AB v CD [2019] PGDC 14; DC4036 (29 May 2019)

DC4036

PAPUA NEW GUINEA

IN THE FAMILY COURT

4 of 2019
BETWEEN

AB

AND

CD

Port Moresby:

: 26 March, 16, 23 April, 1, 9, 20, 27, 29 May
           

DISCLAMIER- Every effort has been made to comply with statutory provisions particulary section 96 of the Lukautim Pikinin Act 2015, prohibiting publication that apply to this judgement. The responsibility remains on any person using material in the judgement to ensure that the intended use of the material does not breach any such provision.

FAMILY LAW-Lukautim Pikinini Act-Custody-Paramount Interest of child-Female Child- Substantial time with each parent

Cases Cited

WP V DP [1981] PGNC 99; [1982] PNGLR 1; N349

Legislation

District Court Act Lukautim Pikinini Act 2015

International Treaty
United Nations Convention on the Rights of the Child

Counsel

Complainant In PersonDefendant In Person29 May 2019

L Wawun-Kuvi, M:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORGINAL JUDGMENT-PARTIES NAMES AND IDENTIFTING DETAILS HAVE BEEN CHANGED

Family Details and Background

1. The parties have one female child who is the subject of this proceeding.
2. XY was born [in] 2018. XY is now 13 months old.
3. The parties were in a relationship since October 2016.
4. They were married by custom in December 2017.
5. The marriage was dissolved in 9 November 2018.
6. The father is in the Papua New Guinea Defence Force.
7. The mother was a 1^st year student attending [college]. She left her studies as a result of her pregnancy with XY. She is presently unemployed. She earns an income from an informal market she operates. She is also supported by her extended family members.
8. Both parties are from [T] District in [L] Province.
9. They were married in accordance with the marriage rites of the [H] people in [W] Village, [T], [L] Province. The bride price was K9, 000.00 in cash and 30 pigs.
10. Since the dissolution of the marriage XY has lived solely with the mother.

The Application and The Cross Claim

11. The father has filed an application seeking orders for custody to him and access rights to the mother.
12. The Application is contested by the mother.
13. The mother has made a cross claim seeking custody and child maintenance in the amount of K500.00.
14. I had initially granted an Ex parte Custody Order which I later set aside upon a motion filed by the mother.
15. The matter came on trial on 27 May 2019. The parties accepted all the documentary evidence as forming part of the evidence and only required the deponents to be present for cross examination.
16. The father was cross examined on oath along with his witnesses [EF] his sister and [GH] the Village Court Magistrate who dissolved the marriage.
17. The mother was cross examined on oath along with her witness [IJ] her grandmother.

Governing Principle

18. The main principle in administering the LPA is that the safety, wellbeing and best interests of a child are paramount.^[1]
19. The court is not bound by the rules of evidence and may inform itself in any manner that it deems appropriate.^[2]

Standard of Proof

20. The relevant test to apply to evidence in these proceedings is on the balance of probabilities.

Effect of custody?

21. The person who is granted custody is responsible to provide food, medical attention, clothing, shelter, education and emotional and psychological support. The person must ensure that the child is protection from all forms of ‘discrimination, violence, abuse, neglect and exploitation’^[3]
22. The effect of which is that the person who has custody has a right by law to make all decisions pertaining to the wellbeing of the child.

Application and Cross Claim

23. The father alleges that the mother of the child is not Capable, Matured and Responsible to take care of the child.
24. He relies on:
    • 23.1. Application for child custody dated 18 January 2019
    • 23.2. Affidavit in Support sworn on 18 January 2019
    • 23.3. Affidavit in Support sworn on 17 May 2019
    • 23.4. Affidavit in Support deposed by [EF] his sister sworn on 17 May 2019
    • 23.5. Affidavit in Support deposed by [GH] the Village Court Magistrate sworn on 17 May 2019
25. The Application seeks orders for custody of the child with accesses to be given to the mother subject to consultation with the father.
26. The father states that the mother leaves the house and returns late at night and that she frequently abuses alcohol. He says that she is violent towards him and attacks him with weapons every time he attempts to have discussions over her behaviour. He says that she even attacks his relatives when the want to visit him.
27. He says that she is unable to breastfeed the child and is going out partying. He says that the child has always been taken care of by a baby sitter being his sister since the age 1 month. This was up until the time the mother took the child and left with the child was 7 months.
28. He says that he continued to support the child even after they left and on those visits he was disappointed with the appearance of the child and became concerned as to the conditions she was being raised under.
29. He agreed under cross examination that there has never a baby sitter but rather family members help to look after the child. He states that he budgets K100 to give the baby sitter but has stopped since they prevented him from seeing the child.
30. He admits that he does travel on when he is called out but not often. He states that when he is out on duty travel the baby sitter will take care of the child.
31. He denies that he has been the instigator to violence.
32. [EF] father’s sister, states that she lived with the couple when the child was around 1 month. She observed that the child was bottle fed and that the mother was not being attentive to the child. She cared for the child.
33. She states that she stayed with the mother at Hohola and then at Kaugere until the mother chased her out of the house. She states that the mother goes out, has stabbed her brother and fights with her. She maintains that she has and will assist to take care of the child.
34. [GH] the Village Court Magistrate states that he dissolved the marriage. He states that the reasons for the dissolving of the marriage was that the mother was not staying at home when the father was on work duty and that she was violent towards the father.
35. He maintains that the basis of the divorce was that the mother was not staying at home when the father was on work duty and that the mother was violent towards the father.
36. He maintains that one of the basis for the divorce was the mother of the child not staying at home and that the ruling on custody was that the child will go between the parents and later they can apply to Court for custody.

