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Mura v Gigmai [1997] PGNC 59; N1573 (9 May 1997)

Unreported National Court Decisions

N1573

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 405 OF 1995
BETWEEN
RAYMOND MURA - Plaintiff
And
DAN GIGMAI - Respondent

Mount Hagen

Injia J
1 October 1996
9 May 1997

INFANTS AND CHILDREN - Custody - Infant born of parents of customary marriage - Customary marriage not properly dissolved and parents since re-married - The father’s claim to custody based on non-refund of bride price payment - Whether a relevant consideration - Infants Act (Ch. No. 278), S. 4.

Cases Cited:

Bean v Bean [1980] PNGLR 307

Susan Tom v Maziok Kayak [1992] PNGLR 171

Counsel:

P Peraki for the Plaintiff

D Umba for the Defendant

9 May 1997

INJIA J: This is a contested custody application. Thal was conducted by affi affidavit. Both parties filed affidavits on which the deponents were not cross-examined on. I saw no to require them fhem for questioning by myself. o saweed to reqthre the prhe production in Court of the infant. I accepted botyersrsrs’ suggestion that I deliberate on ffidaand written submisubmission which they would file and which they have done already.

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The application is in respect of the e child Elisha Mura, who waho was born to the Plaintiff (father) and the Defendant (mother) on 1 November 1990. The Plaintiff ae Defendantndant were married in accordance with Local “Melpa” custom on 24 December 1989. At that time the Plff wakiworking with the Department of Civil Aviation whereas the Defendant was unemployed.&yed. At tme these proceedings wngs wiled, that is on 19 October 1995, Elisha was about 5 years old. She be over 6 yr 6 years ears now.

Between 1990-1995, trties had differences in their marriage life. These dese differencesn toan to surface some months after their marriage and cont up to the time Elisha was was born. The problems continued to grow soon after Elisha was born. Red attempts by botties toes to resolve their maritmarital problem through various Village Courts, the Police and the Courts did not resolve their marriage pm.&#1ventually, on or n or about August 1992, their marriage wase was purportedly dissolved by order of a Village Court.

The Plaintiff then proceeded to marry one Rachael Mura. At the time ling these proe proceedings, they had 3 children between them. efendant married one Roy DRoy Dingu who is employed by Coffee Industry Corporation Research Institute at Aiyura, Eastern Hids Pre. The Defe Defendant went to live with him. As at the time ofl, it is t is unds understood that they have had no children between them. Roy Dingu himself wao marr married to another woman with whom they have several children. Since their purd divorce, both parties havs have accepted and respected their re-marriages.

In this period of differences over their marriage lifesha has been the focus of much debate and infighting between the parties themselves and eved even their extended family members. Elisha’s welfare and the right to look after Elisha featured in as early as when she was something like 8 months old. Tis a lot of dispute in thin the evidence as to what each party did to secure the welfare of Elisha in these troubled times.&#160terms of the interest with which the parties have sought to secure Elisha’s interest,rest, both parents have said and done many things which lead me to believe that they are both genuinely concerned about the welfare of Elisha and want to look after her. I know that both parties have the best interest of Elisha at heart and want to care for her so that she grows up to be a good, healthy and responsible young woman when she attains maturity, that is, when she attains the age of 16 years: Infants Act (Ch. No. 278, S. 4(5). The agonitask that I have have is to make a decision between them as to who is the best person to provide for the future welfare of Elisha. The conduct of each parent and the wishes of each parent are matters which I need to consider as required of me by law: S. Infants Act (Ch. 278), S. 4. Butparamount considerationation is always the welfare of Elish60; In other words, what isat is in the best interest of Elisha: Bean v Bean [1990] PNGLR 307, RG v RG [1984] PNGLR 413, Susan Tom v n Kayak [1992] PNGLR 171.

