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Derbyshire v Tongia [1984] PNGLR 148 (1 June 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 148 - Daisy Derbyshire v Graham Tongia 

[1984] PNGLR 148

SC272

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

DAISY DERBYSHIRE

V

GRAHAM TONGIA

Waigani

Pratt Kaputin McDermott JJ

1 June 1984

INFANTS AND CHILDREN - Custody - Automatic citizens - Law applicable - Customary law and common law to be applied - Infants Act (Ch. No. 278) not applicable.

Held

Proceedings for custody of children who are automatic citizens of Papua New Guinea, are to be determined according to customary law, the common law and any relevant statutory law excepting thereout the Infants Act (Ch. No. 278).

Re James Allan Sannga (deceased) [1983] P.N.G.L.R. 142, followed.

Cases Cited

James Allan Sannga (deceased), Re [1983] P.N.G.L.R. 142.

Joseph Auna, Re [1980] P.N.G.L.R. 500.

Opai Kunangel Amin, Re (Unreported Supreme Court judgment S.C. 231 dated 6 August 1982).

Appeal

This was an appeal from an order for custody made by Amet J. pursuant to the Infants Act (Ch. No. 278) in respect of two children who are automatic citizens.

Counsel

I. R. Molloy and S. J. Sandow, for the appellant.

B. B. Narokobi and M. Rangai, for the respondent.

1 June 1984

PRATT KAPUTIN MCDERMOTT JJ: In this appeal from the National Court, the learned trial judge has made a custody order in favour of the respondent in respect of two children resulting from the de facto relationship between him and the appellant. Both parties to the proceedings are automatic citizens of the country and consequently so are their children. One of the grounds of appeal reads as follows:

“His Honour erred in deciding the issue of custody under the Infants Act (Ch. No. 278) in that the children, the subject of the application, are not children to whom that Act applies.”

We have been advised that certain submissions were put before his Honour based on an earlier Supreme Court decision, namely Re James Allan Sannga (deceased) and Others [1983] P.N.G.L.R. 142. It appears that evidentiary material was also placed before his Honour, partly on the basis that the law applicable might be the Infants Act (Ch. No. 278) and partly on the basis that the law might be the common law or the customary law or a combination of both under the Constitution, Sch. 2.1 and 2.2. We are a little perplexed as to the reason why his Honour was not asked to rule at the outset of the hearing which law was to apply but the explanation appears to be that the parties thought they were covering the ground no matter what the relevant law. The omission to clarify this important aspect has now most unfortunate consequences. It is quite clear to this Court that his Honour proceeded to make his findings and subsequent orders on the basis of the application of the Infants Act (Ch. No. 278). At the commencement of his judgment his Honour says:

“This is an application under the Infants Act for the custody of two girl children.”

Further on at 5 of his judgment his Honour says:

“I now turn to consider the matters I am directed to consider by the Infants Act. Section 3 provides that the father and the mother of an infant are jointly and severally entitled to the custody of the infant. And I proceed on the basis that this is applicable to both legitimate as well as children born out of wedlock equally, and that there is no distinction as under the common law where in ordinary circumstances the mother of an illegitimate child is said to have a superior right to custody of the child against anyone else.”

In our view, firstly, his Honour has made his subsequent findings and orders unequivocally under the provisions of the Infants Act. Secondly, it is also our view that the Supreme Court in its judgment given in the Sannga case has ruled that the Infants Act is not applicable to many persons who may now be classed as automatic citizens under the Acts Interpretation Act and who were previously referred to as native or part-native children (though not, it would seem, to children of non-national mother and a national father). We accept the submissions of Mr Narokobi that the Supreme Court in the Sannga case was dealing with the relationship of the Infants Act and the Wills Probate and Administration Act (Ch. No. 291), and that the court was concerned with a set of facts involving matters entirely different to those before us. However, the particular point at issue in this part of their Honours’ judgment did deal with the section in the Infants Act which concerned itself with the appointment of guardians over infants. We cannot find any restriction in what their Honours say concerning the application or non-application of that Act to other factual situations. For example, his Honour the Chief Justice says at 153:

“However, s. 5 of the Infants Act was never repealed. The persons to whom the two repealed Statutes applied were:

(a)      Native children — i.e. children (boys and girls not over 14 years of age) whose parents were both natives (automatic-citizens); and

(b)      Part-native children — i.e. children (boys under the age of 16 and girls under the age of 18) whose fathers were not natives and whose mothers were natives.

