Unreported National Court Decisions
N1667
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS NO. 223 OF 1994
BETWEEN: V.Z.
PLAINTIFF
AND: J.K.
DEFENDANT
Waigani
Injia J
27-28 September 1994
24 October 1994
31 October 1994
INFANTS AND CHILDREN - Custody - Illegitimate child - Welfare of the child is the paramount consideration - Infants Act (Ch. No. 278, S. 4).
On an application by the mother for custody of a male infant aged 2½ years old pursuant to the Infants Act (Ch. No. 278), the custody of the infant was granted to the mother.
Held
(1)      The paramount consideration was the welfare of the infant.
Bean -v- Bean [1990] PNGLR 307, RG -v- RG [1984] PNGLR 413, Susan Tom -v- Mazion Kayak [1992] PNGLR 171 followed.
(2)      The “mother factor” should not be given much weight where the infant aged 2½ years, albeit of tender years, was separated from the mother for 13 months and where there was no evidence the infant was still breast-feeding.
WP -v- DP [1982] PNGLR 1 distinguished.
Susan Tom -v- Mazion Kayak [1992] PNGLR 171 followed.
(3)      The father’s career plan for an infant of 2½ years to become a human anatomist and early exposure of infant to the real work of a human anatomist in the father’s home and at his workplace was inappropriate for the infant and not in the interest of the infant.
(4)      Where the father seized an infant of 10 months and had the infant separated from his mother for 13 months and deprived the mother of the opportunity to raise the infant, the father cannot be allowed to claim any credit for the fact that he alone looked after the child.
Cases Cited
Bean -v- Bean [1980] PNGLR 307
WP -v- DP [1982] PNGLR 1
Susan tom -v- Mazion Kayak [1992] PNGLR 171
Counsel
Dr. Nwokolo for the Plaintiff
Mr Sirigoi for the Defendant
Editorial Note
Although this judgment was delivered on 31 October 1994, this edited judgment is now circulated as a numbered judgment due to its reference in a subsequent case which are reported in the 1995 PNGLR and also due to its demand by lawyers.
31 October 1994
INJIA J: This is an application for custody of an illegitimate infant [referred to as TT] under Section 4 of the Infants Act (Ch. No. 278) as amended by the Infants (Clarification of Application) Act 1985.
The Plaintiff (referred to as VZ) is the natural mother of the male infant. The Defendant (referred to as JK) is the natural father of the infant. Both parents come from the Chimbu Province. The infant was born at Port Moresby on 27 April 1992. He is now about 2½ years old. He was born as a result of brief casual affair which the Plaintiff had with the Defendant between January 1991 and January 1992. As a result the infant is illegitimate.
There is not much dispute as to the circumstances of the brief relationship which preceded the conception of the infant. Some years back, the Plaintiff was a student at Goroka Nursing School in which the Defendant was then its Deputy Principal. In January 1991, she came to Port Moresby. She brought down her two children from her previous marriage. At that time she had been separated from her husband for seven (7) years. When she came to Port Moresby, she lived with relatives. She needed a job to earn an income to maintain herself and her two children. But she first needed a character reference. And so she went to the Defendant who was then working with the Medical Faculty of the University of PNG (UPNG) at Port Moresby as a human anatomist. Somehow, the parties got to know each other intimately. As a result the Plaintiff became pregnant. Upon learning this, both parents held discussions to terminate the pregnancy by performing abortion but later decided against it. When the infant was born, both parents accepted the child as their own. As subsequent events showed, both parents wanted the infant and their keen interest in the child has culminated in the Defendant at one stage taking the child away from his mother and the Plaintiff instituting these proceedings.
The infant’s whole life has been somewhat equally divided between the two parents. When the infant was born, the Defendant was not around. The Plaintiff had exclusive care and custody of the infant for up to four (4) months. She and the infant and her other 2 children lived with her relative, one Mark Gigmai, at June Valley. Upon learning of the birth of the infant, the Defendant came to visit the child occasionally. When the child was four months old, the Defendant joined the Plaintiff at Mark’s house. He lived with them from September 1992 to 27th June 1993, which is a period of ten (10) months. It is fair to say that in this period both parents had “joint” custody of the infant. As to the circumstances of their cohabitation at Mark’s house and the conduct of the parents towards each other and towards the children and towards Mark’s family in this period is in dispute. I will come to this disputed area later.
