Alina Sarah Bean v Ian Maxwell Bean

• Jurisdiction: Papua New Guinea
• Judge: Kapi J:
• Judgment Date: 06 October 1980
• Citation: [1980] PNGLR 307
• Court: Supreme Court
• Year: 1980
• Judgement Number: SC187

Supreme Court: Kidu CJ, Andrew J, Kapi J

Judgment Delivered: 6 October 1980

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BEAN

V.

BEAN

Waigani

Kidu C.J., Andrew J., Kapi J.

27 August 1980

6 October 1980

INFANTS AND CHILDREN — Custody — Welfare of infant — Welfare paramount consideration under s. 7 (1) of Infants Act 1956 — Meaning of "welfare" — Powers of court on appeal against custody order.

On appeal against an order for custody made pursuant to s. 7 (1) of the Infants Act 1956, which section provides that such orders may be made by the court "having regard to the welfare of the infant, the conduct of the parents, and wishes of each parent".

Held:

(1) Although not expressly stated, the welfare of the infant is the paramount consideration in applications under s. 7 (1) of the Infants Act 1956.

Kariza Borei v. Navu-Renagi [1965-66] P. & N.G.L.R. 154 at pp. 139-140;

Oliver v. Oliver (1969) 13 F.L.R. 397.

In re A. and B. (Infants) [1897] 1 Ch. 786; and

Ward v. Laverty [1925] A.C. 101 referred to.

(2) (Per Kidu C.J.) Consideration of the "welfare" of the infant requires that all matters conducive to the child's interest should be considered.

Priest v. Priest (1963) 9 F.L.R. 384 at p. 391;

The Queen v. Gyngall (1893) 2 Q.B. 232 at p. 248;

Re P. (an Infant) [1954] N.Z.L.R. 93 at p. 98; and

Goldsmith v. Sands (1907) 4 C.L.R. 1648 at p. 1655 referred to.

It demands that assessment be made of any person who is to have a hand in the looking after of the infant.

Chisholm v. Chisholm (1966) 7 F.L.R. 347 at p. 350 referred to.

(Per Kapi J.) "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."

Jones v. Jones [1961] S.R. (N.S.W.) 218 referred to.

Discussion of the powers of appellate courts on appeals against custody orders.

Editorial Note: This was the first judgment delivered by Kidu C.J. after his appointment as the first Papua New Guinean Chief Justice.

Appeal.

This was an appeal by the mother of a seven year old boy, against an order awarding custody of the child to his father.

Counsel:

D. J. McDermott, for the appellant (mother).

D. S. Awaita, for the respondent (father).

Cur. adv. vult.

6 October 1980

KIDU C.J.: This is an appeal from an order made by Bredmeyer A.J. on 27th June, 1980 which gave custody of J.K.B., an infant born on 21st November, 1972, to his father the respondent Ian Maxwell Bean, who now lives at Mt. Isa in Queensland with his second wife Furune Bean. The appellant, who was the respondent in the National Court, is the mother of the infant.

I set out the facts as contained in the learned trial judge's judgment:

"This is an application under the Infants Act 1956 by Ian Maxwell Bean for the custody of his son Jeffrey Kenneth Bean now aged seven-and-a-half years. The application is opposed by the child's mother Alina Sara Bean.

The applicant, who is an Australian, came to Papua New Guinea in 1968 as a young rural development officer. Prior to coming to this country he had completed a three year diploma course in agriculture in Victoria. In 1970 he married Alina Sarah a national girl with standard 5 education from Eretei Village which is about 5 miles from Lumi in the West Sepik Province. They were both aged 21. Their respective backgrounds and education were widely different. Two children were born of their marriage. Jeffrey Kenneth born on 21 November 1972 and Lisa Theresa born on 30th November 1974. Bean continued working as a rural development officer in the Department of Primary Industry until July 1979 working at Wewak, Pindiu, Lae, Finschhafen and finally Pindiu for three years.

Their marriage was a reasonably happy one until January 1978 when Bean employed a local Pindiu girl named Furune as secretary of the Pindiu Rural Development Association. Bean's wife objected to his employment of this girl. She thought he should employ her instead. Bean's wife also regarded the girl as a threat to the marriage and was jealous of her. I consider this in more detail later.

