Anis v Anis [1977] PGNC 6; [1977] PNGLR 5 (21 January 1977)

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INFANTS AND CHILDREN - Custody - Female child of tender years - Customary law - Relevant considerations - Infants Act 1956 s. 7[ii]¹.

On an application under the provisions of the Infants Act 1956 by the mother of a female child then aged 7 years for an order that she be granted custody of that child, it appeared that on the breakdown of the marriage in 1973, the respondent father took with him two of the four children of the marriage, one of whom was subsequently returned to the custody of the mother; that the female child was residing with the respondent father, his present wife and their two children; that the applicant mother was a school teacher with security of employment with a three bedroom house; that the respondent father had a history of numerous changes in occupation, was currently unemployed, and was substantially in default under maintenance orders made in respect of the three other children. The only evidence of any relevant customary law was that under the custom of the mother’s people, in the circumstances surrounding the case, the father would be entitled to the custody of one of the children of the marriage provided that he had paid the full bride price upon marriage, (which had not been done).

N1>(1) The direction in s. 7 of the Infants Act 1956, to the Court to have regard to the welfare of the infant, the conduct of the parents and the wishes of each parent, is to be taken as meaning that the welfare of the infant is a very important consideration to be taken into account along with the other matters.

N1>(2) The applicant mother not having been shown to be in any way disqualified from having the custody of young children, (bearing in mind the proposition that as a general rule small children, particularly female children, will be better looked after by their mother than their father), the future welfare and upbringing of the child would be more secure if custody was awarded to the mother.

N1>(3) The Constitution of the Independent State of Papua New Guinea requiring that regard be had to any customary law which might affect the position, the father could in the circumstances, gain no assistance from any relevant customary law.

N1>(4) Custody of the child should be granted to the mother with the father to have access.

This was an application under the provisions of the Infants Act 1956, by the mother of an infant child for an order that she be granted custody of that child.

WILLIAMS J: This is an application under the provisions of the Infants Act 1956, as amended, by the mother of an infant child for an order that she be granted the custody of that child.

The applicant mother and the father of the child were, in 1965, parties to a customary marriage. They continued living together as husband and wife until the year 1973.

There are four children of the union, namely, Andrew born on the 7th February, 1966, Charles born on the 25th September, 1968, Rosemary born on the 11th December, 1969 and Clara born on the 4th August, 1971. This proceeding is concerned only with the child Rosemary.

During the year 1973 the parties separated. According to the evidence of the applicant this took place in June, 1973 and according to the evidence of the respondent it was in September, 1973. I do not think that anything turns on this discrepancy in dates. It appears that when the separation occurred the respondent took with him the children Charles and Rosemary. The applicant regained custody of the child Charles but Rosemary has continued to live with the respondent since the date of separation.

In December, 1974 the applicant commenced proceedings in the District Court at Wewak for maintenance for herself and the four children of the union and on the 8th April, 1975 the District Court ordered the respondent to pay the sum of K11.00 per fortnight for the maintenance of the applicant and for the children Charles, Andrew and Clara. At the same time the District Court ordered that the child Rosemary remain with the respondent until the question of her custody was determined in the National Court. The respondent has made no payments pursuant to the order for maintenance since April, 1976.

The applicant was married prior to her marriage with the respondent. There was one child of her first marriage, a girl, who is now residing with the applicant. The applicant comes from the East Sepik province where she has apparently lived most of her life. Her mother and father and close family are also from the East Sepik area.

The respondent’s mother comes from Kavieng and his father from Vanimo. He was born in Kavieng. He lived as a young boy in Vanimo and went to Wewak in about 1954 and attended High School there until 1958 obtaining standard IX. He was married prior to his marriage with the applicant and there are three children of that marriage. They are apparently living with their mother who has re-married and are not being maintained by the respondent. Subsequent to the break-up of his marriage with the applicant he married again, which marriage is still subsisting. There are two young children of his present marriage. They, together with Rosemary, are living with the respondent and his present wife.

