Michael v Fena [2007] PGDC 44; DC541 (11 May 2007)

DC541

PAPUA NEW GUINEA
[IN THE DISTRICT COURT OF JUSTICE
SITTING IN ITS CIVIL JURISDICTION]

DCCi 104 of 2007

BETWEEN

JENNY MICHAEL
Complainant

AND

ANDY FENA
Defendant

Goroka: M IPANG
2007: April 26; May 11

Family Law - Deserted wives and children Act, Chapter 277 – Father and Husband leaving children & wife stranded – Husband taking a new wife (third wife) – 2 male children under the care and custody of Defendant’s brother, female child with the grand mother (complainant’s mother). Evidence of physical desertion – father provides no means of support. Whether children under care and custody of Defendant’s relatives is a defence to Defendant not paying maintenance under Deserted Wives & Children Act, Chapter 277.

Held: Parental responsibility lies with natural or biological mother and father. Not the relatives. As in this case Defendant is liable to maintain the children and the complainant.

Cases Cited

Papua New Guinea Cases

1. Bean –v- Bean [1980] PNGLR 307
2. Kunjil –v- Monpi [1995] PNGLR 281
3. Ora –v- Ora [1993] PNGLR 128
4. Tom –v- Kayiak [1992] PNGLR 171
5. WP –v- DP [1982] PNGLR 1
6. RG –v- MG [1984] PNGLR 413
   

Foreign Cases

1. Chisholm –v- Chisholm (1966) F.L.R 347
2. Re A [2001] 1 F.L.R 1
3. Re C (HIV Test [1992] 2 F.L.R 1004
4. Gillick –v- West Norkfolk & Wisbech A.H.A [1985] UKHL 7; [1986] A.C 112
5. Re KD [1988] A.C 806
   

Law Journals
1. Katherine Bartlett Re – Expressing Parenthood (1988) 98 Yale Law Journal 293
2. J. L. Hill, ‘What Does it mean to be a Parent? The claim of Biology as the Basis of Parental Rights.’ (1991) 66 New York University Law Review 353.
3. The Best Interest of The Child, Free Press 1996
4. Parental Responsibility: State of Nature or Nature of State?’ (1991) J. S. W. L 37

References
1. Deserted Wives and Children Act, Chapter 277

Counsel
Complainant: In Person
Defendant: In Person

11 May 2007

REASONS FOR DECISION

M Ipang: Two years ago, Complainant claimed her husband Andy Fena left her and her three (3) children. Defendant at that time took another lady and claimed her to be his third wife. Three children from Complainant’s marriage to Defendant are:

(i) Amene F/c aged 15 years old;

(ii) Itopu M/c aged 13 years old; and

(iii) Benjamin M/c aged 10 years old

2. It was not disputed that the Complainant is the legal wife of the Defendant after both were customarily married. Both parties admitted this piece of evidence before this Court. Complainant claimed her marriage to Andy Fena has been of disaster from the beginning as Defendant was involved in extra marital affairs. This is evident in that after marrying Jenny Michael, defendant has since married another two wives.

3. Jenny claimed after marrying the third wife, Andy has forgotten his fatherly obligations. He does not support her and her three children. Having difficulties to look after the children, Jenny said she sent two of her male children to go and live with the relatives of their father.

4. Defendant Andy Fena counter argued that he does once in a while support his children. However, the female child Amene who lives with her grand mother told this Court, she has received no support from her Dad Andy Fena. Defendant’s brother Nelson Fena also told the Court that he is looking after 2 boys namely Itopu and Benjamin. That is in terms of food, clothing, shelter and of course their school fees.

5. Legal Issue

Whether the support/ maintenance provided by relatives ousted Defendant from his parental obligations?

6. The Law

Complainant sued Defendant for maintenance allowances for herself and on behalf of her children. She sued for her allowance pursuant to Section 3 (1) (a) (iii) of Deserted Wives & Children Act, chapter 277, for the three children pursuant to Section 3 (1) (b) (iii) of Deserted Wives & Children Act, chapter 277. Further more, Complainant seek custody of the children pursuant to Section 3 (1) (a) (iv) of Deserted Wives & Children Act, chapter 277.

7. The main aim of this piece of legislation Deserted Wives and Children Act, chapter 277 is aimed at providing relief for wives and children when they are unlawfully left or deserted by their husbands and fathers. As re-stated by His Honour Woods, J [as he then was] in Kunjil –v- Monpi [1995] PNGLR 281 at p.283:

“The essence of the complaint under Deserted Wives & Children Act is the unjustified conduct of the husband or father. Desertion may be actual or constructive; that is if the wife is compelled to leave by the husband’s violence or other improper behaviour, she will not be deemed to have deserted without reasonable cause.”

