Meano v Tolopi [2020] PGDC 57; DC5036 (28 September 2020)

DC5036

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# 187 of 2020

Between:

JACOB MEANO

Complainant

And:

NIMLYN TOLOPI

Port Moresby District (Family) Court

His Worship Mr. E. Komia

28^th September 2020

Counsels for the Complainant: in person

Counsels for the Defendant: no appearance

Complaint & Summons for parenting orders – forms of child neglect – children’s welfare a paramount consideration – mother factor considered in circumstance where mother displays attitude of responsibility, care and some form of support – principles of custody discussed – no evidence by the defendant – non-appearance on two hearing date – applicant granted custody.

Papua New Guinea cases cited

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)

Bean v Bean [1980] PNGLR 307

Legislations

District Courts Act

Lukautim Pikinini Act 2015

1. INTRODUCTION
   
   1. This is an Application for Custody filed by the applicant for the Custody of a daughter one JM children, born out of a de facto relationship with the respondent. The application was filed on 28^th July 2020, and is made pursuant to S.101 of the Lukautim Pikinini Act 2015. This Court granted the applicant leave to serve the documents by substituted service, pursuant to s. 48 of the District Courts Act.
      
2. FACTS.
   
   2. The facts of the cases are as follows:
      
      1. The complainant and the defendant had been living together as husband and wife around 2016. Out of that relationship, they have a daughter, DOB 15^th of February 2018.
         
      2. The defendant consumes alcohol and drugs, and there was an instance where the applicant was caught taking drugs, and was taken and locked up at Hohola Police Station. In her urge for drugs alcohol, the defendant often neglects the child and goes about looking for drugs and alcohol.
         
      3. The respondent at one point in time, neglected the child and left for six weeks and later returned to the house. She eve went to the extreme of lying to the NCD Welfare officer about the daughter being kidnapped and kept away from her by the applicant, only to find that she had lied.
         
      4. The respondent is also a very aggressive woman and had chopped the applicant on the bicep, which required heavy medical treatment.
         
      5. The applicant has laid a complaint at Gordons Police Station regarding the respondents physical assault on him.
         
      6. The child is with the applicant and is fed and taken care of by the applicant. The applicant is of sober habit and has concern for his daughter.
         

C. ISSUE

3. Whether the Applicant should be granted the Parenting Orders for the child, JM.

D. EVIDENCE

4. The applicant relies on his three different affidavits filed on 28^th July 2020.
   
5. The summary of the applicant’s evidence establish that the child is currently with the applicant under his custody and care, and the respondent has already left the house after physically assaulting the defendant with the machete (bush-knife).
   

5. PRELIMINARY ISSUE –
   6. This Court granted leave to the applicant to proceed ex-parte on the date of hearing as set down by this Court, for the following reasons.
      1. the applicant appeared on 10^th September 2020, for the first mention, but the respondent had not appeared.
      2. applicant advised the court that he was scared to go near the respondent and serve her the orders because of the danger and aggression the respondent is known to display. The applicant further mentioned that the respondent cannot not be reached in any manner but only through phone communication.
      100. The Court then granted leave for substituted service and waivered the requirements for personal service, and allowed the applicant to serve by way of substituted service to the respondent, pursuant to s.48 of the District Courts Act.
      4. The Court adjourned the matter to 21^st September 2020 at 9:30 am for the next mention.
      5. On 15^th September 2020, the respondent called the applicant and the applicant then informed the respondent of the matter and that the matter would be next mentioned on 21^st September 2020 at 9:30 am. That is evidenced through the proof of service document on Court file.
      6. The Court then mentioned the matter again on 21^st September 2020, and the applicant was again present in Court whilst the respondent was not in Court. The court then adjourned the matter to 28^th September 2020 at 9:30 am and as advised the applicant to advise the respondent of the adjournment date.
      7. on 28^th September 2020, the applicant returned to Court and advised the Court that the respondent could not be located any more, and even her phone has been switched off. The Court then decided to proceed to hear the application ex parte, pursuant to s. 22 of the District Courts Act.
   7. This is the Court’s ruling.
      

F. DISCUSSIONS ON CUSTODY

8. S. 101 of the Lukautim Pikinini Act 2015 (The Act) provides for a person to file an application for custody of a child that is in danger or is not being given the proper care and love as expected from the parents. The District Court has the jurisdiction to deal with matters concerning custody, maintenance and welfare of a child under the Act.
9. Sections 4 and 5 of the Act establishes objectives, and principles of the Act, which aims at ensuring that every child in Papua New Guinea are well taken care of in all aspect of the child’s life. The aim of the legislation is generally to protect and promote the welfare and interest of each and every child in Papua New Guinea.

10. 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.

11. 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.

13. 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”.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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

19. 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”. I find it suiting for the principles in those cases to be applied in this case.

20. Finally, the attitude of the mother (respondent) displays a grave degree of child neglect. Child neglect can be direct or constructive. In situation where a mother leaves the child with no support and care and runs off on a love, partying or drinking excursion for indefinite period or fixed period without considering the welfare of a child tantamount to child neglect. In instances where the mother leaves the house without any proper explanation and reason so as to cause instability and chaos in the house, and the father opting to take care for the children, and later on blames the father for her desertion on a petty issue such as father not giving her any pocket money or father coming home late from work, tantamount to constructive desertion.
20. In this case, the Court understands that the applicant has put before the Court in his oral submission and testimony that, the respondent/ defendant had left him behind with the child without any explanation, and could not be seen anywhere, and that he has strived daily for his daughter and that he is prepared to do anything for his daughter. I find the applicant to be a genuine and concerned father, who has displayed courage and love for his daughter. The Court also understands that the applicant has been caring and nurturing for the child in the absence of the respondent, and notes that the child is much settled with the applicant then the respondent. I am satisfied that the applicant has made out a case before me and am minded to grant the custody application, and will hereby grant the custody applications orders accordingly.

THE COURT HEREBY ORDERS THAT:

1. The Applicant shall have custody over the child JM of 2 years 7 months old.
   
2. The Applicant shall ensure to allow the respondent to have reasonable access to the children and such access should be mutually agreed upon by parties.
   
3. Costs to be borne by Parties.
4. Time is abridged.

Applicant - in person
Respondent - no appearance