Wayum v Aimos [2020] PGDC 48; DC5040 (13 November 2020)

DC5040

PAPUA NEW GUINEA

IN THE FAMILY COURT OF JUSTICE

HOLDEN AT

PORT MORESBY DISTRICT COURT

In the Matter of Lukautim Pikinini Act 2015

FC# 234 of 2020

Between:

NAOMI WAYUM

Complainant

And:

MICHAEL AIMOS

Defendant

His Worship Mr. E. Komia

13^th November 2020

Counsels for the Complainant: in person

Counsels for the Defendant: in person

Complaint & Summons for Maintenance & Parenting Orders – children’s welfare a paramount consideration – mother factor considered in circumstance where mother displays attitude of responsibility, care and some form of support – fundamental principles of legislation – principles of custody discussed – equity and justice demands equity and justice to be performed by the parties and if one is coming to court with unclean hands, equity and law dictates that such litigants cannot be granted equity and justice – constructive desertion

Legislations Cited

Lukautim Pikinini Act 2015

Case Laws

Mini v Nele [2020] PGDC 8; DC4044

WP v DP [1981] PGLawRp 623; [1982] PNGLR 1 (16 December 1981),

Tom v Kayiak [1992] PGLawRp 584; [1992] PNGLR 171 (2 July 1992),

Ubuk v Darius [1994] PGNC 33; N1278 (25 November 1994)

RG v MG [1984] PGLawRp 465; [1984] PNGLR 413 (14 December 1984)

1. INTRODUCTION
   

1. This is a proceeding filed by the complainant seeking maintenance orders for four children against the defendant, by the complainant. The proceeding is filed pursuant to s. 108 of the Lukautim Pikinini Act 2015.
   

2. FACTS.
   

2. The facts of the cases are summarized as follows:
   
   • 2.1 The complainant and the defendant had their relationship in 2001, at Mt. Hagen while the complainant was in Mt Hagen spending the Christmas Holiday with her step mother, whereby she met the defendant.
     
   • 2.2 From the relationship, they have five children, the eldest being eighteen (18) years old, and the youngest is eight (8) years old. Their relationship severed around 2014.
     
   • 2.3 During the cause of their relationship, a lot of things happened, and they had been moving between Wewak and Lae. In 2012, he lost his job with Oil Search and went back to Lae, and lived with the complainant and her family. And in 2013 the defendant secures a job with Talisman Ltd. He soon lost his job again within the same year. At that time, not all the children were with them, as the two elder boys were living with the defendant’s parents in Wewak.
     
   • 2.4 Soon after the complainant lost his job, he decided to take his family and return to Wewak where his parents were. The complainant went with him, and in 2014, the complainant returned to Lae with the three smaller children leaving the two big boys with the complainant in Wewak.
     
   • 2.5 Soon after the complainant left for Lae, the defendant got an offer of employment in Lae from a company known as LD Logistics Limited. He returned to Lae, and reunited with his wife, and the three small children the complainant had returned with from Wewak.
     
   • 2.6 The job in Lae with LD Logistics never worked out for the defendant and he was again out of job. It was during that time, an argument arose between the complainant and the defendant over the defendants pay, and the defendant assaulted the complainant and as a result, the complainants two sisters stepped in to support the complainant and removed the defendant from their house. He moved back to live with his parents who had recently returned from Wewak.
     
   • 2.7 In May 2014, the defendant decided to move to Port Moresby in search of employment, and he left his children with the complainant. He was then employed with Inter Oil Ltd, and around September 2014, he went to Lae to check on his family.
     
   • 2.8 The complainant was nowhere to be found at the sister’s residence, so the defendant took the children and went to the complainant’s uncles house in search of his wife. She was nowhere to be seen. It was around that time, the parties separated.
     
   • 2.9 It was soon after the separation in 2014, the complainant had two separate relationships with two different male persons, from which, she has two children, and both children have been adopted by her relatives.
     
   • 2.10 In 2017, the defendant went to Wewak to take care of their children, as they had both separated in 2014. The understanding was that the they were no longer married couples but, separate individuals only working together to ensure that the children were well taken care of and reared. At that time, the defendant had a new partner, who is the current stepmother to the children.
     
   • 2.11 In March 2020, the complainant and the children moved to Port Moresby and lived in a rented bedsitter accommodation provided by the defendant. It was during their stay there, that the defendant and his partner would visit the children, and cook and eat together with the children, and the complainant, and then leave for their home, which was under construction, and a walking distance from the bedsitter.
     
   • 2.12 Often times, the children would accompany the defendant and his partner to go and spend the night with them. Nevertheless, the complainant was never impressed with such arrangement. She did not like that idea and left the bedsitter accommodation provided by the complainant and went to nine (9) mile to live with her parents.
     

