Mini v Nele [2020] PGDC 8; DC4044 (23 September 2020)

DC4044

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# 128 of 2020

Between:

THOMPSON MINI

Complainant

And:

JOYCELYN NELE

Port Moresby District (Family) Court

His Worship Mr. E. Komia

23^rd September 2020

Counsels for the Complainant: in person

Counsels for the Defendant: no appearance

Complaint & Summons for parenting orders – 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 and the purposive approach of interpretation of provisions – 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

Kamuta v. Sode [2006] PGNC 9; N3067

Kelly Kerua v. Council Appeals Committee of the University of Papua New Guinea (2004) N2534

Paul Sireh v. Miai Larelake (2007) N3181

Danny Taka v. Dr. Samson Amean (2006) N3070

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

Lukautim Pikinini Act 2015

1. INTRODUCTION
   
   1. This is an Application for Custody filed by the Applicant one Thompson Mini for the Custody of his four children, born out of a customary marriage with the defendant, one Joycelyn Nele. The application was filed on 30^th June 2020. The application is made pursuant to S.101 of the Lukautim Pikinini Act 2015. In all the court hearings from the first mention to the final hearing, the Court noted that the defendant has been very evasive and has deliberately deterred to attend to the mention and other hearing dates.
      
2. FACTS.
   
   2. The facts of the cases are as follows:
      
      1. The complainant and the defendant had been customarily married in 2007, and separated around 2016. Out of that relationship, they had C M, DOB o2 May 2008 (12 years old), I M, DOB 10^th June 2011 (9 years old), A M, DOB 22 November 2014 (6 years old) and Ap M DOB (04 April 2016).
         
      2. In 2015, the parties formally agreed to separate after some disagreements, and at that time, the lady was pregnant with their fourth child, hence; for the benefit and welfare of the children, the complainant and the defendant continued to have a mutual understanding and responsibility for their children, until 2019, when the parties became permanently detached from each other.
         
      3. The applicant and the respondent moved on in life and each of them have new partners and can never get back as couples. They have moved on in life.
         
      4. The two elder son and daughter were living with their father, the applicant in Lae. They were attending Lae International School in 2018 and 2019, whilst the younger children lived with the respondent in Port Moresby. In December of 2019, the applicant sent the two children to Port Moresby to spend the Christmas Holiday with their mother, the respondent in Port Moresby. After completion of the holiday period, the respondent hesitated to release the children to return to Lae, but rather kept the children with her in Port Moresby and demanded the applicant to pay for the fees in a school called Zion Zeal Christian School in Port Moresby.
         
      5. The applicant complied with the respondents request and paid the fees for the children totaling up to K16, 000.00. Soon after the fees were paid, and the respondent had all the children with her, the respondent instituted an Interim Protection Order proceeding registered as IPO No. 93 of 2020 – Joycelyne Nele v. Thompson Mini. The IPO proceeding was instituted around May 2020, and the respondent obtained an Interim Protection Order that restrained the applicant from going near the respondent, which had direct impact on the applicant accessing his children, as the children were living with the respondent then.
         
      6. The applicant being concerned tried to access his children whilst they were at school, and so he enquired with the school administration of Zion Zeal Christian School to check on his children and their status. The administration of the school advised the applicant that, the respondent had withdrawn the children from school, and got the refund for a total of K7, 125.00. The children were no longer in school.
         
      7. Applicant was also advised that the respondent was neglecting the children and busy partying and spending time with her partner, and so he attended to the family residence at eight (8) mile when the respondent was out and established that the children were living in a very unhealthy and filthy condition with no proper beddings, no proper food, no security, and were left to take care of themselves. A formal police complaint was filed at the Gordons Police Station by the applicant.
         
      8. The applicant then instituted this Custody Application after noting all the above, despite the fact that there was an IPO proceeding on foot.
         

C. ISSUE

3. Whether the Applicant should be granted the Parenting Orders for the four children.
   

D. EVIDENCE

4. The applicant relies on his three different affidavits filed on 22^nd September 2020, 02^nd July 2020, and 30^th July 2020. This Court notes that the affidavit filed on 22^nd September 2020, has been filed a day before the date of hearing, and will not admit the affidavit as evidence, but rather admit the affidavits filed on 02dn July 2020, and 30^th July 2020, as they were filed and served on the respondent well before the hearing date.
   
