Niro v Mondo [2020] PGDC 56; DC5037 (23 September 2020)

DC5037

PAPUA NEW GUINEA

IN THE FAMILY COURT OF JUSTICE

HOLDEN AT

PORT MORESBY DISTRICT COURT

In the Matter of Custody under the

Lukautim Pikinini Act 2015

FC# 242 of 2020

Between:

ONKENARE NIRO

Complainant

And:

AMUGL MONDO

Defendant

Port Moresby District (Family) Court

His Worship Mr. E. Komia

23^rd September 2020

Counsels for the Complainant: Mr. S. Kuruwalo

Counsels for the Defendant: In Person

Complaint & Summons for Parenting Orders – best evidence rule - forms of child neglect and abuse – 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.

Papua New Guinea cases cited

Kiwai v Kiwa [2015] PGNC 83; N5877

The State v. Hekavo [1991] PNGLR 394

The State v. John Bill White (No. 1) [1996] PNGLR 262

Arua Loa & 2 Ors v. The State & Ors (2015) N5849

Michael Tenarum Balbal v. The State (2007) SC860

Peter Wararu Waranaka v. Gabriel Dusava (2009) SC980

Mini v Nele [2002] 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)

Legislations

Lukautim Pikinini Act 2015

1. INTRODUCTION
   
   1. This is an Application for Custody filed by the Applicant one Onkenare Niro for the Custody of her two children, born out of a customary marriage with herself, and the defendant, one Amugl Mondo. The application was filed on 07^th September 2020. The application is made pursuant to S.101 of the Lukautim Pikinini Act 2015 (hereinafter referred t as the “Act”). Both parties appeared on 05^th November 2020.
      
   2. I reserved my ruling to 09^th of November 2020, and further adjourned to today 13^th November 2020. I now give my ruling.
      
2. FACTS.
   
   3. The facts of the case are as follows:
      
      1. The complainant and the defendant had a de facto relationship in 2011. Out of that relationship, they have two children namely MMA. Male child, eight years of age (dob not given) and S M f/c, six years old (dob also not given).
         
      2. The complainant married a second wife on or around 2014, and shared homes, sometimes living with the complainant, and other times living with his current partner. Despite the fact that the defendant had married another woman, the complainant at first did not agree to it, but as time went by, accepted the fact that the defendant had a second wife, and did nothing about it, and they continued to live as husband and wife.
         
      3. The complainant resided with her family all along and the defendant, until around October 2019, when the second wife left after an argument, the defendant brought the complainant to reside with him. At that time, the complainant was pregnant with their third child. He then rented a room for her and the children and they lived together.
         
      4. On 02^nd January 2020, while she was about two months pregnant, the complainant had an argument with the defendant, and broke the chairs, and other household utensils such as cups, plates, and other household accessories, and then went to back her family home with the two children.
         
      5. Nevertheless, soon after leaving the rented home and returning to her parent’s home, the complainant was nowhere to be seen, and the defendant searched for her. She was nowhere to be found, and so he took the two children, who were at that time left with their grandparents, back to the family home he rented for the complainant and their children.
         
      6. It was later discovered that the complainant was living with another man at Gerehu. This prompted the defendant to get the custody of his two children, and he went to the Welfare Officer to report on the incident. On 07^th May 2020, he was granted interim custody for the two children.
         
      7. On one occasion in July 2020, the defendant saw the complainant and the partner, and confronted them, but the partner left and the complainant was brought into the police station, where the complainant admitted to be living with the partner.
         
      8. The children are currently under the care and custody of the defendant, and their stepmother who has returned and are both taking care of the children. The children are healthy and attending school as shown in the photograph annexed by the defendant to his affidavit. The photo was taken around August 2020.
         

C. ISSUE

4. Whether the Complainant/Applicant should be granted the Parenting Orders for the two children?

D. EVIDENCE

5. The applicant relies on her two different affidavits, one filed on 07^th September 2020, and the other, filed on 02^nd October 2020, responding to the defendant’s affidavit filed on 23^rd October 2020. The defendant has two affidavits, one mentioned above and the other one filed 04^th November 2020.
   
6. The summary of the complainant’s evidence establishes the following fact that;
   
   1. the defendant has two wives, one being the complainant, and the other is one Cathy Gilbert, and both know each other well.
      
   2. The complainant left the children after the argument on 02^nd January 2020, at her parents’ house, and went to live with another man in Gerehu. The children were never given the due care and attention and left to the grandparents to take care of.
      
