Philip v Sil [2012] PGDC 1; DC2039 (6 November 2012)

DC2039

IN THE DISTRICT COURT OF PAPUA NEW GUINEA
HELD IN KUNDIAWA

DC NO 01 of 2012

BETWEEN

ROSE PHILIP
(Complainant/Applicant)

AND

MATHEW SIL
(Defendant/Respondent)

Magistrate: Josephine Kilage, Kundiawa

Family Court: Maintenance and Custody Application under s 109 of the Lukautim Pikinini Act

Case Law: Regina v Kaupa [1971] PGSC 27
Bean v Bean [1980] PNGLR 307 (6 October 1980) SC 187
Tongole v Tongole [1980] N256
WP v DP [1982] PNGLR 1 (16 December 1981)
RG v MG [1984] PNGLR 413 (14 December 1984)
VZ v JK [1994] PGNC 17; N1667 (31 October 1994)

Counsel:

Rose Philip: Applicant/Defendant in person
Mathew Sil: Respondent/Defendant in person

Kilage-Bal
8th March 2012
3rd April 2012
7th- 8th May 2012
10th May 2012
15th –16th May 2012

Held: Rights of mother will be considered only if it is in the best interest of the children to do so.
Rights of father equal rights of mother in a de facto relationship.
Where bride price is paid father’s rights supersede that of the mother and the children are his.
However if this customary practice is repugnant to the general principles of humanity or detrimental to the well being of the children the court is at liberty to not consider this customary practice.
Court is to consider all factors but its final decision must rest on what is in the best interest of the child.

Ruling

The applicant is applying for custody and maintenance of her two children under Section 109 of the Lukautim Pikinini Act 2002. This information came before the court by way of a complaint dated 27th March 2012. The applicant is a house wife with no formal qualification or current employment. The respondent is the father of the two children. He is an educated man with his highest qualifications being a Masters in Degree in Public Administration. He has been employed in the public service as a teacher and is now employed at Barrick at Pogera Gold Mine. He is the bread winner in the family.

Facts:

The applicant and the respondent admit to living together for twelve years. Out of this union two children were born. The first child is a girl named Odella Sil who was born on 16th June 2001 and the second child is a boy named Brown Sil who was born on 8 August 2002. They also adopted a child together. However this application is only for their biological children. There is no indication of a marriage either by custom or statute but rather there was a consensual cohabitation by both parties.

Issue 1: Whether or not the relationship of the parties constitutes a marriage?

The applicant states that no bride price was paid and that her father had in the twelve year relationship had killed 8 pigs and 2 goats to help the Respondent. The respondent stated that she had bride price paid for her when she was young and that she was divorced when she married him. The respondent states that while bride price was not paid the applicants father and grandfather had conducted a ceremony which had exempted the need to pay bride price on the understanding that the respondent was assist the applicants’ younger brother and sisters with their school fees. Neither party has provided witnesses or sworn affidavits from other people to prove the existence of a marriage.

In the case of Regina v Kaupa [1971] PGSC 27 Kelly J dealt with an application where an application was made in which both parties indicated that they were married and had a son. His honor held

“The applicant is from the Gulf District whilst the respondent is from the Chimbu District. Two witnesses, one from each of these districts and each claiming to be familiar with the native custom of that district, say that in each case by native custom a woman from that area is not validly married until bride price has been paid for her to her clan. In this state of the evidence it seems to me to be a matter of real doubt if the applicant and the respondent are married by native custom and even on the balance of probabilities I could not be satisfied that they are.”

His Honor then went on to determine the paternity of the child born from that relationship. In this present case the respondent acknowledges that the children are his and therefore paternity is not an issue.

In this case both applicant and respondent are from Simbu in which a customary marriage becomes officially recognized when the man’s family pay bride price to the woman’s family. There is no dispute that bride price was not paid and therefore the applicant and the respondent were in a de facto relationship from which two children were born.