5. The summary of the applicant’s evidence tend to establish the following fact that;
   
   1. the applicant and the respondents have moved on with their lives, and the respondent has a partner, named Jux or Junior.
      
   2. The two elder children had lived with their father (the applicant) in Lae, prior to their enrollment at Zion Zeal, and were later removed from school by the respondent and the school fee refund was given to the respondent. The children are not in school at the moment.
      
   100. The respondent resided with their children in a place that is dirty, with no proper beddings, no proper sanitation, and the place of abode seems to be in a complete mess, with clothes and beddings lying all over the floor of the house. Evidence also establish the house may be a rundown house or an incomplete house.
        
   4. The children have been neglected and left to fend and secure for themselves, as the applicant could not access them, which was a consequence of the IPO proceeding.
      
   5. The respondent is aggressive and abusive at times to the children, as stated by the small girl in the video annexed as video evidence adduced by the Applicant, in which the daughter gives a detailed version of how the elder child was tied around a tree and beaten up by the respondent.
      
   6. The respondent is a non-caring mother and is often times drunk and not at home, spending most of her time with her partner, and living the children on their own.
      
   7. After some struggle, the applicant managed to get all the four children under his care, and are currently residing with him at his residence.
      
   8. The above summation of the evidence is concluded as undisputed fact and as evidence, because there is no affidavit filed by the respondent responding to or refuting the evidence deposed in the applicant’s affidavit.
      
   9. This Court also notes the respondent’s attitude in the way she has been reacting to this Court Proceeding. One instance is where this Court adjourned the matter to the 14^th of September 2020, and ordered that the respondent appears in person in court. The orders were served on the respondent by a Police Officer, and the respondent signed off on the service form and wrote a small note stating that she was unwell, and unable to walk and that, 21^st September 2020 would be a suitable date for her to attend Court.
      
   10. The Court sat on the 14^th of September 2020, and was advised the applicant that the respondent had acknowledged receipt of the documents and orders, but she had made a small not on the service form. The Court gave the respondent the benefit of the doubt, and further adjourned the matter to 21^st September 2020. This was also done for purposes of fairness. When the Court made the adjournment 21^st September 2020, a self-executing order was made that, if the respondent failed to appear, this Court would proceed with the hearing ex parte.
       
   11. On 21^st September 2020, the court was advised that the respondent was made aware of the return date, and the orders were served on her, by the Police but she declined to accept service, thus the applicant served the orders through her personal email, which this court accepts as proper service. This court also notes the demeanor of the respondent has been very uncooperative and highly regarded as bad faith, and in the light of such, is of the view that the IPO proceeding and its utility is somewhat questionable.
       
   50. Nevertheless, this Court granted leave to the applicant to proceed ex-parte on the date of hearing as set down by this Court, for the reasons alluded to above. This is the Court’s ruling.
       

5. PRELIMINARY ISSUE – IPO NO. 93 OF 2020 – JOYCELYN NELE V. THOMPSON MINI
   11. Before this Court ventures into the principal discussions on the custody application, it is this Court’s view that, consideration must also be given to the fact that, there is an IPO proceeding on foot in Court which was filed first in time, and is also before the Family Court, before another Magistrate. This issue has been raised by the Court on its own volition.
   12. This court is reminded of the fact that, some litigants take a short cut in running away from some very pertinent issues that are for determination in another court by filing such application, so as to negate the utility of the other proceeding, and as such, it is important that, this Court deals with this before dealing with the issue of whether this court can safely proceed to make a determination on the Custody Application.
   13. First and foremost, is the conduct of the parties before the time the proceeding was instituted for the IPO matter, and then continuing into the period when the Custody Application was filed.
   14. From the facts, this application was filed second in time on 30^th June 2020, whilst the IPO application was filed first around May 2020. From the Courts inquiry of why this proceeding was filed, whilst there was an IPO proceeding on foot, the applicant’s response was twofold. The first reason was the need to secure his children after learning of their absence from school after the respondent had withdrawn the children from school at Zion Zeal Christian Academy, and secondly after he physically went and saw the shocking state of the housing, food and parental condition his children were in.

