N5519
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 65 OF 2013

BETWEEN:

RODERICK GLEN BROOKS
Plaintiff

AND:

MAGDALENE CLENCE BROOKS
Defendant

Kokopo: Oli, AJ
2014: 5th, 11th, 13th, 18th. February

CIVIL - Practice & Procedure- Matrimonial Causes Act - Application by Plaintiff for Sole legal custody of an issue Liam Glenn Brookes born to Defendant during subsistence of previous Matrimonial Home – The defendant object to the application but agree on joint legal custody – Both Plaintiff and Defendant have separated – Consideration is on the paramount interest of the child – Considered the education and welfare of the child under the current environment and into the future during the child's tender years of development – Consideration on total development on four faculty of a person namely; physical, mental, social and spiritual development when this child is at age of 15 years.

CIVIL - Practice & Procedure - Matrimonial Causes Act – Application by Plaintiff for sole legal custody of a child Liam Glenn Brookes – The child's preferred party is plaintiff to have custody over him - Consideration in view of paramount interest of the child favours the Plaintiffs application for sole legal custody – Defendant have access right to Liam Glenn Brookes as per the court orders – Parties to bear their own cost.

Cases Cited:

Bean v Bean [1980] PNGLR 307
VZ v JK [1994] PGNC 17
WP v DF [1982] PNGLR 1
RG v MG [1984] PNGLR 413
Susan Tom v Mazion Kayiak [1992] PNGLR 171

Counsel:

Mr David Charles Lidgett, for Plaintiff
Mr Philip Kaluwin, for Defendant

DECISION

18th February, 2014
1.	OLI, AJ: The Plaintiff filed this action against the defendant pursuant to Section 74 Matrimonial Causes Act (Chapter No. 282) to seek orders that:

i)	The Plaintiff shall have sole custody of the younger child of their marriage, namely Liam Glenn Brookes, reserving unto the defendant reasonable access, subject to the following Orders:

ii)	The Plaintiff shall be solely responsible for the health, maintenance and education and general well-being of Liam Glenn Brookes.

iii)	Liam Glenn Brookes as soon as reasonably can be organised over the coming weeks, shall leave Papua New Guinea and attend school at Marist Brothers Ashgrove, Brisbane, Australia, to complete his secondary education.

iv)	The Plaintiff and the Defendant shall forthwith complete all such consents as shall be required so as to enable the administrative process to proceed, with such matters as the necessary passport, visas and schooling papers and specifically each of them the Plaintiff and the Defendant shall consent and sign the Australian passport application for their son Liam Glenn Brookes and each shall withdraw any prior written objections to the relevant authorities opposing Liam Glenn Brookes' desire or intention to leave Papua New Guinea for schooling or any other purposes, all of which shall be at the cost of the Plaintiff.

v)	During all major school holiday breaks, if the Defendant confirms it is convenient for her on each occasion and she wishes it, Liam Glenn Brookes shall return to Papua New Guinea from Brisbane to be with the defendant on those occasions, all of which travel maintenance and necessary associated costs shall be solely the responsibility of the Plaintiff.

2.	The Defendant through her Counsel informs Court from the outset that his client is not objecting to the application in its entirety but rather preferred joint legal custody of their son Liam Glenn Brookes.

FACTS

3.	The Plaintiff is an Australian citizen by birth, and a long time resident of Papua New Guinea, currently residing in East New Britain Province, engaged in a building contractor by a family company, lawfully permitted to carry on business in this country. The Defendant is a citizen of Papua New Guinea by birth hails from Autonomous Region of Bougainville (ARB), currently resides in East New Britain Province and was lawfully married to the Plaintiff. However, that marriage was dissolved by Order of the Federal Magistrates Court of Australia in November 2011. Before the dissolution of their marriage on November 2011, there were two issues of their marriage born to the Defendant during the subsistence of that marriage, namely; Clae John Brookes and Liam Glenn Brookes ("Liam") born on 4th September 1998. 

