Jana v Pohei [2007] PGDC 157; DC772 (14 September 2007)

DC772

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE]

DC 153 of 2007

BETWEEN

JOSEPH JANA
Complainant

AND

WARREN POHEI
Defendant

Lorengau: G. Madu, PM

2007: September 14

CIVIL - Action for caring for infant child - Father rejects child - Marriage unstable - Mother leaves infant child with guardian - Welfare of child paramount - Customary obligation - Compensation unethical - Expenses for milk substituting breastfeeding allowed.

Legislation

Constitution of Papua New Guinea
Customs recognition Act Chapter 19

Counsel

For the Complainant - In person
For the Defendant -In person

G. Madu, PM : The complainant claims for cost of labour for caring of the child Thomas Warren in the sum of K4,329.00 for two (2) years.

1. The complainant is the grandfather of the subject in the matter, Thomas Warren. Thomas’s mother Ndrinou Jana, the complainant’s daughter. The brief facts are on 21 of October 2002, the complainant and his wife came from Rambutso Island and stayed with the defendant and his wife at Wamundu Settlement.

2. At 10.00 pm in the night, when the defendant accompanied to the Lorengau General Hospital. On 21 of October 2002, the defendant’s wife gave birth to Thomas Warren. The defendant was not happy and said the child was not his, he belongs to Sepik.

3. The complainant claims that himself and his wife heard these words spoken by the defendant. After these, the defendant and his wife started to go through the family problem. When both defendant and his wife’s relationship went sore, defendant’s wife took Thomas Warren and left him with her aunty Mrs Jane Bouwi at Lombrum.

4. Mrs Jane Bouwi took care of Thomas Bouwi for twelve (12) months with baby food, milk and milo. Defendant’s wife then went to Lombrum and got Thomas Warren from her aunty Mrs Jane Bouwi and took him back to Wamundu Settlement but could not be breast fed as his mother’s breast dried. The child was not being properly fed and began to lose his weight and became very sick.

5. The complainant with his wife having received an urgent message regarding Thomas Warren’s health condition, travelled from Rambutso to Lorengau and found the child in care of a woman namely Molong Loh and the defendant and his wife were not present. The child was then taken by the complainant and his wife to Rambutso. The child was treated at Paniselu Health Centre at Rambutso Island and he got well. He grew up with the complainant and his wife after complainant’s wife had retired from active service as school teacher.

6. The child was given to the defendant and his wife in November 2005. The complainant claim that the defendant did not appreciate for all the expenses he had met and the care they had given to the child and instead gave the child away to Michella Pohei who stays at Kolwin Settlement. This lady did not have any part to raise the child. The complainant claim that according to the custom of the people of Manus, the defendant must contribute food; pig and money as a form of compensation before the child can be returned to the defendant.

The complainant claim that the defendant pay K4,320.00 for raising the child as an infant.

The issue are:-

(1) whether the defendant action of refusing to accept the infant child Thomas Warren as his child and the defendant’s wife leaving the child with a guardian to take care amounts to neglect?

(2) whether the expenses incurred by the complainant in upbringing the child nullify compensation because it is a customary obligation and is unethical?

7. In relation to the first issue, the complainant and his witness who is his wife stated that they were present when the defendant went into labour and delivered the infant, the subject of this matter. The mother gave birth to Thomas McCarthy Warren on 21 of October 2002. However, defendant Warren Pohei was not happy and made statement saying this baby belongs to the Sepik and not mine.

8. The defendant made this statement at Wamundu Settlement and both the complainant and his witness heard what was said. Because of what defendant said, he started to have problem with his wife. This caused their marriage to be unstable and resulting in separation.

9. The complainant further stated as a result of the marriage breakdown, the child Thomas McCarthy Warren has been left with a guardian to take care and was never been breastfed and relied heavily on milk and milo. This child had been taken care off by the different woman guardian before the infant child was given by another to his parents who are the complainants in this case.

10. The complainant fully took guardianship of the infant child Thomas McCarthy Warren, when for the second time another left him with a woman guardian at Wamundu Settlement and the child fell very ill. The complainant and his wife had to be called to come and get the child. The child was at the merge of dying when the complainant and his wife came and took the child to Rambutso Island where they took care of him and the child recovered. One of the notable thing was that the defendant’s wife was not present when her parents went to get the child at Wamundu Settlement nor the defendant was even around to see the child.

11. The both the child’s parents failed their parental duties to give love, care and comfort to the child. The defendant stated that the children were raised by himself and his wife and were assisted by complainant’s wife and defendants parents. He denied complainant directly involving in taking care of Thomas McCarthy Warren. The defendant’s witness who is the defendant’s father also stated that he did meet expenses during birth and post natal and maternal health care.