On leaving school the respondent joined the Posts and Telegraphs Department as a postal assistant and worked in that capacity in Wewak for about ten years. In 1968 he left this employment and obtained employment with the South Pacific Brewery who, at that time, started a depot in Wewak. Asked why he left his employment with the Posts and Telegraphs Department he said it was because of trouble with his wife, the applicant, the nature of the trouble being that she was accusing him of “going round with young girls and drinking too much”. He also said that he was interested in obtaining a job with the brewery. He remained in the employment of the South Pacific Brewery until about the middle of 1972. Whilst employed by the brewery he was sent to Lae and Port Moresby on courses. In 1972 he was transferred by the brewery to Kieta. He said that whilst in Kieta he received some information concerning his wife which caused him to obtain a fortnight’s leave and go back to Wewak. His object was to collect his wife and children and take them back to reside in Kieta with him. The applicant, however, refused to leave Wewak and to go to Kieta with him. He then resumed employment with the brewery in Wewak for a short time. After finishing with the brewery in the middle of 1972 he obtained a position with a bakery in Wewak and held that position until the end of 1972. It then appears that from the beginning of 1973 until about August 1973 he was not employed. In August, 1973 he obtained a position with Wewak Coastal Shipping Agencies. He held this position for a time and then obtained employment as an Assistant Manager at the Vanimo Hotel. He left this position after, according to his evidence, an argument with the Manager over payment of wages to labourers. He returned to Wewak in about October, 1976. He then obtained a position with Wewak Stevedores on a part-time basis. This position, however, ceased to be available just before Christmas, 1976. At the time of the hearing the respondent was unemployed although he stated that he had prospects of obtaining employment again with Wewak Stevedores in mid January, 1977.

Upon the evidence there was matrimonial discord for several years preceding the eventual break-up of the marriage in 1973. It seems that the starting point lay in an incident which the respondent related in his evidence-in-chief. In 1970 whilst a member of the P.N.G.V.R. the respondent was acting as a barman at a social function given by that organization. At the conclusion of the function and whilst on his way home he said that he was accosted by a woman who was drunk. It also seems that the respondent himself was intoxicated. He and the woman proceeded by motor vehicle to his cousin’s house in Boram Road. His cousin, on seeing the woman, said that she was a married woman and that she should be taken home. The respondent and the woman returned to town where the respondent went to sleep outside the Council Chamber. He said he was awakened by the arrival of the applicant and members of her family and that a man with them pulled all his clothes off. This caused the respondent to feel considerable shame and culminated in an attempted suicide by him. He spent several weeks in hospital following this incident. He said that thereafter the applicant was continually reminding him of this incident which caused many bitter arguments.

These incidents, coupled with the respondent’s numerous changes in occupation, create in my mind a degree of doubt concerning his general stability. I must also say that I was not greatly impressed by his evidence. He appeared to me to have glib and facile explanations by which to put the most favourable light possible upon his conduct. Another relevant factor is that he is not supporting the children of his first marriage and is substantially in default in relation to the maintenance order made in respect of three of the children of his second marriage.

The applicant is a school teacher employed at St. Mary’s Community School on a salary of K91.00 per fortnight. She says that she has complete security in employment in this position. She is supplied by the Board of Management of the school with a three bedroom house which, on the description given, is a reasonably congenial residence. As to her general character I do not think that the evidence supports any finding adverse to her. Some vague imputation was made by the respondent and relates to the finding by him in a suitcase belonging to the applicant of two letters addressed to prominent national residents. Pressed to give particulars of the contents of these letters the respondent was unable to do so although he claimed they greatly upset him. In my view there is nothing in the evidence from which the slightest inference of impropriety with either of the gentlemen concerned could be drawn. Whilst it was apparent from her evidence that she had come to regard the respondent with considerable disfavour and reached a situation where she would entertain no compromise with him I find it impossible to say that her conduct has been such as to disqualify her from having the custody of young children. On the contrary I have formed the firm impression that she is a far more stable person than the respondent and that life with the applicant and her family would offer Rosemary far greater security and stability for the future. It would also mean that she would be living with ther own brothers and sister.