4.	The Order by Federal Magistrates Court of Australia on November 2011 that dissolved the Marriage between Plaintiff and Defendant according to law did not incorporate the ancillary orders in respect to custody and maintenance of neither Liam nor division of matrimonial property were sought. These were left to parties to work through informal understanding and agreement that Liam is under the physical custody of the Plaintiff when Liam is not at boarding school at Coronation College in Lae, Morobe Province. The Plaintiff and Defendant agree that Liam's ongoing maintenance will be borne by the Plaintiff and Liam when he comes to Kokopo during school holiday stay with Plaintiff whilst Defendant will have access to Liam on terms and conditions as agreed between parties for Defendant to have quality time with Liam. 

5.	The Plaintiff and Defendant have tried their level best to come to an amicable settlement to reach a formal and manageable agreement for the ongoing custody and maintenance of Liam. According to Plaintiff there seems to be no problem with the two issues of their marriage except that Defendant is having difficulty of organising suitable times for her to have access and quality time with Liam to no avail to this date that causes the difficulties to arise, hence this application on foot before the Court. 

6.	The Plaintiff foremost concern, apart from Liam's high standard of ongoing welfare, is to ensure that he has the opportunity to complete his High School (and if applicable), his tertiary education in Queensland or other parts of Australia. To that end it is preferable that Liam obtain an Australian Passport, which he is entitled to obtain, as of right, through the Australian citizenship by decent through Plaintiff as his Australian citizen biological father. Liam is indeed a citizen of Australia by decent. 

ISSUE
The issue in this case is whether Plaintiff should have the sole legal custody over biological son Liam Glenn Brookes rather than joint custody with the Defendant.

LAW

7. The law in relation to proceedings in respect to the custody, guardianship, welfare, advancement or education of children of a marriage is under s. 74 of Matrimonial Causes Act 1963 and section 74 of the Act reads:

 74. POWERS OF COURT IN CUSTODY, ETC., PROCEEDINGS.
(1) In proceedings with respect to the custody, guardianship, welfare, advancement or education of children of a marriage–

(a) The Court shall regard the interests of the children as the paramount consideration; and 

(b) subject to Paragraph (a), the Court may make such order in respect of those matters as it thinks proper.

(2) The Court may adjourn any proceedings referred to in Subsection (1) until a report has been obtained from a welfare officer on such matters relevant to the proceedings as the Court thinks desirable, and the Court may receive the report in evidence.

(3) In proceedings with respect to the custody of children of a marriage, if the Court is satisfied that it is desirable it may make an order placing the children, or such of them as it thinks fit, in the custody of a person other than a party to the marriage.

(4) Where the Court makes an order placing a child of a marriage in the custody of a person, it may include in the order such provision as it thinks proper for access to the child by parties or a party to the marriage.

8. The Plaintiff files this action in due consideration to further advance the paramount interest of the child Liam Glenn Brookes through legal custody to provide best welfare, advancement or education of his child born to the Defendant during the subsistence of their marriage. The Plaintiff during the trial told the Court that he has no option but to pursue this cause of action brought about by the action and non committal by the Defendant to advance Liam's education in Australia. So the Plaintiff seeks to secure legal custody over his son to further his education in Australia, because the Defendant has filed a Letter of Alert in respect to her son Liam Glenn Brookes with Australian High Commission that made it very difficult for Plaintiff to obtain Liam Glenn Brookes Passport from Australian High Commission in Port Moresby without her consent. 

9. The Plaintiff further elaborate that without the legal custody being granted in his favour by the Court, the initiative to obtain his Australian Passport to advance his education in Australia was very difficult though Liam Glenn Brookes is an Australian citizen by decent. The Defendant said in her affidavit that she fear that her son might not return to see her in Papua New Guinea, once he is granted the Australian Passport, hence she is desirous of joint custody over Liam Glenn Brookes with the Plaintiff.

10. It is undisputed, however that Plaintiff in this action has provided explicitly legal protection that Defendant will have adequate access to her son during every major school holidays during the year whilst her son is away in Australia attending secondary and tertiary education before he attains the age of 21 years turning into an independent adult. 