   100. The complainant accepted the fact that she was one of the two wives her husband was married to and she has not instituted adultery proceeding against the defendant, rather accepted and continued to live with the defendant, as one of his wives.
        
   4. The grandparents and the relatives of the complainant advised the defendant of the complainant’s affairs with another person, and that he should move on and take his children with him.
      
   5. The children are currently living with the defendant at Nine Mile, Makana Morobe Block.
      

5. DISCUSSIONS ON FACTS AND LAW ON APPLICATION FOR CUSTODY – PARENTING ORDERS
   7. The complainant - applicant filed this application pursuant to s. 101 of the Act and alleges that the defendant and his wife (step mother) have not taken good care of the children, and seeks orders from this Court to grant her the full custody or parenting order for the two children. She claims in her affidavit that the children are full of sore and are malnourished and have never been given adequate care and attention as required of from a parent.
   8. The applicant also alleges that the teachers of the children have written letters confirming that the children are not properly taken care of, and relies on a letter made by the teacher of the children. The letter purports to state that the children come in looking sick, and often times come late to school.
   9. I intend to deal with this aspect of the evidence so as to establish, whether such evidence can be credible and legitimate in law, and if such is found to be so, I will admit that letter into evidence, having in mind the fact that this Court is not bound by the strict rule of evidence, it is important for this Court to remind itself of the onus the complainant has to proof her case. In dealing with such documentary evidence, this Court must apply the ‘best evidence rule’.
   10. In saying the above, I refer to the case of Kiwai v Kiwa [2015] PGNC 83; N5877 (19 February 2015) in which Kandakasi J (as he then was) discussed the principle of the “best evidence rule” and also referred to other case authorities. His Honor in a very elaborative discussion of this principle discussed the principles as follows;

“Justice Doherty summarized the relevant principles in these terms in the case of The State v. Hekavo [1991] PNGLR 394;

“it has been said that in all cases it is necessary to produce best evidence available to prove any particular fact. This became known as the “best evidence rule” and is referred to ‘as the best evidence must be given which the nature of the case admits.’ It must be brought to the court in the form which gives the best guarantee of its credibility and that circumstances of the case admit.”

Later in The State v. John Bill White (No. 1) [1996] PNGLR 262 Her Honor, again speaking about the principles said:

“... in order to adduce proof of each element [of an offence] the maxim ‘the best evidence must be given of which the nature of the court case permits’ is considered a fundamental principle of law of evidence. Phipson considers that it applies in three different senses... i.e. that the nature of the fact admitted, or that the circumstances would allow, or that the party could produce and if there was inability to obtain better evidence then there could be some justification to resort to inferior forms of evidence such as hearsay by interested witnesses or copies of documents.”

Applying this principle, in my most recent decision in Arua Loa & 2 Ors v. The State & Ors (2015) N5849, I found that a copy of a land purchase agreement without any explanation as to where the original was and how the copy was obtained and annexed to in an affidavit did not meet the ‘best evidence rule. I was critical of the State’s failure through the falures of the Department of Lands in keeping proper records and producing them in evidence.”

12. His Honor (as he then was) in that case further went to discuss that in our jurisdiction, the application of common sense and logic would also assist in determining whether any evidence should be accepted in such claim. His Honor, goes on to cite the case of Michael Tenarum Balbal v. The State (2007) SC860, which was also cited, approved and applied in the case Peter Wararu Waranaka v. Gabriel Dusava (2009) SC980, which stated that;

“... receiving, assessing and determining whether or not to accept a witness and his testimony is a well-trodden one. Rules of evidence have much to say, and do with the reception or rejection of evidence. Logic and common sense do play an important part in that, as has been noted and applied in many decisions of both this, and the National Courts... This is in addition to any serious inconsistencies that might exist in the testimonies of the witnesses called by a party which makes any acceptance of the evidence difficult...”

13. In this present case, this court having given due regard to all the discussions made above, and upon careful examination of the letter purported to have been from the class teacher of the child, and annexed to the complainant - applicant’s affidavit, finds it difficult for this Court to safely rely on that letter of 16 June 2020. Although this court is not bound to strictly rely on the rule of evidence, in such cases where such letters are disputed, it is the courts duty to scrutinize evidences to ensure that there is no miscarriage of justice at the very minute scale, especially when such documentary evidence have the likelihood of causing the decision to be otherwise.
14. Firstly, I note that the letter is hand written. Secondly, the author of the letter is not signed by any author, and if there is an author, the original copy of the letter was never produced to ascertain the signatures. Thirdly, the letter is from an established school in NCD, and as such, such letters should be properly documented on the letter head of the school and its authenticity would be clear in terms of the teacher and the school logo. Such is not the case here.
15. The court also inquired with the counsel for the complainant, and also the complainant in a short examination by the Court, on how best the complainant could explain her evidence in the light of those issues I intimated above, and there was not much assistance. To my mind, after considering the above, I am of the firm view that, this evidence lacks credibility, and I find it difficult for this Court to be persuaded by its content, as it does not fall within the precincts of the ‘best evidence rule’ thus, this Court will not rely on this evidence.
16. Nevertheless, the applicant strongly argues that this Court should award custody to her as she is the natural mother of the children and, it would be in the best interest of the children.

