wife and two children in a flat in Lae. He paid the rent, electricity, school fees for Jeffrey and sent Alina K100 per month for housekeeping. Bean continued working at Pindiu. He had one or other of the children with him for weekends and in the case of the daughter for several longer periods. The children and Bean would fly between Pindiu and Lae for these visits. On many occasions Bean used his own aeroplane for this purpose. He holds a private pilot’s licence.

Bean continued at Pindiu until July 1979 when he instituted these proceedings and went to Australia to live permanently. A little before this the flat in Lae became unavailable. Bean brought his wife over to Moresby for this custody case; it was adjourned from 27th July to 3rd August, then to the 10th August and then generally, because the wife or her solicitor, was not ready to proceed. After the 10th August 1979 the wife returned to Lae for a month’s stay with friends and then returned with her daughter Lisa to her village where she now resides. The son Jeffrey continued on at school in Lae boarding with the headmaster.

Bean sold his aeroplane and found work in Mt. Isa with the North Australian Pastoral Coy. which owns five stations. His job is to supply them with stores and involves him flying two days a week in a company plane. He regards it as a permanent job. The salary is $10,000 p.a. and a company house is provided for which he pays $15 per week.

On 14th January, 1980, Bean obtained a decree nisi for the dissolution of the marriage to Alina from the Family Court of Australia at Brisbane. It became absolute on 15th February, 1980. He brought Furune to Australia in early February 1980 and married her on 12th April, 1980.

Thus Bean and his wife have been separated for nearly two years, from July 1978 to July 1979 when Alina was in Lae and Bean in Pindiu and from roughly July 1979 to now (June 1980) when Alina has been at her village and Bean in Australia. For the first year Bean provided his wife and children with a flat and an allowance of K100 per month. He had the two children for weekend visits and his daughter for longer periods at Pindiu where he employed two girls to help look after her. For the last year whilst he has been in Australia he has sent his wife on the average K150 a month to help maintain her and their daughter at Eretei. During this period Jeffrey has been in Lae attending the Lae International Primary School and boarding with the headmaster. Bean has paid the headmaster board for his son of K100 per month plus school fees and medical fees and has kept in touch with him by telephone calls about every three weeks and by occasional letters. None of these payments have been made pursuant to any court order.”

The principles relating to an appellate court’s review of a trial judge’s finding of fact and the exercise of his discretion are well settled and adequately covered by my brothers Kapi and Andrew.

In custody applications it is the welfare of the child that is important. Other considerations are, in my view, subsidiary to this aspect. Section 7(1) of the Infants Act 1956 reads as follows:

“(1) The Court may, on the application of the father or mother of an infant make such orders as it thinks fit regarding the custody of the infant and the right of access thereto of either parent, having regard to the welfare of the infant, the conduct of the parents, and wishes of each parent.” (Emphasis mine.)

“Section 7 provides that the court may make such order as it thinks fit regarding the custody of the 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 the parents. The first of these matters, the welfare of the infant, is not expressed to be paramount as it is in the divorce jurisdiction under s. 79(1) of the Matrimonial Causes Act 1964 and in some other countries.” (Emphasis mine.)

I am of the view that the learned trial judge misdirected himself on the law in this matter.

“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[diii]² and Clingeleffer v. Clingeleffer[div]³. But I must also take into account the conduct of the parents and their wishes.”

Over four years later in R. v. Nicholas Gustav Wahl Re Nicole Christina Wahl, an Infant and Gunda Wahl, an Infant[dv]⁴ his Honour then the acting Chief Justice said the following after referring to Oliver v. Oliver[dvi]⁵:

“I respectfully agree with Selby J. when he says, ‘It is the duty of the court, having formed that (the picture of the household or of the parties to the whole) to make an order for custody which will best promote the interest of the child.... In reaching its decision as to how it should deal with that situation with respect to the child’s custody it should regard the consideration of the child’s interest as prevailing over all other considerations.’ ...”