EVIDENCE BEFORE THE COURT
11. The evidence before the court on behalf of Plaintiff:- The Plaintiff's evidence comprise of two affidavits by Plaintiff tendered during the trial and admitted and marked as Exhibit "A" dated 13th February 2013 and Exhibit "B" dated 15th March 2013 and Extract from Register of Citizenship by Decent document No. ROC – 98212 - Commonwealth of Australia - Australian Citizenship Act 1948 dated 20th August 1999 admitted marked Exhibit "C" in respect to Liam Glenn Brookes Australian citizenship status to date. 

12. The independent two report by professional witness Mr Philip Kuamin - Senior Provincial Child Protection Officer were admitted marked Exhibit "D", a letter dated 9th April 2013 and Exhibit "E" Record of Questions and Answers, the officer conducted with Plaintiff dated 3rd March 2013 and Exhibit "F" Record of Questions and Answers, the officer conducted with Defendant dated 12th March 2013, when he carried out his statutory duties and functions as required under s. 74 (2) of the Matrimonial Causes Act. 

13. The Plaintiff filed two affidavits in support of the application but does not deny the fact that he did encounter marital problems with his former wife who is the Defendant that resulted in the dissolution of their marriage by Federal Magistrate Court in Australia. The Plaintiff's main concern now before the Court is to secure a sole legal custody court order in his favour over their son Liam Glenn Brookes so that he can further progress and obtain Australian Passport for Liam Glenn Brookes to go to school in Australia to advance his education. However, this initiative was frustrated by the Defendant's own negative action that may have dent their son Liam's reasonable expectation to go to Australia to further his education and may take a while to ease the pain and psychological and traumatic restoration process. Hence, this action by Plaintiff to remedy, restore and heal irreparable psychological damages that may have been caused to Liam Glenn Brookes. 

14. The only independent professional witness, a resident Senior Provincial Child Protection Officer Mr. Philip Kuamin, deposes two separate reports; one by Plaintiff and the other by Defendant in performance of his statutory duties and function. He also provided an interview report he had with the child Liam Glenn Brookes. These reports were provided at the invitation of Plaintiff's counsel pursuant to legal requirements under s. 74 (2) of the Matrimonial Causes Act, however, these reports were imperative and could be directed by the Court or requested by defence counsel, as well. 

15. The defence counsel Mr Kaluwin did not take any particular issue on this nor expressed concern that the content of these reports were more subjective rather than objective that favours the Plaintiff's position more than the Defendant's. The Defence Counsel did not take any particular issue on that as well. However, Plaintiff's interview with resident Senior Provincial Child Protection Officer reveals that Plaintiff and Defendant got married in 1998, and for 15 years had a stable relationship. 

16. After 15 years their marital relationship started to get sour because Plaintiff was accused by Defendant for having extra marital relationship which he claimed were not true. The attempt to mend the relationship through Alternate Dispute Resolution (ADR) was to no avail over 2 years. The marital relationship got sour that resulted in complete separation and divorce. The Plaintiff claimed that the problem that led to their complete separation and divorce was due to; firstly, the defendant's continued accusation levelled against him for having extra marital relationships; secondly, the family company or business, the Defendant never allowed the Plaintiff to be a shareholder and literally removed him as a Director. 

17. The Plaintiff has some bitter memories while he was in Buka when he was shot at by the Defendant's family member and he escaped with a bullet wound to his back after being assisted by a friend to pay for his air fares to Rabaul when the Defendant refused to buy his air fares from Buka to Rabaul to by using funds from their family business that operated a Bulk Store at Buka.

18. The Plaintiff upon his arrival in Kokopo got the shot gun pellet removed from his back at Kokopo by Dr. Mike. The Defendant and Liam followed the Plaintiff to Kokopo where they had the new humble beginnings, however, the relationships had not healed as one would have expected. The Plaintiff obtained a legal divorce from Federal Magistrate Court in Australia, the court did not have the benefit to see a copy, however, during the currency of the divorce period the child Liam was with his mother the Defendant and the Plaintiff continued to attend to his schooling needs and daily financial sustenance to support him and his mother with their basic daily needs. 

