Papua New Guinea Law Reports - 1984
[1984] PNGLR 413
N494
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
R.G.
V
M.G.
Waigani
McDermott J
14 August 1984
21 August 1984
26 November 1984
14 December 1984
INFANTS AND CHILDREN - Custody - Illegitimate child - Law applicable - Court to exercise powers as parens patriae - Common law inappropriate - Best interests of child paramount consideration - Other relevant considerations.
On an application for custody of an illegitimate female child aged three years by the mother.
Held
(1)      In the absence of any statutory or customary law covering the rights to custody of illegitimate children, and having regard to the inappropriateness of the common law principles to the circumstances of Papua New Guinea, the court should exercise its inherent jurisdiction as parens patriae.
Re Sannga (deceased) [1983] P.N.G.L.R. 142, considered.
(2)      On such an application the paramount consideration is the best interests of the child as to which the following matters may be relevant:
(a)      The claim of the mother and what is often referred to as her preferred role; W.P. v. D.P. [1982] P.N.G.L.R. 1, followed.
(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 relationships.
(3)      In the circumstances, custody should be granted to the mother with access to the father on alternate weekends.
Application for Custody
This was an application for custody of an illegitimate child.
Counsel
J. Shepherd, for the plaintiff.
Defendant appeared in person after 14 August 1984.
Cur. adv. vult.
14 December 1984
MCDERMOTT J.: This is the culmination of a protracted court action for the custody of E.G. a female born on 5 September 1981. Proceedings commenced on 8 September last year. The defendant, the father of the child, was on 23 September 1983, ordered to produce the child to the court. This order was not complied with when the defendant appeared on subsequent occasions: 17 October, 24 October and 21 November 1983. The child was brought before the court on 12 December 1983 and an interim custody order was made in favour of the father with access given to the mother, basically from 1700 hours each Friday until 1800 hours Saturday. The substantive action was by consent stood over until it came before me on 14 August 1984 when evidence was first taken. It was adjourned part heard and a further order was made to have the child produced to the court. The evidence concluded on 26 November 1984. The reasons for these proceedings and orders will emerge from the facts.
The plaintiff comes from Pere village Manus, the defendant from an island off Talasea West New Britain, which can only be reached by boat. It is not easy to get there. The parties met in Manus in 1979, were attracted and lived together first in Kieta then Port Moresby. In 1981 they went to the defendant’s home. At that time, the plaintiff was pregnant. They returned to Port Moresby. In 1982 they had to separate as there was no suitable accommodation and the plaintiff returned to her home for a period and later returned to Port Moresby. It is clear the relationship was then breaking down and the parties separated on 5 May 1983. The plaintiff walked out and subsequent efforts to get custody of the child failed. I note a marked reluctance of the defendant to recognise her right to custody.
The parties are not married pursuant to the Marriage Act (Ch. No. 280). In an affidavit sworn on 2 September 1983, the plaintiff says she was married to the defendant according to custom. I have now heard in evidence from her that this was incorrect: “I did not really think about it. I was a bit confused when you (her lawyer) asked if I was married by custom. I lived with M.G. for so long that is why I said yes”. In the court file is a transcript of evidence taken pursuant to s. 34(1)(c) of the Evidence Act (Ch. No. 48) from P.K., the plaintiff’s father. The obvious inference is that the custom of the plaintiff’s village was not complied with. In his affidavit of 29 December 1983 in answer to the plaintiff, the defendant denies specifically a customary marriage “in accordance with any celebration of custom of our respective villages, but rather, we have come to be regarded by our respective relatives as a family”. In court he has sought to say the opposite — to rely upon a feast and gift exchange by him to his people when they both went to his place in 1981 as evidence of a marriage. It seems to me that whatever took place at this time was a unilaterial act. Proof of marriage by custom is difficult. When the customs from disparate areas are involved, it is even more difficult. I am unable to find a marriage between the parties. The relationship was a de facto one.
The result — E.G. is illegitimate. This is one of the situations in which there is now a gap in the statute law following the Re Sannga (deceased) [1983] P.N.G.L.R. 142. By the Constitution, Schs 2.1, 2.2 and 2.3, the appropriate law in these circumstances arises by a process of elimination. This is not a situation for which I can find a suitable custom under the Customs Recognition Act (Ch. No. 19). I have to go back to look at the suitability of the Common Law. The rights and obligations were with the mother to such an extent that a court would have primary regard to her wishes when determining any question of custody. The father, so long as the child remained illegitimate, was generally not recognised by the law for civil purposes. He was under no obligation to contribute for maintenance. He had no right to custody even though sometimes in a better position to maintain. He could not by will appoint a guardian: see generally Halsbury’s Laws of England (3rd ed., 1956), vol. 3 at 106-109. This is a potted statement and I realise its shortcomings. Suffice it to say, at Common Law, that the father of an illegitimate child was not in a strong position vis à vis the mother. I am aware that subsequently the various statutes dealing with children stress the paramount consideration is the welfare of the child.
I am really not in a position to state clearly what the Common Law position is this late in the day and with so much Statute Law intervening, but the concepts of bastard and of a denial of right to the putative father seem to me out of place in this society. I have to come back to my parens patriae powers. Ultimately, I have to decide what is in the best interest of the child. That being so I do not consider the reasons for the breakdown of the parents’ relationship significant — their subsequent attitude to the child is.