In deciding what is in the best welfare interest of Elisha, I consider the following factors to be relevant, important and determinative of the issue:

1. & B60; pathies tave not beet been faithful to their customary marriage. This marriag entered into into in compliance with all the stringent requirements whot oney weroughtheirle went through paih painstaknstakinglyingly.&#16. A 0; A customary age, unli unlike a modern registered marriage, involves many people on each side. Just as much is a marriagrriage between the couple, it also marks the “marriage” between thwo respective clans or trib tribal groups. It involves the exchange bf substantial material goods between the relatives on both sides. As such it is not easy for couples to make and un-make customary marriages. As events in thse have shoe shown, itbeen difficult getting divo divorced in accordance with local “Melpa” custom which requires the return of bride price. En the of a Village Court ourt order dissolving the marriageriage between these two people, marked by an order to return the bride prihis has not eventuated. It seemh sides are unsure sure as to who really is responsiblnsible for the break-up and whether the refund should be made. Many peoplluding the DefenDefendant’s parents have got themselves hurt physcologically and physically as a result of this debacle. hese two couple to go off off and re-marry without satisfactorily resolving their pre-existing customary marriage shows why both of them can be seen with impunity by this Court or even their own people who brought them together.

2. ټ&#I60; e the early arly part of their differences, both parties had little faith in the offspring of their marriage. Their struggle t each othe other became the primary focus of their endeavour in these years of turbulence. The re of Elisha played a ed a secondary role. She was floated aroutween ween relatives on both sides in the very early stageser childhood, that is as early as when she was 8 months old. She didfeature prom prominrominently in their debacle until around 1992 when the Defendant tont took the Plaintiff to Court under provisions of the Deserted Wives and Childrens Act (Ch. 277) seeking enance for herself and Elis Elisha. The District Court ordered on 25 June 1992 that the Plaintiff pay the Defendant K40.00 per fortnight and Elisha K30.00 per fortnight until Elisha attained the age of 16 years or when she dies (which ever occurs first), or when the order is set aside by another Court of competent jurisdiction. The District Court alardedarded custody of Elisha to the Defendant. That Court couldhave made made this custody order unless it found that the Plaintiff unlawfully deserted or the Defendant and Elisha without adequate means of supportpport: Se of Deserted Wives and Cand Childrens Act. In respect of Elishat is a is a finding which goes against the Plaintiff. Despite taintiff’s a7;s attempts in the District Court to thating and order, itr, it still stands to this day.

3. ټ&##10; Si0; Since the mainte and and custodyr of the District Court datt dated 25 June 1992, the Plaintiff did not take issue with the order by appealing to the National Court.& He aed thision aion and mand made a few payments. But on most most occas he , he incurred substantial arrears. He refused to pay becausalof alleged misuse of maintenance payments for Elisha by the Defendant. The Defendant was forc tako take out enforceproces against him to m to recover the arrears. On one occasion, the Plai tiff paid arrearrrears under order of the Court.

4.; ҈ From 25om 25 June 1992 on,ards, rds, the Plaintiff’s discontentment over the misuse of the maintenanney b Defendant continontinued to grow. This cated in the plaintifintiff applying to the Dthe District Court seeking variation of the order, to set aside the orders. Includethe application wasn was a motion for custody of Elisha to be awarded to the Plaintiff. On 30thh 1995 the Plaintifintiff moved the application. On 7th July 1995, the District Court dismissed the application and advised the tiff to appeal against the decision of 25/6/92. In my view, theication forn for custocustody before the District Court was misconceived by the Plaintiff’s lawyer who signed the Notice of Motion because that Court did not have any jurisdiction to makorder for custody whereas ieas it had jurisdiction to make an order for custody consequent upon an order for maintenance: See S1) (b) (iv), of the Dthe Deserted Wives and Childrens Act. Fromthese actions of the Pthe Plaintiff, I infer that he was ra the issue of custody as another avenue to cease the maintenance payments.