Although it is true that s. 7(1) does not provide that the welfare of the child should be the first or paramount consideration, I consider that commonsense dictates that it should be. As Williams J. said in McCleary v. McCleary[dvii]⁶, after referring to s. (1):

“It is to be noted that unlike other legislative provisions dealing with the custody of infants (e.g. the legislation in the Matrimonial Causes Jurisdiction and the legislation of some of the Australian States) this section does not lay down that the welfare of the infant shall be the ‘paramount’ consideration. On its face the section sets out the three matters to be taken into account without expressly providing the degree of emphasis to be placed on any one of them. However, having regard to the fact that the court is empowered to make an order for the custody of the infant until the infant attains the age of sixteen years and to the history of legislation of this kind it seems to me that the welfare of the infant must be a very important consideration to be taken into account along with the other matters mentioned in the section.”

Although Williams J. only said that the welfare of the infant was “a very important consideration”, I would go further and say that it is a paramount consideration. The numerous authorities cited by counsel support his view.

There is, it seems to me, an anomaly existing in Papua New Guinea in that s. 7(1) does not specifically provide that the welfare of the child is a paramount consideration but s. 79(1) of the Matrimonial Causes Act 1963 does:

“79(1) In proceedings with respect to the custody, guardianship, welfare, advancement or education of children of a marriage’

(a) the Court shall have regard to the interests of the children as the paramount consideration and

(b) subject to the last preceding paragraph, the Court may make such order in respect of those matters as it thinks proper.”

It cannot have been the intention of the legislature that different emphasis would apply on custody applications depending on the Act under which such an application is made. With respect, the course taken in Hawthorne v. Hawthorne[dviii]⁷ was an appropriate one. In that case both counsel conceded that although the application had been made under s. 7(1) of the Infants Act 1956, the court must have regard to s. 79(1) of the Matrimonial Causes Act 1963. At p. 7 of the judgment his Honour the trial judge said: “I shall approach these applications therefore on the basis that the interests of Sarah are the paramount consideration:”

His Honour then approached the matter on this basis and decided that the custody of the child should remain with the father.

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.

It seems to me that the learned trial judge, because of the view he took of the effect of s. 7(1), did not properly consider matters relative to the welfare of the child. In fact he decided to give custody of the infant to the respondent on the basis that he was able to offer the child an allegedly better education in Australia with a home with electricity and books to back it up. His Honour gave no real consideration for other factors relevant to the child’s welfare.

It was important for the trial judge to consider the child’s relationship with the respondent’s new wife Furune Bean. After all if the custody of the infant remains with the respondent he will be, as the trial judge said, looked after by this new wife. His Honour did not think it was important: “I do not agree that it was Furune’s non-appearance before me is of great significance.”

The welfare of the child demands that assessment be made of any person who is to have a hand in looking after an infant. As Selby J. said in Chisholm v. Chisholm[dix]⁸:

“It is most important in a situation such as this that the Court should be placed in a position in which it can assess for itself the character of the man who may become the stepfather of the child, the subject of the application, or who will on the respondent’s own case stand to some extent in loco parentis to her. But I have been given no opportunity to make any such assessment and I am not disposed to accept the judgment of the respondent on so important a matter.”

The infant has told the trial judge he wanted to stay with his mother. We do not know the reasons of course. However, there was other evidence, unchallenged, that the child did not like Furune. This came out in the appellant’s evidence:

A. Yes. He says he doesn’t want to go with daddy. He is going to stay with me. He doesn’t like Ian’s new wife. He was there when I hit that girl. The two like their father and me but not the other woman.”

In the interest of the child it was important for the court to have been given the opportunity to assess Furune’s temperament, character, stability and possible influence on the child. This would have been important from the point of view of the infant’s happiness. This is more important, in my view, than all the money and material goods the respondent can provide.

The facts that Furune can cook and care for the infant, that she had no children of her own which therefore gives her a period to adjust to the child, although important, by themselves do not assure the child’s happiness if she does not love him. His Honour also said that it was an advantage that Furune was a Papua New Guinean and thus not likely to have any prejudice against a mixed-race child. First there was no evidence to base this on and secondly Furune is from Morobe and the child’s mother is a Sepik. It cannot be assumed without evidential support that a Morobe woman will have no prejudice against a mixed-race Sepik child. It was important, therefore, in this respect for the trial judge to have had the opportunity to assess Furune Bean.

