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Papua New Guinea District Court |
PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE
APPELLATE JURISDICTION
FC NO. 24 OF 2021
Between:
JAKAPI ARIGO
Applicant
And:
BRENDA ARIGO AND MORIS EDWIN
Respondent
Tari: Mr. E. Komia
04th and 06th August 2021
FAMILY COURT – application for customary adoption of a child – application pursuant to s.53 and 54 of Adoption of Children Act Ch. 275 - requirements for such application – paramount consideration given to welfare of the child – need for a child to be groomed and reared in a loving and peaceful environment – orders for customary adoption and certification.
Legislations
Adoption of Children Act Ch. 275
Lukautim Pikinini Act 2015
Local Courts Repealed Act 2000
Papua New Guinea cases cited
Bean v Bean [1980] PNGLR 307
Mini v Nele [2020] PGDC 8; DC 4044
RG v MG [1984] PNGLR 413
Susan Tom v Mazion Kayiak [1992] PNGLR 171
Ubuk v Darius [1994] PGNC 33; N1278 (25 November 1994)
WP v DP [1982] PNGLR 1
53. Adoptions by custom.
(1) Notwithstanding any other law but subject to this section, where a child is or has at any time been in the custody of and is being or has been brought up, maintained and educated by any person or by two spouses jointly as his, her or their own child under any adoption in accordance with custom, then for the purposes of any law the child shall be deemed to have been adopted by that person or by those spouses jointly, as the case may be.
(2) An adoption to which Subsection (1) applies takes effect in accordance with the custom that is applicable and is subject to any provisions of that custom as to limitations and conditions, including limitations and conditions as to the period of the adoption, rights of access and return and property rights or obligations.
54. Certificates as to adoptions.
(1) A Local Court may—
(a) on application by a party (including a natural or adoptive parent and the adopted child) to an adoption to which Section 53(1) applies; and
(b) on being satisfied that the adoption has been made or has terminated in accordance with custom, and as to any relevant limitations and conditions referred to in Section 53(2),
grant a certificate that the adoption has been so made or has so terminated, and as to the relevant limitations and conditions.
(2) Subject to Part VI. of the Local Courts Act (Chapter 41), a certificate under Subsection (1) is conclusive as to—
(a) the adoption or termination of adoption; and
(b) any relevant limitations and conditions referred to
in Section 53(2).
“Whilst the Lukautim Pikinini Act 2015 establishes that, 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 being of paramount considerations in awarding custody to any party of the marriage or relationship.
Sevua J in Ubuk v. Darius (supra) which concerned a custody of an infoat of 20 months old decided to grant custody to the mother, discussed the following relevant considerations in those authorites 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.
His Honour McDermott, J in RG v MG (supra) was dealing with the custody application of an illegitimate female child, aged three years, by the mother. His Honour in that case awarded custody to the mother with access to the father.
I agree with McDemortt, J and Los, J that on an application for custody, the paramount consideration is the best interests of the child. And I also agree with Kapi, J (as he then was) that the Court must have regard to all those matters he alluded to pertaining to the welfare of the infant in Bean -v- Bean. I further agree with Andrew, J and Los, J that the mother factor can be a decisive factor in an award of custody in fact, for my part, I would adopt and apply the rationale applied by the Full Court of the Family Court and the High Court in Hobbs v Ludlow (1976) FLC 75, 536 at 539 and Gronow v Gronow [1979] HCA 63; (1979) 54 ALJR 243 at 249 respectively as cited by His Honour Andrew, J in WP v DP. Whilst the mother factor is not a rule of law, I cannot say Their Honours, (Mason and Wilson, JJ) erred in saying that it was a cannon of common sense founded on human experience. I agree, it is a matter of weight or value and I cite my learned brother Andrew, J in WP v DP at 3:
In Tom v Kayiak [1992] PNGLR 171, His Honour Justice Los made some very important remarks which this court adopts and considers important in determining the issue of custody or parental order and in deciding, concluded that mother factor is not cannot be paramount where it is shown that she is not in a best position. I that case, the applicant, the mother of two girl children, 5 and 4 years old, claimed custody of the children. She argued that her relationship with the respondent, the children's father, was not a marriage by custom because of the insufficiency of the bride price. The court found that there was a marriage between the parents according to custom and it was subsequently blessed according to the rites of the Lutheran Church. Following a disagreement arising because of a demand for K10,000 by the applicant's father, she and the children were taken away by him and she, shortly thereafter, formed a relationship with another man, with whom she had one child.
The applicant was unemployed and her de facto husband had only part-time employment. The respondent was an employed mechanic. It was held amongst others that, the law is settled in the country that in any custody application the paramount consideration is that of the best interest of the children, and the mother factor can be a decisive factor in an award of custody like in WP v DP [1982] PNGLR 1, but if it is shown that the mother is not in a best position then that factor cannot take a paramount role. The welfare of the children will be best served by granting the custody to the respondent.
Finally in the case of Bean v Bean [1980] PNGLR 307, Kapi J (as he then was) said at 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."
The mother factor can be a decisive factor in an award of custody, like 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.
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. 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. But I have been given no opportunity to make any such assessment and I am not disposed to accept the judgment of the respondent on so important a matter.'".....
where the courts were faced with custody issues, and applications were made pursuant to the Infant Act, although the matters were concerning statutory marriages in which National Courts had jurisdiction, the common denominator that binds the principles of custody in the “Best Interest of the Child”.
THE COURT HEREBY ORDERS THAT:
BY THE COURT
Magistrate Mr. E. Komia
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