19. The Plaintiff confirms that custody issue with Liam was not mentioned during the divorce proceedings, but it was left to the parties to arrange and work out an agreeable and workable agreement as between the parties on physical custody and access. The Plaintiff since being granted divorce was denied access to Liam by the Defendant until through a sacred intervention when the Plaintiff moved to Takubar from Rabaul, he discovered that Liam was very sick in his bed when his mother had gone to work. 

20. The Plaintiff found out that Liam was suffering from a wound he sustained from traditional circumcision performed on him with an unsterile razor by his fellow Bougainvillean friend. It was through this event that the Plaintiff took Liam on or about 11th June 2011 and organised his medical attention with a Private Clinic at Takubar and Liam got appropriate medical treatment and Liam has been with the Plaintiff since then to this date. The Defendant's counsel questioned witness Mr. Philip Kuamin during examination in chief that in his professional assessment where would he recommend the best place for the best interest of the child Liam will be best served. 

21. Mr. Philip Kuamin categorically said in reply that the Child's best interest will be best served through joint custody more than sole custody as sought by the Plaintiff. However, during cross examination by the Plaintiff's counsel, he asked the witness that would he agree that best education for Liam would be offered in Australia. The witness Mr. Philip Kuamin in reply told the court that he would agree that the best option for the education of Liam Glenn Brookes would be offered in Australia under the Plaintiff's care and control. 

22. The witness Mr. Philip Kuamin also told the court that he strongly recommend that Liam Glenn Brookes must return to Papua New Guinea to visit his biological mother, the defendant and stay with her at the end of each year school break holiday period rather than term holidays during the year. Mr. Philip Kuamin emphasised the fact that the term school holiday breaks during the year, Liam Glenn Brookes can stay with his father the Plaintiff as the balancing act as the better and balanced compromise in the interest of the child. 

23. The evidence before the court on behalf of Defendant: - The Defendant's evidence comprise of her own three separate affidavits and an additional affidavit by their domestic servant are as follows: 

(i). Defendant sworn affidavit dated 5th March 2013 and filed on 6th March 2013 admitted and marked Exhibit "G" (1), 

(ii). Defendant witness namely, Mr. Rama Moses affidavit sworn and filed on 21st March 2013 admitted and marked Exhibit "G" (2), 

(iii). Defendant affidavit in response to Plaintiff affidavit sworn and filed on 22nd March 2013 admitted and marked Exhibit "G" (3), 

(iv). Further affidavit in support by Defendant sworn on 22nd March 2013 and file on 23rd March 2013 admitted and marked Exhibit "G" (4). 

24. The Defendant's affidavit basically echoed her distaste and bitterness about the Plaintiff's extra marital relationship and unkind inhuman treatment to her and Liam when Liam was with her before their dissolution of their marriage by Federal Magistrate Court in 2011. The Defendant's attitude to the current application before the Court is that she preferred joint legal custody then sole legal custody that the Plaintiff is pursuing in this Court. The independent professional witness Mr Philip Kuamin - Senior Provincial Child Protection Officer during the trial told the Court during examination in chief by Defendant's Counsel that he favours the joint custody between the two parties as this legal arrangement is in the best interest of the child, rather than sole custody by one party in this case as sought by the Plaintiff. However, he agrees in cross examination with the Plaintiff's Counsel that in his professional opinion the preferred option for best education for Liam Glenn Brookes will be in Australia rather than in Papua New Guinea. 

25. The only independent witness Mr. Rama Moses, who deposes an affidavit sworn and filed on 21st March 2013 in support of the Defendant's objection to the application. Mr. Moses was employed as a gardener, cleaner and general handyman by parties during the subsistence of their marriage. Mr Rama basically witness the parties marital relationship begin to break down and ongoing marital arguments and Plaintiff was forced to leave the Defendant in their domicile home at section 75 and Allotment 2, Takubar Kokopo with their son Liam Glenn Brookes until his employment was terminated by the Defendant in the year 2012. 