It is also a failure on the part of the learned trial judge not to have considered the effect of splitting the family—Jeffrey in Australia and Lisa with her mother in Papua New Guinea. This is an important matter going to the interest of the children and should have been dealt with by the learned trial judge. All matters conducive to the child’s interest should have been considered.

“And in applying this rule the courts had always given to the word ‘welfare’ a wide construction. In fact it was laid down in a number of authorities that the word ‘must be read in its largest possible sense, that is to say as meaning that every circumstance must be taken into consideration’.”

“Physical comfort and well-being, religious and moral welfare, and financial provision are clearly all elements which should be taken into account.” See also Turner J. in Re P. (an Infant)[dxii]¹¹.

See too Goldsmith and Anor. v. Sands[dxiii]¹² where Griffith C.J. said he considered that—“the court, when inquiring what is the welfare of a child, should be asked to disregard what is generally regarded as an essential element of human welfare namely, happiness ...”

His Honour, and I say this with respect, paid excessive attention to educational aspects of the child’s welfare and awarded custody to the respondent on that basis.

It is obvious from the foregoing that I consider that the order for custody must be set aside.

I gave serious thought to making an order for the matter to be re-tried but having had the opportunity of reading the draft judgment of my brothers Andrew and Kapi JJ. and being persuaded that what they propose is the correct course to follow in this case, I concur with them for the reasons they give that the appeal should be allowed and custody of the infant Jeffrey Kenneth Bean awarded to the appellant.

I also agree with my brother Andrew that the respondent pay to the appellant the sum of K150 per month for the maintenance of the infant Jeffrey Kenneth Bean. The respondent should have liberal access subject of course to variations when circumstances might alter.

ANDREW J.: Application to the National Court under the Infants Act 1956, was made by Ian Maxwell Bean for the custody of his son, Jeffrey Kenneth Bean, now aged seven and a half years. The application was opposed by the infant’s mother, Alina Sarah Bean. On 27th June, 1980, the court granted custody to the father with liberty to take the infant out of Papua New Guinea without the mother’s consent. Appeal on several grounds and an application for leave to appeal on other grounds has been made to this Court by the mother of the child.

Before turning to the facts of the case, I deal first with the question of the proper function of an appellate court in hearing and determining an appeal in relation to a custody matter such as this.

In cases relating to the custody of infants, Parliament has specified certain matters which are to be taken into account by the court. The relevant provisions of the Infants Act 1956 are s. 6 which provides that the mother and father of an infant are jointly entitled to its custody, and s. 7 which provides that the court may make such order as it thinks fit regarding the custody of the 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 the parents.

An order made under s. 7 of the Act is therefore one which is made in the exercise of a discretion conferred by law.

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. The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion. While authority teaches that error in the proper weight to be given to particular matters may justify reversal on appeal, it is also well established that it is never enough that an appellate court, left to itself, would have arrived at a different conclusion. When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight. It follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of matters of weight. See per Stephen J. in Gronow v. Gronow[dxiv]¹³.

In Warren v. Coombes and Anor.[dxv]¹⁴ in the High Court of Australia, the question under consideration was: What is the proper function of an appellate court in hearing and determining an appeal when a challenge is made to the drawing of an inference of fact or to the refusal to draw an inference of fact at first instance? Their Honours answered the question by saying[dxvi]¹⁵:

“Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.”

The court was not there considering the very different question which arises on an appeal from an exercise of a discretionary judgment and that decision is therefore clearly distinguishable.

The learned trial judge made reference to s. 7 of the Infants Act and concluded that in this jurisdiction he must look at all the circumstances of the case under the three headings contained therein, namely the welfare of the infant, the conduct of the parties and the wishes of each parent. He found that the welfare of the infant was not expressed to be paramount as it is in the divorce jurisdiction under s. 79(1) of the Matrimonial Causes Act 1964, and in some other countries.

Section 7 of the Infants Act is in similar terms to older English legislation (the Guardianship of Infants Act 1886) which also did not express that the welfare of the infant was the paramount consideration. However the courts consistently ruled that the welfare of the children did so form the paramount consideration in these cases. See In re A. and B. (Infants)[dxvii]¹⁶ and Ward v. Laverty and Anor.[dxviii]¹⁷.