On the bald facts the plaintiff did not see her daughter from May until December 1983. But I am satisfied that she did make efforts after the separation to get the child. There were meetings with welfare and with a magistrate of the Children’s Court. The fact is the child was sent to Kimbe in July. When the plaintiff became aware of this, she sought legal assistance. I can well appreciate her difficulties after May. The same thing happened this year. Attempts were made to exercise the access rights but without success. As the plaintiff said: “So I almost give up”. The child was taken back to Kimbe again in August 1984 and was only returned under a court order, and then reluctantly. Access has only been exercised on a few occasions because the child has not been in Port Moresby. I am asked to infer a “couldn’t care less attitude” by the plaintiff towards her daughter. I am unable to do so. The little access to her daughter is not of her own making.
The plaintiff now lives in a de facto relationship with a Mr D. It is not as though they just met after her separation from the defendant. They had known each other years ago, in 1976, before the plaintiff and the defendant met. There is a son from that earlier liaison. This child has remained in Manus. In this country I infer nothing adverse from this. As the plaintiff said:
“I am the only one in the family. When I gave birth to a son, my parents asked if they can look after him to be able to think about me.”
This child has never belonged to any other household.
The relationship with Mr D. has now lasted over twelve months. I am told they wish to get married pursuant to the Act. The impediment is an existing customary marriage of Mr D. His wife is mentally ill and hospitalised. I could not imagine insuperable difficulties in having this marriage dissolved. There are three children of this marriage presently aged eight, six and four years. The youngest is a girl. They all reside with their father. I say at once, I was impressed by P.D. as a witness. He gave his evidence well. He is a mature man and the managing director of a large statutory authority. He is in receipt of a good income and has a house provided. It is of executive standard. In his household, there reside his three children, a teenage niece, his elderly mother who is a little infirm and the plaintiff. I am told that E. would share a room with E. the youngest of the children. The education costs of his own children are met by his employer. If E. cannot be included in this benefit, he is prepared to meet the costs. Ultimately, it means pre-school and primary education at Korobosea International School.
The plaintiff tells me she intends to return to work but has made no definite plans at this stage. If she does work, there will be three people at home with E. — the domestic, Mr D.’s mother and niece. The children return home from school at 1400 hours.
If there are uncertainties in the future life of the plaintiff, the same can be said of the defendant. He is a young man and to date has no marriage prospects but this is not to be excluded. He is the breadwinner and supports at least three other adults. It is necessary for E. to be left with his wantoks during the day. I was not impressed by the young woman who presently minds her. She has only recently arrived in Port Moresby and could not be considered very sophisticated. The city is all new to her. The pressures to send the child back to the island remain. I have no doubt that there is love and affection for E. in her father’s household.
In contrast to the proposed arrangements, E. currently lives with her father in a National Housing Commission house at Hohola. It is of the two bedroom type and is currently occupied by seven people, the defendant, his niece about twenty years old who I have mentioned, two “uncles” who are young men, unemployed and a married couple with one small child. The defendant earns half the salary of Mr D. He intends E. to stay in Port Moresby and receive her education at a community school here. He has quite rightly expressed his concern that if there is change in custody, the life of the child will be disrupted. His concern was well expressed in his cross examination of the plaintiff. The child speaks plestok, she is used to her relatives from West New Britain. She will go to a Pidgin and English speaking household and be surrounded by a whole lot of new and strange people if custody is altered.
Now I accept all this but I must balance it with the acknowledged adaptability of children, especially young children. The plaintiff is sure the child will adapt and so am I. In my view, Mr G.’s household is one typical of middle income urban dwellers, indeed from my observation that is how most urban dwellers live, the squatter settlements excepted. But it is in rather stark contrast to the resources of the employed elite. It is trite to say money does not bring happiness but it can bring opportunity. I will leave the happiness to the mother and father of the child.
It is clear to me that there are many more opportunities for advancement in life if she is part of her mother’s household in its present state. This is a case in which the mother is ready, willing and more than able to look after her child. Through an unfortunate chain of events, she has not been able to exercise this right for more than twelve months.
To make an appropriate order in this case, I have considered:
(1)      The claim of the mother and what is often referred to as her preferred role: see W.P. v. D.P. [1982] P.N.G.L.R. 1;
(2)      The relative circumstances in which it is intended to raise the child;
(3)      The ability to provide for the child’s advancement in life;
(4)      The age of the child; and
(5)      Provision for the maintenance of existing relationships.
I make the following orders:
(1)      That R.G. (D) have custody of E.G. born on 5 September 1981.
(2)      That E.G. be handed over to R.G. at 1730 today, 14 December 1984 at [address] Hohola.
(3)      That M.G. have access to E.G. on each alternate weekend from 0900 hours — 1700 hours Saturday and on the other alternate weekend from 0900 hours Saturday until 1700 hours Sunday.
(4)      That on each of these access days, E.G. is to be brought to and collected from [address] Hohola.
(5)      That the first period of access from 0900-1700 Saturday to commence on 22 December 1984.
(6)      I make no order for maintenance or costs.
I stress to the parties that the happiness of the child ultimately is dependent upon their goodwill and common sense in considering always what is in the best interest of the child. There will have to be give and take with access. There should be flexibility. I grant leave to apply on seven days notice by either party.
Orders accordingly.
Lawyer for the plaintiff: The Public Solicitor.
The defendant appeared in person after 14 August 1984.