1976

Papua New Guinea Law Reports - 1976

[1976] PNGLR 1 - Trnka v Trnka�

[1976] PNGLR 1

N3

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

TRNKA

V

TRNKA

Port Moresby

Frost CJ

22-26 September 1975

3 October 1975

MATRIMONIAL CAUSES - Practice and procedure - Custody and access - Consent order for custody in favour of petitioning husband at time of decree nisi - Application for reversal of consent order by applicant mother - Welfare of children paramount consideration - Applicant�s case to be carefully scrutinized - Application refused - Matrimonial Causes Act, 1964, s. 79 (1)[i]¹.

The paramount issue in every case involving the custody of children, including an application for reversal of a consent order for custody, is the welfare of the children, and such an application should be acceded to only after careful scrutiny of the applicant�s case.

McManus v. McManus (1969) 13 F.L.R. 447 at p. 455 not followed.

On an application by an applicant mother for reversal of an order for consent in favour of the respondent father, in respect of two male children aged 5 years 5 months and 4 years,

Held

N1>(1)����� In the particular circumstances, the welfare of the children required that they should not be moved from the custody of their father where they were settled and well cared for; any shift to a new environment and new associations would introduce an element of risk into the security of their lives.

N1>(2)����� That the applicant mother should have liberal access.

Anderson v. Anderson (1960) 34 A.L.J.R. 65 at p. 66; Jones v. Jones, [1960] 2 N.S.W.R. 762 at p. 769; and Mayo v. Mayo (1966) 9 F.L.R. 304 at p. 310 referred to.

Application

This was an application for custody of, or alternatively access to, two male children, by the mother of the children. The application was brought under s. 79 (1) of the Matrimonial Causes Act 1964, the marriage between the applicant mother and the respondent father having been dissolved by decree nisi made absolute on 18th October, 1974, at which time orders for custody of the children in favour of the respondent father, were made by consent in Papua New Guinea and in New South Wales.

Counsel

D. G. Letcher, for the applicant.

B. M. Hogan, for the respondent.

Cur. adv. vult.

3 October 1975

FROST CJ:� The applicant, Dawn Florence Rebecca Trnka, seeks the custody of, or alternatively access to, two male children, Gunter Wilhelm Trnka now aged 5 years and 5 months, having been born on 26th April, 1970, and Matthew Thomas Trnka now aged 4 years, having been born on 20th September, 1971. Both children are the children of the applicant and the respondent but Gunter was born before their marriage on 11th July, 1970.

The marriage was dissolved on the respondent�s petition, which was not contested by the applicant, on the grounds of the applicant�s adultery with two men. The decree nisi granted by the former Supreme Court was made absolute on 18th October, 1974.

The application is brought under the Matrimonial Causes Act 1964, s. 79 (1), which provides that in proceedings with respect, inter alia, to the custody of children of a marriage, the court shall regard the interests of the children as the paramount consideration (s. 79 (1) (a)). Both counsel accepted the law applicable as laid down by the High Court of Australia in Anderson v. Anderson[ii]². Referring to a provision in similar terms the High Court said:

�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.�

The High Court went on to indicate that in proceedings such as the present the most important matter was �whether the child would have a better chance of affectionate care, wise parental control, a sound education and an opportunity to make a good start in life� in the home of his father or in the home of his mother. The Court also referred to the overwhelming importance that it is proper to attribute to a mother�s care in the case of very young children (p. 67). This consideration has been stated in many cases, starting with the well-known passage from the judgment of Lord Romilly in Austin v. Austin [iii]³. The law is quite clear that the mother�s claim is by far the stronger in the case of children of tender years and that the best interests of a very young child will be served, if it cannot have the care of both parents, by leaving it in the custody of its mother except where in special circumstances, such as the unfitness of the mother, the welfare of the child requires otherwise. See Jones v. Jones [iv]⁴.

The applicant is Australian by birth and the respondent Austrian. Both are in their early thirties. Each had lived in Port Moresby prior to their marriage which took place in Austria when they were on holiday. The respondent has since established himself as a successful businessman engaged in pipeline construction, heavy plant hire, building construction and plumbing work. He has substantial assets both in Port Moresby and in Australia. The applicant is also an astute businesswoman. During the marriage she conducted a retail shoe business and after her return to Port Moresby has this year already established in partnership a profitable florist shop, from which she draws $120.00 per week clear. But she has also on her own account an Interflora agency and gift section from which at this early stage is brought in about $100.00 before tax per week.