On 27th June 1993, the parties separated. the Defendant took the infant with him leaving behind the Plaintiff at Mark’s house. By this time, the child was only 14 months old. As to the circumstances and reasons for the separation and departure from Mark’s house is in dispute. I will come to this disputed area later.
From 27th June 1993 to 28th July 1994, the infant lived with the Defendant in his flat at Gordons initially and later in a flat at Korobosea, both of which were allocated to him by his employer. In this period, the Plaintiff never saw the child although she made several unsuccessful attempts to see the child only to be locked out by people in these flats. So the Defendant had exclusive care and custody of the infant for 13 months.
On 28th July 1994, the Plaintiff successfully applied for and obtained an order from this Court granting her interim custody of the child. The child has been with her since. In this period the Defendant made several attempts to see the child. As to the circumstances of those visits and the nature of the attention given by the Plaintiff to the infant since 28th July 1994 is also in dispute. I will come to this disputed area later.
The child was produced in Court for my observation. I observed the child to be a neatly dressed and healthy young boy who quickly recognised his father and boldly came to his father as he was giving evidence in Court. At the same time, the child manifested no signs of dislike or resistance of his mother upon seeing his father.
To a small child of such tender years, whether legitimate or illegitimate, he is naturally attached to both of his parents. It is in this spirit that the Infants Act. S. 3 says “the father and the mother of an infant are jointly and severally entitled to the custody of that infant”. No parent has any pre-supposed exclusive legal right to custody of the infant. The paramount consideration is always the welfare of the infant (which is also described as the best interest of the child) Infants Act, S. 4(1). This principle was first enunciated by the Supreme Court in Bean -v- Bean [1980] PNGLR 307 and consistently applied in subsequent cases including WP -v- DP [1982] PNGLR 1, RG -v- MG [1984] PNGLR 413 and Susan Tom -v- Mazion Kayiak [1992] PNGLR 171. For a summary of the principles, I adopt the summary of Los, J in Susan Tom -v- Mazion Kayiak (at p. 172-173):
The law is settled in the country that in any custody application the paramount consideration is the best interests of the children. In RG -v- MG [1984] PNGLR 413 the relevant matters for consideration were listed as:
(a)      The claim of the mother and what is often referred to as her preferred role; WP -v- DP [1982] PNGLR 1;
(b)      The relative circumstances in which it is intended to raise the child;
(c)      The ability to provide for the child’s advancement in life;
(d)      The age of the child; and
(e)      Provision for the maintenance of existing relationship.
In 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 evidence for the Plaintiff in this application consists of an affidavit filed by the Plaintiff. She was cross examined on it. She did not call any other witnesses such as Mr & Mrs Mark Gigmai with whom she is residing with. She also produced a Child Welfare Report dated 26 September 1994 compiled by the Child Welfare Officer Mr Noel Moksen at the initiative and request of the Plaintiff.
The Defendant’s evidence consists of sworn oral evidence. he was cross examined on it. He also filed an affidavit sworn on 21st July 1994 but it was not specifically relied upon by the Defendant. Therefore, I will confine my deliberations to his oral evidence on oath (which is substantially the same as what is in the affidavit).
Both parties were given an opportunity to view the Child Welfare Report and address me on it. The Plaintiff made submissions on it. The Defendant objected to the use of the Child Welfare Report on several grounds. They include: (1) The Report was prepared at the request of the Plaintiff, and not the Court and as such, it is a very subjective report. (2) It contains conclusions and recommendations which favours the Plaintiff and such conclusions are not based on facts. (3) The qualifications of the author of the Report is not disclosed. (4) The report should have been tendered through its author who should have given evidence on oath. Failure to do so has deprived the Defendant the opportunity to test his findings and recommendations.
