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WP v DP [1981] PGNC 99; [1982] PNGLR 1; N349 (16 December 1981)

N349

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WP

V

DP

Waigani
Andrew J

27 October 1981
29 October 1981
14 December 1981
16 December 1981

INFANTS AND CHILDREN - Custody - Welfare of child - Welfare paramount consideration - Female child - Relevance of mother factor - Infants Act 1956, s. 7.
On an application for custody of two female children aged 8 and 10 years by their mother, pursuant to the Infants Act 1956:

Held:

(1) Although the welfare of the infant is not expressed to be the paramount consideration in s. 7 of the Infants Act 1956, it is nevertheless, the "paramount" consideration:

Bean v. Bean [1980] P.N.G.L.R. 307 followed.

(2) The principle or factual presumption called the "mother factor" is not a rule of law; it is at best an important factor to be taken into account in assessing what is in the best interests of the child:

Raby v. Raby (1976) F.L.C. 75, 478,

Hobbs v. Ludlow (1976) F.L.C. 75, 536 at p. 75, 539 and

Gronow v. Gronow [1979] HCA 63; (1979) 54 A.L.J.R. 243 at p. 248 followed.

(3) What weight it bears as such a factor will depend on the circumstances of each case:

Mathieson v. Mathieson (1977) F.L.C. 76, 215 at p. 76, 220 followed.

(4) In the circumstances the welfare of the children would best be served by granting custody to the mother.

Cases Cited:

Bean v. Bean [1980] P.N.G.L.R. 307.
Gronow v. Gronow [1979] HCA 63; (1979) 54 A.L.J.R. 243.
Hobbs v. Ludlow (1976) F.L.C. 75, 536.
Lovell v. Lovell [1950] HCA 52; (1950) 81 C.L.R. 513.
Mathieson v. Mathieson (1977) F.L.C. 76, 215.
McManus v. McManus (1969) 13 F.L.R. 449.
Raby v. Raby (1976) F.L.C. 75, 478.
Trnka v. Trnka [1976] P.N.G.L.R. 1.

Custody Application

This was an application and cross application for custody of two children pursuant to s. 6 and s. 7 of the Infants Act 1956.

Counsel:

C. J. Coady, for the applicant (mother).
W. Biggs, for the respondent (father).
Cur. adv. vult.

16 December 1982

ANDREW J: The applicant, WP applies for the custody of the children of his marriage to the respondent by virtue of ss. 6 and 7 of the Infants Act 1956. The respondent, DP makes cross application for custody and also applies for maintenance in the sum of $A60 per week.

Section 7(1) of the Infants Act 1956 is as follows:

"(1) The Court may, on the application of the father or mother of an infant make such orders as it thinks fit regarding the custody of the infant and the right of access thereto of either parent, having regard to the welfare of the infant, the conduct of the parents, and wishes of each parent."

In Bean v. Bean [1980] P.N.G.L.R. 307, the Supreme Court held that whilst in s. 7(1) of the Infants Act, the welfare of the infant is not expressed to be the paramount consideration (as it is under s. 79(1) of the Matrimonial Causes Act, 1963) nevertheless it is the "paramount" consideration.

The parties were married in Melbourne in 1970. The children are AP born on 6th April, 1971, and RP born on 27th April, 1975. They are therefore aged ten and six.

[His Honour then referred to the evidence, made findings of fact and continued.]

The applicant says that there is no principle or presumption that a young child, especially a young female child, is best left in the custody of her mother.

This is not, and never has been, a rule of law. It is, or was, a canon of common sense founded on human experience. The weight or value to be given to it has varied with the times and from case to case: See per Mason and Wilson JJ. in Gronow v. Gronow [1979] HCA 63; (1979) 54 A.L.J.R. 243 at p. 248. This is sometimes referred to as the "mother factor" (see per McTiernan J. in Lovell v. Lovell [1950] HCA 52; (1950) 81 C.L.R. 513 at p. 527).

In Gronow v. Gronow, at p. 248 the High Court made reference to the radical changes in the division of responsibilities between parents, particularly in the past twenty years and pointed out that whereas now the mother frequently works and the father may correspondingly give more of his time to the household and family, this has led to a diminishing in strength of the principle or factual presumption of the "mother factor". The judges of the Family Court have reduced the presumption to the status of "a factor" or "an important factor" to be taken into account in assessing what is in the best interests of the child. See Raby v. Raby (1976) F.L.C. 75, 478, and Hobbs v. Ludlow (1976) F.L.C. 75, 536, where the Full Court of the Family Court said (at p. 75, 539):

"While the mother’s role is an important factor to take into account, especially in the case of a young child it by no means displaces the need for a father or father figure, nor should it be elevated to the status of a ‘principle’."

In Gronow v. Gronow [1979] HCA 63; (1979) 54 A.L.J.R. 243 at p. 249, the High Court continued:

"... the Family Court was in our opinion correct in Hobbs v. Ludlow in describing the mother factor as ‘an important factor’ because human experience demonstrates that it is so. The effect of the alteration in the division of parental responsibilities to which we have already referred reduces the strength of the factual presumption on which the courts formerly acted, but it does not, we think, eliminate the mother factor or reduce its significance to a consideration which is less than important."

The precise weight to be given to it as a factor necessarily depends upon the circumstances of the particular case: Mathieson v. Mathieson (1977) F.L.C. 76, 215 at p. 76, 220.

In the circumstances of this case I think that it deserves much weight. I think it 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 daughters of that age. If custody were granted to the applicant they would be deprived of that care even more so because of the mother’s absence in Australia. They have done their early schooling in Australia and would be returned to the same schools next year, if they were with the mother. The applicant may only remain in Papua New Guinea for another year or so when he shall presumably return to Canberra.

I have considered the effect of the agreement that the respondent entered into when she consented to the children coming to Papua New Guinea and remaining with the applicant. In McManus v. McManus (1969) 13 F.L.R. 449, the Court of Appeal of New South Wales held that generally a consent order can be overturned only on substantial grounds involving "a particularly heavy onus" on the party seeking the change. I am in agreement with Frost C.J. in Trnka v. Trnka [1976] P.N.G.L.R. 1 at p. 6, when he was not prepared to go this far. Here there was an agreement only in the form of a statutory declaration and that is a factor which is relevant to the conduct of the parties but the paramount consideration is the welfare of the children.

I consider that in all the circumstances the welfare of the children would, at this time, be best served if they remain with their mother and to my mind at present their futures would be best served if they were with her.

I consider that, in the circumstances of the case, the "mother factor" outweighs the better financial position of the father and tips the scales in her favour. Some of those circumstances, which I have set out, are especially the fact that the children will be back in their own environment where they have grown up and in the schools which they know, and not in a position where they would be isolated from their mother.

I am satisfied that the respondent can properly provide for the children and I grant her application for maintenance in the sum of $A60 per week.

Orders for custody and maintenance made.

___________________________________

Solicitors for the applicant: Craig Kirke & Wright.
Solicitors for the respondent: Francis & Francis.