5. &160; ـn The phye phy custody of Elisha between ween the date of her birth, (1 November 1990) and uearo early 1992 seems to have cris-crossed betwee two ts ats but mostly with the Defendant as the the childchild was very young. At times, the the child appears to have been left by borties with their relatives.ives. Theence is a bit unclear tear though. As at 25 June 1992, that is the date of the mainte order and the period immediately preceding that date, the the child was with the Defendant, thus forming the basis for an action for maince under the Deserted Wives and Childrens Act. From From then til 19 Octo October 1995 when these present custody proceedings were filed, Elisha was always with the Defendant. From 19/10/95he date of thof this trial, that is, 1/10/96, and up to the of judgment, Elisha has beas been with the Defendant. There are clay the Plaintiaintiff of neglect of Elisha by the Defendant lisha being left behind to d to live with the Defendant’s parents. This is denied by the Defendant. Whatever the retuation wa , it is fair to r to say that Elisha has been with the Defendant continuously from say 1992 to the present time. Thaa perf 6 y

6.&#16. ټn&#It0; It is fais fair to say that Elishalisha has come to closely associate with tfendant in this period and not the Plaintiff. a has got used to the Defe Defendant, hnt, her way of life, her friends and associates includin new husband, Roy Roy Dingu. Tfendant claims that ElishElisha has come to know Roy Dingu as her father partly because of 8217;s treatment of her. I do not kn this is true.&rue. But Roy Din a lett letter tter to the District Court, dated 20 November 1995, (Annexure “A” of Bosip Aipe’s affidavit sworn 1 December 1995), has made his position clear. He agreecontio look after fter Elis Elisha and allow access to the Plaintiff. He said he was prepared to loter tter the child&#82requirements including education. He saidad been hospitalisialising both the mother aher and Elisha with all provisions of hospty loare and discipline. The evidence alsthis that that heat he has accommodated the Defendant and Elisha in a separate home and his first wife with her six (6) children in a separate home. His first is a teacher at r at Aiyura High School. It is not as if I havehear heard from Roy Dingu. From he says, he appeals tals to me to be a responsible and caring man who is prepared to on thendant as he find finds her and make suitable arrangements for the Defendant and her child hild at his own expense.

When I compare the period of time and social and physical environment in which Elisha has been raised in the past, all these favour the Defendant. If Elisha were to be iucedduced into a new environment after all these years, such as that of the Plaintiff, it would be totally new to Elisha and she would encounter adjustment problems.

7. ټ&#A60; r for the fuhe future, economic, social and spiritual welfare of Elisha, the parties are somewhat unequally placed. The Plaints the ManagirectirectoKare rical Pty Ltd. I have no doubt thbt heat heat he is a is a man of sufficient means and sound social and spiritual discipline toide for Elisha’s economic, social and spiritual needsneeds. Onother hand, the Defendanendant is unemployed and does not appear to have any sources of income. But I have no doubt about her ability to provide a sound social and moral and a caring envent. Her economic shoc shortfalls are supplied by her new husband. e no doubt that her new huew husband is a professionalwith sufficient means, a ma a man with a sound social discipline to be able to give Elisha and her mother the support they need.

8.; < There are some cultuactorsctors which the Defendant relies on. The Plaintiff says be his his bride price was not repaid, he should have custody of the child. However, that is no shouldhould never be a relevant consideration in a custody. Thure socio-economic welfawelfare of the child neve never depends on the question of whether bride price is repaid to end theiage local customary mary laws. It t a relevant consideratderation under the Infants Act. Act. Botural parents have equalequal rights of custody of their child (Infants Act, S.3) irrespective of whether or not there is a subsisting customary marriage. ard cy of a child to a fata father because his pride price rice paid for the mother of a customary marriage which has since come to a, has not been repaid, is to recognise and uphold a principle of customary law which is devs devoid of the provisions of the Infants Act relating to the welfare of the child.

9. &ـ C60; Considensidering the fact that Elisha is a female child of tender age, it is only fitting that she remains with her mother with whom she has spent most of her 6 years.