26. The Defendant had an interview with resident Senior Provincial Child Protection Officer Mr. Philip Kuamin which revealed that whilst the Defendant does not differ very much from what the Plaintiff has referred to in his same interview with Mr. Philip Kuamin, the marital relationship has been a roller coaster experience and one that fault finding has been very prominently featured in both camps. However, the marital relationship has reached the stage where marriage cohabitation as between the parties was not impossible that the Plaintiff seek substitute marital refuge from current partner that resulted in the permanent separation and subsequent divorce ensued in 2011. By this time the child Liam was and still is with the Plaintiff to this date.

27. What became apparent and it is not denied by the Defendant is the divorce between both of them and Liam getting very sick from traditional circumcision process performed on him that resulted in a very nasty condition and painful health experience for Liam that landed him safely in the Plaintiff's caring arms. And it is also undeniable fact that the Plaintiff now lives with a partner who the Defendant has been accusing Plaintiff for having extra marital relationship in the past, of which is a water under the bridge now that the Plaintiff has a child born to her and may get on with life to start a new family home. There is no evidence to suggest that Liam being with his biological father, the Plaintiff and with the new partner has not encountered any adverse treatment nor any physical rejection by the Plaintiff's new partner, I am of the view that all is going well and Liam has fit in the daily life well since 2011 in the new family home setting. I observe from Liam's interview responses with Mr. Philip Kuamin that he sound very focus and committed to continue his education in Australia under the care and control of his biological father under the new home setting with the Plaintiff. Mr. Philip Kuamin during his interview with both Plaintiff and Defendant did not make reference to this issue on mistreatment or physical rejection by the Plaintiffs new partner nor Liam made any reference to his mistreatment or physical rejection by Plaintiff's new partner as his foster mother. I can only conclude that Liam has adopted well into the new family home setting with the Plaintiff and his new partner, and in my humble view, has no doubt has got a lot to do with Liam's safe landing on the new environment since 2011.

28. The defendant bitterly maintains that the Plaintiff was not only unfaithful to her but very aggressive and describes him as a very brutal father up until the time of their permanent separation. To demonstrate that the Plaintiff was a very aggressive and strong willed person the defendant claims that at one time the Plaintiff did set her up with some amount of drug he bought from the street and left them in her bedroom at Takubar house and alert the Police to investigate her house at Takubar. The defendant said that this event was most devastating and almost landed her into a very serious trouble with the law with serious consequences that may follow. But she was thankful that through Gods' grace that luck was on her side with much sound persuasive reasoning that stopped the police CID team from progressing the matter any further. This event and there were many others similar events of such magnitude that the Defendant refer to in her affidavit that made the Defendant believe that the Plaintiff is not the best person to have sole custody of Liam and the Defendant was not prepared to allow Liam to travel to Australia to advance his education. The Defendant claimed that there are better schools here that Liam can attend to in Papua New Guinea 

29. The Defendant, when she learnt of the Plaintiff's initiative to get Liam's Australian Passport to go to Australia for studies, is seen as another aggressive move to permanently deprive her of her son Liam's physical presence from her in Papua New Guinea. So she engineered a administrative strategy and caused a petition in the form of a "ALERT LETTER" under her signature as a concerned biological mother to the authority at Australian High Commission in Port Moresby not to progress any issuance of Australian Passport Application and Visa for Liam Glenn Brookes until and unless she gave her consent as a biological mother, though Liam is an Australian Citizen by decent through his father. The tenor of the "ALERT LETTER" by Defendant portrays an impression that the Plaintiff was taking Liam away from her without her consent as the biological mother to Australia and that her consent should be sought before Liam's Australian Passport and Visa is issued. 

30. The Plaintiff when he learnt of the unfortunate predicament caused by the defendant's "ALERT LETTER" when Liam's Passport application and Visa for studies in Australia could not be entertained and progressed unless the Defendant consent was sought and or through the Court of law for the Plaintiff to obtain a sole legal custody order over Liam Glenn Brookes. 

31. Hence, this trigger off this application by the Plaintiff to secure a sole legal custody court order to advance Liam's dream to go to Australia to further his education and acquire other niceties in life as part and parcel of total human development. However, on the contrary the Defendant seeks to be considered and granted joint custody.

APPLICATION OF FACTS TO LAW

32. In this case the marriage is not an issue; however, the issue is whether the Plaintiff should have the total legal custody over biological son Liam Glenn Brookes from the biological mother, the defendant.