15. He further stated that, if he allows the defendant to continue her behavior under the disguise of her IPO matter, his children’s welfare would be at stake. He claims it is in the best interest of his children and not himself or the wife. He further stated that, if the wife wanted to take out a permanent order against him, that is a matter for her to decide, but the children’s welfare is of paramount consideration to him; hence this proceeding.

16. The Court was also advised that the children were with the applicant, and when the Court enquired on why this proceeding has been instituted, when the children were with the applicant, the applicant simply responded that the respondent has an aggressive behavior and the only way the respondent could be deterred from causing any further harm or disturbance was through a Custody or Parental Order.
17. The threshold question is; whether the applicant is coming to court with unclean hands, and also whether this is an abuse of process.
    

IS THE APPLICANT COMING TO COURT WITH UNCLEAN HANDS? OR IS IT ABUSE OF PROCESS?

18. I now deal with the issue on the question of unclean hands.

19. Although the doctrine of unclean hands is an equitable defense, it can be at times taken as a legal defense, and in such circumstance this court is faced with, it is only safe that the issue is put to rest prior to deliberating on the pertinent issue of custody or parental order.
20. The facts reveal very much that the children were in dire need of proper care and need, and have now been taken care of by the applicant. This court has established the facts and evidence relating to this proceeding.
21. in a situation where the respondent had barred her children from returning to Lae, and demanded that fee’s be paid into a school in Port Moresby, left the children in a home that has poor food security, no proper protection, no proper beddings and clothings, and spent most of her time with her partner, and then worst of all, had withdrawn all the children from school, and has never accounted for the reimbursed monies, and then obtains an IPO against the father of the children, well after they had separated, cautions this court to look into the conduct of the respondent.

21. This Court having assessed the conduct of the parties in this proceeding forms this view that, the respondents IPO matter is somewhat questionable, but it is a matter that is before another forum, and has another time and venue when it will be determined on its own merits. This court only refers to that proceeding and is drawing a comparative analysis on what it thinks is of relevance to be discussed for the purposes of this case.

22. This court in assessing the conduct of the respondent and applicant notes that, the respondent has been evasive in attending court in respect of this matter. She has also been using that IPO proceeding as a cover up to keep the kids away from the applicant, despite the applicants concern for his children. If the respondent was truly sincere and genuine in her case concerning the custody of her very children, and knows that the applicant is a bad father, why didn’t she attend Court and advise the Court that this is the reason why the custody should not be granted and or even file an affidavit for that matter if she was unable to attend? Even before arguing this, the Court is minded to ask why the respondent would obtain an IPO order and soon after that, withdraw her children from school, and what were the reasons for the withdrawal and what happened to the monies that were reimbursed? That in essence to my mind, the respondent has a sinister motif in obtaining the IPO.
23. In the case of Kamuta v. Sode [2006] PGNC 9; N3067, the applicant was a student at University of Papua New Guinea when he was employed as a Legal Officer for the Internal Revenue Commission (IRC). He was terminated from employment as a legal officer with the Internal Revenue Commission in 2001, when he was found to have occupied that office without any law degree qualification, neither being admitted as a lawyer. The applicant appealed the matter to Public Service Commission (PSC) and PSC deliberated on the issue and on 12^th January 2004 wrote a letter to IRC to reinstate the applicant. The IRC refused to give effect to the PSC decision, and the applicant took the matter to court by way of judicial review seeking mandamus order for the Court to compel the IRC to give effect to the decision of the PSC. His Honor, Injia, DCJ (as he then was) in dealing with that matter, declined the judicial review application and stated as follows;
    

“He held himself out as having undertaken and completed his Law Degree between 1994 and 1998 when in fact he was a final year law student in 1999. Equity will not permit him to the reliefs he seeks on this kind of misrepresentation.

Equity will also not permit him to be appointed to a position in the public service and to enjoy or derive benefits from that position to which he is not legally qualified to occupy in the first place.”