[His Honour then dealt with the history of the marriage and subsequent relationships and continued:]

In the meantime the decree nisi had been pronounced on the respondent�s petition. When she arrived at the end of November he agreed that she should return to Port Moresby with the children, that he would not separate them from her, and on her part she agreed that orders for custody should be made in his favour both in Papua New Guinea and the New South Wales courts. The respondent had in the meantime himself formed an association with a younger girl which he agreed to terminate, and which did come to an end. The applicant then returned to Sydney and finally, on 13th December, 1974, brought the children back to Port Moresby and into the respondent�s home where they have since continued to live. However, it was not surprising that the relationship between the parties was not harmonious. Sexual intercourse was resumed but relations were strained. The respondent continued on occasions to insult her in public; she irritated him by a visit to Australia in January to complete arrangements for the disposal of her car which was in his name. In March, needing she said to have a curette and the advice of a gynaecologist, and also for business reasons, she went again to Australia.

About the middle of March the respondent�s mother, a widow of about 60 years of age, arrived from Austria, and this caused friction over the children. A few weeks later, in April, the respondent, having his mother with him to look after the children, took the excuse that the applicant had threatened legal proceedings against him over her interest in the Jeda Shoes business to eject her from the home. This he did in circumstances humiliating to her and before the children, giving her two hours to pack and leave as he seized the children and drove them to school.

The applicant was able to obtain a flat in Spring Garden Road where she has continued to live. It is basically a one-roomed flat but the owner has agreed to make available the adjoining flat now used as an office and to connect them by means of an internal door. This would provide a very large living area and a bedroom with bathroom. It is this accommodation which the applicant proposed as the home for the children if she obtains custody or extended access.

The respondent�s accommodation consists of a flat in a small block at the front of the same large block of land upon which the respondent conducts his business. There is also accommodation for his employees at the rear. The office adjoins the flat as part of the same building. This accommodation was criticized by the applicant�s counsel because of its general industrial locality and the proximity of the business premises. The same criticism applies to some extent to the applicant�s flat. I was impressed by the respondent�s accommodation; it is modern, comfortable and air-conditioned, with a new bedroom and lounge erected to enable the children to have the larger bedroom now occupied by the respondent. The garden, although small, is well-shaded and adequate for the children to play in.

This brings me to the existing arrangements for the children. The elder boy attends St. Joseph�s, a Catholic school at Boroko, which both parents being Catholic agreed was best for him. In the afternoon after school he is picked up by a Mrs. Brown who runs a child minding centre. Matthew, who attends pre-school, is also picked up by Mrs. Brown but earlier at about 11 o�clock in the morning. The children are called for by the respondent, or occasionally his employee, between four and five in the afternoon. As the applicant said, it is a long day for them, but it is the routine of many children in Port Moresby whose mothers are away at work. On the weekend, the children are taught swimming and taken to the beach. Whilst the respondent�s mother was with him it was she who did the cooking and generally looked after the children. He has a female domestic who keeps house, does kitchen duties and, by means of an automatic washing machine, the laundry. Since his mother returned to Austria a few weeks ago, it is the respondent who has prepared the breakfast and other meals. But as respondent�s counsel submitted, what has changed in these days is the position of the father for it is recognized that fathers do perform such household duties.

I should now refer to the personality of the parties, which is important as it bears upon the welfare of the children. It is undisputed that each has a genuine love for the children. The respondent is a phlegmatic man, hardworking, intelligent and ambitious, insistent on business efficiency and a believer in discipline with his children. He is anxious for them to do well at school and already helps the elder boy with home lessons which he needs to catch up with the older children in his class. One witness, Mr. Stephen Jewitt, described him as sometimes a bit strict with them, clamping down on them a bit too strongly. However, the respondent was the first to admit he was not without faults, that he was only human. Indeed he has a streak of violence, and probably some sadism. He was capable of shooting a dog with shot after shot, killing it in front of the applicant, and of striking a woman, once with a riding crop, as the incidents when he caused his wife pain and also some injury indicate. But it is not suggested that there is any risk of him physically ill-treating the children. Having regard to the extent of his business commitments in Port Moresby, I accept his evidence that he has no intention of leaving Papua New Guinea, certainly within the next few years, or of removing the children to Austria.