12. He further confirmed that complainant’s wife and the defendant’s parents did support the child. He stated when the mother of the children left, the two (2) children were left in their hands to take care off. He stated it is unethical for the complainant to demand or claim compensation for labour cost or work rendered in respect of his grand children’s welfare. He claim children by merit deserved full protection, care and support from all sectors of the society including biological parents as grandparents.

13. However the issue before the Court is the rejection of the child Thomas McCarthy Warren by the defendant and saying the child is not his child is Sepik child. The evidence so far addressed is that the complainant and his wife testified they were present when the defendant made the statement. The complainant also said that this was the beginning of their marital problem.

14. The evidence also showed that whilst this child was still an infant and required breast feeding, the mother took him away and left him at Lombrum with her aunty who had to feed him with milk and milo for almost a year. She went and got him and the child was with her until she went away leaving the infant child the second time with a woman at Wamundu Settlement. During the time, the child fell very ill and word was sent to the complainant and his wife to come and see the child.

15. The complainant and his wife came and got the child and took him away to Rambutso Island and there they took the child to the Health Centre where the child got well. The action by the defendant’ wife can clear be informed that because of his rejection of this child Thomas McCarthy Warren. His wife could not keep the child in defendant’s presence and that is why the child was not been given a proper parental love the child deserved from the both parents.

16. Further at the infant stage, the child need mother to give love and care. This was no accorded to the child because of defendant’s rejection of the child. The welfare of the child is a paramount consideration the parents are obligated to give to the child and according to evidence, the both parents of the infant child Thomas McCarthy Warren failed to give him that love and care and because of defendant’s rejection of Thomas McCarthy Warren as his child, he was denied the love and care of the mother.

17. In relation to the second issue from the fact value of this case, it appears to be a family arrangement where the defendant had rejected the infant child namely Thomas McCarthy Warren. The defendant’s wife would heavily rely on her parents to come in to assist.

18. This would be a case with any Papua New Guinean woman. Further the custom would be an influential factor. Section 6 of the Custom Recognition Act Chapter 19 states that custom shall be taken into account in deciding question relating to inter-alia, guardianship of infant children.

19. But what is custom? Section 1 of the Constitution defines custom as “custom and usages of indigenous inhabitants of the country existing in relation to the matter in question at that time when ......... the place in relation to which the matter arises, regard loss of whether or not the custom or usage his existed from time immemorial”.

20. In my view, custom would determine the natural and extend if the guardianship, the requirements and expectations to be met as well as the reasons for guardianship of the infant child.

21. However Section 3 (b) of the Custom Recognition Act Chapter 19 given a warning when it states custom shall be recognised and enforced by and may be placed in all Courts, except in a case affecting the welfare of a child under sixteen (16) years, it’s recognition or enforcement would not be in the opinion of the Court, be in the best interest of the child.

22. In the prima case, the parties did not call evidence on this issue. On the relevant customary rule of parties in the Manus Community relating to customary. Guardianship of infant children nor did they give any specific evidence on the conditions or requirement for customary guardianship and the types of compensation one would expect if those requirement are not met.

23. The complainant only made a statement that when the defendant had decided to take the child back, he has to give food, a pig and cash money as a mark of appreciation for all the hard work the complainant has done to raise the infant child Thomas McCarthy Warren for the two (2) years. Whatever the customary rules of practice in relation to guardianship of infant children be existing in the Manus Community and Society is ............ by Section 3 (b) of the Customs Recognition Act and that interest of the child is most important against any customary requirement.

24. In view of the above consideration, I am satisfied that complainant and his wife took guardianship of the infant child Thomas McCarthy Warren because his poor health condition due to mother taking him off early from breast feeding and living with two (2) women at two (2) different occasion because of defendant’s refusal to accept this child as his own.

25. The complainant and his wife could not allow their grandchild to suffer and for that reason took the child away with them. The evidence had been addressed that the child was very sick and to care off them until he recovered and raised him up. It also shows that both had responsibility as grandparents and for them to ignore the infant child and allow him to suffer would be an action that the community would not approve and would be much talked about as it is an action that would be seen as unacceptable to customary practice when family clan and society is involved in raising of the children.

27. The defendant’s evidence also claimed that they also did their part to meet the expenses of the child at birth and after birth. Their evidence also raised similar concern but taking care of the elder son of both defendant and his wife, Ndrinou Warren. However the evidence of the defence is not very clear whether Thomas McCarthy Warren was been taken care

For the Complainant - In Person
For the Defendant - In Person