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Tabiye v Loras [2022] PGNC 550; N10084 (13 December 2022)

N10084

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

MC NO. 4 OF 2021

BETWEEN:
RUSSEL TABIYE
Petitioner

AND:
RUTH LORAS
First Respondent

AND:
HOMATE GIMISIVE
Second Respondent

Goroka: Mugugia, AJ
2022: 23^rd November, 13^th December

MATRIMONIAL CAUSES - Petition for dissolution of marriage – Grounds of adultery and willful desertion – No challenge to the grounds – Order for decree nisi for dissolution of marriage granted.

CUSTODY – Two biological children of the marriage – Custody awarded to Petitioner – Reasonable access granted to First Respondent.

MAINTENANCE – Orders made - First Respondent shall financially assist the Petitioner in the two children’s upkeep and education – Petitioner and First Respondent shall pay school fees and associated costs in equal portions.

Counsel:

G. Appa, for the Petitioner
N. Amoiha, for the Respondents

JUDGMENT

13^th December, 2022

1. MUGUGIA, AJ: The Petitioner and the First Respondent got married in accordance with the Marriage Act on 25^th July 2011. They are both domiciled in the country. They have two children of the marriage. The Petitioner filed a Petition for dissolution of marriage. The grounds for dissolution of marriage were adultery and willful desertion. The other relief sought by the Petitioner were orders for the sole custody of the two legitimate children of the marriage, and maintenance orders for the two children.
   

EVIDENCE

2. The hearing of the Petition was by way of affidavits. The following affidavits were tendered by consent:
   

For the Petitioner

• Affidavit of Russel Tabiye filed on 28 May 2021 – [Exhibit “P1”].
• Affidavit of Lilly Siori filed on 6 October 2022 – [Exhibit “P2”]
• Affidavit of Siviri Lalave filed on 6 October 2022 – [Exhibit “P3”].
  

For the Respondents

• Affidavit of Ruth Loras filed on 4^th March 2022 – [Exhibit “R1”].
• Supplementary Affidavit of Ruth Loras filed on 4^th July 2022 – [Exhibit “R2”]
  

DISSOLUTION OF MARRIAGE

3. The grounds relied on by the Petitioner were adultery and willful desertion. Part V of the Matrimonial Causes Act (Act) provides for “Matrimonial Relief”. Section 17(a) to (n) sets out the grounds for dissolution of marriage.
   
4. Sufficient evidence was placed before the Court to show the existence of the grounds relied on by the Petitioner for dissolution of marriage. The First Respondent voluntarily walked out of the marriage and remarried. She is currently living with the Second Respondent. She willingly left her matrimonial home and the Petitioner and refused to return. The evidence in the proceedings show that there is no possibility of reconciliation.
   
5. No Answer to the Petition was filed by the First Respondent. In her evidence, she consented to the order for dissolution of the marriage.
   
6. I am satisfied by the Petitioner’s evidence. I find that the grounds for dissolution of marriage relied on by the Petitioner have been proven.
   
7. I have considered the ‘Discretionary Bars” set out under Section 29 of the Act which states:
   

“29. DISCRETIONARY BARS.

The Court may in its discretion, refuse to make a decree of dissolution of marriage on a ground specified in Section 17(a) to (l) if, since the marriage–

(a) the petitioner has committed adultery that has not been condoned by the respondent or that, having been so condoned, has been revived; or

(b) the petitioner has been guilty of cruelty to the respondent; or

(c) the petitioner has wilfully deserted the respondent before the happening of matters constituting the ground relied on by the petitioner or, where that ground involves matters occurring during, or extending over, a period, before the expiration of that period; or

(d) the habits of the petitioner have, or the conduct of the petitioner has, conduced or contributed to the existence of the ground relied on by the petitioner.”

8. I find that since the marriage, the Petitioner has not committed any of the discretionary bars to relief. There is no bar to dissolution of marriage.

CUSTODY OF THE TWO CHILDREN

9. The two children of the marriage are:

• Daniel Tabiye – 12 years.
• Richard Tabiye – 9 years.
  

10. The First Respondent opposed the order for custody of the two children.

11. The Petitioner’s evidence shows that certain events have occurred which give rise to matters which affect the security, wellbeing and welfare of the two children. The two children are not happy with their mother. They have complained that she is not always present in the house when they are with her. They have also complained that they were verbally and sometimes physically abused by those living in their mother’s house.

12. The Petitioner relied on the Affidavit of Siviri Lalave filed on 6 October 2022 [Exhibit “P3”]. Mrs. Siviri Lalave is the Senior Welfare Officer employed by the Division of Community Development, Eastern Highlands Province. Her Affidavit confirms that she had an audience with the two children on 21^st August 2020. She interviewed both of them and documented it. Her “Interview Report” is annexed to her Affidavit. The “Interview Report” shows that when the children are with their mother, they are mistreated physically, emotionally and mentally. Their mother’s house is small and not conducive. They choose to be with their father where they experience love and care.

13. The Petitioner also relied on the Affidavit of Lilly Siori filed on 6 October 2022 [Exhibit “P2”]. Mrs. Lilly Siori is the Assistant Child Protection and Welfare Officer employed by the Division of Community Development, Eastern Highlands Province. She is well aware of the facts of this case. Her Affidavit confirms that she interviewed the two children and documented her report. Her “Home Base Report” is annexed to her Affidavit. She states in her Report that according to the interview and home visitation in general, the children feel comfortable and enjoy a fear free life in their father’s premises because there is enough space, the environment is friendly and conducive, the family and friends love them and care for them and meet their needs.

14. The First Respondent did not file an affidavit to rebut the evidence put forward by the Senior Welfare Officer and the Assistant Child Protection and Welfare Officer.

15. Section 74 of the Act provides for “Powers of Court in Custody, etc., Proceedings”. This Section states:

“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.”

16. I regard the interest of the two children as the paramount consideration. The welfare and wellbeing of the children are important. I am convinced by the Petitioner’s evidence, especially the Welfare Officers’ Reports. I find these evidence credible. The two children are better off with the Petitioner who will give them the love, care and support they need.

MAINTENANCE OF THE TWO CHILDREN

17. The Petitioner sought maintenance orders for the two children. The two children are 12 years and 9 years respectively. They are in grades 6 and 4 in primary school. I give paramount consideration to their welfare and interest. I have had regard to the means, earning capacity and conduct of the Petitioner and the First Respondent and all other relevant circumstances. The First Respondent is employed and has financial capacity. I am of the view that she must assist the Petitioner to financially support the children in their upkeep (financial and material support) and education. It is in their best interest that she does so.

CONCLUSION

18. Based on the findings made, I will grant the orders sought by the Petitioner.

FORMAL ORDERS:

19. I make the following Orders:

1. A Decree Nisi for the dissolution of marriage of Russel Tabiye and Ruth Loras is granted.

2. Custody of the children Daniel Tabiye and Richard Tabiye is granted to the Petitioner. The First Respondent shall have reasonable access to the two children.

3. The First Respondent shall financially assist the Petitioner in the two children’s upkeep and education. In terms of the two children’s school fees and related costs at all levels of education from primary education up, the Petitioner and the First Respondent shall make payments in equal portions.

4. Parties shall pay their own costs.

Orders accordingly.
________________________________________________________________
G. Appa: Lawyer for the Petitioner
N. Amoiha: Lawyer for the Respondents