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Frame v Frame [1966] PGSC 7 (24 August 1966)

IN THE SUPREME COURT
OF THE TERRITORY OF
PAPUA AND NEW GUINEA

Coram: Frost, J.

BETWEEN

DAVID ROBERT FRAME
Petitioner

AND

THERESE PHILOMENA MARIA FRAME
Respondent

AND

JOHN LEWIS
Co-Respondent

PORT MORESBY

4^th, 6^th, and 7^th July 1966
and 24^th August 1966

JUDGMENT

In this case David Robert FRAME of Goroka petitioned for divorce from his wife, Therese Philomena Maria FRAME on the ground of her adultery with the co-respondent, John LEWIS. When the petition came on for hearing as an undefended suit with a prayer for the custody of the children of the marriage, I was not satisfied as to the proof of adultery. The petitioner accordingly sought an adjournment, and on the adjournment the petitioner's counsel called the respondent and the co-respondent, who both admitted adultery. On the application of Mr. Bayliss, who then appeared for the wife and co-respondent, I granted the respondent leave to file an answer, in which she admitted adultery and sought an order for the care and control of the children of the marriage. I granted nisi on the ground of adultery with costs to be plaid by co-respondent and then proceeded to try the issue of the custody of the children of the marriage.

The facts as presented by the parties, are unfortunately rather meagre as to detail. The parties were married on 20th May, 1961, in Sydney. The father is now 25 years, and the mother 23 years. There are three children of the marriage, two daughters, Tracy Helen Frame born on 4th December 1961, and Kelli Therese Frame, born on 4th January, 1963, and the youngest child, a baby son, born on 29th May, 1965, that is, after the father had instituted these proceedings.

The contest is between the father who was living with his wife and children up to the end of November 1959 and the respondent who has now taken up her abode with Mr. Lewis, the co-respondent.

The law applicable to these proceedings is to be found in the Matrimonial Causes Ordinance 1964, Section 79(1), which is in the following terms:-

(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 the last preceding paragraph, the Court may make such order in respect of those matters as it thinks proper.

I was referred to several authorities in which the corresponding section in the Matrimonial Causes Act of the Commonwealth was discussed but I do not consider that any good purpose would be served by examining the law prior to the coming into force of the Ordinance with a view to determining whether there has been any change. In my opinion, the new provision, despite a difference in the words used, is to be given the meaning attributed to the New South South Whales Statute, in Infants' Custody and Settlements Act, Section 17, by the High Court in Anderson v. Anderson (^[1]). That section required that upon any question with regard to the custody or upbringing of an infant "the Court in deciding that question shall regard the welfare of the infant as the first and paramount consideration". The High Court went on to say:-

"In the application of this injunction it is for the Court to give weight to particular matters such as the merits, demerits or attitudes of those seeking the custody of a child or those with whom the child will in one event or the other have to live as matters bearing upon the welfare of the child rather than as independent considerations competing with that of the welfare of the child."

In the Territory Ordinance, section 79(1), ibid., it is the "interests" of the children which are to be regarded as of paramount consideration, but this word should be given as wide a meaning as "welfare".

Now my problem is the immediate interests of these children. I am not making an order which will irrevocably determine the future of these children. It is the immediate problem with which I am concerned and this immediate problem may change. Re K. an infant (^[2]).

In the present situation with which I have to deal, the children are being looked after by their parental grandmother, having been in her care and control since the mother left home at the end of November, 1965. During this time the children were enrolled at a kindergarten in Goroka and were driven there each morning and picked up later before lunch. When Mr. Frame, Sen. became sick in April of this year it was found necessary that he should be taken to Sydney for medical treatment, and the grandparents took the two young children with them. In Sydney they have lived a quiet life in a flat.

After having heard Mrs. Frame, Sen. in the witness box I am satisfied that she loves the children and is fit to care for them. She is a woman of 48 and she seems to me to be a vigorous, energetic, capable woman. She says her husband loves the children also. They are substantial people owning a coffee plantation at Goroka and can do much for the children. They have a large house with three bedrooms, big enough for the children to have a room to themselves. She has the assistance of three native servants and is able to devote this necessary time to the upbringing of the children. The petitioner lives with them. In the conduct of his transport business in the past it has been his practice to be absent from home for up to three or four nights a weeks but now that his marriage has broken up he proposes to employ a European truck driver to avoid these absences from home. In fact, the children are now with the grandparents in Sydney and it is expected that they will soon return to the Territory when the doctors consider that the health of Mr. Frame, Sen. will enable him to return to the plantation.