33. The law is settled in this jurisdiction that any custody application the paramount consideration is the interest of the children held in Tom v Kayaik [1992] PNGLR 171. This is the legal challenge that I am faced with to consider the paramount interest of the child, in view, of the parties express wishes and positional interest sought in this application and their current stable standing as presented before the court during the trial. 

34. The Plaintiff went into the witness box and gave evidence and tendered two sworn affidavit on file admitted and marked Exhibit "A" and "B" respectively. The Plaintiff during the cross examination was asked by Defence Counsel why he wanted a sole legal custody of the biological son Liam Glenn Brookes. The answer given by the Plaintiff was short and sharp on the issue that due to the fact that the defendant, who is the biological mother has lodged an "Alert Letter" with Australian High Commission petitioning the Australian Passport and Immigration division that processing of Visa and Passport for Liam Glenn Brookes should not be progressed until the Defendant give her consent to the Passport application and or Plaintiff get an authentic Court Order that awarded the legal custody of his biological son Liam Glenn Brookes. 

35. The Plaintiff went on to further elaborate that legal custody order of Liam Glenn Brookes in favour of himself will pave the way in granting and issuance of Australian Passport and Visa to Liam Glenn Brookes to go and study in Australia where Plaintiff himself is an Australian citizen. Hence, this application on foot before this Court, however, this matter was part heard before his Honour Lenalia J in Court room one (1) but due to his untimely illness in November 2013 and urgency of the application, the matter was declared a mistrial and transferred to Court room (2) before me to restart the matter as new trial and determine it to finality. 

36. The Counsel for the Defendant on behalf of the defendant from the outset object to this application generally for the Plaintiff to have sole legal custodian order, however, preferred option is in favour of joint custody and not just to one party. It is my humble view that it is not about parties interest to be seen through their own lens of Liam's paramount interest but rather to see Liam's interest through Liam Glenn Brookes lens. This very point was stressed, however, in this case by His Honour Los J in Tom v Kayaik [1992] 171 stated that:

 "The mother factor can be a decisive factor in an award of custody, like in WP – v – DP [1982] PNGLR 1, but I consider that if it is shown that the mother is not in a best position then that factor cannot take a paramount role. The children the subject of this application are no longer babies and breast feeding."

37. In this case the child in question is 15 year old and so the mother factor in respect to breast feeding is irrelevant consideration in this case. However, Liam's best interest translate into paramount consideration ought to be seen from the lens of Liam himself and not through the parties, but each party must demonstrate his or her ability and capacity to provide and deliver the paramount considerations that have been espoused in the land mark case of Bean v Bean [1980] PNGLR 307 where Kapi J as he then was, cover the basic main elements as to what may comprise of the main ingredients of the paramount interest of the child in view of what is the best interest of the child under the given circumstances of the party in a case, as is the case in this application. I will therefore address my mine to the party's ability and capacity to deliver the child's express desire as per the basic needs and issues in life to advance his personal total development as a person.

37. The defence counsel is advocating a compromise position on joint custody; and whilst this legal proposition sounds very appealing and accommodating but fails to demonstrate practical component to promote the paramount interest of the child in question, in so far as his immediate needs on appropriate educational advancement in the immediate future, midterm and long term interest that will impact on his total personal development. This will in turn translate into paramount considerations that will promote and enhance the best interest of the child. The party that demonstrate these requisite ingredients to promote and enhance the best interest of the child fit into the shoe as a fit and proper person to have an edge over the other party to be considered as the successful party in this application.

38. The professional observations and recommendation by Mr Philip Kuamin highly recommend the Plaintiff to have legal custody as the best person to provide and cater for the paramount interest of the child. This is confirmed by Liam's own admission before Mr. Philip Kuamin, that he favours the Plaintiff to have custody over him as reflected in a letter admitted marked Exhibit "C". The law and relevant principles applicable in this jurisdiction on application for custody cases are quite espoused in Papua New Guinea leading case law precedents in respect to the facts revealled in this case. The paramount considerations and best interest of the child Liam, the requisite judicial paramount considerations pendulum swings in favour of the Plaintiff and this is supported by Liam's own wishes and express desire, as well.