In the case of Regina v Kaupa [1971] PGSC 27 Kelly J further went on to discuss the mothers right in terms of custody over illegitimate children. He states

“These principles are laid down in Barnardo v. McHugh where after referring to the case of Reg. v. Nash Lord Herschell said: “I think this case determines (and I concur in the decision) that the desire of the mother of an illegitimate child as to its custody is primarily to be considered. Of course, if it can be shown that it would be detrimental to the interest of the child that it should be delivered to the custody of the mother or of any person in whose custody she desires it to be, the Court, exercising its jurisdiction, as it always does in such a case, with a view to the benefit of the child, would not feel bound to accede to the wishes of the mother.”

Quite apart from this, there is also the consideration that, whilst not a proposition of law, is certainly a principle of common sense and ordinary humanity that, all things being equal, the best place for any small child is with its mother and in the case of such a child the circumstances must be very strong indeed to induce a court to take a child from the guardianship and custody of the mother. However in this case His honor gave custody to the father as he found that it was in the best interest of the child to do so because the wife had given up custody of the child to the former husband and his new wife.

This present case is different from the abovementioned case because the applicant had taken an active role in looking after her children from their birth 2001 and 2002 until 2011 when the Village Court had order the dissolution of their “marriage” as per an agreement drafted by the Respondent in September 2011. The agreement set out terms of separation between the applicant and the respondent. The respondent stated that the applicant has signed the agreement on her own accord while the Applicant said the respondent did not disclose the contents of the agreement to her when she signed the agreement. I will come back to the agreement later in this judgement.

In relation to whether or not there was a marriage I am of the view that there was no marriage recognized by custom or law. The applicant was correct in seeking an order under s109 of the Lukautim Pikinini Act where

“ a court hearing a complaint under Section 105 or 106 is satisfied that a child is born outside of marriage and the defendant is the father (or mother) of the child and is over the age of 18 years has left the child without means of support the court may order the defendant to pay ...fortnightly such sum for maintenance of the child.”

The Applicant and the Respondent’s relationship came to an end on 18 October 2011 when the Kundiawa Uban and Peace Mediation made an order of divorce. Although both parties have gone into detail of the cause of the divorce this is not relevant in this matter. What is relevant is that the relationship ended and now both parties are in court to address the issue of who should have custody over the children and whether maintenance should be paid.

Welfare of children is the paramount consideration

The court has to consider what would be in the best interest of the children, this interest is the first consideration when considering which parent or guardian should get custody over the children. This means that the interest and well being of the child is more important than the emotional well being of the parent or guardians.

In the case of Bean v Bean [1980] PNGLR 307 a three man Supreme Court bench consisting of Kidu C.J., Andrew J., Kapi J stated that the “the welfare of the infant is the paramount consideration”.

Kidu CJ also stated:

“Consideration of the welfare of the infant requires that all matters conducive to the childs interest should be considered. It demands that assessment be made of any person who is to have a hand in the looking after of the infant. The welfare of the infant is usually referred to as the comfort, health, moral, intellectual and spiritual welfare of the child. These elements, in turn, are fundamentally dependent on the existence of security, stability, wise discipline and genuine affection in the home.

In this case the welfare of the children in relation to their comfort, health, moral, intellectual and spiritual welfare has been neglected by the Respondent who took custody over the children after the divorce. The welfare of the children is also dependent on the existence of security, stability, wise discipline and genuine affection in the home. I find these elements lacking in the facts before me where these two children are passed from house to house thus causing them unnecessary stress and fear. This can be traumatic on children aged 10 and 9 whose family has been split up and no longer exists.

In this case after the decision was made by the Urban Peace Mediation team to grant the divorce order the Respondent took the children in his care and allowed the Applicant to visit them at the house of John Dilyal were they were staying. When the relationship further deteriorated the Applicant would visit her children at their school the Kundiawa Christian Academy as she was not allowed to visit their children at the house they were staying at.

