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Michael v Tumbungu [2003] PNGLR 6 (20 March 2003)

NATIONAL COURT OF JUSTICE

LUCAS MICHAEL

V

JULIE TUMBUNGU

WAIGANI: SALIKA J

12, 18, and 23 April 2002; 20 March 2003

CUSTODY APPLICATION – Children – Custody – Welfare of Child – Welfare paramount consideration – Meaning of welfare.

Facts

The proceedings in this matter commenced by way of a petition by Mr Lucas Michael for dissolution of marriage and for custody of the children of the marriage under the Matrimonial Causes Act. The respondent Julie Tumbungu cross petitioned for the same. Both alleged adultery as grounds for the dissolution of the marriage. The remaining issue for the court to determine is the custody of the children.

Held

1. Lucas should continue to have custody over the children. I am of the view that reasonable access is to be allowed for the mother to see the children so that they have the benefit of maintaining a relationship with each parent.

2. I order that the children have access to their mother on Saturdays and Sundays and also on school holidays. In other words, Lucas will have the children most of the time but Julie will have access on Saturdays and Sundays and school holidays.

Papua New Guinea cases cited

Bean v Bean [1980] PNGLR 307.

20 March 2003

Salika j. The proceedings in this matter commenced by way of a petition by Mr Lucas Michael for dissolution of marriage and for custody of the children of the marriage under the Matrimonial Causes Act. The respondent Julie Tumbungu cross petitioned for the same. Both alleged adultery as grounds for the dissolution of the marriage. Since the proceedings commenced the question of dissolution of the marriage has been resolved. They are now divorced. The remaining issue for the court to determine is the custody of the children. Out of the marriage, Lucas and Julie have two children, Emmanuel and Lucas Michael (Junior).

Emmanuel Michael is the older of the two children. He was born on 9 November, 1995. He is now 7 years and 4 months old. At this point in time he is in good health and the report says he responded "politely when called, when asked and or when they wanted something". Lucas Michael (Junior) is the second of the children. He was born on the 29th March 1997. He will be 6 years next week. The welfare report says he too is in good health and very energetic. The report says that both boys are well and happy with the father.

A home study report was done to assess the suitability of the parents by the Child Welfare Office. The reports have now been furnished to the Court.

In so far as Mr Lucas Michael is concerned he has since the divorce entered into another relationship with a Sonya. Up to the time of the judgement, I am not aware of the type of relationship. There is no evidence of a legal marriage between Sonya and Mr Michael. There is an assertion by the Welfare Officer in his report that Sonya and Michael are now legally married. I have not cited any marriage certificate of the two in the report or on the file. The report states that Sonya is originally from the Philippines but is an Australian citizen. Lucas and Sonya live in a three bedroom flat on Vaivai Street, East Boroko.

At this time the children are in custody of Lucas and Sonya. There was an interim custody order for both parents to have equal custody until that was varied after one of the children was allegedly assaulted by Julie's brother. At this time Julie has had no access to her children.

Particulars of each parent

Mr Lucas Michael

The father is a graduate of the University of Papua New Guinea with a Bachelor of Arts degree in 1990. He also has a post graduate Masters Degree in Management from an Australian University. After his first degree he obtained employment with Air Niugini rising to Deputy Manager – Ground services. In December 2001 he got another job as Human Resources Manager with Arnotts Group of Companies. Mr Michael is financially secure with accommodation and security provided. He has a good job and is able to offer international standard education to the children. He is capable of providing for the welfare of the children such as food, clothes, medical expenses and education.

Ms Julie Tumbungu

Ms Tumbungu is working as an accountant with Kenmore Group of Companies. She graduated with a Diploma in Business Studies from the Divine Word University in Madang. She lives in a Company rented unit at Korobosea. The unit is self contained with one spacious room and a big kitchen. There are 24 hour security guards located at the units. Julie earns about K14,000.00 per annum plus K1,300 per month housing allowance. Her company pays her water bills and provides medical cover for her and the children. Compared to other women in PNG, Julie is living comfortably by PNG standards. She however would not be in a position to offer international standard education for the two children compared to Lucas. She would not be able to provide the same type of welfare for the children as Lucas would.

The home reports were done by two separate officers of the Welfare Office one for each of the parents. Each officer recommended the parent each interviewed to have custody of the children.

