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Hawker v Hawker [1987] PGNC 34; [1987] PNGLR 257; N613 (24 July 1987)

N613

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

HAWKER

V

HAWKER

Waigani
Amet J

24 July 1987

INFANTS AND CHILDREN - Custody - Access - Variation of access order - Leave to take child out of jurisdiction - Relevant considerations - Welfare of child paramount - Conditions for granting leave to remove children from jurisdiction temporarily.

On an application for temporary variation of an access order, by the parent having custody of the child, by suspending the order for a period sufficient to enable the parent to travel to the United Kingdom for the purpose of undergoing medical treatment and for leave to take the children the subject of the custody and access orders out of the jurisdiction for the same period,

Held

(1) On such an application the primary consideration is the welfare of the children.

(2) Other relevant considerations include:

(a) the existence of an order for custody granted on the merits and the fact that the order grants custody to the applicant;

P(LM) v P(GE) [1970] 3 All ER 659 at 660-661, 662, adopted and applied.

(b) the bona fides of the application;

(c) proposed arrangements for the upkeep, welfare, education and security of the children while out of the jurisdiction.

(3) In the circumstances the application should be granted for a period of six months subject to the following conditions:

(a) that a person known to the children as a substitute mother be taken to the United Kingdom with the children;

(b) that the applicant give an undertaking to the court to return the children to the jurisdiction if ordered to do so by the Court; and

(c) that the applicant file a security bond to the satisfaction of the Court.

Cases Cited

P(LM) v P(GE) [1970] 3 All ER 659.

Summons

This was an application to vary an order for access for the purpose of taking the children the subject of the order out of the jurisdiction for a limited period.

Counsel

The applicant in person.
V Amnol, for the respondent.

24 July 1987

AMET J: This is an application by Brian Hawker, the father of two children, Clemina age seven and a half years and Daniel age three years, four months, subjects of a custody order in his favour on 16 April 1987, for leave to take the two children out of the jurisdiction, to the United Kingdom, where he comes from. The reason advanced for the application is so that he, Brian Hawker, may consult specialist orthopaedic surgeons on the condition of osteoarthritis affecting his right knee.

The respondent natural mother, Kati Hawker, who has liberal interim access, has strenuously opposed the application. She is an automatic PNG citizen from Simbu.

The applicant has only applied for a temporary variation to the access order by suspending it for the duration of the period necessary for him to receive the necessary medical treatment to his knee and return to Papua New Guinea. It is thus to take the children out of the jurisdiction temporarily and not permanently. The applicant has estimated a period of three to six months, more or less, as may be necessary for him to undergo appropriate surgical treatment.

The respondent natural mother has strongly opposed the application and contends that the children should be handed into her custody for the duration of Brian Hawker’s visit to the United Kingdom to attend medical treatment.

REASONS FOR APPLICATION

As briefly mentioned the applicant wants to go back to Britain to avail himself of cheaper specialist medical treatment. That treatment is not available in Papua New Guinea and he is not a contributor to Australian Medicare so to avail himself of that assistance in Australia.

The respondent Kati Hawker has attempted to dispute the genuineness of this reason. She had in her affidavit suggested that the applicant Brian Hawker in the past, during their marriage, had been known to obtain false medical reports, or rather medical reports for false conditions to avoid going to work. This is to suggest that the medical reports of Dr Danomira were obtained by deceit as to his condition and so Dr Danomira’s specialist opinions are not to be believed. This is the insinuation to be inferred from Kati Hawker’s affidavit, against the professional competence and integrity of a specialist surgeon.

Needless to say I find this to be quite extraordinary on the part of both the deponent and the lawyer who drew the affidavit to allow such unfounded insinuations to be made without careful consideration.

I have no reservation whatsoever in accepting the medical reports of Dr Danomira as to the medical condition of Brian Hawker’s knee. The latest report dated 17 June 1987, stated that:

"I have commenced anti-inflammatory medication of Mr Hawker but it is imperative that a specialist orthopaedic surgeon’s opinion has to be sought as a matter of urgency as conservative measures alone will not prevent the deterioration of the osteoarthritis affecting the right knee."

I accept that the applicant’s reasons for seeking leave to take the children out of the jurisdiction only for a short time necessary to attend to medical treatment is bona fide.

UNCERTAINTY OF PERIOD AWAY

The respondent has objected that the applicant has not been able to show the court precisely how long his absence from the jurisdiction would be, how long his medical treatment would take and the nature of it and so on. That is true. The applicant was not able to produce any medical report as to what the future circumstances would be. I think, however, that that is just the way things are, he is not able to know until he consults a specialist. I find this objection has no merit.

