Gallen v Noan [1996] PGNC 4; N1420 (12 April 1996)

Unreported National Court Decisions

N1420

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 71 OF 1996
PATRICK GALLEN
V
NATCHEPON NOAN

Kavieng

Jalina J
1 April 1996
12 April 1996

INFANTS - Custody - Mother factor - mother factor only relevant when child is still sucking milk from the mothers breast.

INFANTS - Custody - Welfare of child is paramount consideration and demands assessment as to whether he would be better off with father or mother.

Cases Cited

Tongole v Tongole Unreported Decision No N256 of 9 September 1980

Bean v Bean [1980] PNGLR 307

Tom v Kayiak [1992] PNGLR 171

This application for custody was contested by the defendant.

Counsel

S Madana for Plaintiff

Defendant in Person

12 April 1996

JALINA J: This is an application pursuant to s. 4 (1) of the Infants Act Ch 278 (previously s. 7 (1) of the Infants Act 1956) by the father for the custody of tild Roland Patrick Gallen (“Roland”) born on 27 October, 1990.

S. 4 (1) (1) provides:

“On an application of the father or mother of an infant the Court may make such order as it thinks proper regarding the custody of the infant and the right of access of either parent having regard to:

(a) &#1he welfare of the infantnfant; and

(b) & The cone conduct of the parents; and

(c) ;&#16e wishes ches ch pa&#8pa&#822>

hild orn out of a casualasual rela relationstionship bhip between the parties herein. The The fats an Australiaralian by decent and the mother is digenapua uinean.nean.

Th

The mother has two other children from two different men while the father has a child from another indis Papua New Guinean woman.&man. Roland has been living with the father and his other child (Clarissa) since he was 18 months old and then continued living with his father and his father’s wife Elizabeth when she moved in about 3rd July, 1992. nuary6 the Welfare Offe Offe Officer in Kavieng ordered the stepmother (Elizabeth) that custody of Roland to be given to his grandmot#160; The mother who was living outside of Kavieng then returned to Kavieng and the disputespute got out of hand resulting in an application by the mother in the District Court for custody which was dismissed and then this application by the father to put the dispute as to Roland’s custody to rest.

The father has a home as well as a job with the Sugar Industry in Australia. He enrolled Roland at St #ita’s Convent School in Cairns prior to Roland returning to Kavieng in October 1995. Theer’s present wife wife Elizabeth has been looking after Roland since 1992 and has undertaken to take care of Roland and raim as her own child. This is sued by Elizabeth&beth’s own affidavit and the affe affidavit of John Nombe sworn on 15 March 1996.

The mother however does not have her two other children living with her. Her chi are living with otth other people and at the present time she lives and works with Securimax (Security Service) in Rabaul. Sheiving with a man in Ra&n Ra The nothing however by wayy way of evidence from thim this man as to whether he is prepared to take care of Roland and raise h his .

The basic principles governing custody aody applications namely, the welfare of thof the child being the paramount or primary consideration, are well settled in this jurisdiction. Dint judges in both the Nahe National Court and the Supreme Court have pointed out various factors that apply when considering the “welfare” of the child.

In Tongole v Tongoleokobi AJ N256 9 September 1ber 1980 unreported) said:

“The issue really is not what is just or fair to the parents, but rather what will be in the best interest of the children. arents conduct in so far afar as it bears on the welfare of the child is of course important to look at.”

His Honour went on to quote Lord McDermott in J v C [1969] UKHL 4; [1970] AC 668.

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 els, in turn, are fure fundamentally dependant on the existence of security, stability, wise discipline and genuine affection in the home... In every custody appion, won, when considering elfare of the children, the, the court must have regard to all these matters.”

The essence of the submission by Mr Madan the father is that it is in the best interest of the childchild that custody be granted to the father as the father has not only cared for Ronald since he was 18 months old but also that he is employed and as such he is in a better position to provide a secure and stable home. His presife Elizabeth has has not only undertaken to care for Roland as her own child but has in fact lived and cared for him since 1992.

The essence of the mother’s submission is that because she is the natural mother, she is entitled to custody. Sso says that her present sent husband is willing to look after Roland. She further says that shy only wants custody of the child until he reaches the age of 10 years at which time he could go to school in Australia. Pg hisinment of the age ofge of 10 he could go to school at the OLSH International School inol in Kavieng and for such education Rolanld live at Bagail Village with his grandparents. She also says Roland couldcould go t go to school in Rabaul if not for the continuous fall-out of volcanic ash.

On the material before me, I am inclined to reject the mother’s submission that s entitled to custody of thef the child because she is the natural mother. A natural mother is eed toed to custody of the child much the same as the natural father. Where the child is breast feeding the “mother factor” becomes an importansideration for the simple reason that a child of that age cage cannot survive without the mother. Whhe child is not breastinasting however, (as in this cais case) the “mother factor” is not a major factor. Other facmust be taken intn into accin determining the person to whom custody of the child shou should go. In Tom v Kayiak [1991] PNGLR 171 Los J said at 173:

8220;The mother factor can be a decisive factor in an awardaward of custody, like in WP v DP [1982] PNGLR 1, but I consider that if ishown that the mother is not in a best position then that fhat factor cannot take a paramount role.”

In the case before me, the factors that weigh against the mother are firstly that her two other children are not under her immediate care but are with other people. This hasoubt caused her moer motherly love and care for their immediate needs to diminish. She is also ubt becoming aing a stranger to them. With the volcanic ash prenenting Roland from living with her would no doubt result iand being placed in a similar situation to her other two children. Tther howeverwever will bell be living with Roland and attenhis immediate physical and and spiritual needs including his education.

I do not consider the proposal by the mother whereby d would live with her and gand go to school in Papua New Guinea until he is about 10 years old to be desirable and to be in the best interest of the child as he would most likely encounter difficulties in adjusting to a new environment both in school and with his father and his father’s relatives let alone his step mother Elizabeth in Australia after being separated for five (5) years.

There is also the “new man” in the mother’s life. It seems that they have bave begun living together recently in Rabaul. gard to the “new manw man” Kidu CJ said in Bean v Bean (Supra) at page 312:

#8220;The welfare of the child demands that assessment be m 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 haen given no opportpportunity to make any such assessment and I am not disposed to accept the judgment of the respondent on so important a matter.’”

Whilst the mother says that her present husband is also employed, there is nothing before me as to the salary he earns. is nothing before me as t as to whether he has been previously married and if so whether he has any children and whether he is required to pay maintenance for them as this may well affect theare of the child particularcularly if the step father is required to pay maintenance for his own children. There is also nothinore mere me as to his character. Unlike Elizabeth who has undertaken through her affidavit to raise Roland as her own chilere is no such undertaking from the mother’s present husband.

In all the circucircumstances of this case I consider it i best interest of the childchild Roland Patrick Gallen that custody be awarded to his father Patrick Joseph Gallen which I do now. In the absence of the father custody shall be given to Elizabeth Gallen to take Roland to Australia with the right of access to the mother Natchapon Noan.

The father shall ensure such access by sending Roland to his mother in Papua New Guinea for four (4) weeks during school holidays at the end of each year. Return airfares and moneys for Roland’s subsistance while in Papua New Guinea shall be provided by the father Patrick Joseph Gallen.

I order that each party shall pay his own co/p>

Lawyer for the Plaintiff: Madana Lawyers

Defe>Defendant in Person