Swemen v Imoi [2006] PGDC 30; DC927 (15 June 2006)

DC927

PAPUA NEW GUINEA
[IN THE FAMILY COURT OF JUSTICE]

FC 17 of 2006

BETWEEN

CLEMENT SWEMEN
Complainant

AND

SELINA IMOI
Defendant

Wewak: D Susame
2006: 15 June

CIVIL - Family Law – Issuing of Search Warrants under section 112 of Child Welfare Act Ch. 341 – Grounds for –

Held: 1. Legal Process under s.112 is not available as an alternative means to resolve custody disputes.

2. The Provision is available as a swift remedy for removal of a child who has been or is being reasonably believed to be neglected, or abused, or ill-treated to a place of safety.

Cases Cited:
None

References:
None

Counsel:
In Person, For the Complainant
In Person, For the Defendant

15 June 2006

DECISION

D Susame: The complainant has come to this Court to obtain a Search Warrant pursuant to s.112 of the Child Welfare Act. With the assistance of the Community Development Office in Wewak, East Sepik Province he has laid an information with a supporting affidavit statement of his reasons to obtain the warrant. I have had to preside over a number of cases of similar nature in the recent past. It seems to me there is some misunderstanding with respect to the intent and purposes of Search Warrants under the provision.

FACTS

2. The complainant is from Rubukum Village, Maprik, East Sepik Province. He is married to two wives. His first wife is from his own village and his other wife who is the defendant in this case is from Bugain Village of the Turubu area, Wewak, East Sepik Province.

3. In or about March of 2004, the complainant left his first wife and went and lived with the defendant at Bugain Village. The complainant later left the defendant and came to Wewak to attend to his wife and his sick child who had been admitted at the Wewak General Hospital.

4. After his first wife and child were discharged from the hospital the complainant returned to live with the defendant. However, the defendant who was pregnant then refused to maintain her relationship with the complainant. Mediation was convened with the village leaders to persuade the defendant to resume their relationship. When that failed the complainant returned to his village.

5. The defendant later gave birth to a male child who is three years of age and is the subject of this proceeding.

6. The complainant’s reasons are in paragraph six of his affidavit. Basically he states that the defendant with influence of her family members refuses to allow the complainant to enjoy access rights to his son. He says he loves his son and wants his son to be with him.

7. The complainant then consulted the Community Development Officer who assisted in filing this case.

THE LAW

8. For our purposes s.112 of the Child Welfare Act is the relevant provision and is titled, "Warrants to Search and Arrest in Relation to Safety of Children."

9. The provision reads;

9-1. Where it appears to a Magistrate, on complaint made before him on oath by a person, who is in the opinion of the Magistrate is acting in good faith in the interest of a child, that there is reasonable cause to suspect that the child –

9-1-(a) is a neglected child, or

9-1-(b) has been or is being ill-treated or neglected in a manner likely to cause him unnecessary suffering or to be injurious to his health and welfare, the Magistrate may issue a Warrant authorizing a Welfare Officer or a Commissioned Officer of the Police Force named in the Warrant –

9-1- (c) to search for the child and take him to and detain him in a place of safety until he can be brought before a court, and

9-1-(d) to apprehend any person whom the Welfare Officer, or Officer of the Police Force believes, on reasonable grounds, to have committed an offence in respect of the child".

9-2 ................................

9-3 ...............................

9-4 ...............................

9-5 .................................

9-6 .................................

10. In my view the operative phrases of the provision have been underlined. The provision lists three basic grounds. There must be a reasonable cause to suspect that –

10-(1) the child is a neglected child,

10-(2) the child has been or is being neglected,

10-(3) the child is being ill-treated or neglected in a manner likely to cause unnecessary suffering or be injurious, to his health or welfare.

11. Therefore, it is the complainant’s responsibility to satisfy the court with evidence that the above circumstances exist to obtain a Search Warrant for the search and removal of a child to a place of safety or to a person who the Court thinks will ensure the child’s safety and welfare.

12. I have considered the facts of this particular case. It is unfortunate that the complainant has failed to establish by evidence the grounds discussed above. In fact there is no iota of evidence that the child has been or is being neglected, ill-treated or abused by the defendant or the defendant’s family members.

13. The Complainant’s case is really one of custody. It is quite obvious to me that the complainant’s real interest is to claim custody of the child who is living with his biological mother. As such the complainant cannot rely on s.112 to claim custody.

14. The appropriate cause of action he should have been advised to take is to commence custody proceedings in the National Court which has jurisdiction to hear such disputes. On the outset this entire process has been misconceived. Where it is very clear to a Welfare Officer that a grieving person or parent is trying to claim custody of a child then it is his or her responsibility to give proper advice on the relevant cause of action available with regard to custody. The officer may go to the extent of actually assisting the grieving party to file custody proceedings in the National Court.

15. I reiterate that s. 112 is not available as an alternative process to resolve custody issues. However, where circumstances exist that the child has been or is reasonably believed to be neglected or abused, or ill-treated to the extent that his welfare is being jeopardized then the legal process under s. 112 may be available as a swift remedy for the best interest of the child.

16. In view of the above discussions factual circumstances of this case do not justify issuing of a Search Warrant under the provision relied on. For the Court to do so would amount to an abuse of process. Therefore, I refuse to grant the relief sought and order that this entire proceeding be dismissed.

___________________

For the Complainant, In person
For the Defendant, In person