2.13 The second born son has been withdrawn from school after he had missed school for stealing his friends mobile phone, and has also left the custody and care of his father after he was disciplined for selling a spade belonging to the family and now resides with the mother at nine (9) mile with the mother, whilst the eight (8) years old daughter is also living with the mother.

100. ISSUE
     

3. The complainant seeks the following remedies in her summons and complaint, that the;
   
   1. Defendant pays fortnightly maintenance of K500.00 (K100.00 each child) for the said five children pursuant to s. 108 of the Lukautim Pikinini Act 2015.
      
   2. Defendant pays for the fortnightly maintenance of K100 for the Complainant pursuant to s.109 of the Lukautim Pikinini Act 2015.
      
   100. Defendant pays K300.00 for the accommodation of the complainant and her children every fortnight.
        
   4. Defendant pays maintenance to the Complainant’s Account BSP Wewak Branch Account No. 1001551220
      
   5. Defendant meets all medical and educational expenses whenever they fall due.
      
   6. Custody of the said five (5) children be committed to the Complainant pursuant to s. 88(1) (b) of the Lukautim Pikinini Act 2015.
      
   7. Any other orders this Court deems fit.
      
4. The above claims can be summarized into three issues for determination by this Court, which are as follows:
   
   1. Whether the Defendant is liable to pay maintenance for the said five (5) children.
      
   2. Whether the Defendant is liable to pay maintenance for the complainant.
      
   3. Whether the custody of the children should be granted to the Complainant.
      

4. EVIDENCE
   

5. The complainant relies on her affidavit filed on 08^th September 2020, and 26^th October 2020, whilst the defendant relies on his affidavit filed on 09^th October 2020.
   

5. DISCUSSIONS ON FACTS AND LAW
   

6. The law dealing with matters pertaining to custody and maintenance proceedings before this court are provided under the Lukautim Pikinini Act 2015 (hereinafter referred to as “the Act”). The Act provides for remedies in respect of a child or children that have been neglected and left without proper support in terms of food, clothing, housing and other essential needs to ensure their welfare is protected.
   
7. This court has three issues to deal with, and I will deal with them accordingly, in this ruling.
   

6. MAINTENACE FOR THE CHILDREN
   

8. The legislative framework of the Act ensures that, important considerations of the children’s welfare are paramount consideration, or put simply, as stated in the legislation and other supporting case authorities is the “best interest of the child(ren)” emphasis mine.
   
9. The facts of this case and the evidences establish that the complainant and the defendant had separated about six years ago in 2014. Their understanding in 2017 was that, they were no longer married, but had to work together to take care of the five children.
   
10. In March 2020, the defendant brought the complainant and four children down to Port Moresby and rented them a bedsitter, and enrolled all his children at various schools within the nation’s capital. The first born son is doing grade twelve (12) at Bumayong Secondary School in Lae, and the father continues to support him.
    
11. From the evidence before this Court, the arguments began when the defendant and his current partner visited the children and often cooked dinner and spent the afternoon with the complainant and the children. That according to the complainant did not go down well with the complainant.
    
12. The question this court asks itself is, if the complainant and the defendant had an understanding to look after the children, and arrangements were done for that sole reason, why would the complainant act in such manner?
    
13. In paragraph fourteen (14) of the complainant’s affidavit sworn and filed on 08^th September 2020, the complainant deposes that; “I was without a job and with no money to come to Port Moresby and get my 4 children until in 2017, the defendant himself asked me to come and assist him raise our children as he left his job and they went to Wewak. We agreed that I am not his wife but the mother of our children and on the condition that he would provide for our care. (emphasis mine)
    
14. But the confusing part is where the complainant deposes to another affidavit claiming to be the wife of the defendant. Whilst the defendant has maintained that the complainant was no longer his wife, but the mother to his children, and his decisions were purely based on that understanding. The complainant again contradicts her statement made in paragraph 14 as cited above, and this time states the following in paragraph 23 of her Reply (affidavit) that; “the defendants paragraph 28 is not true. He continues to believe that I am not his legal wife, therefore says things in such manner. However, I state that I am still his lawful wife by customary recognition and acceptance as all my family members as well as his knows that we have been married since 2001.
    
15. The utterly confusing part is when she openly made it known to the court that she only came to look after the children, but left due to the defendant and his partner visiting the children. That to my mind establishes the intent of the complainant. Her intent was to perhaps solicit her way through to get back to the defendant as his wife, and when it did not eventuate, she decided to cause havoc, which, this proceeding may deemed to be one of it.
    
16. What I find hard to understand also is the fact that, if the complainant was all along the customarily recognized wife, how did she end up in two separate relationships with two separate men within the period of 2014, and 2020 and have two children from those relationships?
    