The applicant is of an opposite temperament. With her dark good looks, she is an emotional and indeed passionate woman. Observing her during the hearing over several days, I have seen her changing emotional reactions to the evidence � sometimes in an innocent way. One could not fail to be touched by her cry of anguish when it was being put to the respondent that he intended to take the children from her and leave them in Austria. She has a quality which the respondent said he found irresistible even after the divorce when cohabitation was resumed. It is this which attracts men to her, and sensual as she is, she has yielded to them. But her strong emotional makeup leads to instability of character. By several untruths, which I regret she told during the hearing, she would have felt justified in her effort to obtain the custody of her children who mean everything to her.

The application before this Court basically is that the present order for custody should be reversed. As in McManus v. McManus[v]⁵�which was cited by counsel for the respondent, the essential starting point is the order for custody to which the applicant consented in the light of the then known circumstances. As in that case, the action of the applicant in handing the children over to the respondent in August 1973 and leaving them with him when she left for Australia is a clear indication that she felt that this was in the children�s best interests. But I am not prepared to go so far as to follow the Court of Appeal of New South Wales in McManus v. McManus[vi]⁶�in holding that generally a consent order, in circumstances such as these, can be overturned only on substantial grounds involving �a particularly heavy onus� on the party seeking the change. For the paramount issue in every case is the welfare of the children. However, such an application should be acceded to only after careful scrutiny of the applicant�s case.

At first, after the evidence closed, I was inclined to take the view that the present arrangements for the children were unsuitable because, with his preoccupation with business, the respondent would be unable to give sufficient attention to the children. This was indeed one of the main submissions of the applicant�s counsel. But on reflection the view I hold is that the present arrangements with the flat adjoining the office enable him conveniently both to care for the children and also to attend to business after the children have gone to bed if it is required. No doubt he could obtain the services of a domestic who cooks, but it seems that he prefers to do his own cooking. It was said that he is likely to be hard on the children, but the evidence goes no further than that he exercises a certain amount of discipline. The respondent also says that the children are his life and I am satisfied that he is in a position to continue to care for them and to provide for their material welfare. There is no reason to suppose to the contrary that as he says he will be joined by his mother, but no reliance can be placed on her staying for any lengthy continuous period. Indeed the constant care of very young children would be demanding upon a woman of her years. If the mother were given substantial access, I do not consider that the grandmother would come between the boys and their mother. However, in the absence of any clear evidence of the grandmother�s intentions, I take the view that if custody is awarded to the respondent he will be the one mainly responsible for their care.

Before turning to the applicant�s case there are two matters to which I would refer. The first concerns the respondent�s rather veiled allegation that since April the applicant has formed an association with one M., who is a furniture manufacturer living in the same neighbourhood. He is certainly friendly with her for he visits her three or four times a week when he calls on other persons in the same block of flats. On one occasion he stayed the remainder of the night alone in her flat with her after a party broke up at about 2 o�clock in the morning, for the reason, he said, of protecting her against prowlers. Also she visits him and her car has been seen on a number of occasions outside his flat all night. This occurred, M. said, because her car, an old one, had broken down and he had driven her home earlier in the night. M. himself is single but is to be joined soon by his future bride from Europe. Both the applicant and M. have denied any sexual association, but whilst the evidence is insufficient to support a finding the applicant�s conduct, for a woman with children, has certainly been indiscreet.

The second matter concerns the applicant�s accommodation. It is true that there is ample provision for security and she is fortunate to have the company of her friends. But the building is bare, lacking in finish, exposed to the sun, and entirely without shade to enable the children to play outdoors. There is a low gabled roof of steel with no internal ceiling and there is a substantial gap between the bedroom walls and the roof. Adequately furnished as it is, it is much inferior to the boys� present accommodation. The facilities for the domestics, if left open, are not a desirable feature. The applicant seemed aware that the view, which at the request of counsel I had of the respective premises, had gone against her; and when I questioned her at the end about provision for a suitable canopy to provide shade, she said for the first time that she did not intend to stay there permanently but proposed to purchase another home. This was a brave answer but unhelpful because she has insufficient money to provide a deposit.

