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Tom v Kayiak [1992] PGNC 116; [1992] PNGLR 171; N1095 (2 July 1992)

N1095

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

SUSAN TOM

V

MAZION KAYIAK

Waigani
Los J

2 July 1992

CUSTOMARY LAW - Brideprice - Changes in quality and quantity.

INFANTS - Custody - Mother factor cannot be paramount where it is shown that she is not in a best position.

INFANTS - Welfare of child demands assessment of person who is to have a hand in looking after the child.

MARRIAGE - Custom grows and accommodates new developments - Where parties come from different areas custom as to bride price is compromised.

MARRIAGE - Religious ceremonies - In rural and suburban areas religious ceremonies are adopted and practised as part of custom to reflect solemnity of relationship, not necessarily statutory relationship.

Facts

The applicant, the mother of two girl children, 5 and 4 years old, claimed custody of the children. She argued that her relationship with the respondent, the children's father, was not a marriage by custom because of the insufficiency of the bride price. The court found that there was a marriage between the parents according to custom and it was subsequently blessed according to the rites of the Lutheran Church. Following a disagreement arising because of a demand for K10,000 by the applicant's father, she and the children were taken away by him and she, shortly thereafter, formed a relationship with another man, with whom she had one child.

The applicant was unemployed and her de facto husband had only part-time employment. The respondent was an employed mechanic.

Held

1. The quality and quantity of bride price will vary where the parties have different customs and where they live in urban areas away from their traditional societies.

2. The law is settled in the country that in any custody application the paramount consideration is that of the best interest of the children.

3. The mother factor can be a decisive factor in an award of custody like in WP v DP [1982] PNGLR 1, but if it is shown that the mother is not in a best position then that factor cannot take a paramount role.

4. The welfare of the children will be best served by granting the custody to the respondent.

Cases cited

Bean v Bean [1980] PNGLR 307.
Kere v Bessi Timon and Family [1990] PNGLR 103.
Madaha Resena v PNG (1991) SC409.
Re James Sannga [1983] PNGLR 142.
RG v MG [1984] PNGLR 413.
WP v DP [1982] PNGLR 1.

Counsel

A David, for the applicant.
J Nanei, for the respondent.

2 July 1992

LOS J: This is an application for custody of the children, Martha Mazion, born on 17 June 1987, and Mary Belak Mazion, born on 28 October 1988. The applicant is the mother of the children and the respondent is the father of the children.

The law is settled in the country that in any custody application the paramount consideration is the best interests of the children. In RG v MG [1984] PNGLR 413 the relevant matters for consideration were listed as:

(a) The claim of the mother and what is often referred to as her preferred role; WP v DP [1982] PNGLR 1;

(b) the relative circumstances in which it is intended to raise the child;

(c) the ability to provide for the child's advancement in life;

(d) the age of the child; and

(e) provision for the maintenance of existing relationship.

In Bean v Bean [1980] PNGLR 307, Kapi J (as he then was) said at 320:

"... the welfare of the infant is usually referred to as the comfort, health, moral, intellectual and spiritual welfare of the child. These elements, in turn, are fundamentally dependent on the existence of security, stability, wise discipline and genuine affection in the home.... In every custody application, when considering the welfare of the children, the court must have regard to all these matters."

The mother factor can be a decisive factor in an award of custody, like in WP v DP [1982] PNGLR 1, but I consider that if it is shown that the mother is not in a best position then that factor cannot take a paramount role. The children the subject of this application are no longer babies and breast feeding. The mother has an infant from the new relationship with another man (the new man). She is unemployed.

The new man is only employed part time. If the mother is given the custody of the children, she and the new man need to raise their own child as well the two children. In Bean v Bean at page 312, Kidu CJ said:

"The welfare of the child demands that assessment be made of any person who is to have a hand in looking after an infant. As Selby J said in Chisholm v Chisholm (1966) 7 FLR 347 at 350:

'It is most important in a situation such as this that the Court should be placed in a position in which it can assess for itself the character of the man who may become the stepfather of the child, the subject of the application, or who will on the respondent's own case stand to some extent in loco parentis to her. But I have been given no opportunity to make any such assessment and I am not disposed to accept the judgment of the respondent on so important a matter.'"

The new man's part-time employment brings in only about K50 per fortnight. He does not own a house. He and the applicant live in a different man's house. Though the owner of the house had spoken with a kind heart in his affidavit in support of the applicant, I doubt his support will continue for long. He has worked for a long time, 20 years in fact. But he is now 57 years. If he has not retired he will do soon. How will he continue to provide accommodation and finance to the new man and the applicant. How would the new man and the applicant look after the three children in providing the basics and on top of that send them to school. It is only natural that if the new man has to prioritize his spending, he has to concentrate on his own offspring.