Children’s Guardians

The children were not constantly under the direct care of the Respondent. The children were left in the care of three different custodians from the period of September 2011 to May 2012. The custodians are all related to the respondent and are his relatives. The Respondent has stated that the period of time the children were cared for by other people was short and that he has resolved the situation by bringing his last born sister Cathy Sil to look after his children. Also all these custodians are his relatives and not strangers to the children.

As per the statement by Kidu CJ in the case of Bean v Bean I have called the custodians to appear in court to give their statements and for the court to make an assessment of them in terms of the care given to the children.

The Applicant in her evidence before the court stated that the Respondent had moved the children first to the care of John Dilyal and his wife and that Mr Dilyal and his wife had not taken good care of her children. In particular was an incident where she visited her children and saw that they were dirty and were eating tapioca or cassava. She argued with Mr Dilyal stating that the Respondent had given Mr Dilyal enough money so why was he feeding her children tapioca? This led to an argument and Mr Dilyal assaulted the Applicant. The matter was taken to the District Court where Mr Dilyal was found to have assaulted the Applicant. After the altercation Mr Dilyal informed the respondent that he could no longer look after the children. Mr Dilyal cared for the children from September 2011 to October 2011 a period of two months.

Mr Dilyal’s Guardianship September 2011-October 2011

In court I found Mr John Dilyal’s statements helpful in determining the Applicants and Respondents concern over their children’s well being. He is the brother of the Respondent. His wife is also related to the Respondent and therefore it is clear that he and his wife were concerned enough to look after the children. The Respondent has paid for a room at Masalai Guest House at Wara Simbu and the two children, Mr Dilyal, Mrs Dilyal and their youngest child lived in that room. The Respondent gave K300.00 per fortnight to Mr Dilyal to pay for food and rent. He stated that the money was also used to pay for the children’s bus fare and lunch.Mr Dilyal mentions that the Applicant would come to visit the children and to ask busfare from him. This is consistent with the Applicants statement that the Respondent did not give her the agreed K200.00 stated in the separation agreement.

What was left out in the statement by Mr Dilyal was whether or not the Respondent had visited his children during his field break. While the defendant did pay for the room, did provide money for food there is nothing here to show that he visited or spent time with the children while they were in Mr Dilyal’s care. Money is not sufficient to prove that the Defendant was concerned of his children’s wellbeing. It is not stated if he did go and check them or spend time with them. However how could he when the accommodation he provided for Mr Dilyal’s family of three and his two children was a single room. The lodging was over crowded and unsatisfactory for the upkeep of the children. It is easy to understand why the children would be unhappy to live and sleep in a single room with a family who before the divorce had never looked after them. I find on the whole that Mr Dilyal did his best to look after the two children when they were under his care with the three hundred kina provided for by the Defendant.

Mr Philip Okimai’s guardianship November 2011 – February 2011

After the altercation between the Applicant and Mr Dilyal the children were sent to the Respondent’s younger sister who is married to Mr Philip Okimai and who lives at the Training Center. The sister did not come to court to give evidence. However from the Applicants statement I don’t fault their upbringing of the two children. They brought them up the best they could with whatever limited resources they had. It is not known whether the Defendant had supported the children while they were in his sister’s house.

The only matter of concern here is that there is an incident where the son informed the mother that he was forced to eat pork. He felt bad as he was brought up in the Seventh Day Adventist faith. This is a concern as children have the right to practice their faith.

In the case of Tongole v Tongole [1980] N256 Bernard AJ states:

“Religion is another important factor. But of course in the face of freedom of conscience, whoever the children are given to is entitled to bring the children up in any or no religion of his or her choice.

While his aunt and uncle had the choice to practice their faith they should not have forced the boy to go against his beliefs. The young boy felt bad enough to cry when stating this fact to the Applicant.

Separation of children
It was at this house that the children were separated from each other, the boy remained at that house and the daughter went to reside at Wara Simbu with the father and his de facto partner. I found that the separation was unnecessary. When both children were together they had each other to comfort one another. The separation would only have caused them more trauma and increase the unpleasantness of the experience they now faced alone. That is to be separated from your parents and your sibling and to be placed in the hands of another family.