17. Further to that, the Court had an opportunity to converse with the children and gauge their views about how they were taken care of, by their father and step mother on 12^th October 2020 at 1:30 pm. The children indicated to the Court that they we comfortable with their father and step mother, as they were well taken care of by their father and step mother. When the Court enquired on their second born brother and why he had left the house, they said he stole some things and left the house when their father scolded him, after he was reported of stealing by the step mother. They also indicated that their brother was somewhat of a bighead too, and often times, when the defendant corrected him, he would take refuge from his mother.
    
18. So then, how does this Court view the conduct of the parties in this proceeding. It is my respectful view that the defendant has not in any manner neglected the children or abandoned his children. The primary responsibility of a father has been maintained all along, whilst the mother has had the tendency to move from location to location causing headache and difficulty to the defendant, and sometimes not concerned with the welfare of her children.
    
19. The demeanor of the parties leading to the moment and if need be, during the conduct of the proceeding should be carefully considered and examined by the Court as well in considering the custody application. The maintenance order would be a consequential order, after custody is determined.
    
20. In this case, the Court gives consideration to the following points made by parties in the submission which I think is important in determining the entire issue placed before this Court. These points are:
    
    1. The parties separated in 2014 after various issues such as unemployment and living separately caused disruption to the relationship.
       
    2. In 2017, parties agreed to work together, and the defendant would be looking after the children, and that they would not be living as normal husband and wife (in terms of having mutual sexual relationship).
       
    100. The complainant confirmed in her submission that, the defendant has been all along being a good father and consider s the welfare of his children, and takes good care of his children.
         
    4. The defendant has remarried, and complainant has two children from two different relationships with two other male persons. Those children have been adopted by her family members as she mentioned to court during the trial.
       
    5. The husband is a concerned father and takes good care of his children, however, the complainant argues the mother factor. The step mother does take good care of the children.
       
    6. The complainant did leave the house, rented by the defendant, simply because she regarded the defendant to be her husband when in fact they were no longer husband and wife, and had an agreement to look after the children. She dishonored that understanding.
       
    7. The children are comfortable living with the father and step mother, as indicated to the Court when the court asked them in private.
       
21. In considering the above points, I am mindful of the fact that the second son has left the house, and I understand has not made good the relationship with his father and stepmother, but essentially, all the children are with the father.
    
22. The actual reason why the complainant left the rented property to my mind is because she still considered the defendant to be her husband, when they had initially agreed it was otherwise. On the other hand, the complainant cannot seek maintenance for herself as well. It would be unfair to the defendant, as the defendant was, and has always been behind his children, and fighting to keep the relationship, until the conduct of the complainant forced him to move on in life.
    
23. I also consider the fact that the complainant has had two of her children adopted by her family, which she has not in any manner taken out maintenance proceeding against their fathers, and now her attention at the defendant. This to my mind is inexplicable. Is it an act of vengeance on the defendant? or is it simply an act of causing disharmony between the defendant and her new partner? Or is it a genuine act for the interest of her children?
    
24. In any custody and maintenance proceeding, the ‘best interest of the child’ is very important consideration. In my earlier ruling in Mini v Nele [2020] PGDC 8; DC4044 decided on 23^rd September 2020, I gave my reasoning that;
    

The duty to maintain every child is a moral duty. Men and women, girls and boys, nowadays take sex for pleasure and often times, when an innocent child is born, the parental responsibility is missing, and there is no sense of responsibility amongst men and women. S. 8 of the act in a way gives effect to that moral and ethical duty, and standard of rearing and caring of a child by stating in mandatory terms that, “it shall be the duty of every parent, or any person having custody of a child (or children) to maintain that child or children, and in particular, that duty gives a child the right to adequate nutrition, immunization, clothing, shelter, education and guidance and medical attention. Another added responsibility within s.8 also makes it mandatory for the person having custody to ensure the child or children are free from discrimination, violence, abuse, neglect and exploitation.

Section 101 of the Act gives effect to the objectives and principles of the Act in ensuring that a child, who has been neglected can be protected by persons who have interest in the welfare of the child by applying to Court for custody or parenting orders. In considering an application under s. 101 of the Act, this court is duty bound to give serious and critical considerations established under s.102 of the Act, when dealing with custody application which states as follows;

102. Considerations by the Court.

(1) In deciding whether to make a particular parenting order in relation to a child, the Court must ensure the best interests of the child as the paramount consideration.

(2) In making a decision under this Division, the Court must ensure that the child spends equal time or substantial and significant time with each parent.

(3) If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the Court must —

(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and

(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and

(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.

The determination of -substantial and significant time" is at the discretion of the Court but includes weekdays and weekends, holidays, occasions in the child's life, occasions in the parents' life and an opportunity for the parent to be part of the child's daily routine.

