Tickell v Rothmaier [2013] PGNC 151; N5337 (22 August 2013)

N5337

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 924 OF 2011

BETWEEN

MARK TICKELL
Plaintiff

AND

CHRISTINE ROTHMAIER
Defendant

Kimbe: Makail, J
2013: 20th & 22nd August

FAMILY LAW – Custody of child – Child born out of marriage – Parents separated – 50 % custody of – Right of access – Welfare of child – Paramount consideration – Conduct of parents – Wishes of each parent – Infants Act, Ch 278 – ss. 3 & 4.

Cases cited:

Manickam Nadesalingam -v- Alima Nadesalingam and Paul Solien (1998) N1754

Counsel:

Ms J Waiwai, for Plaintiff
Mr E Paisat, for Defendant

JUDGMENT
22nd August, 2013

1. MAKAIL, J: The plaintiff seeks equal custody and access of an infant female child of age 4 years. The plaintiff and the defendant are the parents of the child. They are married, having solemnised it on 20th August 2008, two days before she was born. She turns 5 years today. Being of mixed parentage, she has two passports; one for Papua New Guinea and the other for Australia.

2. The plaintiff is an Australian citizen and works in Papua New Guinea on a work permit. He was born in Bulolo and grew up Papua New Guinea. He is the General Manager of Pacific Development Corporation Limited, a company engaged in milling and shipping businesses in Kimbe. The defendant works with Travel Cars in Kimbe. In 2011, the plaintiff and the defendant separated. The plaintiff has entered into another relationship with an Australian woman. The child is presently living with the defendant.

3. The plaintiff alleges that the defendant has denied him equal access of the child. He now wants the Court to give him equal custody and access of the child. He says he is a responsible father and wants to raise the child. He has and continues to provide financial support to the child such as paying her school fees, medical expenses and weekly allowance. But he believes that this is not sufficient. Although the defendant allows him access, it is not sufficient and reasonable. He is only allowed access of the child during the weekends and public holidays where he is able to take her with him to his house and even Australia.

4. He says that he is capable of taking care of the child because he is financially sound, has a new relationship and his new partner is happy to take care of the child and has a house where the child can live and go to school. Out of the new relationship, he has an infant son and suggests that it would be in the interest of the child to live him so that she would be able to grown up with her half-brother.

5. In addition, he has raised two sons from his first marriage on his own. Both sons are now grown up. Both are in Australia, one seeking employment and the other attending University. While living with the defendant, he has supported financially not only the defendant and their child, but also the daughter of the defendant from her previous marriage. He has paid for all the bills including food for them. He also says that the place where the defendant and his daughter are residing is not conducive because it is a hotel type accommodation with limited space and surroundings. This is not an ideal place to raise the child.

6. The defendant does not dispute or deny most of the assertions of the plaintiff. Her concern is that she and the child have a weekly daily routine where they wake up early each morning, have breakfast and go to work and school respectively. In the afternoon, they come home and have dinner and by bed-time, the child goes to sleep. If the plaintiff is allowed access during the week days and takes the child to his place, it would disrupt this routine and this would be adverse to her. Further, the defendant says that she is not sure if the plaintiff will provide the same care as she does to the child. She is not sure if the child will follow the same routine if she stays with the plaintiff.

7. Equally important, she is not sure if the plaintiff's new partner will take care of the child. She has these concerns because she says that the plaintiff can be physically violent and abusive at times, especially when drank or under the influence of drugs. There had been cases where the plaintiff was physically violent and abusive, one such case was when he assaulted her and threatened to throw her over the balcony of their house. Finally, she says that the plaintiff is a very busy man and most of the time, travels around for work related reasons and has no time for the children.

8. The law in s. 3 of the Infants Act, Ch 278 states that the father and mother of an infant are jointly and severally entitled to the custody of the infant. But this law is subject to s. 4 and this provision gives the Court power to make such orders having regard to three important matters. They are:

8.1. the welfare of the infant;

8.2. the conduct of the parents; and

8.3. the wishes of each parent.