39. I am indebted to both Counsel for their succinct summary extract of submissions and I am greatly assisted and guided by their client's legal positions you have kindly drawn the Courts attention to in its final determination. The Defence counsel's submission is centred on joint custody order that secure biological connection to the mother that promote best interest of Liam Glenn Brookes before Liam Glenn Brookes reach 21 years as adult young man. I must say at this stage, however, that I am further assisted by the Plaintiff's Counsel's submission on relevant case laws pertaining to the custody application of a child now on foot before the court. 

40. Some of the more often quoted and judicially applied principles in custody of children applications are found in the case of Bean v Bean [1980] PNGLR 307 where Kapi J (as he then was) said:

"...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 of these matters." 

Those principles have been applied by the Court consistently when considering custody applications. 

41. The Plaintiff's Counsel referred to a number of landmark cases, for example in VZ v JK [1994] N1667 Injia J (as he then was) said "This principle was first enunciated by Supreme Court in Bean v Bean [1980] PNGLR 307 and consistently applied in subsequent cases including WP v DF [1982] PNGLR 1, RG v MG [1984] PNGLR 413 and Susan Tom v Mazion Kayiak [1992] PNGLR 171. For a summary of the principles, I adopt the summary of Los J in Susan Tom v Mazion Kayiak (at 172-173). "The law is settled in the country that in any custody application the paramount consideration is the interest of the children. In RG v MG [1984] PNGLR 413 the relevant matters for consideration were listed as:

(i)	The claim of the mother and what is often referred to as her preferred role, MP – v – DP [1982] PNGLR 1;

(ii)	The relative circumstances in which it is intended to raise the child;

(iii)	The ability to provide for the child's advancement in life;

(iv)	The age of the child; and 

(v)	Provision for the maintenance of existing relationship."

42. The Court having had the opportunity to peruse the case precedents refer to above and take into account the relevant considerations where paramount interest of the child Liam Glenn Brookes, in the particular circumstances of this case. In order for me to arrive at the conclusion that reflect the paramount interest of the child in question, I take into account and consider, in particular, the above principles and apply them to the facts in this case. I take into account the following unique considerations that reflect the child's best interest with these backdrops. They are:

(i)	In view of the child who is 15 year old boy certainly the next six (6) years are very important for his education and future development as a young adult before he reaches the age of 21 years.

(ii)	The Welfare Officer's evidence is that education in Australia will offer Liam the best education prospect.

(iii)	All costs will be met by the Plaintiff.

(iv)	The defendant who is the biological mother is given the Court's protection for access to Liam every school break, for which the child Liam Glenn Brookes and the Plaintiff are ordered to observe, in terms of the slight variation of the Originating Summons. That is to facilitate the defendant biological mothers desire that she prefer to spend time with her son Liam Glenn Brookes at the end of the school year break rather than during school break during the year; the child can spend that time with his biological father the Plaintiff.

CONCLUSION
43. The Court having considered the application by the Plaintiff for sole legal custody of an issue namely; Liam Glenn Brookes born to the Defendant during the subsistence of the parties' previous matrimonial home under the Matrimonial Causes Act. The defendant generally object to the application but did agree on joint legal custody. It is noted that both the Plaintiff and Defendant have separated since 2000. The legal consideration the Court must be satisfied is the paramount interest of the child. 

44. The paramount interest of the child that must be considered and includes his ongoing education and his immediate and ongoing welfare of the child under the current environment and into the future during the child's tender years of development. These considerations on total personal development to enhance his natural and acquired skills that comprise of and include four faculties of a person capacity and competency development in respect to his physical, mental, social and spiritual development as a total balance human being. These legal considerations are requisite requirement that a party in the proceedings such as this must possess and be able to demonstrate that ability and capacity to deliver through evidence adduced before the Court. 

