Plant v Plant [1966] PGSC 5 (23 May 1966)

IN THE SUPREME COURT
OF THE TERRITORY OF
PAPUA AND NEW GUINEA

PLANT v. PLANT

Coram: Minogue J.

1966
May 23

Port Moresby

Application has been made before me by the Petititoner for a number of interlocutory orders in these proceedings. During the course of arguments a number of matters have resolved themselves and I do not think I need to set out in detail reasons for or observations on the orders I am about to make. However, I think I should make three comments.

Firstly, the Respondent has not chosen to put any material before me, either on affidavit or by way of testimony to assist his opposition to the Petitioner's application, or what is more important, to assist me to decide what is in the best interests of the children, the subject matter of the custody, and he can hardly be heard to complete of whatever I decide.

Secondly, it has become apparent to me that the Petition should be disposed of by this Court as soon as possible and there seems no reason why it should not be brought to trial in July next. Accordingly, I have discussed this matter with my brother Frost, who will be sitting in Port Moresby in July, he has informed me that he is prepared to hear the matter on the 4th of that month.

Thirdly, I am not making any findings as to the conduct of the parties generally, nor do I presume to judge what the welfare of the three children of this marriage demands in the way of ultimate custody. I am acting on the assumption that this case will come to trial in July and the Petitioner will be able to live in Goroka pending the trial.

The child Sally is now at school at Ascham, Sydney, and I am satisfied that she should not be taken from there. Indeed, Mr. White for the Respondent, agreed that she should remain there.

The two younger children are with their father in the former matrimonial home at Banz. Although I do not express approval of the way in which he removed them there, I think it unwise at this stage to take them away from the school which they are at present attending. I feel that their welfare demands the least possible disturbance until final orders are made.

Accordingly, I order that the Petitioner have custody, pending suit, of the child Sally and the Respondent have custody, pending suit, of the children Christopher and Susan. At the same time I propose to make provision for as liberal access as the circumstances allow. This I may say is still causing me some difficulty because of the variance in the school holidays of Sally and the other two children.

Let me deal with Sally first and I will allow you gentlemen to make any further submissions which you consider fit. I think Sally should be brought here for the school holidays and that she should go to her mother at Goroka on arrival and remain there for half the holidays. That would mean that she should remain with her mother until say the 22^nd or 23^rd May. I leave that a little fluid because I am not quite certain of the difficulty or otherwise of making travel arrangements to have the child transferred. She should spend the balance of her holidays with her father. With regard to the two younger children, I think that they should go to the Petitioner, say in the first instance from the 13^th May and that they should remain with her until the day that Sally is to go to her father. By this I mean that the three children should go together to him.

As the younger children's school holidays begin on the 18th June, I think that the Petitioner should have further access for this period and they should be delivered to her at Goroka on either the 18th, 19th or 20th, whichever is a convenient date for the arrangement of transportation. It wall probably be desirable that they should be available in Port Moresby during the hearing of the Petition for custody, and it seems to me convenient that they should remain with the Petitioner until this time and be brought down to Port Moresby with her when she comes at the end of June. Sally, of course, should be returned to her school on whatever is the appropriate day at the end of her school holidays.

Accordingly, I order that the Respondent arrange for the child Sally to be brought to Goroka on the 13th May of this year, and that she remains there with the Petitioner until such time as the Respondent is able to arrange her transportation to Banz, on either the 22^nd or 23^rd May. I further order that the Respondent arrange to deliver the children Christopher and Susan to the Petitioner at the home of Mr. and Mrs. Matus at Goroka on the 13^th of May, and that the Petitioner have access to these children at such home until the Respondent is able to arrange their return to Banz on the 22^nd or 23rd of that month. I further order that the Respondent arrange to deliver the children Christopher and Susan to the Petitioner at Goroka on the 18^th, 19^th, or 20^th June whichever is the more convenient date, and that they remain in the care of the Petitioner until the hearing of this suit or until further order.

Now with regard to maintenance, I begin by saying that in my opinion the Petitioner should have an amount of $30 per week, which will as far as I can guess, allow her to pay a reasonable amount for board to the people with whom she will be staying and allow her something for her personal expenditure. This payment will date from the date of the application – 6^th April, 1966.

During the period that the children are with her I think sane further payment should be made. For the period from the 13^th May until the 22nd May the total payment should be at the rate of $40 per week and from the 18th June until the hearing, it should be at the rate of $36 per week. I am not suggesting that this is a generous payment, but in the circumstances it seems to me to be adequate. I suppose the simplest way of making payment would be for the Respondent to forward cheques to the Petitioner at Goroka.

It seems to me that the Respondent should repay to the Petitioner the amount which the has already paid for the final term school fees of lsst year - $155.10.3, and that he should pay the first term's fees for this year when the account is received, together with any further school fees incurred up to the time of a final order being made in respect of Sally.

Accordingly I order that the Respondent pay to the Petitioner, within 7 days, the sum of $431,2c, which comprises the amount of the school fees to which I have already referred and 4 weeks' maintenance up to and including the 4th May. I further order that the Respondent pay to the Petitioner the sum of $30 per week, the first such payment to be made on the 11th day of May and such payments to continue until further order. I further order that during such time as the three children are with the petitioner in this month of May, the Respondent shall pay to the Petitioner an additional sum at the rate of $10 per week and during such time as the two younger children are with the Petitioner in the months of June and July, he shall pay to her a further weekly sum at the rate of $6 per weak. I do not think that I need any specific order for the payment of the children's fares involved, both in Sally's coming from and returning to Australia and their movements between Banz and Goroka. It is, I think, implicit in what I have said that these should be borne by the Respondent.

I do not propose to make any order in respect of the applications for injunctions, nor of the application for the payment of fares to Sydney. That leaves the two difficult matters of costs.

Giving it the best consideration I can I order payment by the Respondent to the Solicitor for the petitioner of $600 for preliminary costs of suit, such sum to be paid as to $300 within 14 days and as to the other $300 within 28 days.

That leaves only now the final matter of costs of this application.

I think it was reasonable for Counsel to appear upon this case and I would allow Counsel's fees.

I order that the Respondent pay to the Petitioner's solicitor the costs of this application which have been agreed upon as $545.

I reserve liberty to either party to apply with regard to the question of custody and maintenance, pending the hearing of the petition I think I should say on 4 days' notice to the other side.