In custody cases, reports or evidence from Child Welfare Officers may be helpful to the Court in understanding and appreciating the relative circumstances in which the child is being reared or proposed to be reared. It is within the Court’s discretion to call expert evidence from such people to assist it. In the instant case, the Plaintiff took the initiative to engage the Child Welfare Officer to visit her home and prepare a report for this Court. I accepted the report which was handed up to me by the Plaintiff’s lawyer during submissions. With due respect, I agree with Mr Sirigoi’s submission that the report is a very subjective one and most importantly it contains biased conclusions and recommendations which clearly favours the mother to a certain extent. It is not an objective report. This is clearly reflected in his recommendations where he says:
“... Since the marriage is only a defacto relationship and is not successful, it would mean that the natural mother posses all the rights to claim custody of the child allowing access to the natural father if the court allows. I have been notified that there was an order already made for the child’s custody which was awarded to the natural mother, could reference be also made to that order. After all the general condition of the child does not pose any risk of health and hygienic in the house.
The use of the house and other things should not be the concern of the child to be removed but the natural and legal right of the natural mother to keep the child.”
For this reason, whilst admitting other parts of the report, I reject all the biased conclusions and recommendations contained in the report including those set out above. The remaining parts of the report which are admitted are matters which are not in dispute and I believe they will assist the Court in understanding and appreciating the home environment in which the infant is being accommodated at the present time and possibly in the future if custody is given to the Plaintiff. The parts admitted are:
“HOME VISIT REPORT OF V.Z. - CHILD CUSTODY
The Home Visit was conducted on the 26th of September, 1994 at 10.00 am. Miss V.Z. is a Nursing Sister at Port Moresby General Hospital and resides with her brother Mark Gigmai at Tokarara - June Valley. The child in subject is also residing with the natural mother at that same residence. During the time of visit the child was at the residence and was playing.
“ACCOMMODATION
The house is made of permanent materials and is equipped with lightings. There are two bedrooms and a living room and the head of the household and wife have two children of their own. Their eldest daughter is doing grade eight (8) while the younger child is in grade two. I also interviewed the owner of the house, who is self employed. He runs his snooker table workshop and that is their main source of income. In the house there (are) altogether six people living in it and three of them are adults. However, the house is more of a low cost style. The water comes from the main water supply. The toilet is shared with the next door neighbours which is septic bowl and is in the house.
“THE CHILD’S CONDITION
The child in subject is looking healthy and was playing around the house during the visit. The child is very healthy and does not look sick. The child spends most of his time with the uncle and aunty.
“The natural father once had been accommodated by Mark Gigmai the owner of the house before he moved out. Since then the said V.Z. and child are at the moment being accommodated by Mark Gigmai the brother.”
In examining the evidence as it relates to each of the considerations pertinent to the welfare of the child, I wish to do it in the order set out by McDermott, J in RG -v- MG, supra.
1. THE CLAIM OF THE MOTHER
The infant is now 2½ years old. He has been separated from his mother for 13 months. There is no evidence that he is still breast-feeding now. I think it is unlikely that he is. He would have developed a sense of independence in that period. Hence, the natural bond and affiliation which normally attaches between a mother and a child of tender years would have diminished.
The case of WP -v- DP which Dr. Nwokolo cited may be distinguished from the present case. In WP -v- DP, the mother factor was given much weight because they were daughters of the Plaintiff mother. As Andrew, J. said (at p. 3):
“In the circumstances of this case, I think that it (the mother factor) is relevant that both children are female and that one is aged only six, and the other is aged ten, and consequently nearing adolescence. To my mind, they are greatly in need of a mother’s care and the special relationship between mother and daughter of that age.”
In this case, I consider that the “mother factor” does not deserve any real weight. First the infant is a male. Secondly, he has been separated from the mother for 13 months of his 2½ years. Thirdly, there is no evidence that he is still breast-feeding now. It is unlikely he is, having been kept away from Plaintiff for 13 months: see Susan Tom -v- Mazion Kayak [1992] PNGLR 171 at p. 173.
2. THE RELATIVE CIRCUMSTANCES IN WHICH IT IS INTENDED TO RAISE THE INFANT
Under this category, matters such as the infant’s accommodation, health, comfort, moral, intellectual and spiritual welfare, wise discipline, security and stability are relevant.