17. Apart from the letter of the school teacher, the complainant deposes in her affidavit that the children appear to be full of sore and looked sick when she last visited the children. This evidence is merely an averment, as there is no proof of such, placed before this court, by way of a medical report or a photograph, for the Court to seriously consider.

18. The defendant to the contrary has adduced photographic evidence of the children, and also receipts and payments he had made for the educational and other personal upkeeps of the children. The photos of the children were recently taken around the time; the custody proceedings were instituted.
19. I also note that the complainant had left the defendants rented accommodation with the children after the argument on 02^nd June 2020, and later on went on a frolic of her own chasing after her pleasure, and in the process of doing this, abandoned her two children, only to be picked up by the defendant to be nurtured and taken cared for. I find this attitude of the defendant to greatly go against her claim.
20. All of a sudden; after the father had obtained interim custody of the children and she had completed her frolic detour of romance, she has woken up from her slumber, and now thinks about her children?
21. In my earlier ruling in Mini v Nele [2002] PGDC 8; DC4044 decided on 23^rd September 2020, and also in many other cases, I gave my reasoning that;
    

“it is important aspect to see if the father also has the capacity to look after the children” .......................................................................

” if it is shown that the mothers character and personality coupled with her attitude towards her children, on the face Court establishes that she is not a better person to raise the child or children, subject of the custody application, than it is often forgone, as the interest of the child would naturally cause the mother factor to shy away, and the courts can decide otherwise.”

The duty to maintain every child is a moral duty. Section 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.

In considering an application under s. 101 of the Act, this court must critically and meticulously consider the considerations established under s.102 of the Act, which discusses the “best interest of the child...............................................................

.........................................................................................

“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 have been also established under s. 103 of the Act, which is “best interest of the child”.

Whilst the Lukautim Pikinini Act 2015 establishes the principles of best interest of a child, a careful considerations 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 continue to point towards 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.”

24. In this case, the applicant leans more to the ‘mother factor’ which can be a decisive factor in an award of custody. Her main argument is that, she is the natural and biological mother and the children can be best taken care of by herself then, the father and the step mother.
25. In considering her argument, I remind myself of the fact that the complainant applicant had in fact run away from the defendant, abandoned the children with her parents, and gone on her love expedition with another man, whilst being two months pregnant as well. This to my mind cannot support this application for custody. In WP v DP [1982] PNGLR 1, Andrew J stated:

“.....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.

The new man is only employed part time. If the mother is given the custody of the children, she and the new man need to raise their own child as well as the two children.”

25. In summary, this court is of the view that the mother’s actions and conduct prior to the institution of this proceeding, coupled with the fact that she is unemployed and married to another person, who is totally new to the children, and whose employment status and ability to put food on the table is not before this Court to consider, this on the face of the Court establishes doubt over whether she is a better person to raise the child or children, who are the subject of this custody application.

26. In contrast, the defendant has continued to take care of the children, coupled with the fact that the step mother, together with the half brothers and sisters of the children are all living together, and that the children are well and happy, as provided in the evidence. As the interest of the child which takes precedence would naturally cause the mother factor to shy away, and the Courts can decide otherwise, thus I would follow the rule in this case, and after having considered all the issues discussed and evidences put before this court, I am of the view that this application for custody by the complainant must fail.

THE COURT HEREBY ORDERS THAT:

1. The custody application filed by the complainant is hereby dismissed.
   
2. The temporary or interim custody granted to the defendant is confirmed and made permanent, and therefore the custody of the children, subject of this proceeding is granted to the defendant.
   
3. The complainant shall have reasonable access to the children, and such access shall be given upon twenty-four-hour notice given to the defendant by the complainant.
   
4. Costs to be borne by Parties.
5. Time is abridged.
   

BY THE COURT
Public Solicitors Office for the Complainant
Defendant in Person