Buis v Woruba [2020] PGDC 10; DC4045 (5 October 2020)

DC4045

Papua New Guinea

In the District Court

Held at Waigani

Sitting in its Family Court Jurisdiction

FC No 61 of 2017

BETWEEN:
CATHRYN BUIS
Complainant

AND:
DEAN WORUBA
Respondent

Port Moresby: SM. Ganaii
2020: 05^th of October

FAMILY LAW – Child Maintenance – Best interest of the child – Application to set aside maintenance orders – Defendant is represented by Lawyer from Office of Child and Family Services – Objection raised to legal representation of defendant

FAMILY LAW – Duties, Powers and Function of In house lawyer from Office of Child and Family Service - Conflict of interest situation - Objection upheld
Cases cited:
Joshua Anis v Runny Dau [2020] PGNC 15; N8200 (19^th February 2020)
.
Legislation
Lukautim Pikinini Act, Chapter No 45 of 2015
Professional Conduct Rule of 1989

Counsel
Complainant, Ms Cathryn Buis
In person

Mr. Otto Trur, Lawyer for Department of
Community Development, Office of NCD
Child and Family Services
For the defendant

RULING ON OBJECTION TO LEGAL REPRESENTATION

05^th October, 2020

Introduction

Ganaii, SM This is a ruling on an objection raised by the complainant against the lawyer for the Office of the Child and Family Services, Department of Community Development, on his legal representation of the defendant in the setting aside of a maintenance order. The maintenance order was made in favour of the complainant for child support.

Facts

2. By way of background, with the support from welfare officers from the Office of Child and Family Services, Department of Community Development, on the 03^rd of April 2017, the complainant filed an application for child maintenance. Mr. Otto Trur was lawyer (and still is) at that time however the office as it would usually do, and due to manpower issues allow the complainant to prosecute the matter themselves henace Mr. Trur was not personally involved in this matter. The complainant prosecuted the case herself.

3. On the 06^th of June 2017, the court heard parties inter parte and where parties consented at the end of the hearing, made orders among others that the defendant would pay fortnightly maintenance for child support. The court considered that child support was in the best interest of the child although the defendant was going away for overseas study. The main consideration in the best interest of the child was that the child needed continued support on a day to day basis.

4. On the 08^th of August 2019, Mr. Otto Trur filed an application on behalf of the defendant seeking to set aside the orders of the 06^th of June 2017. When the matter was set for mention, Ms Elisabeth Suelip, counsel for the complainant (now acting Judge) objected to Mr. Trur appearing as counsel for the defendant. I adjourned the matter to hear submissions. The submissions were unreached due to a number of reasons and one of which was that that I had transferred to another court and ceased jurisdiction of family court matters. To progress the matter, although I had directed that it be listed before another Family Court magistrate to hear the objection and deal with the substantive motion to set aside the maintenance order, the matter was unreached until it came before me almost one year and one month later on the 17^th of September 2020 for hearing on the objection. This is the ruling.

Issue

5. The issue is whether Mr. Trur, being the in-house lawyer for the Office of Child and Family Services, within the Department of Community Development can represent the defendant in an application to set aside the child maintenance orders?

The Law

The Law establishing the Office, Powers and Functions of the Office of Child and Family Services

6. Sections 12, 13 and 14 of the Lukautim Pikinini Act (LPA) establish the Office of the Child and Family Services and provides for its powers and functions. Section 14 stipulates that the functions of the Office are among others for “Providing family services including promoting and protection of the wellbeing of the children and families; and Administering of this Act” at paragraphs (a) and (d) respectively.

7. Administration of the Act requires the Office to represent the child as child protection officers pursuant to Division 3 of the Act in the various applications brought against a defendant in matters relating to and among others the neglect of parental obligations under section 8 of the Act. Section 8 of the Act says that parents have a duty to provide adequate nutrition, immunization, clothing, shelter, education, guidance and medical attention.

