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Ora v Ora [1993] PGLawRp 519; [1993] PNGLR 128 (24 February 1993)

PNG Law Reports 1993

[1993] PNGLR 128 - Annie Jane Frances Ora v Gamini Ora�

[1993] PNGLR 128

N1138

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

ANNIE JANE FRANCES ORA

V

GAMINA ORA

Waigani

Sakora J

5 February 1993

24 February 1993

MATRIMONIAL CAUSES - Ancillary relief - Custody of children - Protective restraining orders - Proceeding under the Matrimonial Causes Act Ch 282 - Proceeding by way of notice of motion not permitted by the Matrimonial Causes Act.

Facts

The respondent proceeded on a notice of motion together with two supporting affidavits seeking to vary the interim orders in favour of the petitioner. The purported application by the respondent specifically relates to the ownership of the matrimonial home, the joint custody of the children of the marriage, and to restraint of the petitioner from harassing and threatening the respondent.

Held

N1>1.������ Interim order granting custody of the children to the petitioner taking into account the paramountcy of the welfare of the children.

N1>2.������ The petitioner and the children are to remain in the matrimonial home further reaffirming the amended orders of 2/2/93.

N1>3.������ Reasonable access is to be agreed to by the parties, but to be enjoyed by the respondent away from the matrimonial home.

Cases Cited

WP v DP [1982] PNGLR 1.

Counsel

T Glenn, for the petitioner.

J Nanei, for the respondent.

24 February 1993

SAKORA J: This matter came before me on 5 February upon a notice of motion dated 2 February 1993. After hearing both parties through their respective counsel, I reserved my decision until now.

It has to be noted at the outset, as Mr Glenn, counsel for the petitioner, noted at the hearing, that the respondent proceeded by a notice of motion not provided for or permitted under the Matrimonial Causes Act Ch 282 (hereafter the Act). It ought to be appreciated that under the Act two types of relief are normally sought: the principal reliefs of divorce or decree of nullity of marriage, and the ancillary reliefs of custody of children, maintenance of spouse and/or children, and property distribution.

Thus, the proceedings for ancillary relief are in conjunction with or related to proceedings for principal relief, and these are by "application" under the Act. That is to say, if one party to a statutory marriage (under the Marriage Act) was in the process of filing for divorce, then both the divorce application (petition) and the dispute concerning the children and the matrimonial property would come within the definition of "matrimonial cause", to be determined by the National Court according to the provisions of the Matrimonial Causes Act s 3(1).

On the other hand, applications in or for the purpose of, or in relation to, proceedings commenced or to be commenced by writ of summons or by originating summons shall be made by motion. This is required by O 4 r 37 of the National Court Rules. No writ of summons or originating summons are involved in any way with proceedings under the Matrimonial Causes Act. The matter proceeded then only because Mr Glenn, under the urgent circumstances of this case, took no objection to the respondent's purported originating process.

The respondent's "application" with the two supporting affidavits, sworn 2 and 3 February 1993 and filed the same days, arose out of the orders of this Court made 28 January 1993 (per Salika J) and subsequently amended by consent of the parties on 2 February 1993 (per Los J). Those interim orders were made in favour of the petitioner.

I set out hereunder the amended orders in full:

"THE COURT ORDERS that:

N2>1.������ Until further order, the petitioner have possession of the land and building known as Lot 18 Section 25, Lahara Avenue, Boroko.

N2>2������� The respondent, Gamini Ora, be restrained until further order from entering the petitioner's home being the land and premises known as Lot 18 Section 25, Lahara Avenue, Boroko.

N2>3.������ The respondent, Gamini Ora, be restrained until further order from Mogoru Moto Building.

N2>4.������ The respondent, Gamini Ora, be restrained from assaulting or approaching the petitioner or assaulting or molesting any of the children of the marriage, Debra, Charles, Rosa and Gamini Jnr.

N2>5.������ The petitioner have interim custody of the children of the marriage under the age of 21 years, Charles, Rosa and Gamini Ora (sic).

N2>6.������ That the time for entry of any order be abridged to the time of settlement of that order by the Registrar which shall take place forthwith.

N2>7.������ Compliance with the Rules be dispensed with pursuant to Rule 287 of the Matrimonial Causes Rules.