In relation to accommodation, it appears that the Plaintiff has maintained a steady accommodation at Mark Gigmai’s house since coming to Port Moresby. There is evidence that she may have spent nights in other places for a short duration such as at Tokarara, Nine Mile and 4 Mile but her primary and permanent place of residence has always been at Mark’s house. Mark is a close relative of the Plaintiff.
The Defendant also claims Mark is a close relative of his. I accept this to be so. Mark accommodated the Defendant in his house for some 10 months after the infant was born, without any difficulty. When the Defendant left Mark’s house with the infant on 27/06/93, the Plaintiff stayed on. She is now still living there with the infant. Given the shortage of houses in Port Moresby and given the fact that the Plaintiff lacked the usual support of a husband, finding a house in Port Moresby on her own would no doubt have been a difficult task. She chose to stay with Mark and Mark in turn found it feasible to accommodate her with her 2 children initially, then later with the infant, and still later with the Defendant. To my mind, the Plaintiff did what many other Papua New Guineans do in Port Moresby - staying with relatives - and there appears to be stability and security in Mark’s house.
From the Defendant’s position, he occupies a flat at Korobosea allocated to him by his employer. It is a high covenant flat with 2 bedrooms upstairs and a dining room and living room downstairs. Prior to moving into this flat, he lived in a similar flat at Gordons which was also allocated to him by his employer. In that sense the Defendant is in a more advantageous position than the Plaintiff. But then he also has a history of changing accommodation such as the 10 months he lived at Mark’s house. Then there is no evidence as to the future duration of his present accommodation arrangements with his employer.
In Mark’s house, there is a total of six people living in his house including the Plaintiff and the infant. Mark himself has two children. It is a two bedroom house. The Defendant is living with his wife and 2 children in his house. In my view, both houses are not that crowded so as to pose any difficulty for the infant, where-ever he may stay.
In relation to the home environment, both parties have not called any witnesses to support their story that the infant, with or without the parents, would be welcome in as long as the interests of the infant demanded. Mark and his wife have not been called by the Plaintiff. The Defendant has not called his wife either. In the absence of their evidence, I must do the best of postulations in order to arrive at some reasonable conclusions.
The Defendant in his evidence said that he left Mark’s house with the infant on 27/06/93 because Mark told them to leave the house as a result of the Plaintiff’s childrens’ misbehaviour towards Mark’s children. He infers that Mark and his wife will not be receptive towards the Plaintiff and the infant. The Plaintiff in her evidence on oath and also in her affidavit denied this and said the Defendant secretly arranged to take the child away and told her to come with him which she couldn’t. In my view, the conduct of Mark and no doubt his wife throughout since 1991 in accommodating the Plaintiff with her three children is consistent with the conduct of a caring couple who are genuinely concerned and interested in the long-term welfare and security of the Plaintiff and her children. In relation to this particular infant, he is the offspring of their common relative in the Plaintiff and the Defendant and as such they should have more reason to be concerned. I find it difficult to accept how Mark and his wife would chase out the Plaintiff and her children and the Defendant, then take back the Plaintiff plus her 2 other children (minus the infant and the Defendant) and still later this year, accept the Plaintiff and the infant. Therefore, I accept the Plaintiff’s story about the circumstances as to how the Defendant departed from Mark’s house with the infant.
In relation to the Defendant’s home environment, the wife of the Defendant is a key factor. It is a notorious cultural phenomenon that a Papua New Guinean lawful wife will resent the instrusion into their family life by other women who have affairs with her husband. The mere fact of the birth of illegitimate children in this affair gives rise to additional resentment. On 27/06/93, the Defendant introduced the infant to his home. What was her attitude towards the infant initially and in the 13 months period? What is her attitude to the Defendant’s proposal now? I would have preferred to hear from the Defendant’s wife on these matters. On the contrary, Mark and his wife have no such cultural obstacles to overcome.
In the house itself, Mark’s house is an ordinary Papua New Guinean town house. The Plaintiff is a nursing aid. She does not profess to making any special arrangements in the house of any sort to suit the child. She has no plans for the child’s future. On the contrary, the Defendant has planned for the infant to become a doctor - a human anatomist - like himself.