The picture that I have of the grandparents' household in Goroka in which they have their father with them, is one of great affection for the children, efficiently run and providing the children with security and stable surroundings where I am satisfied that they will receive love and understanding.

Now this was the custody in which the wife was content to leave the children when she left her husband. There has been no real criticism of Mrs. Frame, Sen. by the respondent. In the case of children as young as these the need for a mother's care has an overwhelming importance (Anderson v Anderson (Supra) at p. 67) and it must be a strong case in which the mother's claim is refused. But I must look carefully at the character and actions of the mother and co-respondent to be satisfied that if I disturb the present arrangements the children will not lack that stable background and wise parental control which at the moment I am satisfied they are ensured, so I now propose to turn to the mother's position.

The respondent came to the Highlands of New Guinea from Sydney immediately after her marriage when she was only 18 years of age. Her husband was the third generation of a family to have lived in the Territory, so he is well adapted to local conditions. The young couple lived on various plantations and in September 1964, they went to live on the petitioner's parents' coffee plantation, Kilaparoka, near Goroka. There they lived in a house the outer walls of which were made of pit-pit platting but it had a corrugated iron roof, flooring and contained two bedrooms and was fitted with a kerosene refrigerator, gas stove, and electricity. There was no bathroom. It had been used by native, employees and the wife considered it unsatisfactory. Mrs. Frames Senior, said that this was the sort of house in which she had lived for about ten years when she first came to the Highlands. This construction is certainly not uncommon in the Highlands. However, I think that the respondent missed her life in Sydney and was unhappy in her surroundings. She may have lived too close to her in-laws, and so she was unhappy at home when she met the co-respondent. He was then the manager of a piggery at Goroka, which was conducted by the Department of Agriculture. He is a man of 34 years and of heavy build, significantly older than the respondent, and to my mind a man looking older than his years.

During 1965 the parties became on visiting terms with the co-respondent and his wife, who again was older than her husband, she being over forty. Until November 1965 the petitioner said he was satisfied with the marriage, but, in the meantime, in the course of the friendship which had developed between the two couples, the respondent had fallen in love with Mr. Lewis and he fell in love with her. This was the real cause of the marriage being broken up. In that month Mrs. Lewis left her husband and children and soon after the respondent left the petitioner and went to live with Lewis.

When the husband suspected that their association had proceeded further than friendship, he broached the matter with Lewis who told him that he was in love with his wife. When the petitioner said, "Don't you think this is ridiculous? She is a married woman with two children", Lewis replied, "That is something for Terry and myself to decide." He then expressed the opinion that the petitioner should not blame the wife for this, that he was to blame and went so far as to hope that they could be friends. When the wife came to him he knew that she was pregnant by her husband.

When she decided to leave the petitioner she wanted to take the children with her but he refused and said that he was determined to retain them. She thought that she could look after the children better than he could, but in the face of his adamant attitude she left the children in his care and thus left there to be looked after by the grandmother. She had second thoughts about the children because a fortnight after she left home she returned. She stayed overnight with the petitioner when the children were with the grandparents. Apparently she made no effort to see the children. The petitioner wanted a reconciliation and he asked her for the sake of the children to return. She said that she did not think it would work, it was better if they parted, and she then left finally to live with Lewis. Thereafter she accepted this position. It is true that she was dealing with her husband's family who are substantial and powerful people in Goroka. She was without resources and much younger, and they had made it plain that having left the petitioner and her children they wanted nothing further to do with her. Early in 1966 a "No Trespassing" sign was erected at Kilaparoka Plantation and a night watchman employed, and the wife probably had good reason to think that these measures were directed against her.

Now I wish to refer to a most unfortunate incident. There is no solicitor in Goroka so being minded to obtain legal advice, Mr. Frame, Sen. consulted the Stipendiary magistrate at Goroka. Apparently he told him the facts and the magistrate then proceeded to give some legal advice, to the effect that the father was entitled to retain the children. Later the wife too called on the magistrate and he gave her the same advice. The magistrate clearly went outside his functions as a magistrate of this Territory, and I am bound to say that I consider his action most unwise. I would hope that this practice is not general in the Territory. Following the magistrate's advice, the respondent, although living only a few hundred yards from the plantations took no steps to see the children during the time she was there, or during this year when she came to Moitaka Agricultural Station near Port Moresby when Mr. Lewis was transferred there in the course of his employment.