24. This basically means that, the conduct of the parties prior to the proceeding and during the course of the proceeding is paramount to consider whether someone is coming into court with unclean hands or not. There are other cases also in the National Court that decides on this issue, such as Kelly Kerua v. Council Appeals Committee of the University of Papua New Guinea (2004) N2534 ; Paul Sireh v. Miai Larelake (2007) N3181 and Danny Taka v. Dr. Samson Amean (2006) N3070
25. It is this Court’s respectful view, that, there is no conduct by the applicant that warrants this court to conclude that the applicant is coming to court with unclean hands for those reasons alluded to above. He has not lied to the Court, neither has he hidden the fact that an IPO Proceeding is still on foot. He has come before the Court and advised of the proceeding. There is no evidence to show that the applicant is coming to Court with unclean hands.
26. Another important issue this Court raised is whether it is an abuse of process to file and application for custody such as thism, whilst an IPO is on foot?
27. IPO proceedings and Custody proceedings can be filed in the District Courts by any party that is aggrieved by actions of another person, especially a couple. But in a situation where a partner has filed a proceeding in the same court seeking IPO, and the other party comes later to file an application for custody, would that be an abuse of process? To my mind, the answer lies in the conduct of the parties. In this case, the respondent in this custody application had gone ahead to obtain an IPO against the husband, and in the cloak of having an IPO against the applicant, has gone on frolic detour of her own, to the detriment to the children’s welfare. The evidence of the applicant which the court notes is that, soon after the IPO was obtained, the respondent then went and withdrew the kids from school and got the school fee reimbursements.

28. The applicant submitted that it is not an abuse of process and the manner and the reasons that compelled him to institute this proceeding, was the welfare and the best interest of his children that took the paramount consideration. I therefore find that it is not an abuse of process, and the remedies are distinctly different. Unless a contention or an argument had been raised by the respondent in this custody application, this court cannot aver on propositions that are not before it; hence this custody application cannot be termed as an abuse of process. For the reasons above, I am of the view that the custody application is properly before the court and that, this court should proceed to hear the application.

DISCUSSIONS ON FACTS AND LAW ON APPLICATION FOR CUSTODY – PARENTING ORDERS

29. The applicant filed this application pursuant to s. 101 of the Act and now claims that the respondent has not been a good mother and has been using his children to extort money from him and has not been sincerely performing her natural duty as the mother to their children. The applicant strongly argues that this Court should award custody to him despite the existence of an IPO matter. His submissions basically go to stress on the essential duty of every parent in ensuring that the welfare and the best interest of the children or child is maintained at all cost. He further claims that the evidences he has adduced in court are sufficient enough to prove to this court that the respondent is negligent in her duties as a mother and that this court should consider the documents before it and award the custody to him.
30. An application for custody of a child is made under s. 101 of the Lukautim Pikinini Act 2015 (The Act). The District Court has the jurisdiction to deal with matters concerning custody, maintenance and welfare of a child under the Act. The Act has its objectives and principles established under s. 4 which basically enunciate the importance of promoting and fostering safety, welfare and development of every child in Papua New Guinea. The act is also aimed toward ensuring that children rights are protected and promoted and that all community, government institutions, and agencies should play a collective and collaborative effort in ensuring that every child in this country is properly reared and that the well being of the child or children must be the peak consideration of this country.

32. Section 5 of The Act establishes the principles of the legislation and how the act shall be interpreted and administered. In this provision, it also emphasizes on the “best interests of the child.” This means that, in all decisions that parents, agencies, communities, families, and Courts make, the paramount considerations shall be given to the best interest of the children or child. The provision is also very detailed in how and who it applies to and ensure that in all those various actions, again the paramount consideration is given to the children, or the child. Further to that, ss. 6, 7 and 8 of the act stress on the right of a child under the act, and the international conventions that Papua New Guinea is a signatory to.

33. 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.

34. 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 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.

(4) 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.

35. As I discussed earlier and I stress again that, 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”.

36. 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.

37. 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.

38. One of the important issues considered in those custody matters was the comfort, health, moral and intellectual welfare of the child. This was mentioned by Kapi J, (as he then was) in the case of Bean v. Bean (supra) in which His Honor said at page 320:
    

“... 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."