It is evident that the primary judge paid attention to all the considerations mentioned in s. 7 of the Act but, in my view, he does not appear to have regarded the legislation as providing that the welfare of the infant was the paramount consideration. Even though it is not so expressed in s. 7, I am of the opinion that it must be so. I refer to the above authorities and I find that that consideration would have all the weight which common sense could attach to it.

“The third and last factor to consider can be considered briefly—the wishes of the parents. Both parents have demonstrated by their actions in the past and have expressed to me a love and concern for Jeffrey and I consider them equal on that score.

Weighing up the relevant circumstances under the three headings provided by the section I consider that the husband’s proposals for the welfare of the infant, in particular for his education, give him a clear advantage over the mother and that the parties are about equal on the other two factors—the conduct of the parties and the wishes of the parents.”

I think it is fair to say that it was the finding of a superior education, which it was said the child would enjoy under the father’s custody, which tipped the scales in favour of the father. However I think that too much weight was given to that factor and there was error in that insufficient weight was given to more substantial questions concerning the paramount consideration of the welfare of the infant. To my mind the striking thing about this case is that the father had remarried and there was no evidence before the court as to the new wife’s attitude towards the infant. He was to be removed from his mother with whom he now resides together with his sister, and taken from his own country to live in a new environment in Australia with a new mother of whom the court knew nothing. I cannot conceive that that course would be in the best interests of the child. The child himself expressed the desire to remain with his mother. In addition there was evidence that he would not be automatically entitled to Australian citizenship.

This case, like all cases of its kind, gives rise to great anxiety and difficulty. But I consider that error has been demonstrated and for that reason the appellate court is justified in interfering with the discretionary judgment. I also find that too much weight was given to the question of education at the expense of more fundamental questions of welfare.

To my mind it is quite clear that the child should not be removed from his present home with his mother. Therefore I would allow the appeal and order that the mother should have the care and control as well as the custody of this child until further order. I think it is a proper case in which the father should have liberal access; and of course, in future years, depending on how things go, when circumstances may be different, the order is always open to revision. But at present, to me everything points to the proper course being to leave the child where he is, with his mother. I would further order that the respondent pay to the appellant the sum of K150 per month by way of maintenance of the child Jeffrey Kenneth Bean.

KAPI J.: This is an appeal from the National Court. The facts of this case are conveniently set out in the judgment of the Chief Justice.

When the respondent instituted these proceedings in the National Court, the original application was for the custody of both children, Jeffrey Kenneth and Lisa Therese. At the hearing the respondent abandoned the claim for the custody of Lisa.

The notice of appeal is in two parts. One part deals with questions of law and/or questions of mixed fact and law. The effect of the appellant’s submissions on these grounds, in summary, is that the trial judge erred in law in exercising his discretion in awarding the custody of the child, Jeffrey Kenneth, to the respondent. The second part of the notice of appeal is an application for leave to appeal against questions of fact which require leave of the court.

It is necessary to set out the principles which must guide this Court in reviewing the trial judge’s findings of fact and the exercise of his discretion.

On questions of fact (as distinct from inferences drawn from these facts) the principles which must guide the court are carefully set out in the judgment of Mr. Justice Miles in the case of Brian John Lewis v. The Independent State of Papua New Guinea[dxix]¹⁸. After carefully setting out the authorities his Honour said this at pp. 14-15:

“In deciding the merits of the case on appeal however one new matter arises and that is the decision of the trial judge himself. That decision, with all findings contained in it, has to be given proper weight. A Supreme Court judge is not free to substitute his own findings of fact unless he has given consideration to the whole of the decision of the National Court judge. In some areas the Supreme Court may properly be more reluctant to differ from the National Court judge. On a question of credit of a witness the trial judge is in a superior position and his assessment is not likely to be rejected ... where the finding is one of a ‘primary fact’ or ‘evidentiary fact’ rather than an inference from such facts (if the distinction may be drawn), the trial judge’s decision should rarely be disturbed.”

On questions of inferences to be drawn from facts, the High Court of Australia said:

“... the established principles are, we think that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it.”