The house is full of human skulls, the bones of various parts of the human body such as arms, legs, backbones. He says the child has already got used to them. The child follows him to his place of work and assists him in cutting up human bodies, human muscles, brain and various other parts of the human body. He says this early exposure is necessary to get the child used to the profession at an early age.
Whilst the Defendant ought to be commended for his initiative in this respect, nevertheless, I do not think the infant needs that kind of environment and experience. The job of a human anatomist is a highly specialised and technical job and a child of 2 years would have no clue about what he is being exposed to. It is also a frightening thing and once the child grows up to know what he is being exposed to and learning, he no doubt will not be fond of it. I do not think the child should ever be exposed to this frightening kind of practice at an early stage of his development and in the future years ahead. It is also unrealistic for a parent to constructively plan for the future of a 2½ year old boy in this way. I think the mother is being reasonable in offering no career plans for the child at this stage. What the child needs now is a stable home environment and close attention to teach him how to talk, play and eat well; not technical or scientific education and practical training. What he needs as he grows up is all these things plus good moral education and discipline.
In respect of moral discipline, the Defendant is a Catholic. There is no evidence of which church the Plaintiff belongs to. I think she must belong to one of the Christian Church denominations - PNG being a Christian country. Neither party has given any evidence on this aspect. Nevertheless, I presume they are equally placed to provide such moral discipline as it is their natural duty to do so.
3. THE STABILITY OF THE PARTIES TO PROVIDE CHILD’S ADVANCEMENT IN LIFE:
The infant needs economically stable parents. Both parents are employed in different capacities in the medical profession. Of the two, the Defendant is more senior than the Plaintiff. The Defendant is also a specialist in human anatomy whereas the Plaintiff is only a nursing aid. The Defendant earns K315.00 per fortnight whereas there is no evidence of the Plaintiff’s exact income. The Defendant’s working life in the medical profession in government spreads over 30 years whilst the Plaintiff’s period of employment I presume is not that long. On the whole, the Defendant’s employment history is sound and stable. There is no evidence of the Plaintiff’s employment in Goroka but her employment in Port Moresby goes back to couple of years. However, the fact is that she is in good hands with the government and unless her employment is terminated somehow, there is nothing to suggest that her present employment is insecure.
She has also proven ability to provide for the infant’s economic welfare needs by taking care of her two children from her previous real husband. She has been separated from her husband for a total of 10 years now, almost 4 years which she has lived in Port Moresby with the children. She has managed to look after her two children without her husband. Her first child is now attending De La Salle High School in Port Moresby and her second child attending Community School at Nine Mile. From this I infer that she has sufficient means to look after them in the absence of the support, if any, from her husband. And so the imbalance between the parents in respect of job security and economic independence and financial ability to look after the infant is cured by the existence of the Plaintiff’s proven ability in these areas.
The child’s medical intellectual development is also important. The Defendant’s three children are in school. So are the Plaintiff’s 2 other children. The Plaintiff has not shown any inability in attending to the children’s education with or without the help of other people. If she can raise her first two children and ensure they attain the best education by Papua New Guinea standards, I am sure she will do the same for this infant. The Defendant, given his superior education and work background, has not proposed any better education for the infant.
The infant’s medical welfare is also important. There is no dispute as to how the child was looked after by either party or by both prior to 27/07/94 (when interim custody was given to the Plaintiff). There is some evidence by the defendant, and denied by the Plaintiff, that the infant’s medical needs were not attended to during the period subsequent to 27/07/94. The Defendant says the infant was neglected and left behind at Mark’s house, he had sores and running nose and other illness. At one stage, he took the child to the General Hospital for treatment. These events occurred between 27/07/94 - 31/07/94. He says whilst the child was with him for 13 months, he never contacted any disease or illness. The Plaintiff denies this and says the Defendant came to the house when she was on duty apparently looking for evidence of neglect for purposes of these proceedings. In my view, the child appears to be a healthy child and well looked after at present. Both the Plaintiff and the Defendant are medical officers by profession and they ought to know the medical needs of the child and when he requires hospital treatment as compared to in-house treatment by the parent concerned. I do not think medical welfare is a crucial issue in this case.