The Applicant stated that when she went to visit the children at the training centre she found out that the children were separated. She asked the aunt why the children had been separated as they have never been separated before. She tried to take her son but was refused. She went to locate her daughter at Wara Simbu and her daughter told her that her father wanted her to live with him and his new wife. The applicant alleges that the Respondent’s de facto wife had mistreated the girl by wearing the daughters shoes and forcing the child to wear her underwear. The Applicant got upset and took the daughter to her village for the weekend. She returned her on Monday. The children lived together and separately at the training center from November 2011 to February 2012, a period of 4 months.

The Applicant wanted both children to live together so she wanted to return the daughter to the house at the training center. Her daughter did not want to disobey her father so she refused. The Applicant raised the concern that it was not good for the kids to live in two separate homes and attend the same school. The Applicant called the respondent and said the kids were getting scared to go to other peoples’ houses. The Respondent told the Applicant to find a house. She found a place at Sigarap market and packed the kids clothes and moved the children there. The Respondent was in Pogera at the time. The Respondents sister Ms Cathy Sil also came to stay with them.

Ms Cathy Sil’s Guardianship-March 2012 – May 2012
The Respondents sister Ms Cathy Sil is the latest guardian of the children. She has moved into the accommodation found by the Applicant and lived there with her daughter and the children. She is the last born sister of the respondent. In her evidence before the court Ms Sil stated that she previously lived in Kimbe and had been married. Upon the dissolution of her marriage she flew back to Simbu in the month of November 2011 and resided at Koge Village with her young daughter.

She stated that when the Respondent had problems with his marriage he asked her to mind his children. She stated that from March 2012 to May 2012 she has taken care of the children. She stated in court that she and the children live in a room, she looks after the three children of the Applicant and Respondent, including her own daughter. She stated that they had one large family mattress and all of them live in that room. She stated that the Respondent leaves his card with the landlady who gives them K500 per fortnight for food and boarding. She also states that the Applicant visits the children at their school and does not visit the house. She stated that when on break the Respondent comes and stays with her and the children. I find this last statement hard to believe as there is only one big mattress in the room which is already overcrowded with four children and her.

The Respondent has not denied that the children were separated. In response to the Applicants statement that the daughter had said the father had told her to go live with him and the step mum the Respondent replied that it was his own daughters choice to go there as the kids were brought up there, the kids have play mates there. That statement indicates that he is living there. He also admitted to being in a relationship with a woman. The applicant has stated that the woman is now pregnant and comes into the relationship with two children of her own. The court will only consider how this will affect the upbringing of the children

Therefore I am inclined to believe that the Respondent is currently renting two accommodation. One room at Sigirap is to house his children and his sister and the other room at Wara Simbu is for himself and his new partner’s family. There is a real likelihood that while he is providing shelter and food for the children he is not giving them his time and attention and is spending most of his time at Wara Simbu.

I am more inclined to believe that he lives at wara simbu with his new partner. In Ms Sil’s statement she says that she had stopped the daughter from going to wara simbu. This implies that she goes to visit the Respondent. The Applicant in her statement states the Respondent had given a laptop to his partner and that their daughter frequented the Respondents’ accommodation to watch movies.

The defendant upon my questioning stated that he lives with Ms Sil and the children when on field breaks. He did not volunteer this information in any of his affidavits and therefore I am inclined to believe that he resides in the room which had initially housed Mr Dilyal’s family and his children at Wara Simbu with his new partner and her children.

I now return to the issue of the separation agreement which was signed by the Applicant and the
Respondent . Does this agreement have any effect in this proceeding?