On matters of judicial discretion the High Court of Australia in House v. The King[dxxi]²⁰ said:

“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 if it has the materials for doing so. 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 which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”

These principles have been recently approved in the case of Gronow v. Gronow[dxxii]²¹. The recent decision of the High Court of Australia is also referred to in the judgment of Mr. Justice Miles in Brian John Lewis v. The Independent State of Papua New Guinea[dxxiii]²². All these principles have been adopted in numerous cases in this jurisdiction after Independence and they can be properly regarded as part of the underlying law of Papua New Guinea.

It is convenient to deal first with the notice of application for leave on questions of fact regarding the conduct of the parents because ultimately I will have to consider these facts as well in considering whether the trial judge has wrongly exercised his discretion in his order.

The trial judge, after coming to the findings referred to in the ground above, said that the conduct of the parties did not favour either parent in a real way. The appellant’s counsel, however, submits that there were important facts regarding the conduct of the respondent which were ignored by the trial judge in his judgment. Counsel submits that the respondent, after filing the application for the custody of the children, left Papua New Guinea for Australia on 30th July, 1979. On 4th September, 1979, the respondent filed an application for dissolution of marriage in the Family Court of Australia at Brisbane, pursuant to the Family Law Act 1975 (Aust.). Counsel refers to a number of untrue statements made by the respondent in this application. He submits that all this was done for the sole purpose of getting the divorce, and that in so doing he disregarded the welfare of the children. He submits that everything he did in this application was for himself, and from this conduct it can be said that he had no interest in the welfare of the children. On the question of the conduct of parties, Mr. Justice Selby, in the case of Oliver v. Oliver[dxxiv]²³ said:

“It cannot be said that the wife broke up the marriage and therefore the husband should get the child. It cannot be said that by her conduct she showed that she preferred the co-respondent to the child and therefore custody should go to the father. It cannot be said that the father should have the child because he is the wronged party and, throughout, has shown consideration for the preservation of his marriage and for the welfare of his child. A parent is not given the custody of a child as a reward for virtue; neither is a parent deprived of custody as a punishment for vice. But the conduct of the parents is a matter of great importance because it is the basis upon which the court must try to assess their character and their temperament. Having made that assessment the court must try to envisage as a whole the picture made by the pattern of their present lives and their lives as they are likely to be in the future. Into that picture the life of the child must be inserted. It is the duty of the court, having formed that picture, to make the order for custody which will best promote the interests of the child.” (Emphasis mine.)

Applying these principles to the grounds stated in ground 1, I do not see how, if grounds (a), (b) and (c) were reversed, that that should improve the appellant’s case as far as the welfare of the child is concerned. As to whoever was at fault on these matters I do not think that the innocent party should have more rights than the guilty party. In every case where such allegations of conduct are made, they must always be looked at in the light of how such conduct may affect the welfare of the child, that is, in his physical, spiritual, intellectual and moral upbringing. The submissions made by the appellant’s counsel in relation to the conduct of the respondent in leaving Papua New Guinea to go to Australia for purposes of getting a divorce so that he could remarry, must be looked at in the light of his concern, or lack of concern, for the welfare of the children. Taking together the whole of the conduct of the respondent some assessment can be made of his concern at that time for the children, as opposed to his own selfish needs. I consider that the submissions that were made by the appellant’s counsel are valid and if these matters stood alone and if, during this period, the respondent had shown a lack of concern for the children as far as their maintenance was concerned, I would be more inclined to the conclusion that he is a person who would not sacrifice his own needs for the sake of the children, and I would be reluctant to award him their custody for fear that he might put his needs before theirs. However, I find that there is evidence which shows that the respondent was quite consistent in his payment of maintenance for the children. It is apparent from the evidence that these payments were irregular but the fact is that he maintained the children during this period. The fact that he went to Australia is of no consequence since the family had separated, and had he continued employment in Papua New Guinea he would have stayed away from the appellant and the children. Having regard to all these matters, I would not disturb the custody order on these grounds.