45. The application by the Plaintiff for sole legal custody of Liam Glenn Brookes in view of paramount interest of the child favours the Plaintiff. This conclusion is supported by the professional officer who is Child Protection Officer Mr. Philip Kuamin that Plaintiff should have sole custody of Liam Glenn Brookes. This is also supported by Liam's own wish and express desire during the interview conducted on 9th April 2013 with the resident Provisional Child Protection Officer, Mr Philip Kuamin who provided the succinct reflection of his interview by asking the following pertinent questions and answers given by Liam Glenn Brookes:

Q. Who do you want or favour most to be with?
A. I want to be with my dad (Plaintiff).

Q. Why you want to be under your fathers' (Plaintiff) custody?
A. (i). I'm (Liam) now doing Grade (9) at Coronation International School, Lae, Morobe Province, PNG. I therefore want to continue my education. The only best option for me is to be under my daddy's custody.

(ii). I want custody to be granted to my father to enable me to go to Queensland, where there lots of opportunities for me to continue my education, and most importantly go to University.

(iii). My big brother Clae Brookes is already in Queensland and working. If my father is granted custody over me, it would be best as I can re-unite with my brother which I haven't seen him for a long time.

(iv). It is my right to decide which side to stay with either my father or mother. In this situation I feel that if I stay with my dad I have a lot of opportunities as far as my future life is concern.

46. Whilst Provincial Child Protection Officer did not ask Liam on his mother's accessibility right to him, however, it was apparent that Liam favours his father to have custody over him; but the Court must consider accessibility by his biological mother Magdalene must be protected by the court. The Plaintiff made generous concession on the Defendant's accessibility be crafted into the formal court order to maintain her access right under s. 74 (4) of the Matrimonial Causes Act. The Court having considered the wishes of the child in question and made his preferred option in favour of his father and having considered the paramount interest of the child is adequately provided by the Plaintiff as espoused in the case of Susan Tom v Mazion Kayiak [1992] PNGLR 171 and these principles were restated in the case of RG v MG [1984] PNGLR 413 are applied in this case forthwith. Whilst Defendant's interest and ability to perform mother's role to secure joint custody is not in any way undermined, but the best and paramount considerations that facilitate Liam's interest and future personal development in all facet of life challenges, and relevant express options available as per Liam's wish and dreams swing more in favour of the Plaintiff than the Defendant. I therefore find myself in the circumstances of this case, that I have no other option but to rule in favour of the Plaintiff's application. The Court grants the Plaintiff's application and grant orders as sought in this application forthwith. Whilst the Defendant will have access right to Liam Glenn Brookes on terms and conditions as amicably agreed between parties but forms the main thrust of the court order. The court orders accordingly.

ORDER
47. The Court accordingly made the following Orders that:

1.	The Plaintiff shall have sole custody of the younger child of their marriage, namely Liam Glenn Brookes, reserving unto the defendant reasonable access, subject to the following Orders:

2.	The Plaintiff shall be solely responsible for the health, maintenance and education and general well-being of Liam Glenn Brookes.

3.	Liam Glenn Brookes as soon as reasonably can be organised over the coming weeks, shall leave Papua New Guinea and attend school at Marist Brothers Ashgrove, Brisbane, Australia, to complete his secondary education.

4.	The Plaintiff and the Defendant shall forthwith complete all such consents as shall be required so as to enable the administrative process to proceed, with such matters as the necessary passport, visas and schooling papers and specifically each of them the Plaintiff and the Defendant shall consent and sign the Australian passport application for their son Liam Glenn Brookes and each shall withdraw any prior written objections to the relevant authorities opposing Liam Glenn Brookes' desire or intention to leave Papua New Guinea for schooling or any other purposes, all of which shall be at the cost of the Plaintiff.

5.	During all major school holiday breaks, if the Defendant confirms it is convenient for her on each occasion and she wishes it, Liam Glenn Brookes shall return to Papua New Guinea from Brisbane to be with the defendant on those occasions, all of which travel maintenance and necessary associated costs shall be solely the responsibility of the Plaintiff.

6.	The time for entry of these Orders be abridged to the time of settlement by the Registrar which shall take place forthwith.

7.	Parties to bear their own cost.

Warner Shand Lawyers: Lawyer for the Plaintiff 
Public Solicitors Office: Lawyer for the Defendant