The circumstances under which the applicant left speak a lot on her character. She says the respondent drank a lot and so he spent more money on drinking and little on welfare of the children and herself. And it was her father who gave money to her to spend on her and the children. The irony is that her father had continuously asked for money from the respondent. The respondent had continuously given money to the father, and the record containing the details of such a giving has not been challenged. Eventually, the father demanded K10,000 payable within a week.

Within a week of leaving the house at 14 Mile, the applicant was already with another man. She says she was not married and so there was nothing wrong with her action. The only ground she advances in support of her argument that there was no marriage is non-payment of bride price. The parties come from different parts of PNG. The applicant was originally from Gulf Province but has been living at Sabama near Kilakila, Port Moresby. The respondent is from Morobe. He has been living at 14 Mile and working as a mechanic for some time. Therefore, although they would recognise the principle of bride price payment, the specifics could not be similar. Secondly, when people live in an urban society for a long period of time or for generations, their customs cannot be similar in detail as the original from where they came from. A custom grows and changes to accommodate new developments. The definition of custom in the Constitution Sch 1.2(1) allows for new developments in relation to time and place:

"the customs and usages of indigenous inhabitants of the country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial".

In this respect, I refer to my general discussion in Kere v Bessi Timon and Family (1990) N 807 pages 13-14. I also refer to Re James Sannga [1983] PNGLR 142. Further, I refer to the cautionary question I raised in Madaha Resena v The Independent State of PNG (1991) SC 409 at page 29:

"However, there is a fundamental question that needs an answer. Can I hold that there is now an enforceable duty under the Papua New Guinea Constitution to apply customary law instead of common law when in a given situation certain relevant principles under both laws are put through the constitutional screening in Sch 2 and they reach the other end with "clean" status? To answer this question, a widely researched argument is required because various considerations are involved and the constitutional argument is one of them. Some of the considerations may concern the Legislature rather than the Judiciary. Should it be the case in Papua New Guinea that every aspect of life, business or social, not covered by any statute, must be regulated by custom? And by whose custom?"

The respondent says in January 1985 he paid bride price made of K300 in cash, a second hand Toyota Corona and a large pig valued at K500. Also at various times he gave different amounts to the father. All these were admitted except for a comment that the vehicle broke down. The comment is irrelevant in my view. Any vehicle can break down. The respondent is a motor mechanic. He could repair it at any time. In October 1987, he followed the general practice among many Christians in many distant suburbs and rural areas to have their relationship blessed according to the rites of the Lutheran Church. This was not necessarily a registered marriage under the Marriage Act. But it was to recognise that the relationship was not casual but one that was solemn and permanent.

Giving of a car is certainly not an original custom; it was accepted just like any other goods of the present era. There had been no objection to the church ceremony nor was there any demand for any extra things for five to six years. All the parties and the communities around them accepted that there was a marriage. Suddenly, the father came up and demanded K10,000, and he wanted it within a week. Naturally, that kind of demand could not be met within a week. The father took this to be failure or refusal to pay, and so he took his daughter, the applicant, and the children away on a pretext that it was just for a weekend. In a matter of days, the daughter was with another man. This is not disputed. I consider that the K10,000 demand was not a part of any bride price payment; it was a pretext because as far as wealth - steady employment, tradesmanship and house - was concerned, the respondent was in a better position. But the father let his daughter form a relationship with a man in a far worse position than the father of the children. I consider that the marriage was valid because all the requisites, as compromised between two persons from different areas, had been fulfilled. The applicant, therefore, is living in an adulterous relationship with another man. She has shown that she could jump from any relationship to form a new one with another man with little consideration as to the effect of her action on the children. This will not be any good for the welfare of the children.

I view that, on all considerations, the welfare of the children will be best served by granting the custody to the respondent. I therefore order that:

(1) the respondent be granted the sole custody of the children, Martha Mazion, born on the 17 June 1987, and Mary Belak Mazion, born on 28 October 1988;

(2) That the applicant be granted reasonable access to the said children at such times as may be agreed between the applicant and the respondent, failing which the applicant be entitled to access every third weekend (of the month), from 6.00pm Friday to 5.00pm Sunday;

(3) That the respondent deliver the said children to the Gordon police station yard on the said weekend and at the said time and pick them up from the said place and on the said time;

(4) That the applicant pick the children up and return them to the said police station yard on the said day and time to be picked up by the respondent; and

(5) As to the orders in paragraph (3) and (4), the parties are at liberty to apply for variation if the place and time are inconvenient as they relate to the transportation and the security of the children and the parties.

___________________________

Lawyers for the applicant: Namaliu and Company.
Lawyers for the respondent: J B Nanei & Company Lawyers.