Separation Agreement

The Respondent drafted a separation agreement dated 12 September 2012 in which he stated his terms of separation. The terms included were that he would have custody of the children and that the Applicant will look after the children while they are in school at Kundiawa Christian Academy. That the Respondent would pay the applicant K400.00 every fortnight, K200 being her allowance and K200 for the children soap and food The Respondent also said in the agreement that he would pay K100 for house rental and K100 for a guardian. The Applicant stated that the Respondent told her to sign the agreement and that agreement said he would pay her K200.00 per fortnight while the children would stay with his relative John Dilyal.

She stated that the Respondent did not pay her allowance as per the agreement while they were separated. The Respondent said she had sold his children’s lap top and she did not pay K500 school fee so that he only paid her K100.00. She responded and said the laptop was in her possession in her village and after custody was determined she would return the laptop . She further stated that she spent the K500 on food for the children as he had misued the children’s K3000.00 school fees paid by his employer on buying beer.

I find that the applicant cannot say that she was not aware of the contents of the separation agreement because in that agreement the Respondent had named his relative as his children’s guardian. Her concern was not being paid her allowance of K200.00 then not having custody of her children at that stage. When she realized her children were not being cared for in the manner she was used to she retaliated against those who she felt mistreated her children.

In the case of WP v DP [1982] PNGLR 1 Andrew J held that while both parties had signed a statutory declaration stating that the children should remain with the father the factor that overrode the earlier agreement was the consideration of the welfare of the children. Andrew J stated:

“I have considered the effect of the agreement that the respondent entered into when she consented to the children coming to Papua New Guinea and remaining with the applicant. In McManus v. McManus (1969) 13 F.L.R. 449, the Court of Appeal of New South Wales held that generally a consent order can be overturned only on substantial grounds involving “a particularly heavy onus” on the party seeking the change. I am in agreement with Frost C.J. in Trnka v. Trnka [1976] P.N.G.L.R. 1 at p. 6, when he was not prepared to go this far. Here there was an agreement only in the form of a statutory declaration and that is a factor which is relevant to the conduct of the parties but the paramount consideration is the welfare of the children.

I consider that in all the circumstances the welfare of the children would, at this time, be best served if they remain with their mother and to my mind at present their futures would be best served if they were with her.

I consider that, in the circumstances of the case, the "mother factor" outweighs the better financial position of the father and tips the scales in her favour. Some of those circumstances, which I have set out, are especially the fact that the children will be back in their own environment where they have grown up and in the schools which they know, and not in a position where they would be isolated from their mother."

This principle is applicable in these circumstances in that while the parties were signatories to the separation agreement which led to their divorce the Respondent had through his conduct of not paying the Applicant K200.00 per fortnight has breached the terms of the agreement. Also the manner in which the children are being passed house to house nullifies the agreement and therefore the Applicant and Respondent both cannot rely on the terms and conditions of the separation agreement to further their own cause.

I now come to the question of custody.

CUSTODY

In the case of RG v MG [1984] PNGLR 413 McDermott J lays down the criteria for grounds for custody of an illegitimate child. His Honor held that on such an application the paramount consideration is the best interest of the child as to which the following matters may be relevant:

(a) The claim of the mother and what is often referred to as her preferred role;.

(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 relationships.

I shall consider each ground in relation to statements made by the Applicant and the Respondent in regards to the issue of custody.

(a) The claim of the mother and what is often referred to as her preferred role;

It is evident from the conduct of the applicant that she has a genuine concern over the children. She states that the children were being neglected and this has caused them to become undisciplined. The applicant has made it her business to check to make sure that her children were properly cared for by their guardians. It is the actions of the guardians that has caused her to seek custody over her children.

The Respondent has indicated that the Applicant had a history of deserting her children. He listed four occasions of which the Applicant left the children with her family and was absent from home. I am of the view that four occasions of being absence do not negate her efforts in raising their children for 12 years of their lives. He has stated that she is an uneducated person who is unemployed. The applicant does not deny this and states that she just wants to look after her children. Eighty percent of mothers in PNG are uneducated house wives and this does not make them incapable of looking after their families.