The application for custody was made pursuant to s. 7 of the Infants Act 1956. Section 7(1) of the Act sets out the considerations to which the court must have regard in exercising its discretion; the welfare of the infant; the conduct of the parents and the wishes of each parent. The Infants Act does not give any guidance as to the degree of importance the court must place on the three considerations. The trial judge, in treating these considerations, did not regard any one as more important than the other and found that each of them have to be given equal consideration. Counsel for the appellant submits that the trial judge was wrong in not considering that the welfare of the infant was the paramount consideration. With respect, the submissions made by counsel for the appellant are correct. In this regard I need only refer to s. 79(1)(a) of the Matrimonial Causes Act which states, inter alia:

“In proceedings with respect to the custody, guardianship, welfare, advancement or education of children of a marriage—

(a) the Court shall regard the interests of the children as the paramount consideration.”

It seems to me to be unfair and unjust that an application under the Infants Act would not regard the interests or the welfare of the child as the paramount consideration, whereas in matrimonial causes proceedings, under the Matrimonial Causes Act, the court would regard the welfare of the child as of paramount consideration. The paramount consideration of the welfare of a child is so important that in the absence of an express provision in the Infants Act, I would have no difficulty in reading that into the Act. The authorities referred to by the Chief Justice support this view. To read the provisions of the Infants Act in the manner in which they were considered by the trial judge is to create an unjust situation for children involved in applications under this Act. In my view this was the fundamental error committed by the trial judge in his approach to this application. I have already dealt with the conduct of the parties.

There is no definition of this phrase either in the Infants Act or the Matrimonial Causes Act. In cases dealing with applications for custody of children, the welfare of the infant 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, stability, wise discipline and genuine affection in the home. See Jones v. Jones[dxxv]²⁴. In every custody application, when considering the welfare of the children, the court must have regard to all these matters.

Under this heading the court must consider the house in which the child lives, or will live, the condition in which it is kept and the surroundings of the home; the provision of food and clothing for the children and their health. It is also relevant to consider the means of the parents to provide food and clothing for the children.

In this case the trial judge considered two different home styles, a house in Eretei Village in the West Sepik Province and a modern house in Mount Isa. In relation to both homes the trial judge remarked: “Then his home has electric light which is an obvious boon to homework.” The trial judge here was referring to the respondent’s house in Mount Isa. With respect, I do not consider that no electricity in the village would be a drawback to the child’s education. There is evidence to the effect that if the child were to go to the village the appellant would provide lighting by way of Coleman lamps. I do not see any substantial difference between a light coming from an electric bulb and a light from a Coleman lamp.

In relation to food and clothing, counsel for the respondent submitted that the respondent had an advantage over the appellant in that the appellant does not work and does not earn a living and therefore is not able to provide for the needs of the child. I reject this argument. The question of who has more means in custody applications is irrelevant. The reason is that if the father has more means than the mother it does not make any difference as far as the support of the child is concerned, because whether the father gets the custody, or the mother, the father is still legally liable to support the child. Whether or not the child stays with the appellant or goes to the respondent, the child is entitled to the same support. See the East African case of Re Hofmann, Hofmann v. Hofmann[dxxvi]²⁵.

The trial judge also said: “Then in Mount Isa he will be more able to surround Jeffrey with good books and leisure activities than Alina could provide at Eretei.” His Honour there was directing his mind to the material advantage of the respondent compared to what the appellant could provide in the village in Papua New Guinea. While this is so, it must be borne in mind that the welfare of the child includes happiness. Happiness is not always to be bought by material advantages. See Ex parte Fergusson[dxxvii]²⁶. In regard to the child’s happiness I am disturbed to know that the child, Jeffrey, expressed to the trial judge that he did not want to go with the father, but wanted to stay with the mother. This, of itself, is not significant because there are no reasons given in his Honour’s judgment why the child preferred to stay with the mother. However, reading the whole of the material before the court, I find some disturbing facts which, in my view, make the child’s wishes significant. Antony Grant Sadgrove, the headmaster of the Lae International Primary School, stated that the child, Jeffrey, had expressed to him the fact that he desired to live with his father. It is not apparent from Mr. Sadgrove’s evidence why the child expressed this desire and whether or not the child, at that stage, knew that the respondent had remarried, to Furune. I think this is significant in view of the appellant’s evidence. The appellant stated in her evidence that the child did not wish to go with the respondent. The reason was that the child did not like the respondent’s new wife. She stated that the child had witnessed a fight between herself and the respondent’s new wife. There is no evidence against this. This is a most disturbing factor of the child’s happiness with the respondent. There is no evidence that this child has had any happy or affectionate relationship with the respondent’s new wife.