Professional Conduct Rules

8. Section 10 of the Professional Conduct Rules says that a duty lawyer shall give undivided fidelity to his client’s interest unaffected by ‘any interest of any person’. Subsection (2) says that where the lawyer has any interest in a matter which may conflict with or is adverse to the interest of his client, he shall decline to represent or shall withdraw from representing that client. Subsection 4 goes on to say that a lawyer shall not represent or continue to represent conflicting interests in litigation.

Complainant’s Case

9. Ms Suelip, then of counsel for the complainant submitted that the applicable laws are found in sections 12, 13 and 14 of the Lukautim Pikinini Act (LPA) and section 10 of the Professional Conduct Rules. She cited the case law of Papua Club Inc v Nasaum Holdings Ltd (3 September 2004) where the court held that where the lawyers acted both for the plaintiffs and defendants, there was a conflict of interest within the meaning of section 10 of the Professional Conduct Rules resulting in the lawyers having divided loyalty between the two clients. She submitted that this case applies in the present matter where Mr. Trur is acting for two clients, his office which represents the interest of the child and family and the defendant. There is an obvious conflict of interest and undivided loyalty.

Defence Submission

10. Mr. Trur submitted that section 37 of the Constitution provided for the full protection of the law for the defendant. He submitted that as a citizen the defendant has the right to seek the full protection of law by seeking legal representation of a lawyer of his choice. Mr. Trur decided to represent the defendant because in his own assessment of the defence case, the court had not considered the defendant’s ability to pay maintenance before making the child maintenance order. He submitted also that although the case was heard and orders were made inter parte, the defendant was under ‘duress’ as he only wanted to complete the case and return to Australia to continue his studies. Mr. Trur submitted that the case of Rakatani Peter v South Pacific Brewery Ltd [1976] PNGLR supported the defendant’s application for an adjournment so that where the court did not consider the adjournment and proceeded in the defendant’s absence that was a contravention of section 37 (5) of the Constitution.

11. Mr. Trur further submitted that his decision to assist the defendant was based on his assessment that the court did not consider relevant facts in favour of the defendant. He submitted that it was not made in the best interest of the child because without the order, the child had not been harmed in anyway as he was being adequately cared for by the complainant. He submitted also that the defendant would still provide care and maintenance when he has the means and ability to do so.

12. Mr. Trur therefore, submitted that he should be allowed to assist the defendant and the court in following the due process and making proper orders for everyone’s benefit and especially for the child.

Consideration and analysis of submissions in the light of the law

13. I have considered both parties submissions and make my response below.

14. Mr. Trur is the in-house lawyer for the Child and Family Services, housed within the Department of Community Development. Pursuant to section 14 and Division 3 of the LPA, his function as such an officer (lawyer and child protection officer) within such an office requires him to provide child and family services including among others the role to promote and protect the rights and wellbeing of children and families and to administer the provisions of the LPA and other related legislations. By virtue of this provision, Mr. Trur as a lawyer first of all must measure up his conduct to the rules governing and regulating the profession of a lawyer. Being a lawyer for the office of Child and Family Services he is required at all times to maintain an undivided legal interest for all children including children who are subjects of court proceedings. This includes having the vested authority to appear for their clients as authorized by the Director for Lukautim Pikinini consistent with the LPA. In this case, Mr. Trur failed to maintain the undivided legal interest.

15. The principles in the case of Joshua Anis v Runny Dau [2020] PGNC 25, N8200 (19^th February 2020], is applicable however the facts of Anis v Dau (supra) was the total opposite to the present. In Anis v Dau, Mr. Trur appeared as in –house lawyer from the Office of Child and Family Services representing the complainant/respondent in a child maintenance proceedings and the defendant/appellant objected arguing that the only office authorised to represent parties was the Office of the Public Solicitors and he relied on section 37 of the Lawyers Act to support him. The court considered that section 37 of the Lawyers Act did not prohibited Mr. Trur as an in-house lawyer from his office and where he was fully authorized by his Director to do so, as a lawyer and child protection officer to represent matters having a bearing on the neglect of the welfare of a child. Court therefore found that in representing the complainant/respondent, Mr. Trur’s appearance as counsel did not violate any law and is not prejudice to a child alleging neglect.