N2>8.������ The respondent have liberty to apply to the court on 48 hours notice to the petitioner."

In support of her 28 January application for those interim orders, the petitioner filed on 1 February her own affidavit, sworn on 27 January. In the affidavit, the petitioner alleged, amongst other things, acts of physical violence and cruelty perpetrated on her and the children since about 1990, the latest incident affecting herself being on 27 January. These incidents were elaborated upon in her affidavit of 4 February, filed in response to the respondent's affidavit of 2 February, wherein the petitioner admitted to her retaliation to the respondent's violence and provocation.

The petitioner filed on 4 February a petition for dissolution of her marriage to the respondent.

The respondent's purported application, in the guise of a notice of motion, sought three main orders from this Court:

N2>"1.����� That the respondent have possession of the land and building known as allotment 18, section 25, Lahara Avenue, Boroko. (sic)

N2>2.���������������� That the respondent have joint interim custody of the children of the marriage under the age of 21 years, Charles, Rose and Gamini Ora. (sic)

N2>3.���������������� That the petitioner be restrained from annoying, harassing, assaulting (sic), threatening (sic), abusing, embarrassing (sic) or molesting the respondent.

N2>4.���������������� ... "

In his affidavit of 2 February, the respondent denied, amongst other things, acts of violence and cruelty to the petitioner and the children. He deposed to stopping drinking since 1990 but added that, since then he would only drink "one or two bottles in a while" (par 10). This is contrasted with the petitioner's affidavits, where she deposes that his drinking was on a regular basis, with increasing volumes. Similarly, his complete denial of any form of violence against the petitioner and the children is contrasted with the petitioner's detailed account of the incidents and her frankness in her own retaliatory acts upon provocation.

It is demonstrably obvious from the respondent's affidavits that his main concern is himself. His self-absorption is inescapable from his preoccupation with his comfort and convenience in regard to accommodation for himself and his public image as a "prominent leader not only of my own people but also I am a high ranking Officer of the Royal Papua New Guinea Constabulary ..." (par 6 of the 3 February affidavit).

Nowhere in his two affidavits does the respondent advert to any consideration remotely resembling what the legislation and the judicial decisions variously and commonly refer to as the "best interests" and/or "welfare" of the children of a marriage. The only reference to the children is a denial of cruelty to them (pars 12 and 13 of the 2 February affidavit). The 3 February affidavit is exclusively on self. The flawed, misconceived notice of motion seeks joint interim custody without providing any reason or justification for such a relief in his favour.

And in relation to the petitioner, the respondent's denial of acts of violence and cruelty, accompanied by counter-allegations, are followed by promise (par 14 of the 2 February affidavit) that he has no intention of assaulting her. He says that she "has nothing to fear from me". Through all this runs the recurring thought, articulated by Mr Glenn, that the only issue pre-occupying the respondent and his lawyer is where the respondent will live.

Whereas, following the filing of the substantive originating process, the petition, seeking the principal relief of dissolution of marriage under the Act, this Court is, at this point in time, concerned with two vital issues for granting ancillary relief: custody of children and who is to occupy the matrimonial home until final ancillary orders are made upon determination of the petition.

In relation to the first issue, having considered all that the parties have put before me, and not put before me, I have no hesitation in granting interim custody of the children to the petitioner in the terms of the amended consent order of 2 February (par 5). In consonance with the decided cases in this jurisdiction giving the interest and welfare of the children paramountcy of consideration, and, under the circumstances of this particular case, according due recognition to the importance of the "mother factor" as applied by Andrew J in WP and DP [1982] PNGLR 1, it is my judgment that the welfare of the children would best be served by granting custody to the mother here.

As regards the second issue, it is my judgment that the mother and children occupy and remain in the subject matrimonial home, in the terms of the amended consent orders of 2 February (par 1). To ensure my judgments in respect of these two issues, I make consequential orders confirmatory of the restraining orders in the terms of the amended consent orders of 2 February, more particularly orders under pars 2, 3 and 4.

Finally, I make orders for reasonable access to be agreed upon by the parties, but such access to be exercised and enjoyed by the respondent away from the said matrimonial home.

Lawyer for the petitioner: Blake Dawson Waldron.

Lawyer for the respondent: J B Nanei & Company.