Section 7 of the Infants Act, under which this proceeding is brought, directs the Court to have regard to the welfare of the infant, the conduct of the parents and the wishes of each parent. As I stated in McLeary v. McLeary[iii]² the section sets out the three matters to be taken into account without expressly providing the degree of emphasis to be placed on any one of them. However, I reiterate what I said in McLeary v. McLeary[iv]³ that it seems to me that the welfare of the infant must be a very important consideration to be taken into account along with the other matters mentioned in the section.

Much has been said over the years in the authorities relating to statutory provisions similar to that presently under consideration of the so-called “preferred role” of the mother in cases of this kind, particularly when the custody of very young female children is concerned. As I did in McLeary v. McLeary[v]⁴ I adopt, with respect, the words of Latham C.J. in Lovell v. Lovell[vi]⁵ as follows:

“I am therefore of opinion that it is wrong to approach this case upon the basis that the welfare of the infant is the only consideration to be taken into account and that the conduct of the parents is immaterial, and that it is also a mistake to approach the case from the point of view that the mother is ‘entitled to custody’ in the case of a child of tender years and so has a right which is superior to that of the father and which prevails over any claim that he possesses. These propositions involve no challenge to the common sense of the proposition that as a general rule small children will be better looked after by their mother than by their father, particularly in the case of female children. But there is no rule of law to that effect. As was pointed out in Symington v. Symington ((1875) L.R. 2 Sc. & Div. 415, at p. 423), a case cited in the judgment of the Full Court, a mother might be shown to be disqualified from having the custody and care of young children, including girls.”

The applicant is the natural mother of Rosemary, a girl of tender years, and prima facie the principles expounded by Latham C.J. in Lovell v. Lovell [vii]⁶, to which I have just referred, apply to this case. I have already indicated that the applicant has not been shown to be a person in any way disqualified from having the custody of young children. In my view Rosemary’s future welfare and upbringing would be more secure if custody is awarded to the applicant.

A point was made by the respondent that the applicant who was employed full-time as a school teacher did not have the time to devote during her working hours to the care of Rosemary and that this was to be contrasted with the position where Rosemary is looked after by the respondent’s present wife who does not go to work. However, I am disposed to attach little weight to this proposition. It appears that Rosemary is to attend school at the commencement of the current school year in a few weeks’ time. It also appears that there is a place for her at the school at which the applicant is teaching.

I have already adverted to the relevant provisions of the Infants Act and the legal principles to which regard should be had when considering those provisions. However, I am also required by the Constitution to have regard to any customary law which may affect the position. There is very little evidence concerning any relevant customary law. Such as there is consists of the evidence of the applicant that under the custom of her people in the circumstances surrounding this case the respondent would be entitled to the custody of one of the children of the marriage provided that he had paid the full bride price upon his marriage to the applicant. Her evidence was that the bride price was £100 (Australian pounds then being the currency of Papua New Guinea) and that the respondent had paid only £80. I did not understand the respondent to contest this. In fact he said that he had not paid the full bride price as he had not been in a financial position to do so. It therefore seems that the respondent can gain no assistance from any relevant customary law.

In all the circumstances I award the custody of the child Rosemary to the applicant. It is, I think, desirable that Rosemary should not be cut off from contact with her father and I think that it is appropriate that he should be awarded access to the child. At the hearing counsel for the parties suggested that reasonable access would be on alternate weekends between the hours of 8 a.m. on Saturday and 5 p.m. on Sunday. I order that the respondent have access on this basis. I grant liberty to apply.

[ii]The effect of s. 7 is set out infra at p. 9.

[iii]Unreported Judgment 737 of 3rd May, 1973.

[iv]Unreported Judgment 737 of 3rd May, 1973.

[v]Unreported Judgment 737 of 3rd May, 1973.

[vi][1950] HCA 52; (1950) 81 C.L.R. 513 at p. 523.

[vii][1950] HCA 52; (1950) 81 C.L.R. 513 at p. 523.

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National Court of Papua New Guinea

Anis v Anis [1977] PGNC 6; [1977] PNGLR 5 (21 January 1977)

Papua New Guinea Law Reports - 1977