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Conway v Samuel [2015] PGNC 255; N6133 (9 December 2015)

N6133

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 622 of 2014

BETWEEN

STUART CONWAY
Plaintiff

AND

CHARLENE SAMUEL
Defendant

Waigani: Makail, J
2015: 04th & 09th December

MATRIMONIAL CASUES – Access right of parents – Right of access – Variation of order granting access right to father of children – Grounds of – Neglect and cruelty – Proof of – Welfare of child paramount consideration.

No cases cited:

Counsel:

Mr. S. Nutley, for Plaintiff
Mr. M. Maitang, for Defendant

RULING ON VARIATION OF CONSENT ORDER

09th December, 2015

1. MAKAIL, J: There is a bitter battle in a matrimonial cause between the parents of two children, one a male of nearly 5 years and another, a female of nearly 4 years as to access to them by one parent. The right to access is a right given to a parent notwithstanding separation or divorce and no parent should be denied this right unless he or she voluntarily waives it by agreement or conduct or is found guilty of neglect or cruelty of the child and in the last case, it would be in the eyes of the Court, considered a failure to give "paramount consideration to the interest of the child."

2. The parents were married on 20th October 2010 and separated on 31st July 2014. The children remained with the mother. Some informal arrangements were put in place between the parents for their father to visit them starting with two visits, one on 20th August 2014 at Holiday Inn Hotel of one hour and the other, on 28th September 2014 at Royal Papua Yacht Club of two hours. Then, the access was strictly supervised and included telephone access a few times.

3. After further requests, the father was given no more than two hours access, strictly supervised, each fortnight. The only reason given to the father was that the children were young and their mother considered that he could not adequately care for them.

4. When all the requests for seeing the children more than this were denied by the mother, the father instituted these proceedings on 05th September 2014, so he could apply for custody and in the alternative, at least get some reasonable access to the children.

5. Anyway, to cut the story short, on 05th February 2015 the conflict was mediated and an agreement was reached between the parents. Basically it was agreed that the father get a lot more access than the mother had previously permitted provided he paid her enough money.

6. Orders was entered by consent on 20th February 2015 which was basically for the father to have access for half of the school holidays and for a two weekends out of four, then three weekends out of four on a cyclical basis. This gave the mother time to have the children during the week days including one weekend. Part of the orders were that the father to pay their mother K2,000.00 each fortnight including other obligations starting 06th February 2015 which have been complied with.

7. This arrangement worked well for a while until end of July when all weekend access to the children was denied by the mother. Allegations ranging from criminality to neglect and cruelty of the children were raised by the mother of the children against their father. A more recent allegation was about the father hanging around with prostitutes and under-aged girls at bars of Weigh Inn Motel and Royal Papua Yacht Club and bringing them home to his apartment, and partying into the night, and having sex with them.

8. There is now before this Court an application to vary the order of 20th February 2015 and for the Court to order the father to have supervised access to the children.

9. The allegations of the father committing criminal offences, one of which was assault of the Defendant and the other, damage of the Defendant's mobile phone were either unsuccessful or dropped by the police.

10. As to the allegations of neglect and cruelty, the evidence is that the children went to live with their father for a week and a half from Friday 26th June to Wednesday 08th July this year and when they returned to their mother, they were found to have lost weight and malnourished. It was also discovered that they had sores on their bodies but the cause remained a mystery.

11. Photographs of the sores were tendered to support the claim of neglect and cruelty. These allegations were further supported by the evidence of witnesses who claimed that they have seen the Plaintiff hanging around with prostitutes and under-aged girls at the mentioned Motel and Club and bringing them to his apartment, and partying all night, and having sex with them. It was also alleged that he is a drunkard. A combination of all these is said to be the base for the neglect and cruelty of the children.

12. In my view these are very serious and damming allegations against the Plaintiff as father of the children. It be-speaks badly of the Plaintiff as a father. The Court would not hesitate to restrict or even deny access to a father who is guilty of such conduct. Such conduct is adverse and prejudicial to the best interest of a child where the Court is duty bound to protect. Where allegations of this nature are made against a parent, the Court will uphold them if there is clear and admissible evidence proving them.

13. Quite clearly, the Plaintiff has vehemently denied these allegations and pleas with this Court for grant of reasonable access to his children. So the evidence supporting the allegations must be credible for the Court to rely on to find against him. I have carefully read the affidavits of the Defendant including the statutory declarations of witnesses and the first point to make is that the evidence in relation to the Plaintiff womanising and taking prostitutes and under-aged girls to his apartment, and partying, and having sex with them is vague and lacking in substance. There are no dates and times stated when these activities were alleged to have taken place.

12. Number of girls involved is also missing and further, the person who claimed to have seen the Plaintiff at the bar at Weigh Inn Motel does not state how he knows the Plaintiff, except the barman at the Yacht Club. It would seem from the evidence of these witnesses that these activities were frequent. I am referring to the evidence of the security guard at Weigh Inn Motel, bar-man at the Royal Papua Yacht Club and security guard at the Plaintiff's compound. However, apart from the lack of specifics, at best, the evidence is speculative and in the worst case, hearsay.

13. Secondly, this puts the allegations of the children's loss of weight, malnourishment and sores under further scrutiny and doubtful as to the Plaintiff's conduct which has resulted in the state they were in on 08th July. Was it an isolated incident or a case of persistent neglect and cruelty, in which case, would justify the Court asking whether the Plaintiff has the ability to care for the children while they are under his care?

14. The Court is forever mindful of the tender age of the children, their inability to fend for themselves and the need for constant supervision by an adult. However, I cannot recall and I say this because there is no evidence that there have been past instances where the children have been returned to their mother in the state they appeared to have been on 08th July this year.

15. Equally, the Court is mindful that when children are growing up, there will be bumps and bruises along the way - that is part of growing up so to speak and the Court must be weary of the possibility that the children may have accidently injured themselves or naturally fallen ill while with their father during the time in question. This possibility cannot be ruled out, especially where the evidence of neglect and cruelty is found to be wanting in this case.

16 Similarly, it is perfectly understandable that the Defendant as a mother of two children of tender age would be apprehensive about their well being while they are away with their father and concern and reacted in the way she did when they returned in a state she did not expect. However, in my view this should not be a cause for alarm.

17. The evidence from both parents and the grandmother of the children from their mother's side as far as I can see is that the Plaintiff and the Defendant are matured persons. They clearly understand their roles and responsibilities as parents. The Plaintiff does not and is not willing to shy away from his responsibility of being a "dad". The Defendant is not willing to give him that opportunity. Both are employed and successful in their own ways and are financially capable of meeting the daily needs of their children, individually and collectively.

18. At present the children remain with their mother and there is no dispute that they live with her at her parents' home in Port Moresby. Her parents have provided a conducive environment for the children to grow up in both, physically and spiritually. They have also supported her in raising their grandchildren. The Plaintiff and Defendant also live and work in Port Moresby. Each has easy physical access to the children.

19. In my view there is nothing more one can ask for, for the sake of the children. What needs to be done and must be done is both parents must have access to the children. And so far, it has not been proven to my satisfaction on the balance of probabilities that the Plaintiff is incapable or guilty of neglect and cruelty and that he should be denied access to the children. With those remarks, there is no reason to change the access arrangement and that he must be given that access granted to him by the Court on 20th February this year for the sake of the children.

20. The application is therefore, denied. Costs shall follow the event.

Ruling and orders accordingly.
_________________________________________________________
Fiocco & Nutley Lawyers: Lawyer for the Plaintiff
Twivey Lawyers: Lawyers for the Defendant