So by virtue of s. 5 thereof the Infants Act does not apply to these children. I observe here in passing that the Act would apply to such children whose fathers are natives but mothers are non-natives. The deceased child, being the off-spring of two automatic citizen parents, is not subject to the provisions of the Infants Act 1950. Guardianship of Native Children is still exclusively the province of customary law and therefore the appointments of the respondents as guardians were invalid.”

Kapi J. (at 169), having dealt with certain principles of law and authorities, states that the repeal of the Native Children’s Act and the Part-Native Children’s Act does:

“... not affect the meaning which is adopted or incorporated under s. 5 for purposes of the Infants Act, that is to say, the Act has no application to natives and part-natives. Section 5 of the Infants Act has not been repealed. The original intention by the legislature that the Infants Act should not apply to natives and part-natives is still in existence.”

Once again his Honour is not in any way endeavouring to cut down the words which he has used to any specific set of facts or circumstances. Andrew J. handed down a judgment dealing with several other points but in addition stated that he agreed with the judgment and reasons of the Chief Justice.

It is a great pity that the trial judge was not asked to rule on the question of which law was applicable right from the start of the proceedings. As a result of this failure to obtain clarification it is clear that his Honour has been led into error and that his decision cannot stand because it is based on an Act which is not applicable to the facts of the case. It may be suggested that there has been no substantial miscarriage of justice in the end result, because an application of some other law, for example the common law, may lead to the same end. We do not understand the parties before us however, to have pressed this point. Perhaps the most important distinction which would have to be decided by a trial judge weighing up the effect of the evidence of each party upon him and their standing before the court, is the considerable difference in status afforded to a natural father under the Infants Act when compared with his status under the common law. Indeed the matter has already been referred to by his Honour in the section we have already quoted. Furthermore although certain areas of customary law were covered during the giving of evidence it is also obvious that these areas might well be approached from an entirely different point of view if the court had ruled that customary law was either the most important area to be covered or even that it was a possible area to be covered. For these reasons alone we are of the view that as the judgment must be quashed because it was arrived at on wrong principles, it would be highly undesirable for us to substitute our decision for that of a trial court and the only satisfactory means of overcoming this problem is clearly then to start anew in the National Court.

Mr Narokobi did suggest as an alternative, that we might remit the matter back for hearing before a village court which of course, has jurisdiction over customary matters. We are not satisfied that any particular village court would have jurisdiction in this case; but in any case we do not consider it necessary to decide this point as we are of the view that the forum may be chosen by the parties. In this case, they came from the National Court through to the Supreme Court. It is therefore only proper for us to remit the matter back to the National Court for rehearing. If the parties desire to take it elsewhere that is something for them to decide.

It has not been seriously suggested that this Court should reverse or alter in any way the decision of the Supreme Court in Sannga. Quite properly both parties concede that such a course would be most unusual. Mr Molloy has drawn our attention to several very pertinent common law authorities, and this Court itself has already enunciated, on at least two occasions to our knowledge, firstly, that it would only depart from any earlier statement it had made on the law in the most exceptional circumstances and secondly, that such a departure should as a matter of practice, only occur when the Chief Justice is presiding with a bench of four. This rule of practice may of course be affected by whether his Honour the Chief Justice is being asked to reverse one of his own decisions. Obviously for a court consisting of three judges to decide one way last year and a different way this year simply because different judges make up the later court would lead to nothing but chaos. One decision we have in mind is that of Opai Kunangel Amin, Re (Unreported Supreme Court judgment S.C. 231 dated 6 August 1982) where at 10 of the judgment Kapi Dep. C.J. says as follows:

“Counsel for the Public Prosecutor in his submission questioned the correctness of the decision in Re Joseph Auna [1980] P.N.G.L.R. 500. The case was decided by a five-member Bench in December 1980. With the exception of one member of that Court, this Bench is made up of different judges. As a matter of practice, care should be taken when questioning the decisions of the Supreme Court in such short time with different judges. If this is encouraged then the parties may be led to challenge the decisions of the Supreme Court before a bench composed of different judges in a short period of time. This could lead to a degree of some uncertainty of the principles of law pronounced by the Supreme Court. This is not desirable.”

We are also unable to understand why his Honour awarded costs against the appellant in the hearing before him. As was pointed out by Mr Molloy, it is a normal course for costs in such matters as these, to be paid equally by the parties, unless fault can very clearly be laid at the foot of one party, or perhaps great hardship. This certainly does not appear to be the position in the present matter. It is our opinion, that a certain degree of fault lies on both parties for not insisting that his Honour make a ruling on whether or not the Infants Act was applicable. We think it appropriate and fair in all circumstances to order that costs of the original hearing and of this appeal be borne equally by both appellant and respondent.

