Rouaia v Malpaim [2000] PGDC 29; DC239 (6 July 2000)

DC239

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

CASE NO 1796 OF 2000

Mary Rouaia
Complainant

V

Mathew Malpaim
Defendant

Mr. Iova S. Geita - Senior Magistrate
Date: 6 July 2000

Counsel
Complainant in Person
Defendant in Person

DECISION

Geita. I. S. This is a case of a man and woman entangled in their marital differences with a child of that marriage, who is now the victim of that marriage.

The complainant has come to this court seeking a restraining order against her husband from entering her premises. Secondly to restrain the defendant from interfering, harassing and or interfering with her life. Thirdly to restrain the defendant from taking away the Informants child away.

The defendants unemployment and lack of financial support have been advanced as some of the reasons why she seek to restrain him from getting near her and their ten (10) year old son.

This court has not been told if both parties were legally married or lived a defacto relationship up until the strained relationship started.

The only indication that the marriage may not be legal is contained in a Statutory Declaration filed by the complainant who deposed that she does not have any obligation under traditional marriage, state marriage or church marriage. Be that it may both parties have an obligation to a son, their son whom they brought into this world.

The complainant has accused the defendant of neglecting her and her son and the defendant is doing likewise. But this time accusing the complainant for using their son as a shield to meet her own interests.

The defendant admits withdrawing financial support for nearly two (2) years and blames it on the complainant's stubbornness and negative attitude toward their relationship.

Leaving aside the parties differences we have a child who is the victim and both parties are using their son to have a go at each other. I do not think that is the right thing to do. I consider those attitudes childish and not becoming of a man/woman who were happy at one stage in life which resulted in the child being brought into this world.

I am not convinced that restraining the defendant from getting closer to the complainant or the son would resolve this problem. Similarly I am not convinced that restraining the complainant would do good under the circumstances.

The crux of the problem as I see it is for both couples to firstly sort out their marital problem. Failing that, they must attempt to work out how best they can continue to live as man and wife in the interest of their son. Should you both finally decide to live separate lives so be it but you both must not do so at the expense of your son.

Before I close I would like to state here that courts have been very slow to prevent families from breaking apart, we do not want to see families separated. Whenever possible families are being urged to reconcile and get on with life.

This Court has been asked to restrain the defendant from taking your son away from the complainant. I said earlier on that courts are slow to split families however when it comes down to children of disturbed marriages, the interest of those issues remain paramount.

Questions such as which parent is most likely to give that parental love, care and nurturing to the child or the child's education, health and up-bringing.

Which parent is most likely to provide for that child's needs. Those are some of the questions that courts take into account in determining which of the two (2) parents is to have custody of that child.

In doing so I must emphasize here that questions of this nature are best determined by specialist children's courts. However since this matter has come before me and is considered urgent by both parents I will make orders in the interim and urge parties to go to those specialist courts for final determination.

Under these circumstances I make orders in the following terms:-

(1) The interim order of 6th June 2000 is revoked and substituted as follows:-

(2) That the defendant be granted reasonable access to see the issue of their marriage at the complainants premises.

(3) That the issue of their marriage remain in the custody of the complainant until final determination by a specialist court.

(4) That the defendant be restrained from taking the issue of their marriage away from the custody of the complainant or outside of Port Moresby until final determination by a specialist court.

(5) That both parties be restrained from interfering, harassing or assaulting each other.

(6) Upon breach of the said Orders, all members of the Police Force be empowered to arrest the defendant, in the case of the defendant and the complainant in the case of the complainant and brought before this court or similar court of competent jurisdiction to be dealt with accordingly.

Orders accordingly.