9. The Court has given the welfare of the child paramount consideration. It is of utmost importance in a custody battle. In other words, the wishes of the parents are secondary to the welfare of the child and the Court's mind is focused on whether or not the parent who is awarded the custody of the child will be able to ensure that the interests of the child is upheld at all times. I quote this statement from the late Justice Jalina to emphasise the importance of the welfare of the child in the case of Manickam Nadesalingam -v- Alima Nadesalingam and Paul Solien (1998) N1754:

The basic principles governing custody applications namely, the welfare of the child being the paramount or primary consideration are well settled in this country. A number of judges have pointed out various factors that apply when considering the "welfare" or "best interest" of the child.

In Tongole -v- Tongole (Narakobi, AJ N256, 9 September 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. The parents conduct in so far 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.

"the child's welfare can notes a process in which all relevant facts, relationship, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interests of the child's welfare as that term has now been understood".

There have been other cases in this jurisdiction where the above principles have been applied. These include Bean -v- Bean [1980] PNGLR 307, WP -v- DP [1982] PNGLR 1, RG -v- MG [1984] PNGLR 413 and Susan Tom -v- Mazian Kayiak [1992] PNGLR 171. These principles are best summarised by Los, J in Susan Tom -v- Mazion Kayrak (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."

10. In submissions, each counsel re-affirmed the position taken by each party. The plaintiff wants 50% custody including unhindered and reasonable access and the defendant maintaining the current access arrangement where the plaintiff will continue to have access of the child during weekends and public holidays. Counsel for the defendant also stressed that as the child is an infant, there is the "mother factor" that leans strong support to the defendant as the mother to have custody of the child and the Court should accede to her request for custody.

11. I have no doubt in my mind that the plaintiff knows exactly where his responsibilities lie in so far as his children are concerned. First, he has and continues to support all of them including this child financially, something that is appreciated and I am sure the defendant does too. Most often, men shy away from this responsibility. Secondly, he wants to be close as possible to his daughter on a daily basis so that he could provide that moral support to her. His desire is to see her excel in school and ultimately have a successful career in life.

12. But he also has extra responsibilities. He has other children to look after. He also has a new partner and a son to look after. He is a busy man. He travels regularly. Then, there is the allegation by the defendant that he can be violent and abusive at times. In his affidavit that was tendered (exhibit "D1"), he does not deny this and so I must find that it is the case.

13. On the other hand, while I accept that the accommodation may be too small for the child to grow up in, there is no evidence that it is unsafe. Apart from a baby- sitter and helper, there are only two people living in it; the defendant and his daughter. To me, this is sufficient and equally, she is with the mother. There is no dispute that she is well cared for by the defendant. I accept the defendant's concern that having a shared custody will disrupt the daily routine that is in place between her and the daughter. To me, this is a very important aspect of her welfare. There must be stability and order in the house for her to grow well. Additionally, there are no issues as to the defendant's capacity and ability to care and raise the daughter.

14. I also accept that since the child is still an infant, the "mother factor" is critical in her growth. In my view, she has and would have that moral and motherly love and support from the defendant. There is some evidence of the financial costs the plaintiff has and is spending on the daughter, and to me, this is a sign of acceptance of responsibility in supporting the daughter financially. This must continue.

15. For these reasons, I am not satisfied that the plaintiff is entitled to equal custody of his daughter. This means the defendant will have custody of the daughter but he has right of access and is entitled to reasonable access. His views and that of the defendant have been noted and taken into account. The proposed orders for access are in these terms:

15.1. The plaintiff may visit and/or take the child out with him at 7:00 am on Saturday and return her to the defendant at 6:00 pm on Sunday of any weekends.

15.2. The plaintiff may visit and/or take the child out with him on gazetted Public Holidays and return her to the defendant at 6:00 pm on the day the gazetted Public Holiday ends.

15.3. The plaintiff may visit and/or take the child out with him between 5:00 pm and 7:00 pm on Wednesday of the week.

15.4. The visits are subject to the plaintiff giving one day prior notice either in writing or by telephone to the defendant and approved by the defendant.

15.5. The plaintiff may take the child with him out of the province or the country at any time subject to one day prior written approval with specific period of stay away and when the child would be returned to the defendant.

15.6. The child's passports shall be in the custody of the defendant.

16. Finally, each party shall bear their own cost of the proceedings.

________________________________________

M S Wagambie Lawyers: Lawyers for Plaintiff
Jackson Gah & Associates: Lawyers for Defendant