The best interest of the child or children is a very serious and often critical matter in determining the custody of that child or those children, as this will go a long way in impacting on the life of a child who will then grow up with and under whose custody that child will dwell with. These series of criteria and yardsticks for the court to adhere to, in arriving at its decisions, are paramount, and are stated under s. 103 of the Act, which recognizes and calls for the “best interest of the child”.

Apart from the principles enunciated under the Act, a careful scrutiny of authorities in the National Court cases such as WP v DP [1981] PGLawRp 623; [1982] PNGLR 1 (16 December 1981), Tom v Kayiak [1992] PGLawRp 584; [1992] PNGLR 171 (2 July 1992), Ubuk v Darius [1994] PGNC 33; N1278 (25 November 1994) RG v MG [1984] PGLawRp 465; [1984] PNGLR 413 (14 December 1984) all unanimously and in unison point to the essential aspect of child’s welfare and wellbeing as paramount considerations in awarding custody to any party of the marriage or relationship. Although this matters were decided long before the enactment of the Act, and concern matters that were subject of statutory marriages and matters that concerned the Infants Act 1958, the moral and ethical principles applied in ensuring a child’s best interest was of paramount consideration in those cases, and I find it suiting for the principles to be applied in this case.

In Ubuk v. Darius (supra) which concerned a custody of an infant of 20 months old, Sevua J, decided to grant custody to the mother, and in doing so discussed the following relevant considerations in those authorities and summed up the authorites well and stated:

“....in Bean v Bean [1980] PNGLR 307 at 320, Kapi, J (as he then was) said, "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 every custody application, when considering the welfare of the children, the Court must have regard to all these matters."......................................................................

In Susan Tom v Mazion Kayiak [1992] PNGLR 171, Los, J said at 172, "the law is settled in the country that in any custody application the paramount consideration is the best interest of the children." His Honour cited the decision of McDermott, J in RG v MG [1984] PNGLR 413 where His Honour in the latter case stated the following as relevant considerations;

(1) The claim of the mother and what is often referred to as her preferred role, WP v DP [1982] PNGLR 1;

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

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

(4) The age of the child; and

(5) Provision of the maintenance of existing relationships.

One of the important issues considered in those custody matters was the “mother factor”. This was mentioned by Andrew J in WP v DP [1982] PNGLR 1:

“.....but I consider that if it is shown that the mother is not in a best position then that factor cannot take a paramount role. The children the subject of this application are no longer babies and breast feeding. The mother has an infant from the new relationship with another man (the new man). She is unemployed.

His Honor Andrew J in the above reasoning meant that, if it is shown that the mothers character and personality coupled with her attitude towards her child, on the face of the evidence before the Court establishes that she is not a better person to raise the child or children, subject of the custody application, the ‘mother factor’ must never be given serious considerations by the Court, as the ‘best interest of the child’ takes paramount consideration over the mother factor, and the Courts can decide otherwise.

A final look at the authorities in Bean v Bean at page 312, Kidu CJ said:

"The welfare of the child demands that assessment be made of any person who is to have a hand in looking after an infant. As Selby J said in Chisholm v Chisholm (1966) 7 FLR 347 at 350:

'It is most important in a situation such as this that the Court should be placed in a position in which it can assess for itself the character of the man who may become the stepfather of the child, the subject of the application, or who will on the respondent's own case stand to some extent in loco parentis to her (vice versa). underlining mine

In considering all these authorities and all the requirements and conditions provided under the Lukautim Pikinini Act 2015, I find the common denominator to be in the “best interest of the child”.

25. This court also after considering the conduct of the complainant notes that the complainant had constructively created a situation to make things look as if the defendant had been the cause of all these issues. Essentially it is her own doing. To my mind, the applicant is coming to this court with unclean hands, and must not be given any benefit of the doubt. Her actions coupled with the fact that she had initially agreed to take care of the children and support the defendant, estops her from raising such claims, when she had constructively created such situation.
    
26. Furthermore, if the defendant is stated to be a good father and has concerns for his children, as submitted by the complainant in her submissions, then why is this proceeding instituted against the complainant?
    
27. Whilst this court may not have a clear and precise answer to such questions, this court is minded to infer from the complainant’s conduct. This Court establishes that, the complainant is somewhat unsteady and does not have the capabilities of taking care of the children; thus, it would be in the best interest of the children, not to award custody to the mother. Having reached this, I must say that the application for custody of the five children must fail, and as such the entire maintenance claim must also fail.

THE COURT THERFORE ORDERS THAT:

1. The application seeking orders for maintenance of the five children is dismissed.
2. The application seeking orders for maintenance of the complainant is dismissed.
3. The application seeking orders for custody of the five children is declined.
4. The defendant shall have full custody of all the children, and the complainant shall have reasonable access to the children, and such access shall be granted at certain time and location which the parties shall mutually agree from time to time.
5. Cost of the proceeding to be borne by parties.
6. Time is abridged.

By The Court.

Applicant in person

Respondent in person