As to this petitioner, I am satisfied that he has a true love of the children, is determined to retain them, and is genuine in his belief that it is against the interests of the children to be brought up in contact with a man who broke up his marriage and with whom his wife is, at present, living in adultery. I am satisfied that he will do everything with strict regard for the welfare of the children.

I have seen the respondent in the witness box and have been able to make, so far as I can, some assessment of her. Some matters have given me concern. I think she has no settled views as to what she wants to do either for herself or the children.

When asked if granted the care and control of the two eldest children, where would she take them to live, she said that she would like to take them to Australia permanently where she would live with her parents in Sydney. They have a two-bedroom house in which only one bedroom would be available to her and the children. She considered that Lewis would readily agree to give up his permanent position with the Department and return to Australia, if that was her wish. In fact, Lewis is a man without qualifications other then his commendable progress from overseer to manager with the Department of Agriculture in the Territory, and when he gave evidence he made it quite clear that he had no intention whatever of giving up his permanent position with the Department, unless he could obtain equally suitable employment in Australia, of which he was doubtful. Having seen the respondent in the witness box she seems to me to lack stability of character and although she says that she is prepared to marry Lewis and settle down with him, there would be no security for the children if they were at this stage returned to her care. Another matter which gives me concern is that she should have been uncertain as to Mr. Lewis' intentions even as late as April of this year and again until a week before these proceedings started, when she found it necessary to ask Lewis for his assurance that he would marry her.

Lewis, of course, will not be free to marry her until his wife divorces him, and I have been informed that proceedings for dissolution of his marriage have been instituted on her behalf. Mr. Lewis himself stated in evidence that he wished to marry the respondent and was prepared to support her children. He has a sufficient salary and is provided with a suitable house with three bedrooms. I must also take into account the fact that she preferred her own interests to that of the children and, pregnant, she abandoned the children to the care of her husband and his mother. She has chosen the co-respondent's household as the one to bring up the baby son of her marriage. Of course, she lacks maturity as do many other young married mothers, and that is something which I do not hold against her so far as this custody application is concerned, but having regard to her actions in the past and my assessment of her in the witness box, I think she does lack stability in her present way of life, and this instability is such at the moment that I am not prepared to make any immediate change in the custody of the children.

The co-respondent does seem to me a dependable man, but his blatant actions in breaking up the marriage and taking the wife into his home when she was pregnant by her husband, gives me doubt as to his moral character and as a change in custody would mean that the children would be going to the house that he controls, for this reason also I am not prepared to disturb their present custody.

Now there can be only one order so far as the infant son is concerned. He is so young that he must be left with the mother and indeed Mr. White did not contest this.

Mr. Bayliss was inclined to submit that I should make an order for the care and control only of the children, but I do not propose to make any divided order in this case.

As I have said, orders for custody are not final orders but are orders concerned with the immediate future upbringing and control of the children, and it may be that in the future the present position will change. On the one hand, the respondent and co-respondent having become free to do so, may marry and settle down to lead ordinary decent lives together, as indeed I hope they do, in well settled surroundings. Although I can only deplore her action in abandoning them, I consider that the respondent does love her children, and in the future the importance of their mother's care may become the overriding consideration. Further the petitioner's circumstances may change. He may have to spend a great deal of time away from home and his mother may become unable to look after the children. On the other hand, however, the position may not remain the same concerning the infant son.

I accordingly order that the petitioner have the custody of the two children Tracy Helen Frame and Kelli Therese Frame, and the respondent have the custody of the youngest child James Stuart Frame. I shall also order that as from the date of the youngest child's birth, that is the 29th May, 1966, the petitioner pay, until further order, the sum of $2.00 per week maintenance, the sum due until 1st September, 1966, to be paid on that date, and thereafter fortnightly on every second Thursday.

I also declare under Section 64(1) (a) that I am satisfied that proper arrangements in all the circumstances have been made for the welfare of the children. I make that declaration in respect of all children irrespective of the irregular arrangements under which the respondent is now living.

^[1] 34. A.L.J.R. 65.
^[2] (1963) 3 W.L.R. 408 at page 417 per Lord Evershed)