Both Lucas and Julie are from the East Sepik Province. They both live in Port Moresby. Both were born at the Boram Hospital in Wewak. Lucas was born on 6 October 1965 while Julie was born on 1 April 1972. It is clear to me from the Welfare reports that both parents are individually capable of providing for the welfare of the children. Both have fairly good stable jobs. That is because both parents are University educated. The third party in this matter is Sonya. The status of Sonya in so far is Lucas is concerned is not clear. Sonya is the new woman living with Lucas. This means Sonya is playing the role of the children's mother at this very point in time. As alluded to earlier the natural parents of Emmanuel and Lucas (Junior) are no longer living together. They therefore cannot bring up the children together. The court has been asked to decide which parent should take over the role as the supervising parent or caretaker parent of the children. This means the court must decide which parent will have the physical possession of the children. Which ever parent is awarded the physical possession or custody of the children will be responsible for the day to day life of the children. That parent will see to it that the children are fed, clothed, cared for, educated, attended to when sick and other daily responsibilities that usually go with parenting. Which ever parent is granted custody will thus have a heavy responsibility.

The other parent who is not awarded custody of the children usually will get reasonable access rights to the children, not so much because it is that parent's right but rather because the children have a right to have the benefit of having a relationship with each parent. There is usually flexibility in "access" orders. They may be varied to suit the change in circumstances. The same is also true for custody orders. A change in circumstances may render it appropriate to vary custody orders. For instance if the parent who was granted custody of the children was involved in a motor vehicle accident and was paralysed and confined to a wheelchair and not able to work anymore, the parent who initially had only access rights could apply to the Courts to vary custody orders.In such cases the courts look at what is best for the welfare of a child.

In the case of Bean v Bean (1980) PNGLR 307 KAPI J (as he then was) defined "welfare of child as":

"the welfare of the infant is usually referred to as comfort, health, normal, intellectual and spiritual welfare of the child. These elements are in turn fundamentally dependant on the existence of security, stability, wise discipline and genuine affection in the home".

I adopt his definition as being correct.

In considering this matter I am bound to also consider these factors in this application. I must consider their, comfort, health, spiritual, mental, physical and social welfare. Furthermore, as both parents are from the East Sepik I thought there would be some customary considerations to be taken into account. Both parents have not specifically said anything about customary considerations but Julie says the boys should learn about their own Sepik culture which Sonya cannot teach. She said she did not want to see the boys displaced from their own Sepik culture living with an expatriate woman. This to me is a genuine concern.

On the other hand Lucas has traditional land in his home village and he says the two boys therefore have secured land at home. It is not clear whether the parents are from the same area in the East Sepik Province with same or similar customs. I also note that both parents have really been living out of their home province. Whether they go back to their home province during their holidays is a matter which the court does not know. Are the boys able to practice then Sepik culture in Port Moresby.

A lot of the affidavits have been filed by Lucas. Julie has only filed a couple of affidavits. There are a lot of allegations by Lucas against Julie which have not been answered and contradicted by Julie. As a result of lack of any rebuttal or contradictory affidavits filed by Julie this court is left with the affidavits filed by Lucas.

From all the affidavits filed and which are on the file the evidence seem to point to Lucas as the appropriate parent to award custody. Lucas is placed in a far superior position than Julie to take care of the children. Lucas has said that Julie's family will have bad influence on his two sons. Julie has not rebutted this. Lucas alleged a brother of Julie assaulted one of the children when Julie had access to the children. As a result of this Lucas applied to have the access order to Julie varied so that Julie's relatives would not have access to the children. This was to avoid any further assaults or abuse to the children. The court accordingly varied the access order to Julie. This has not been denied or rebutted by Julie.

To my mind Lucas is better positioned to provide for the welfare of the children. He is currently in custody of the children. There is no evidence that the children while under his care have suffered somewhat from anything. Julie on the other hand in my view is also capable of looking after the children but not on the same level as Lucas can. If she was to take a maid to look after the children where will she accommodate the maid. Four could be a crowd in one room especially with two growing children and a maid.

Moreover if Julie was awarded custody of the children, how safe will the children be from Julie's brothers and relatives. What bad influence might the boys be subjected to if Julie is to have custody. I am not prepared to risk the safety and discipline of the children by placing them in Julie's custody. I will be worried about the boys spiritual, mental, physical and social development if I was to place them in Julie's custody.

Considering the circumstances I intend to maintain the status quo, that is that Lucas continues to have custody over the children but I am of the view that reasonable access is to be allowed for the mother to see the children so that they have the benefit of maintaining a relationship with each parent. I order that the children have access to their mother on Saturdays and Sundays and also on school holidays. In other words, Lucas will have the children most of the time but Julie will have access on Saturdays and Sundays and school holidays.

Lawyers for the petitioner: Goma and Kwimberi Lawyers.
Respondent in person.