The mother’s case

37. The mother relies on her Affidavit in Defence and Crossed sworn on 7 February 2019. She also relies on her additional affidavit filed on 20 May 2019 and the affidavit of her grandmother [IJ] sworn on 20 May 2019.
38. She says that the father instigates fights and uses weapons to assault her. That as a result of his assaults she can no longer lift any heavy weight. They have had more than 20 fights in their short marriage.
39. The final fight was on 20 October 2017. He assaulted her with construction tool and a hammer and forced her and the child to leave the house. She then moved in with her parents.
40. On 23 October 2017, he served her with the divorce summons. The basis for the divorce was the fight that she had with his cousin sister. She fought with her because she was lazy and did not help around the house.
41. She was not properly informed of the proceedings and agreed to the divorce. She later found out that the father had been having a relationship with another woman.
42. She has an informal market which she uses to support herself and her parents. She also loans money to working men and women as a source of income. She made a down payment on a property and developed however the Complainant has taken over that property.
43. The father has not provided financial support since the divorce. Occasionally he goes over and gives diapers and some indo milk.
44. She has provided all the support including emotional and financial support.
45. The father is always on duty travel and will not look after the child.
46. The sister of the father has never lived with them. She only stayed with them for 2 days at her parents place at Hohola. She only visited them at Murray Barracks when the father was on duty travel.
47. She has always looked after her own child.
48. She makes a cross claim for custody and maintenance.
49. She agrees that she stopped breast feeding the child and the reason for that was because she had a family planning chip inserted into her arm which had the side effect of preventing milk production. She agrees that she did not obtain the consent of the father to have family planning done but explains that it was the hospital that insisted because she was a young mother. She states that they agreed to bottle feed the baby.
50. She agrees that she has fought with the father but that he was the one that instigated the fights.
51. She disagrees that she leaves the child unattended and goes out partying or does not care for the child.
52. She states that her father runs a trade store and owns two houses one of which is the one that they are presently residing in. Her mother does informal marketing to help support the family.
53. It was put to her that the father’s house burnt down in a fire to which she replied that her father has his businesses, two houses at Gerehu, two houses at Hohola and one house at 9 mile. The house in Hohola was burnt down by the father and his colleague soldiers.
54. She agrees that they are living in the yard of the house that was burnt down.
55. She agrees that she does not have a formal income however maintains that the money she makes is sufficient to cater for the child.
56. In relation to the marriage she states that she never consented to the divorce but was forced to sign the papers.
57. [IJ] Grandmother states that after they were divorced, the mother and child came to live with her and the mother’s parents.
58. She knows her granddaughter to be hard working and does her business to support her child and family. She says that her granddaughter is supported by all of them who love the child and help provide for the child.
59. She has not seen her granddaughter being involved in any illegal activities.
60. She agrees that there was an order for compensation and that was not paid. She states that whatever their personal problems were she does not know the reasons, she only cares about the upbringing of the child.
61. She says that the child belongs to the father because he paid bride price. She and her family will raise the child for the father. However, presently the child is only an infant and needs to be with the mother. Later on when the child is old the father can be with her.

Custody (Parental Responsibility)

The Law- International Treaties

62. It is permissible for this Court to have recourse to the applicable principles of international law for the purpose of determining how the statutory powers should be exercised^[4]. More so where those principles are in instruments in which Papua New Guinea is a party to.
63. Papua New Guinea is a party to United Nations Convention on the Rights of the Child which is reflected in the LPA.
64. Papua New Guinea being a signatory has an obligation to ensure that, where the child's parents are separated, the child's right to "maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests" shall be respected.^[5]
65. Consistent with that obligation, the domestic law being the LPA has replicated the Convention.

The Law-Domestic

66. Every child has a right to live with their parents unless it is otherwise not possible.
67. Section 102 of the LPA obligates me as the Court to ensure that the child spends equal or substantial time with each parent.

Who should have custody of the child?

