Toligur v Kuman [2019] PGDC 20; DC4049 (2 December 2019)

DC4049

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS FAMILY COURT JURISDICTION]

IPO 422 of 2019
BETWEEN

AMANDA TOLIGUR
Complainant

AND

DEBRAH KUMAN
Defendant

Port Moresby: L Wawun-Kuvi

2019: 2 December

FAMILY LAW- Family Protection Act- Jurisdiction- Whether a biological aunt is a family member?

Cases Cited
Wama v Palme [2012] PGNC 85; N4714 (22 May 2012)
Aviat Social & Sporting Club (Lae) Inc v Anthony Meehan Ltd [2001] PGNC 118; N2071 (8 March 2001)
Rabaul Shipping Limited v. Rita Ruru (08/12/00) N2022
William Moses v. Otto Benal Magiten (01/12/00) N2023
ABCO Transport Pty Ltd v. Timothy Sakaip N1577
Kiau Nekints v. Moki Rumints [1990] PNGLR 123
The Senior Stipendiary Magistrate, Ex parte The Acting Public Prosecutor [1976] PNGLR 344

References
District Court Act
Family Protection Act

Counsel

Self Represented, for the Complainant

No Appearance, for the Defendant

2 December 2019

L Wawun Kuvi, Magistrate:

1. The Complainant has applied for a Family Protection Order pursuant to section 16 of the Family Protection Act (the Act).
2. This is a preliminary ruling in relation to the Court’s jurisdiction.
3. In order for me to issue a summons to compel the appearance of the Defendant, I have to be satisfied that firstly that the parties are family members as defined under section 2 of the Act and secondly whether there has been any acts of violence.

Whether the defendant and complainant are family members?

4. I must remind myself that District Courts are creatures of statute and as such I can only act within the governing legislation. To act outside of it would make any subsequent orders null and void.^[1]
5. Under section 2 of the Act, family members are defined as:
   1. The spouse of the Applicant
   2. The child of the Applicant or the child of the Applicant’s spouse
   100. The parent of the Applicant or the parent of the Applicant’s spouse
   4. A grandparent
   5. A brother or sister of the Applicant or the brother or the sister of the Applicant’s spouse
   6. Any other person who is treated by the Applicant’s spouse as a family member
6. The Defendant is related to the Complainant. The Defendant is the biological sister of the complainant’s mother.
7. By blood the parties are family members however according to section 2 of the Act, they are not.
8. The drafting of the Act is peculiar in the sense that had the complainant been married she could mount a case that her aunt is considered a family member by her spouse and therefore falls within the jurisdiction of the Act.
9. Unfortunately for the Complainant as she is single, I can only apply the latter four categories which, bars her from making the application.
10. I need not consider the second issue.
11. The Complainant is at liberty to commence proceedings under section 209 and 210 of the District Court Act at the Port Moresby District Court, which are the provisions used by persons who are deemed non family members.

Orders:

12. The Orders of the Court are as follows:
    1. The Application for Family Protection Order is dismissed for want of jurisdiction;
    2. Defendant is discharged.

Lawyer for the Complainant Self Represented

Lawyer for the Defendant Self Represented

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^[1] See Wama v Palme [2012] PGNC 85; N4714 (22 May 2012); Aviat Social & Sporting Club (Lae) Inc v Anthony Meehan Ltd [2001] PGNC 118; N2071 (8 March 2001); Rabaul Shipping Limited v. Rita Ruru (08/12/00) N2022; William Moses v. Otto Benal Magiten (01/12/00) N2023; ABCO Transport Pty Ltd v. Timothy Sakaip (unreported but numbered judgement of Injia J) N1577; Kiau Nekints v. Moki Rumints [1990] PNGLR 123 and The Senior Stipendiary Magistrate, Ex parte The Acting Public Prosecutor [1976] PNGLR 344 at 349