16. In the preset case, where the court ordered that the defendant pay fortnightly maintenance support for the child, the paramount consideration was ‘the best interest of the child’ as opposed to the interest of the parents or the defendant for that matter. In the court’s consideration, the best interest of the child was to give meaning to section 8 of the LPA, whereby parents were to provide the necessary support for the health, care and wellbeing of the children. I do note that the orders did not say that parties will share cost and that may be unfair and for the defence that may be a basis for variation at another time, however, generally, the order was made for the good of the subject child. The conflict of interest situation that Mr. Trur faces now is that whilst he works for the very office that stands for the promotion and protection of the rights and wellbeing of every child and where the court in its wisdom had made a maintenance order in the best interest of the child, he is now representing the defendant who is seeking to have the orders set aside arguing that the court maintenance order was not made in the best interest of the child. This is a conflict of interest situation that in my view Mr. Trur must avoid.

17. The court agrees with Ms Suelip’s submission that section 10 of the Professional Conduct Rules applies. This is the very situation whereby this section (10) warns lawyers against. Duty lawyers are warned to give undivided fidelity to their client’s case unaffected by any interest in any other person including the opposing party. The law therefore is crystal clear when it stipulates in subsection (4) that a lawyer shall not represent or continue to represent conflicting interest in litigation. The court is of the view that the defendant must engage the services of public defenders beings lawyers from the Public Solicitors Office or private lawyers or he may choose to represent himself. Mr. Trur is in a conflict of interest situation and must cease to act for the defendant.

18. In relation to the defence position that the court orders of the 07^th of June 2017 were not made in the child’s best interest, a competent court can determine this issue at the relevant time. My view is that the orders of the court were made in the best interest of the child and therefore for Mr. Trur to say otherwise is going against the interest of the mandated functions of the Office of Child and Family Services. At the outset however, and for now, any setting aside application must only be invoked under section 25 of the District Courts Act which provides that this can only be done when an order was made ex-parte. In this instant, the court order of the 06^th of June 2017 was not made ex parte but rather inter parte and by consent. Clearly, the position now is that Mr. Trur has allowed himself to become interested in the defendant’s case where it may become difficult for him to maintain his professional independence as a lawyer and child protection officer for children who claim that they have been neglected.

19. Mr. Trur’s further submission that 37 (5) of the Constitution should be read in favor of the defendant’s right to instruct a lawyer of his choice is in my view a misapplication of that provision of the law to the present case. The Constitutional rights of defendants under section 37 for full protection of the law is intended to apply especially to persons in custody, arrested and charged with criminal offences and not so much so for a defendant in a civil proceeding such as in this present case.

20. Further, the case law Rakatani Peter v South Pacific Brewery Ltd (supra) relied on by Mr. Trur has no bearing in this matter as the quoted comment in that case applied to the process for securing the attendant of someone in court and has no application to this present matter. In this present matter the hearing was conducted inter parte and the defendant was heard where he consented to orders for fortnightly maintenance support.

21. Having stated the foregoing, even if the defendant had a good case in seeking to set aside the previous child maintenance order, there is merit in stating the objection to Mr. Trur’s legal representation of the defendant in this case. Mr. Trur is the in house lawyer for the Child and Family Service. In his capacity as such and also as a child protection officer, his mandated functions are among others to provide family and child support services including to promote and protect the rights and wellbeing of children and families and in administering the provisions of the LPA without conflicting interests. To represent the defendant would be adverse to the interest of the clients of his office and the child in this matter.

Conclusion

22. Consequently, I make the following orders:

1. Objection is upheld; and
   
2. Mr. Otto Trur is to cease to act for the defendant in this proceeding.
   

Orders accordingly.

Complainant In person

Lawyer, Department of Community Development,
Office of NCD Child and Family Services For the defendant