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

In the case of VZ v JK [1994] PGNC 17; N1667 Injia J held that under this category, matters such as the infant's accommodation, health, comfort, moral, intellectual and spiritual welfare, discipline, security and stability are relevant.

The Respondent has provided accommodation for their children in the form of renting a bedroom in a house at Sigirap. The Respondent is paying a rental of K100.00 per month. The Respondent has engaged his sister to mind his children and has paid for their education at a private school. He gives a total of K500 a fortnight for the children's food and essentials.

The Respondent has indicated that the Applicant does not have the potential to raise their children according to the standard they are used to. The Respondent states that the Applicant is not employed and does not have the means to look after the children. The Respondent also states that the Applicant lives in the village and her village is a place of tribal fighting and sanguma. The Applicant also is used to living in the conditions which were once provided by the Respondent having lived in such a standard for twelve years there is no evidence before this court that if granted custody she would return to the village with the children.

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

The Respondent has indicated that he has enough to see that his children advance in life. He refers to his savings from Teachers Savings Commission and to his current salary. The Respondent also states he has large land in Koge which his children will benefit from. What he fails to realize is that his failure to pay brideprice has put his son is a precarious situation where if the Respondent has a previous or future marriage where bride price is or was given any children of that union have a far more superior right to the Respondent's land.

The Applicant ability to providing for her children is limited to her garden and her house. However many educated man and women today have parents who were subsistence farmers who provided for their advancement through their gardens.

(d) the age of the child;

Both children are less than a year apart. They are 10 and 9 respectively. It is my view that both children must remain together. It is also my view that both children are at an age where they require constant parental supervision, care, guidance, love and discipline. It is at this age when children are more affected and find it hard to adapt to changes.

(e) provision for the maintenance of existing relationships.

Both Applicant and Respondent have indicated that they have moved on in their relationships. Both have stated reconciliation is not a possibility. The parties have not brought their new partners or spouses to court for the court to ask them if they would be willing to look after these children. Therefore I can only make a decision on what I have before me in court.

In the case of VZ v JK [1994] PGNC 17; N1667 Injia J added an additional criteria and that is the the conduct of the parents and the wishes of the parents.

(f)Applicant and Respondents' Conduct

It is evident that both parents want custody over the children and both parents are worthy of custody. However this proceeding is not about what the parents want but what the children need. This proceeding does take into consideration the wishes of the parents but the paramount issue that will be addressed is what is in the best interest of the children.

In Tongole v Tongole Bernard AJ stated:

The issue really is not what is just or fair to the parents but rather what will be in the best interest of the children. The parents conduct in so far as it bears on the welfare of the children is of course important to look at.

The Respondent works at Pogera Gold Mine and therefore was on a fly in and fly out basis where he would be at the mine site for 21 days and with his children for 14 days. In his absence the Respondent left his children in the care of his small sister. This care cannot substitute the care of a parent.

I note that the applicant is not as educated as the respondent. She is primarily a house wife and has spent most of the twelve years looking after the children and minding the home. From affidavits from the Applicant and the Respondent the applicant looked after the children during the periods of time the respondent was at work and for the duration of his studies. She has been the parent which the children have had more contact with. She supported him in his continuous studies by bringing up their children with the support of her family.

From 2001 to 2003 the Respondent went to study to do his Bachelor in Education Degree in Mathematics and Education Administration. From 2006 to 2007 he went to do a diploma certificate in Counselling. From 2008 to 2009 he went to Singapore and did a Masters Degree in Public Administration. These periods of study were not refuted by the Respondent. The Applicant during this period managed their home and the upbringing of their children on her own. While she is not educated she presented herself well before the court and was gave an appearance of being a concerned mother.

The Respondent job takes him away from his children and this leaves a vacuum only a parent can fill. The Respondent has been absent before from the lives of his children on the occasions when he chose to reside in the schools he was posted at and only have his family visit him on the weekends. It is understood that the Applicant and the children resided in Kundiawa so that the children could attend school. However this created two homes in which the Respondent lived on his own and the Applicant was left to raise the children on her own.