We also understand certain arrangements have been made concerning the custody of the children since February of this year which amount to a variation of the order made by his Honour last December and we shall hear counsel on this matter in a moment.

Finally, it is our understanding that the serious consequences which flow from the ruling of the Supreme Court under Sannga’s case (the Infants Act does not apply to most citizens of this country) were pointed out to some of the Government authorities shortly after the decision was handed down in June last year. While we feel confident that the matter is now being given attention by the appropriate authorities we would add our own strong plea for an amendment to be brought down quickly in order to remedy an omission which has been found to exist only after a lapse of many years. The Act has been applied on many occasions to national children since the repeal of the Part-Native Children’s Act and the Native Children’s Act brought about by the Child Welfare Act in 1961. The present law is in a state of some uncertainty. It is necessary for each case to be decided within the parameters of the common law and the customary law and perhaps some other statutory law which has not been brought to our attention. We trust for the benefit of the children of this country that Parliament will give the matter absolute priority.

Finally, in addition to returning this matter to the National Court for determination, we direct that the registrar list the matter for hearing in the July sittings of the court. Naturally of course, if the parties by mutual agreement, desire the matter to be heard at some other time then that can be arranged at the callover.

The unanimous order of the court is that the appeal is upheld, and the orders made by Amet J. given on 2 December and 19 December 1983 whereby it was ordered that the respondent be given custody of the children of the appellant and respondent and the appellant pay the respondent’s costs are hereby quashed. We further order that the costs of the original hearing before the National Court and before this Court be borne by each party. We order also that the matter be returned to the National Court for determination according to law, namely the common law, the customary law and any other statutory law excepting thereout the Infants Act which may be found to be applicable.

The order we make as to custody pending further determination by the National Court (of course the parties can go to the court at any time): that both children remain living with the appellant with access to be given to the respondent as agreed by the parties and there will be liberty to apply by either party to a judge of the National Court.

Orders accordingly.

Lawyers for the appellant: Young & Williams.

Lawyers for the respondent: B. M. Narokobi.

Editorial Note: On 10 December 1984 Kidu C.J. granted custody of the children to the plaintiff mother and delivered the following reasons therefor.

10 DECEMBER 1984

KIDU CJ:  This application for custody of two children was determined by this Court in 1983 and an order in favour of the defendant was made on 2 December 1983. The plaintiff appealed to the Supreme Court which quashed the order of the National Court and remitted the case for rehearing: see Daisy Derbyshire v. Graham Tongia [1984] P.N.G.L.R. 148. The Supreme Court ordered as follows:

“We order also that the matter be returned to the National Court for determination according to law, namely the common law, the customary law and any other statutory law excepting thereout the Infants Act which may be found to be applicable.”

On 4 June 1984 the plaintiff filed a notice of motion applying for directions as to the conduct of the case with respect to the filing and service of affidavits and the following orders were made on 3 July 1984:

“(1)    That the matter be stood over to the July call-over for hearing in August.

(2)      The parties put their primary evidence to the court by way of affidavits.

(3)      Each party to serve affidavits on the other within twenty-eight days from 3 July 1984.

(4)      Any affidavit in reply to be served on the other party within twenty-one days of service on the other party wishing to reply to the affidavits of the other party.

(5)      Each party to have liberty to apply.”

Subsequent to the above orders the plaintiff on 6 July 1984, served on the lawyer for the defendant the following six affidavits:

(1)      Affidavit of the plaintiff sworn on 5 June 1984.

(2)      Affidavit of Madaha Resena sworn on 5 July 1984.

(3)      Affidavit of Carol McAllister sworn on 5 July 1984.

(4)      Affidavit of Gary Soh (husband of the plaintiff) sworn on 6 July 1984.

(5)      Affidavit of Geua Dogodo sworn on 29 June 1984.

(6)      Affidavit of Maria Asan sworn on 6 July 1984.

To the above six affidavits the defendant made no replies.

A seventh affidavit (that of Morea Raho sworn on 9 July 1984) also attracted no response from the defendant. In October 1984 the matter was set down for hearing on 10 December 1984 and notice of this hearing date was served personally on the defendant on 31 October 1984. (The lawyer for the defendant withdrew from the case and this fact was conveyed to the plaintiff’s lawyers by Mr Narokobi in a letter dated 10 August 1984.)

I entertained the matter on the fixed date. There was no appearance by the defendant. I decided to proceed with the case as the defendant had shown no interest in the matter after the Supreme Court had handed down its decision.

On the basis of the affidavit evidence and oral evidence of the plaintiff (now Mrs Daisy Soh) and Mr Gary Soh I awarded custody of the two children to the plaintiff with liberal access by the defendant (to be agreed upon by parties) and ordered that the defendant pay the plaintiff’s costs.

