Fungke v Popuna [1995] PNGLR 313 (8 March 1995)

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INFANTS AND CHILDREN - Custody of children - Parents divorced by custom - Interest and welfare of the child.

The plaintiff sought an order for custody of the child of her marriage with the defendant. The parties were married according to custom and in 1992 the Local Court had declared the customary marriage dissolved. The defendant father argued that the children were not being well cared for by the plaintiff and had taken them from school to live with him. The father argued that he was entitled to custody as he had paid bride price which had not been returned following dissolution of te marriage.

1. Payment of bride price giving rise to an entitlement to custody of a child under custom is an important consideration in custody cases.

2. On the evidence in this case, the consideration of custom and the greater advantages that father could rpovide weighed heavily towards the father and the best interests of the child would be served by granting custody to the father.

WOODS J: The plaintiff is seeking an order for custody of the infant Jillian Dent Popuna the child of the marriage of the plaintiff and the Defendant. The parties were married by custom in January 1979 at Kota Pore Village near Mount Hagen. They went to live in Moresby however even by 1980 there were problems in the marriage although the marriage continued. In 1981 the child Jillian was born. In 1990 problems in the marriage led to some counselling sessions by a Lita Mugugia a Senior Child Welfare Officer with the Office of the Director of Child Welfare in Port Moresby. Lita Mugugia has stated that the main problems with the marriage at that time seemed to be differences in religion and she found no fault with either party as to the care of the child. In 1991 the marriage problems got worse and finally the Local Court in 1992 formerly declared the customary marriage dissolved.

When the marriage broke up the daughter together with an adopted daughter were living with the mother although the father was paying for her to go to the international primary school. However there was difficulty with school fees so she was taken out of the international school and the mother put her into a community school near where the mother is living. However the father felt that the children were not being looked after well so he came and collected them from school and they are now living with him. This has led to this application.

The court must consider the welfare of the child. However the father is also submitting that as he had paid bride price at the time of the customary marriage and this bride price was not returned at the time of the dissolution of the marriage according to custom he is entitled to have the custody of the child.

There are cross-allegations over every aspect of this case and this makes it very difficult as there is no real independent and impartial evidence on either side. These cross-allegations cover areas like the behaviour of each party during the marriage, the break up of the marriage, the care of the children since the break-up of the marriage, and how the father took back custody of the child. There are even cross-allegations over the merits of the step-mother as against people who would help the mother care for the child.

The court is left with the fact that both parents seem to be able to provide for the child. There is no suggestion that either would be deficient in providing a suitable home. The mother may not be able to provide the same standard of home and opportunities as the father but I am sure the love and affection would still be as equal.

There have been two reports from separate officers in the area of welfare but neither detract from the ability of either parent to provide for the child.

The father has raised the fact that because he has paid bride price at the time of the customary marriage one effect of this is the custom that he is entitled to have custody of the child. This must be an important consideration and the implication of the custom of bride price in matrimonial and custody cases has been discussed by the court in a number of cases. In the case Kere v Timon [1990] PNGLR 103 the Judge was considering whether bride price should be repaid on the breakdown of a marriage. And in that case the Judge found that inherent in the evidence of the mother is one other reason for paying bride price, that is children of the marriage must stay with the husband’s family. Inherent in another witnesses evidence is a message that if bride price is not returned, children of the marriage must go to the father’s line as payback for bride price. The Judge did say further in that case that custom can relax itself to accommodate the sense of fairness and that custom is a growing thing. In that case the Judge felt that it was unfair for the mothers family to retain the bride price and the children. In another case Enakali v Enakali (1992) unreported N 1047 I found evidence of a customary principle and that there had been some exchange of wealth made at the time of the marriage and that did create certain obligations and rights. I found that one of those rights is that the man’s line having passed some wealth to the woman’s line has a right and responsibility for the care of any children of the marriage.

The Kere case above was a coastal case and involved coastal custom and the Enakali case involved a Highlands custom but the end result of the customs seemed to be the same. Whilst similar custom was discussed in the case Tom v Kayik [1992] PNGLR 171 there were other considerations in that case that decided where the best interests of the child lay.

I am left with a situation that both parents can provide a good home. However the consideration of custom and the greater advantages that the father can provide do weigh heavily towards the father. I therefore find that the law in this country provides that the father has the legal responsibility and duty to provide for the child and I am satisfied that the best interests of the child would be served by granting the custody to the father Jacob Popuna .

I order that the father Jacob Popuna have custody of the child Jillian, however the mother Silvia Fungke is to have reasonable access to visit the child. I will not make any specific orders as to the access as I am sure that the parties can work out a reasonable programme however if there are any problems then it is open to the parties to approach the court to detail any access rights.

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Papua New Guinea Law Reports

Fungke v Popuna [1995] PNGLR 313 (8 March 1995)

PNG Law Reports 1995