The Respondent chose to pursue further studies which kept him away from his children and the Applicant for a period of five and a half years. The Response has chosen a job that keeps him away from his children for twenty one days. In all these self inflicted absences the difference was that the Applicant was there to keep the home and fill in the gap created by the Respondent. Now the current situation is there is no one to fill that gap. Aunties, uncles, cousins and guardians including the children's friends and teachers cannot fill in the gap which the absence of both the Applicant and Respondent has created in the lives of these children.

The children deserve more than what their parents are currently giving them. They need to be brought up in a loving and stable environment with the constant supervision of a parent.

The Respondent also presented himself well in court and has provided evidence that he is an educated man and that he is working at Pogera at the mines and he is the breadwinner in the family. There is no question that he is concerned about the well being of his children. He has placed his children with his relatives and has given them money to support the children and his relatives. He has also provided for their education and has housed the children and provided a guardian for them. He has provided economic support for the children but he has failed to provide stability and security for their emotional and psychological well being. The children's mother is not dead or incapacitated in any way. In the absence of the father through his work commitments the mother is the best person to raise and bring up her own children or vice versa.

There is no indication that besides the money he provides, he has given his children his time and attention. The current living conditions of the children are inadequate and are not appropriate for the children. Before the younger sister came and cared for the children she was in Hoskins and she only came to Kundiawa after her own marriage ended. She is a stranger to her niece and nephews. This is not appropriate care and it will not be good for the children in the long run. What will happen if the aunt decides to remarry who will then mind the children? I find the current living arrangements of the children completely unsatisfactory and unsafe. The children were exposed to situations where they were housed in single rooms with other families without the presence of either their mother or father.

In this case I feel that the mother has shown through her actions that she is genuinely concerned about the well being of their children. She has visited them at every home they were place at. She has raised her concerns with the Respondent whenever an issue arose from the well being of their children. She has confronted the guardian when she felt their actions negatively affected her children. In this case the applicant shows her concern for the welfare of the emotional and spiritual well being of her children. While she does not have the financial capacity to look after them she has been looking after them since birth and is the constant parent in this relationship.

The father also has shown his care for his children by providing them a place to sleep, a baby sitter and has paid for their school fees. His job has taken him away from the children and this has caused a vacancy in their lives. The father has shown himself to be a responsible parent who has fulfilled his role as a provider for his children. This unfortunately is not enough as children need the constant care and attention of a parent to become a well rounded person. The father has the financial capacity to look after the children but his current employment is making him a stranger to his children.

Therefore the only solution in this case is to grant custody of the children to the applicant who will provide stability and will be present to care for the children. The Respondent and the Applicants' responsibility to the children does not stop when the divorce became final or whether or not either of them has custody.

The Applicant and the Respondent are both responsible to maintain the children in the lifestyle they experience prior to the divorce. Finally I return to custom and its implications. Where bride price is not paid the mother has first right to her children. If the Respondent had paid brideprice he would have had first right to the children. However this customary practice is considered in the light of whether or not it is in the best interest of the child. This is case I am of the view that it is in the best interest of the children that they both remain in the custody of their mother regardless of whether bride price was paid or not.

For the above reasons I make the following orders.

1. Custody of Odella Sil, born on 16 June 2001 is granted to the applicant.
   
2. Custody of Brown Sil, born on 8 August 2002 is granted to the applicant.
   
3. The Respondent is to pay fortnightly K100 as maintenance for Odella Sil.
   
4. The Respondent is to pay fortnightly K100 as maintenance for Brown Sil.
   
5. The Respondent is to pay fortnightly K200 to the applicant as an allowance for the children's upkeep.
   
6. The Respondent is to pay for the children's education.
   
7. The Respondent is to pay fortnightly K100 for accommodation.
   
8. The Applicant is to give the Respondent reasonable visiting access on his field breaks, the children's school holidays, upon request of the children and by consent of the Applicant.
   

J.Kilage-Bal
Magistrate