39. Another case also takes and important consideration known as the ‘mother factor’ can be a decisive factor in an award of custody, like 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 the two children.”

40. In my opinion, what His Honour Andrew J, meant in the above was based on the reasoning that, if it is shown that the mothers character and personality coupled with her attitude towards her children, on the face of the 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 which takes precedence would naturally cause the mother factor to shy away, and the Courts can decide otherwise.

41. 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

42. It’s an important aspect also to see if the father also has the capacity to look after the children. I find that the father is of sober habit, has a job with Harmony Gold Mines based in Hidden Valley Gold Mines in Wau District of Morobe Province and currently has all his four children living with him. I also observed that he is a concerned father and he has been cautiously following up on his children through his friends and family despite an IPO proceeding taken against him. Further to that, the Court also notes that, the children who are subject of this Custody Proceeding are with the applicant.

43. In considering all these authorities and all the requirements and conditions provided under the Lukautim Pikinini Act 2015, I find them all loudly singing the uniform anthem of “best interest of the child”, and I find it suiting for me to apply those authorities in support of the Act. In looking at the material facts and evidence before me, it is disheartening for me to see that the children are living in building that is not conducive and proper, coupled with the fact that they are not properly nurtured and reared well by their mother. It is very disturbing. This Court finds that:

1. The respondent is very abusive and aggressive
2. The respondent has no consideration for the welfare of her children
3. The respondent appears to have instituted the IPO Proceeding out of bad faith, and has not come to court with an explanation or reasons for this Court to understand the reasons for the IPO, and has been expecting the Court to guess what the crux of the issue in the IPO is about.
4. Since there is no explanation and given the attitude of the respondent in deliberately avoiding and not attending Court on the hearing dates set by this Court, the Court has formed a view that the respondent has been using the IPO proceeding as a cloak to cover for her misdemeanors and irresponsible behavior under the pretext of seeking protection when her actions were otherwise. This court is reminded to protect itself from such persons that run to court to abuse laws and protections issued by law if they come in bad faith.
5. The children have been neglected and have not been taken care of
6. The children’s welfare and paramount consideration is not of importance to the respondent.

44. Parents who really have concern for their children either vigorously defend the application or prosecute the application. The respondent has not been attending all the proceedings. Whether it is an indication of no interest for her children or just a mere act of arrogance, is a matter that this court can only infer from such conduct. This is a scenario where the applicant has been forced to prosecute the custody application for his children under very unfortunate situation where he had an IPO Order made against him in IPO No. 93 of 2020 – Joycelyn Nele v. Thompson Mini. This Court is of the view that the custody of the children mentioned in the summons and complaint filed on 30^th June 2020, must be awarded to the applicant accordingly.

45. The children are all above the age of three (2), and obviously the mother factor cannot be considered. With respect to the other necessities as I see are currently taken care of by the applicant. The applicant has the history of paying for his children’s school fees and looking after his children, and also given the fact that he has been continuously following up on the progress and the upkeep of his children, he can be seen to be a concerned parent and would be in the best interest of the children that the children remain with him.
46. Finally, the laws and legislations enacted by the parliament such as the Lukautim Pikinini Act, must not be used by parties as a shield to justify their unlawful and illegal actions such as it is in this case. The Courts in this Country must be wary and cautious of such litigants that come before them. I am of the strongest view that the applicant has a genuine custody case for his children, and this Court is of the view that, the custody of the children should be awarded to him. Cost is a discretionary matter and it follows the course of the proceeding, and so in the exercise of my discretion, I will order for costs to be borne by parties themselves.

THE COURT HEREBY ORDERS THAT:

1. The custody of the children namely, C M, DOB 02 May 2008 (12 years old), I M, DOB 10^th June 2011 (9 years old), A M, DOB 22 November 2014 (6 years old) and Ap M DOB (04 April 2016), are awarded to the Applicant Thompson Mini.
   
2. The Applicant shall ensure to allow the respondent Joycelyn Nele reasonable access to the children and such access should be mutually agreed upon by parties to the exclusion of other relatives.
   
3. Costs to be borne by Parties.
4. Time is abridged.
   

BY THE COURT

MAGISTRATE KOMIA