As far as the day to day care of the child is concerned, it is obvious from the respondent’s case that the new wife would be responsible for the day to day care of the child, that is, washing, feeding and all the other things concerning the care of the child. The new wife was not called to give evidence nor did she give evidence by way of affidavit. I do not accept the explanations given by the respondent for the new wife not coming to give evidence because it would have been easy for her to give evidence by affidavit. It seems to me this was the weakness in the respondent’s application. It is in the interest of the child to assess the new wife who would be, for the most part of each day, taking care of this child. In the absence of evidence from her it becomes a matter of speculation as to whether she is capable of taking care of this child and whether she genuinely loves the child. The appellant’s counsel rightly pointed out this fact at the beginning of the trial. The trial judge, in his judgment considered that the absence of the new wife was not significant and, in my view, fell into error.

Removing the child from the appellant whom the court has had the opportunity of examining and has ruled to be a fit and proper mother, to the new step-mother, whom the court has had no opportunity of examining, is a serious step. Removing a child from a known situation to an unknown situation as far as the new wife is concerned may damage the child’s emotional development, particularly in view of the child’s expressed desire to stay with the mother. These are matters which call for expert testimony as to the effect they will have on the child. In this case no expert testimony was available. In discussing this matter, Mr. Justice Demack, in the case of In the Marriage of Jurss[dxxviii]²⁷ said: “In some cases this may be explored by the calling of expert testimony. In others the ordinary experience of the courts is relied upon.” Mr. Justice Demack then goes on to quote the following passage from the judgment. of Lord MacDermott in J. v. C.[dxxix]²⁸:

“Some of the authorities convey the impression that the upset caused a child by a change of custody is transient and a matter of small importance. For all I know that may have been true in the cases containing dicta to that effect. But I think growing experience has shown that it is not always so and that serious harm even to young children may, on occasion, be caused by such a change. I do not suggest that the difficulties of this subject can be resolved by purely theoretical considerations, or that they need to be left entirely to expert opinion. But a child’s future happiness and sense of security are always important factors and the effects of a change of custody will often be worthy of close and anxious attention ...”

It is not in the future welfare of this child to be placed with the new wife who has not developed a continuous and a close relationship with him.

By awarding the custody of the child to the respondent, the trial judge, in effect, was splitting up the child from his sister, Lisa. This, in my view, is an important consideration and it appears that the trial judge did not direct his mind to this question. It seems to me, in the long term benefit of the child, that he should not be separated from his sister, and in my view this would outweigh any better educational facilities that may exist in Mount Isa compared to education in the community school at Eretei in the West Sepik Province. Growing up together as brother and sister in a family is so fundamental to their welfare that the courts must be very cautious in splitting them.

This is concerned with the education of the child. It appears from the trial judge’s judgment that he treated this matter as tipping the scales in favour of the respondent. In my view he gave too much weight to this matter.

Education of the child is one of the considerations to be taken into account when considering the welfare of the child. It is not the only consideration. The trial judge considered two competing standards of education for the child; he considered education standards and facilities in Eretei Village in the West Sepik Province and in Mount Isa, Queensland, Australia. After considering the evidence he came to the conclusion: “Weighing up these educational matters which I have considered under the heading of the welfare of the infant, the education offered for Jeffrey by the father gives a substantial advantage to the father in this custody application.”

The trial judge came to conclusions about standards of education in Mount Isa as opposed to Eretei Village.

A number of grounds of appeal have been taken up on these matters. I do not consider it necessary in this appeal to go through all these grounds in order to make up my mind on whether the trial judge erred in exercising his discretion in favour of the respondent.

