Queen v Tongale, Ex Parte Yongoman Tongale [1975] PGNC 3; N5 (3 October 1975)

Unreported National Court Decisions

N5

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

M.P. 106 OF 1975 (P)
EX PARTE YONGOMAN TONGALE
THE QUEEN
V
ALFRED TONGALE
AND
IN THE MATTER OF THE INFANTS ACT 1956 AND OF AN APPLICATION BY YONGOMAN TONGALE FOR THE CUSTODY OF TWO INFANTS, KILI TONGALE AND JACKSON TONGALE.

Port Moresby

Prentice DCJ
30 September 1975
3 October 1975

PRENTICE DCJ: An argumentarisen over ther the custody of two young children of Alfred and Yongoman Tongale. The wife who has been separated from her husbince 13th September last, sought a writ of habeas corpus, in respect of the children, on Tuon Tuesday, 30th September; on which day I ordered a writ to issue to show cause why habeas corpus should not run.

On the return of this writ, the husband has very properly appeared and brought to Court the two children Kili and Jackson aged three years one month, and eleven months, respectively. As it is put by Halsbury (3 ed. Vol. 11 p. 24) of habeas corpus:

“the writ ... is a prerogative process for securing the liberty of the subject ... by affording an effective means of immediate release for unlawful or unjustifiable detention, whether in prison or private custody.”

In Papua New Guinea, short of what may be shown to be otherwise under the Native Customs Recognition Act (unless native custom is to be regarded as superseded by the Infants Act 1956), the situation as to custody of children is governed by s.6 of the Infants.Act. Thereunder, father and mother are jointly and severally entitled to the custody of their children. As Alfred is shown to be the father of the children concerned and prima facie entitled with his wife to their custody, the writ cannot run against him. Mr. White has been unable to cite me any authority to the contrary. I hereby order that the order nisi be vacated.

On the matter being called on this morning, I invited Mr. White for the wife, to make an application under the Infants Act for custody, and adjourned the hearing until 1.30 p.m. The application has now been made and I treat the matter as, by consent, one also in which the husband makes by way of cross-application an application on his part, for custody. I am advised that Matrimonial Causes Act proceedings are about to be launched and I am concerned whether I should make an interim order for custody to husband or wife; pending the hearing and decision on this application and cross-application.

The wife left the matrimonial home, as mentioned above, on 13th September, after what appears to have been a scene of disgraceful violence by her against her sick husband - if he is to be believed. She left, he says, leaving the child Jackson, also in a sick state, he being still breast-fed. The husband asserts he did nothing to prevent the wife having access but nevertheless she did not see the child again until the 18th when it was given her. The child was apparently able to be breast-fed between 18th and 27th September, but on these days only, the latter date being that on which it came back again to the husband’s control.

There appears to have been a degree of eccentricity in the wife, and violence exhibited by her to the husband - though not to the child. It is not said that she is an unnatural or immoral mother or a bad mother. Though the husband suggests that her habit of working from 8.30 a.m. to 9.30 p.m. two days a week was not in the children’s interest.

The husband retains possession of the matrimonial home, a three-bedroomed house, and there is a married woman available there to look after the children. The wife is at present living in a flat at the Y.W.C.A. where she is employed. It is not stated how she proposes to care for the children during the day. The husband contends that the children are happy and urges that their present custody should not be disturbed.

The mother speaks of her anxiety arising from the discovery in the three year old girl of a vaginal infection which might have been gonorrohea - it cannot be established before me one way or the other - in June. She speaks also of injury to the girl in some horse-play involving men friends of the husband who were occupying the house at a period last year and are doing so now. Her anxiety in these respects seems to assort ill with her conduct in leaving the house with the two young children in it in her husband’s control. The husband asserts that he re-took Jackson on the 27th, because he heard the child was ill at the Barracks with diarrhoea.

With the material put before me in untested form, I am of course unable to come to firm conclusions. But having regard to the matters mentioned above and to the female sex of the almost four years old child and to the tender age of the boy and that he is being breast-fed and that no case is made out for separating them; I consider that the children should as an interim measure, in their own interests be with the wife. It may be that material already exists to show why this should not be done (though it is not before me), and events may transpire that require the situation to be changed. That can be canvassed properly, if necessary, in due course. As mentioned, I understand that Matrimonial Causes proceedings if they prove to be a melancholy necessity, will be effected in a very few days.

I make an order that interim custody of Kili and Jackson Tongale be granted to Yongoman Tongale pending the finalisation of the application for custody. I order that reasonable access be granted to Alfred Tongale in respect of the children. I reserve liberty to either party to apply for a variation of the order on two days’ notice.

As normally the wife would have been ordered to pay the husband’s costs of the order nisi; and the husband the wife’s costs of the interim custody application, I think it appropriate in the circumstances that I make no order for costs in respect of the order nisi or the application for interim custody. I direct that any further proceedings in respect of the custody should if possible, be heard before another Judge.

Solicitors for the Applicant: White, Reitano & Young.

Counsel for the Applicant: N.A. White.

Solicitors for the Respondent: Ikenna Nwokolo & Co.

Counsel for the Respondent: I. Nwokolo.