68. The parties started their relationship off with a lot of love however it is evident from their history that they rushed into marriage when they were not ready for the commitments of marriage.
69. Their courtship commenced in October 2016, they were married some 14 months later in December 2017. They then had their child in April 2018 and were divorced 7 months after their child was born, 11 months after they got married and 3 years after their courtship.
70. Since starting in the Family Court, I have heard and determined numerous cases that were no longer about what is best for the child but why the relationships ended and whose fault it was. This case is no different.
71. The bulk of the evidence started with the reasons for the dissolution of the marriage.
72. However the evidence does demonstrate that both parents love XY and want to provide the best for her.
73. The evidence that I find that is relevant and consistent with the principle of best interest of the child is the evidence of the mothers’ grandmother.
74. The great grandmother out of all parties has accurately and honestly provided what is the best solution.
75. In Papua New Guinea, especially when parents of children are young themselves, other family members have a lot to say and even have the final say in relation to the child.
76. In this case, the great grandmother, who raised the mother has stated that:
    1. The father has paid bride price she and her family did not have power to claim the child as theirs.
    2. However, the child is an infant. Her mother at this stage is the best person to raise the child.
    3. When the child is older no one has the right to stop her from going to her father and his people.
    4. She will help her granddaughter raise the infant child and the father can support financially if he says he wants his child provided for.
    5. He can visit and see his child whenever he wants because the mother lives with her.
77. I accept this approach. The father presently is single. He is employed as a solider. He gets deployed as part of his duty which he has no control over. Although he says that he will find a baby sitter who will look after his child, the child is an infant. The most important and overriding consideration is the emotional and psychological development of the child.
78. I find that undue trauma would be caused in the removal of a 13 month old child who has predominately spent time with the mother and her family. It is further unnecessary to leave the child with a babysitter when the mother of the child available to care for her.
79. Although the father has said that the mother is unable to care for the child, the living testament to her ability is the fact that the child is well and alive today. I have had the opportunity to observe the mother and the child when they are in Court and the child is healthy and happy. The child in fact by observations is very much attached to her mother.
80. As in WP v DP [1981] PGNC 99; 1982 PNGLR; N349, the Court stated that ‘the mother factor outweighs the better financial position of the father and tips the scale in favour of the mother. His Honour further considered that a relevant factor when he granted custody to the mother was the children were female and that they were both under the age of 10. That they were greatly in need of their mothers’ care and the special relationship between mothers and daughters of that age. If custody was granted to the father they would be deprived of that care. His Honour further considered that the children will be back in their own environment where they grew up, in the schools they know and in a position where they are not isolated by their mother.’
81. I adopt the same approach but being in line and consistent to the principle that the child has a right to maintain personal relations and direct contact with both parents on a regular basis, joint custody is a more acceptable approach.
82. This case is rare as well because it involves a father seeking to have his child live with him after the collapse of a marriage. This demonstrates the love and care he has for his child and the willingness to continue to support his child.
83. The child must also know both parents and learn to recognise them so that the child forms a bond with the parent. To deprive her of her father would be taking away her right to know him.
84. I find further from the evidence that there is nothing preventing the father from visiting the child anytime he wishes without hindrance from anyone as assured by the grandmother.
85. There is also a Protection Order that was granted to the father preventing any forms of violence against him by the mother or her relatives.
86. I find that both parents will have custody over the child.
87. The father has said that his sister will help him along with a cousin. I find that because the child is known to the aunt the child shall spend weekends with the father and be brought back to the mother.
88. Given that that the child will reside predominately with the mother, the father shall provide support in the sum of K150.00 each fortnight.
89. The father is solely responsible for medical and education needs for the reason that the mother is not formally employed.

Order(s)

1. Pursuant to section 102 (3) of the Lukautim Pikinini Act 2015 joint custody is granted to the CD and AB;
2. The AB will have the child live with her from Sunday 5.30 pm to Friday 5.30 pm;
3. The CD will have the child live with him from Friday 5.30 pm to Sunday 5.30 pm;
4. On the event that the CD is on duty travel or deployed the child will continue to reside with the AB;
5. Upon school age, the AB shall inform the CD of all events and dates that are important to the Child;
6. When it is the Child’s birthday, the CD and AB shall alternate to spend time with the Child. The CD will celebrate the child’s birthday next year 2020;
7. The medical and educational expenses are to be shared equally;
8. The CD shall pay K150.00 into the AB’s account as child maintenance.
9. The AB’s bank account details are:

Bank: xxxxx

Branch: xxxxx

Name: CD

Account No: xxxxx

10. This Order remains in force until the child reaches the age of eighteen (18), deceased or varied or set aside or revoked by a Court of competent jurisdiction, whichever comes first.Lawyer for the AB Self Represented Lawyer for the CD Self Represented
    

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^[1] Sections 5 and 103, Lukautim Pikinini Act 2015
^[2] Section 95 (1) Lukautim Pikinini Act 2015
^[3] Section 8, Lukautim Pikinini Act 2015
^[4] Section 6 of the Lukautim Pikinini Act 2015
^[5] Article 9 United Nations Convention on the Rights of the Child