The law I applied was the customary law of the Motu people of the National Capital District and Central Province. There are five Motu villages within the boundary of the National Capital District and these are Hanuabada, Elevala, Pari (my village), Vabukori and Tatana. The plaintiff is an automatic citizen from Tatana.

STATUTORY LAW

The only statute applicable to custody applications apart from the Matrimonial Causes Act (Ch. No. 282) is the Infants Act (Ch. No. 278). Whilst the former applies only when there are proceedings under it the latter has been ruled by the Supreme Court not to apply to the children, the subject of this application (see Derbyshire v. Tongia).

CUSTOMARY LAW

Sch. 2.1 of the Constitution says that “... custom is adopted, and shall be applied and enforced, as part of the underlying law”. This is subject to such custom not being “inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity”. As only the plaintiff made an appearance I applied her people’s custom — that is the custom of the Motu people. I am a Motuan myself. I know the custom of my people relating to marriage, divorce, custody of children and so forth. Evidence of these matters is contained in the affidavits of two elders of Tatana Village — Mr Madaha Resena and Mr Morea Raho.

MADAHA RESENA

“In our custom a marriage is brought about in the following manner: when a man agrees with his parents on an appropriate girl, his parents then go to see the girl’s parents. This meeting is called ‘Daedae’ in Motu. The parents of the man will take betelnut and K20 to K30. Betelnut will be chewed and if the girl’s parents agree to this marriage the man’s parents will give the money to them. This agreement is called ‘Maoheni’.

Next the parents will meet and arrange for the payment of ‘Kuku’. Kuku is usually paid one to three months after ‘Maoheni’. K500 to K2000 is paid together with 50 to 100 toea, rice, flour, sugar, bananas and one to three pigs. In 1952 my family paid K30, 50 toea, one pig, bananas, sugar and flour for my wife. However, these are old values. In 1981 I paid K3000, two pigs, flour, rice, sugar, bananas and coconuts for ‘Kuku’ for a wife for one of my sons.

When Kuku has been paid the man and girl live together. ‘Dava bada’ remains to be paid. Nowadays the marriage sum is K8000 to K10,000, 200 to 500 toea, two to five pigs, bananas, rice, flour and sugar. In 1952, K500, 50 toea and two pigs were paid for my wife. Again this is an old value. In June this year a brother of mine paid K11,400 for a wife for his son as ‘dava bada’.

If a couple have children and then separate and ‘dava bada’ has not been paid, the children will go with the mother and the father will have no right to custody. Even if ‘dava bada’ is paid the children will still go with the mother and the father will have no right to custody unless the separation is the fault of the mother. It is only where ‘dava bada’ has been paid and the separation is the fault of the mother that the father has any rights to custody of the children. Otherwise he has none. The separation would be the fault of a spouse who goes to live with another man or woman. The mere payment of ‘kuku’ without ‘dava bada’ will not give the father any right to ask for custody.”

MOREA RAHO

“The custom of Tatana Village is the custom of Pure Motu speaking people. I have lived in the custom all my life and know its laws. The only language I speak is Pure Motu.

The custom of marriage of Pure Motu speaking people is as follows: when a man and his parents agree that they wish the man to marry a particular girl his parents will go to the girl’s parents to propose the marriage. They will usually take about K10 and take some cooked food and betelnut. If the girl’s parents agree there will be a marriage. This is called ‘Maoheni’.

The next payment to be made is called ‘kuku’. It is paid to the girl’s parents usually one to two months later. Nowadays a normal price would be K2000 to K3000 together with such items as toea, rice, flour, sugar and pigs. It is after Kuku has been paid that the couple live together.

The next payment to be made is ‘dava’. Nowadays it will be in the order of K11,000 to K12,000 together with such other things as pigs, toea, bananas, rice, flour, sugar, mairi and movio.

If the ‘dava’ has not been paid and the couple separates, then the mother only has the right to the custody of her children. The father has no right regardless of what of the sex the child is and regardless of any Kuku which has been paid.”

The amounts of money or number of pigs etc. paid by the man’s people vary from case to case. There are no fixed amounts or figures.

For the purposes of this application the important aspect is that there is no marriage by custom if “Dava Bada” is not paid for the woman, the man has no rights to any children born to the woman. Under Motu custom the question of whether it is in the interest of the children to award their custody to the plaintiff does not arise. However, if the question is relevant there is sufficient evidence that the children will benefit by being looked after by their mother and stepfather.

Order for custody in favour of plaintiff mother.

Lawyer for the plaintiff: Young and Williams.