4. THE AGE OF THE CHILD AND THE PROVISION FOR THE MAINTENANCE OF EXISTING RELATIONSHIP
The child is very young. He is incapable of creating and building permanent human relationship with anyone except his natural affiliation to the parents with whom he finds himself with. He may have come to know the Defendant and his family in the 13 months he was with them. But with change in circumstances, he can easily adjust his attitude to his new environment without hurting him. There is no evidence of any difficulties with adjustment to the Plaintiff since 27/07/94 when interim custody was given to her. If he has indeed built any firm relationship with any of the Defendant’s family members, there is no evidence of it. As the child grows older, the impact changes in circumstance will have in his behaviour, etc. will of course be greater. Only then will the issue of human relationship be of greater concern to this Court.
It is true that the infant has grown up whilst he was with the Defendant. But then, I have found that the Defendant took the child away without the Plaintiff’s consent and deprived the Plaintiff of her right to look after her breast-feeding infant. He was cruel to the infant in depriving him of his mother at that age. When she called at the Defendant’s house to see the child, she was locked out. It must have been a painful experience for her. There is no way she could have moved into the Defendant’s house with his wife and children living in the same house. Therefore, the Defendant cannot claim any credit for the fact that he alone looked after the child without the help of the Plaintiff.
5. THE CONDUCT OF THE PARENTS AND THE WISHES OF THE PARENTS
There is no evidence of the Plaintiff’s past bad character and her general lifestyle. On the Defendant’s part, there is some evidence in the Plaintiff’s affidavit of the Defendant’s conduct which the Defendant has not contested. Consequently, I take those facts to be uncontested facts. They are set out in paragraphs 12- 14 as follows:
12.     We were then accommodated by my cousin in a defacto relationship. When we were living with my cousin, the Defendant started taking alcohol and often he was so drunk that he quarrelled with me.
13.     This is what he did when he quarrelled with me:
(i)       He criticised me and my children, especially the two young boys from my previous marriage.
(ii)      He upset me and often physically assaulted me and pushed the two boys around when they tried to help defend me.
(iii)     He insultingly described my former husband and the two children by calling them names and it really hurt my two children when they heard the Defendant describing their father.
(iv)     He even criticised the very people accommodating all of us.
(v)      On several occasions threatened to kill me.
(vi)     He threatened me and physically took an axe and chased me out of the house. As a result, I sometimes spent the nights outside the house.
14.     After I could not stand his assaults and battery any longer, I made a complaint to the Port Moresby District Court where he was put on good behaviour bond for one year and warned that he would be sent to prison for 3 months if he laid hands on me again.
In respect of paragraph 14 above, the Defendant admits the existence of the order of the Port Moresby District Court. Such past conduct of the Defendant at least sheds some light on his future conduct. Such conduct is not good for the infant.
It is abundantly clear that both parents desperately want the infant. Their conduct so far is demonstrative of their strong wishes. But the conduct of the parents and their wishes are not significant considerations. It is the welfare of the child which is the paramount consideration. It is clear from my discussions of the various factors pertinent to the welfare of the child that the child’s best interest should be served by awarding custody of the infant to the mother. I also grant reasonable access to the Defendant, the terms of which are to be mutually agreed upon between the parties submitted to this Court for endorsement. I adopt this course in relation to access because the Defendant did not make any submissions as to access at the hearing.
Before I finish, there is one final matter which I wish to bring to the attention of the parties to this dispute. There is an endorsement on the Court file showing that on 30/9/94, whilst judgment on the matter was being deliberated upon by me, the Plaintiff requested to speak to me. However, no such conversation took place. This practice should not be repeated by any party. They should follow appropriate channels of communication which is through their respective lawyers in open Court.
The formal orders of the Court are:
1.       The custody of the male infant TT, born on 27 April 1992 is granted to the infant’s mother, Mrs V.Z.
2.       The infant’s father, J.K. is granted reasonable access on terms to be mutually agreed upon and endorsed by the Court or if not mutually agreed upon, to be decided by the Court.
3.       Each party is granted liberty to apply giving seven (7) days notice to the other party.
4.       Each party shall bear their own costs of these proceedings.
Lawyer for the Plaintiff: Ikenna’s Lawyers
Lawyer for the Defendant: Henao’s Lawyers