8. Defendant Andy Fena paid pride price of K600.00 to the Complainant and her relatives to sealed his marriage to the Complainant. He has three children from this marriage. He married a second wife and eventually third wife and then disregarded his fatherly, parental and husband’s obligation. Andy is working with Melanesian Hotel in Lae and lives with his self-acclaimed third wife.

9. It seems evident in this part of Highlands region that mothers and children are becoming victims of their husbands and/ or fathers who had the tendency to marry more than one wives. I am more concerned where mothers and children are left unsupported by their husbands and/ or fathers (emphasis added).

10. On the same token, husbands and/ or fathers should not off-set their parental obligations to their relatives; when they are still alive. As their relatives do have their own children to look after. Unless they have good reason(s) like going on for studies, one of the parent is dead or seriously ill, etc...

11. So, parental obligation or responsibility is best described as care and rights of a parent over his child. Ward L.J in Re-A [2001], 1 F.L.R 1 at p.32 was rightly critical of the definition; he thus defined the term “Parental responsibility, ‘we are told means ‘all rights, duties, _ _ _ responsibility and authority which by law a parent of a child has in relation to the child’. See Dr. Richard Nicholson’s Editorial in Bulletin of Medical Ethics and EACME News 160 (July/ August 2000).

12. Applying this definition to the present case, it becomes obvious that Andy Fena has failed his parental obligation. He has not being supportive and has not being exercising his rights as a parent. It has been unfortunate for Jenny Michael and her three children to be left without regular support from Andy Fena. I can not over emphasis here but the importance of the shift to parental responsibilities lies in the ideas it represents:

(i) first, that the parents must behave dutifully towards their children;

(ii) secondly, that responsibility for bringing up a child belongs to parents, not the relatives; and

(iii) thirdly, and most importantly, it emphasises that children should be beneficiaries of parenting rather than possessions of parents.

13. It is the second of these points that courts normally emphasised. In Papua New Guinea Jurisdiction – the case on this point is Tom –v- Kayiak [1992] PNGLR 171 Los, J [as he then was] stated: “the law is settled in the Country that in any custody application the paramount consideration is that of the best interest of the children. On the issue of mother factor, the Court laid down the foundation line that the mother factor can be a decisive factor in an award of custody like in WP –v- DP [1982] PNGLR 1, but if it is shown that the mother is not in a best position then that, factor can not take a paramount role. Justification of the exception in WD –v- DP is expressed by the view of Sloss, L.J in Re C (HIV Test) [1999] 2 F. L. R 1004 at p.1021 to be a good guideline in this area of law. He expressed; ‘We are not talking about the rights of parents -... The parents’ views, which are not views of the majority, can not stand against the right of the child to be properly cared for in every sense.’

14. In this present case, the children are left with relatives to take care of them. Andy is enjoying life in Lae with another lady whilst Jenny is living in Goroka town. How can they now come to this Court and tell this Court, they are so-concerned about the welfare of their three children? How can both quite possibly demonstrate before this Court, that they have done their best in caring for their children?

15. Both litigants should not depend on the care given to the children by their relatives. Action of relatives taking care of children whom the parents of children are still alive and working should be condemned at all possible terms. While we can rely on our culture or custom, time has changed and life has become difficult now.

16. In United Kingdom, Lord Templemen stated in Re KD [1988] A.C 806 at p.812 for example.

“The best person to bring up a child is the natural parent. It matters not whether the parent is wise or foolish, rich or poor, educated or illiterate, provided the child’s moral and physical health are not endangered.”

And in the same case at p.825 Lord Oliver explained:

“Parenthood, in most civilised societies, is generally conceived of as conferring on parents the exclusive privilege of ordering, within the family, the upbringing of children of tender age, with all that entails. That is a privilege which .... Would be protected by the Courts.”

17. The law expects both a father and a mother to maintain their children, that means to look after and feed, clothe and house their children. It is not the job of just one parent. Furthermore, the law does not place any obligation or responsibility on the father’s relatives or mother’s relatives to maintain children. It is the responsibility of the natural or biological parents. Papua New Guinea’s position (and it is not alone in this) like English law assigns parental responsibility to all mothers and, where they are married, to their husbands. So, both biological parents are vested with the responsibility. As re-stated in “Parental Responsibility: State of Nature or Nature of State?’ (1991) J. S. W. L 37.

18. Two of the boys are with Andy’s relatives while the girl, Amene is with her grandmother (Jenny’s mother). Both parents do not have direct control , right or responsibility over their children. In Bean –v- Bean [1980] PNGLR 301 at p.312 Kidu, CJ [as he then was] stated: “In the interest of the child it was important for the court to have been given the opportunity to assess Furune’s temperant, character, stability and possible influence on the child. This would have been important, in my view, than all the money and material goods the respondent can provide.” Selby, J said in Chisholm –v- Chisholm (1966) F. L. R 347 at p.350 as quoted in Bean –v- Bean (Supra) that the welfare of the child demands that assessment be made of any person who is to have a hand in looking after an infant. Relevant matters to be taken in consideration as stated in RG –v- MG [1984] PNGLR 413 are:

(a) The claim of the mother and what is often referred to as her preferred role; WP –v- DP (Supra);

(b) The relative circumstances in which it is intended to raise the child;

(c) The ability to provide for the child’s advancement in life;

(d) The age of the child; and

(e) Provision for the maintenance of existing relationship.