It remains now to consider the case made by the applicant. Her counsel has submitted that the situation is considerably different from that which obtained in August 1973, which he referred to as a time of great emotional instability on her part which will not be repeated. He submitted that with the establishment of a successful business and her home, she shows now a sufficient sense of responsibility and maturity to be entrusted with the care of the children. He submitted also, correctly, that it is certainly not the law that she should be punished by a denial of custody merely on the ground of her previous misconduct. It was also submitted that her previous misconduct did not affect the wellbeing of the children.

After the evidence closed in this case, conscious as I am of the overwhelming importance that young children should have a mother�s care, I have endeavoured anxiously, as the transcript will show, to find whether there was sufficient basis to support a change in the custody of the children and for her to have them in her care for the greater part of the time. But in the end I have come to the conclusion that this is a case in which the welfare of the children requires that they should not be uprooted from their present custody. It is a conclusion which I have come to with regret because of the mother�s undoubted affection for them. I cannot put on one side her instability of character which was clearly evident during 1973 and throughout the whole of 1974. This was the period when having given up her children, unpredictably she returned to abduct them and then she took them from one place to another, denying them the security of their father�s home in Port Moresby. It was wrong, in the circumstances, for her to keep them with her in her lover�s house. Of the two parents, to use the words of another case (Mayo v. Mayo [vii]⁷), it is the father who has shown a true concern and sense of responsibility for the wellbeing of the children. To make a change from their present comfortable home where they are settled and well-cared for and shift them to a new environment and new associations would, in my opinion, as respondent�s counsel submitted, introduce an element of risk into the security of their lives. I consider also, although I hope it does not occur, that there is a possibility, not to be overlooked, that the applicant might form some new association which may involve the children and affect their moral welfare. My first impression, also, has remained with me that whilst her flat, if extended, would be adequate for weekend access (when the children could be taken to the beach), her present accommodation is not suitable as the settled home for their upbringing. This consideration provides a further strong reason against a change.

Accordingly I have decided that the application should be refused, and that the respondent should have custody of the children until each attains 16 years, or further order. I propose to grant liberal access to the applicant. Access will be granted each second weekend from 4.30 p.m. on Friday until 8.00 a.m. on Monday, commencing on 10th October, 1975. I shall continue also the present access on each Wednesday afternoon and extend it to three hours, from 4.30 p.m., to enable the applicant, if she wishes, to have the children for a meal. The applicant is to have access also during one-half of each school holidays except the Christmas vacation, in which she is to have access in alternate years for two weeks and four weeks, commencing with a period of two weeks in the Christmas vacation of 1975. The children are to spend Christmas on alternate years with each parent. I shall also order that the respondent pay maintenance during periods of access by the applicant at the rate of K20.00 for each child per week. These orders will be conditional upon each party undertaking not to take either child from the jurisdiction of Papua New Guinea without first filing in this Court a written consent thereto by the other party or further order. When during a period of access, which is normally to be during the four weeks� period in the Christmas vacation, the applicant, pursuant to this order takes the children to Australia, the respondent is to pay their return air fares. Such a holiday would be necessary for health reasons.

As the applicant has succeeded in part upon this application and obtained an order for substantial access, I shall order that the respondent pay half her taxed costs.

Orders accordingly.

Solicitors for the applicant: Gadens.

Solicitors for the respondent: Francis & Francis.

R> R>

[i]Infra p. 2.

[ii] (1960) 34 A.L.J.R. 65, at p. 66.

[iii][1865] EngR 103; (1865) 34 Beav. 257, at p. 263; [1865] EngR 103; 55 E.R. 634, at pp. 636-637.

[iv] [1960] 2 N.S.W.R. 762, at p. 769, and the cases there referred to; Thompson v. Thompson [1966] 2 N.S.W.R. 534.

[v] (1969) 13 F.L.R. 447, at p. 455.

[vi] (1969) 13 F.L.R. 447, at p. 455.

[vii](1966) 9 F.L.R. 304, at p. 310.

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