The applicant and his wife had arguments over Furune which culminated in Mrs. Bean assaulting Furune for which she was prosecuted and fined K30. Immediately after the assault Bean and his wife separated'Bean says by consent, his wife said she was forced out. I consider that in more detail later. Suffice it to say here that in July 1978 they separated. Bean established his wife and two children in a flat in Lae. He paid the rent, electricity, school fees for Jeffrey and sent Alina K100 per month for housekeeping. Bean continued working at Pindiu. He had one or other of the children with him for weekends and in the case of the daughter for several longer periods. The children and Bean would fly between Pindiu and Lae for these visits. On many occasions Bean used his own aeroplane for this purpose. He holds a private pilot's licence.

Bean continued at Pindiu until July 1979 when he instituted these proceedings and went to Australia to live permanently. A little before this the flat in Lae became unavailable. Bean brought his wife over to Moresby for this custody case; it was adjourned from 27th July to 3rd August, then to the 10th August and then generally, because the wife or her solicitor, was not ready to proceed. After the 10th August 1979 the wife returned to Lae for a month's stay with friends and then returned with her daughter Lisa to her village where she now resides. The son Jeffrey continued on at school in Lae boarding with the headmaster.

Bean sold his aeroplane and found work in Mt. Isa with the North Australian Pastoral Coy. which owns five stations. His job is to supply them with stores and involves him flying two days a week in a company plane. He regards it as a permanent job. The salary is $10,000 p.a. and a company house is provided for which he pays $15 per week.

On 14th January, 1980, Bean obtained a decree nisi for the dissolution of the marriage to Alina from the Family Court of Australia at Brisbane. It became absolute on 15th February, 1980. He brought Furune to Australia in early February 1980 and married her on 12th April, 1980.

Thus Bean and his wife have been separated for nearly two years, from July 1978 to July 1979 when Alina was in Lae and Bean in Pindiu and from roughly July 1979 to now (June 1980) when Alina has been at her village and Bean in Australia. For the first year Bean provided his wife and children with a flat and an allowance of K100 per month. He had the two children for weekend visits and his daughter for longer periods at Pindiu where he employed two girls to help look after her. For the last year whilst he has been in Australia he has sent his wife on the average K150 a month to help maintain her and their daughter at Eretei. During this period Jeffrey has been in Lae attending the Lae International Primary School and boarding with the headmaster. Bean has paid the headmaster board for his son of K100 per month plus school fees and medical fees and has kept in touch with him by telephone calls about every three weeks and by occasional letters. None of these payments have been made pursuant to any court order."

The principles relating to an appellate court's review of a trial judge's finding of fact and the exercise of his discretion are well settled and adequately covered by my brothers Kapi and Andrew.

In custody applications it is the welfare of the child that is important. Other considerations are, in my view, subsidiary to this aspect. Section 7 (1) of the Infants Act 1956 reads as follows:

" (1) The Court may, on the application of the father or mother of an infant make such orders as it thinks fit regarding the custody of the infant and the right of access thereto of either parent, having regard to the welfare of the infant, the conduct of the parents, and wishes of each parent." (Emphasis mine.)

On p. 4 of his judgment the learned trial judge stated:

"Section 7 provides that the court may make such order as it thinks fit regarding the custody of the infant and the right of access thereto of either parent having regard to the welfare of the infant, the conduct of the parents and the wishes of the parents. The first of these matters, the welfare of the infant, is not expressed to be paramount as it is in the divorce jurisdiction under s. 79 (1) of the Matrimonial Causes Act 1964 and in some other countries." (Emphasis mine.)

I am of the view that the learned trial judge misdirected himself on the law in this matter.

In Kariza-Borei v. Navu-Renagi Minogue J. (as he then was) said [1965-66] P. & N.G.L.R. 134 at pp. 139-140.1:

"I turn now to consider the matters which I am directed to consider by s. 7 of the Infants Ordinance 1956. The welfare of the children is of course the primary consideration. See Lovell v. Lovell (1950) 81 C.L.R. 513.2 and Clingeleffer v. Clingeleffer [1959] Tas. S.R...