19. Jenny’s mother who takes care of the child Amene gave evidence that she is caring for Amene with no support from Andy. Jenny left the village and she is living in Banana Settlement near Goroka town. Andy’s brother Nelson who takes care of Itopu and Benjamin told this Court of how he pays school fees, provide food and shelter for these two boys.

20. Given this situation, the interest, and I mean the best interest of the children have not been given priority. Evidence adduced so far has not been convincing. Amene who was allowed to speak in Court said her father has not been supportive and I feel this could be the same as well for her mother because she lives far away from her.

21. In Kunjil –v- Monpi (Supra) at p.282 the court was told the couple had five (5) children. Problems seemed to arise in 1989, when the husband got what he called a ‘new wife.’ (emphasis added). It was held that to take a new wife in to the home is to create an unreasonable situation for the lawful wife, and is not unreasonable to expect her to leave. This was held to be a constructive desertion by the husband.

22. Applying this principle to this present case, it is quite clear that when Andy got his third wife, life became unbearable for Jenny and her three children. They were not supported by Andy and so they left. I find this to be unlawful desertion on the part of Andy. I, therefore, find him liable to pay maintenance for Jenny and their three children.

23. Having found defendant liable to pay maintenance, the next relief complainant prayed for is the custody of the three children. Sakora, J in Ora –v- Ora [1993] PNGLR 128 at p.131 hinted out that in this jurisdiction it is settled that giving the interest and welfare of the children is of paramount consideration.

24. Andrew, J in WP –v- DP [1982] PNGLR 1 recognized and applied the importance of the “mother factor” when he decided an application for custody. This was followed by Sakora, J in Kunjil –v- Monpi (Supra). His Honour ruled that “it is my judgment that the welfare of the children would be best served by granting custody to the mother here.”

25. Katherine Bartlett pointed out that the mothers have a kind of automatic responsibility for their children (Re – Expressing Parenthood (1988) 98 Yale Law Journal 293). The mother demonstrates this through decisions she takes during pregnancy, including whether she terminates this (J.L. Hill, ‘What does it mean to be a Parent?’ The claim of Biology as the Basis of Parental Rights.’ (1991) 66 New York University Law Review 353).

26. Briefly summarizing here that we have so far moved away from much held view of parenthood to a more child-centred approach, where the best interests of the children are considered especially important. Best interest means best interest of a child and not another (The Best Interest of the Child, Free Press 1996 at p.91). In WP –v- DP (Supra) Andrew, J [as he then was] gave an exception to the “mother factor recognition” that if it is shown that the mother is not in a best position then that factor can not take a paramount role. In Tom –v- Kayak (Supra) the Court awarded custody to the respondent who was the father of the children on the basis that the welfare of the children be better served by him than their mother.

27. Jenny Michael (Complainant) forgo her parental obligation by letting children Itopu and Benjamin to live with Andy’s brother Nelson and Amene to live with her mother Beku Yawane. She is living in Goroka town and does not have direct care over her children. Applying the principle derived from WP –v- DP and also in Gillick –v- West Norkfolk & Wisbech A. H. A [1985] UKHL 7; [1986] A. C 112 at p.184 Lord Scarman stated; parental right must be exercised in accordance with the welfare principle and can be challenged, even overridden, if it not be. His Honour Kapi, J (as he was then) in Bean –v- Bean (Supra) said:

“.... the welfare of the infant usually referred to as the comfort, health, moral, intellectual and spiritual welfare of the child. These elements, in turn are fundamental dependently on the existence of security, stability, discipline and genuine affection in the home”.

Having given a careful consideration and all the requirements spelt out in RG –v- MG (Supra) and Bean –v- Bean (Supra) would not in my view favour the complainant. It is my humble view and judgment that complainant is currently not in a best position to take custody of the children.

28. Complainants application for custody of the three children is refused. Temporarily the custody for the child Amene be awarded to Beku Yawane who is the Complainant’s mother and the custody for children Itopu and Benjamin be also temporarily awarded to Nelson Fena. Defendant will pay maintenance for Jenny Michael and the children. Maintenance allowance for Amene will be collected and used for her sole benefit and welfare by Beku Yawane and likewise for Itopu and Benjamin to be collected by Nelson Nelson. Until, such time the complainant improves her position to take over the custody of her children.

Complainant: In Person
Defendant: In Person