WELFARE OF CHILDREN PRIMARY CONSIDERATION

Just as it is in the disputed custody application, so it is in an application such as this, which is concerned substantially with the issues subsequently resulting from the making of the custody order, that the courts should have regard primarily to the welfare of the children. This, it seems to me, is a paramount consideration. Further, a dominant factor, in any application to take children out of a jurisdiction, is the fact that there has been an order for custody in favour of one of the parents, the applicant, on merits: see P (LM) v P (GE) [1970] 3 All ER 659, per Winn LJ at 660-661.

It is, of course, a grave thing that the children will be deprived of the advantage, which they would have if they continued to be brought up in close contact with their mother, of having the advice of the mother from time to time, and in case of need of falling back on her for protection and care.

I adopt, however, the remarks falling from Sachs LJ in the above case (at 662) that:

"When a marriage breaks up, then a situation normally arises when the child of that marriage, instead of being in the joint custody of both parents, must of necessity become one who is in the custody of a single parent. Once that position has arisen and the custody is working well, this court should not lightly interfere with such reasonable way of life as is selected by that parent to whom custody has been rightly given. Any such interference may ... produce considerable strains which would be unfair not only to the parent whose way of life is interfered with but also to any new marriage of that parent. In that way it might well in due course reflect on the welfare of the child. The way in which the parent who properly has custody of the child may choose in a reasonable manner to order his or her way of life is one of those things which the parent who has not been given custody may well have to bear, even though one has every sympathy with the latter on some of the results."

The applicant in this case is only proposing to go back to Britain for medical treatment. I am satisfied of that. Whether medical treatment is free or expensive is not necessarily material to the question of the welfare of the children. I am, however, satisfied that it would be considerably cheaper than private treatment in Australia without some insurance assistance.

WELFARE OF CHILDREN IN UNITED KINGDOM

Accommodation

I am satisfied that the family and relatives of the applicant will enable suitable accommodation to be provided. I am also satisfied that, though the applicant will be without employment and incapacitated, through his brother and family, adequate means for the upkeep and welfare of the children will be provided.

Security and stability

There is no question about the security of the children. As I understand, the applicant proposes to take Mary Ume to Britain as substitute mother for the children. They have become used to and know her already, and I am satisfied that she will provide adequate parental care and supervision with relatives if the applicant were hospitalised.

Schooling

I am satisfied that public schooling in the United Kingdom is free and compulsory. With the support of the Deputy Principal of Ela Beach International Primary School, Clemina will not be disadvantaged.

New environment

The children have travelled overseas and to the United Kingdom before and I do not think they will be total strangers. In any event the stay will be for a short time only.

Immigration status of applicant

The respondent had filed affidavit to suggest that the applicant was illegally residing in the country for the past eight months and had no work permit to show that he really did not have any intention of returning to Papua New Guinea with the children. These affidavits were proved to be false when the applicant produced his passport and work permit to definitely prove that he has a current entry permit and work permit till 1989. These satisfy me that the applicant is genuine about his intention to return to Papua New Guinea. This is further supported by his intention to take Mary Ume too. He produced a passport and an entry visa for her to the United Kingdom to prove that. He has further purchased a return Port Moresby/London ticket for Kati Hawker to show his bona fide intentions.

Conclusion

In all the circumstances I am satisfied that it would be in the best interest of the children to grant leave to enable their continued custody with their father. I do not consider that circumstances in favour of Kati Hawker have improved for the better or outweigh all the considerations in favour of Brian Hawker in the custody application to warrant change of custody order into her favour.

Conditions

1. I consider that leave should be granted initially for a period of six months to take the children out of jurisdiction. The children should therefore be returned to Papua New Guinea by the end of six months from 1 August 1987.

2. That as a condition for leave to take the children out of jurisdiction Mary Ume be taken also.

3. That the applicant gives an undertaking to bring the children back into the country if ordered so to do by the Court.

4. Filing security bond to the satisfaction of the Court in terms of bond filed 2 July 1987.

Future access

The present interim access order is suspended as of date of this judgment until their return to Papua New Guinea. The applicant should advise the respondent through lawyers and also the court at the earliest opportunity of the children’s return when the court will review all the current circumstances for an appropriate access order.

Orders accordingly

_______________

Lawyer for the respondent: E Kariko, Public Solicitor.