Even accepting his Honour’s conclusions on these educational questions (and I do not wish to be seen as agreeing with the trial judge’s conclusions on these matters) I think he fell into error having regard to all the circumstances. The child has been described as having the ability to do well in school. Whether he attends school in Mount Isa, Queensland, or Eretei Village, he would do well. What he needs is stability. The following evidence from Sadgrove is relevant:

“Q. What chance would he have of obtaining University education if he continues at your school or if he goes to Australia?

A. He has the ability, but what he needs is stability—that is equally true for either situation.”

Mr. Sadgrove was talking about education in Lae International Primary School and a school in Mount Isa, Queensland. It appears from this evidence that success in the child’s education depended on stability in the home. This is another way of saying that the child must have a home where there is security, stability, wise discipline and genuine affection from the parents. The trial judge did not direct his mind to these matters. If he had done so he would have appreciated the importance of wanting to assess the capability and the suitability of the respondent’s new wife. The court knows nothing about the new wife and has no idea about the relationship that would develop between her and the child.

On the other hand, the court has seen the appellant and has found her to be a fit and proper mother. There is no question about the affection of the mother for the child.

It might be said that the appellant has no husband to be a father to the child. This is not significant in Papua New Guinean society because cousins, brothers and uncles can stand in to fill the place of a father. The same can be said of the absence of a mother. See Kariza-Borei v. Navu Renagi[dxxx]²⁹. There is evidence of assistance that will come from the appellant’s uncles and cousins.

Having regard to the evidence, there is some uncertainty about the relationship that would develop with the respondent’s new wife. Depending on how the relationship develops this could affect the child’s education. I am not prepared to take this risk.

On the other hand I feel more certain about the stability that can be provided by the appellant. If the child were to go to the primary school in Eretei Village, he would have no difficulty in making top grade. He is described as a bright child and has ability. However, I find Sadgrove’s conclusion inconsistent when he says that this child would drop out in The education system in Papua New Guinea. Doing the best I can from the evidence, this child would do well in a Papua New Guinean school and would go as far as he is capable of going. I know from the evidence that the appellant will do everything she can to encourage the child.

I consider that in all the circumstances the child was given the wrong custody and I would allow the appeal and award the custody of the child, Jeffrey Kenneth, to the appellant.

I make one observation about custody applications. Custody cases are difficult to determine. This is because the court is given the most difficult task of assessing the parent who would best promote the welfare of the child. The court is often asked to assess this from circumstances that are proved, and with such inferences as can be drawn, which give some indication of the future life of the child. Every effort should be made by all parties to present before the court detailed evidence of the welfare of the child—that is the physical, moral, intellectual and spiritual welfare of the child. The central figure in the proceedings is the child and every effort should be made to produce evidence of his daily life and the activities in which he is involved, or will be involved, particularly in the home. Where there is a deficiency in the evidence on these matters, the court should bring it to the attention of the parties. (See H and H v. Director of Child Welfare[dxxxi]³⁰.)

It is only natural that parties in custody cases often engage in discrediting each other’s conduct. While this is a consideration it must not be allowed to dominate the evidence before the court. In every case evidence of the past, present and future life of the child must stand out.

I have made these observations because of the difficulty I find in determining the future of children in custody applications.

Appeal allowed. Order that Alina Sarah Bean be granted custody of the infant Jeffrey Kenneth Bean. Order the respondent to pay to the appellant the sum of K150 per month for the maintenance of the infant.

Editorial Note: This was the first judgment delivered by Kidu C.J. after his appointment as the first Papua New Guinean Chief Justice.

[dii] [1965-66] P. & N.G.L.R. 134 at pp. 139-140.

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

[1959] Tas. S.R. 81.

[dv] Unreported judgment 590, Minogue A.C.J.

[dvi] (1969) 13 F.L.R. 397.

[dvii] Unreported judgment 737, Williams J. 1973.

[dviii] Unreported judgment 855, 8th September, 1975, Saldanha J.

[dix] (1966) 7 F.L.R. 347 at p. 350.

[dx] (1963) 9 F.L.R. 384 at p. 391.

[dxi] [1893] UKLawRpKQB 95; (1893) 2 Q.B. 232 at p. 248.

[dxii] [1954] N.Z.L.R. 93 at p. 98.