Pineri v Lina Balus [1993] PGLawRp 555; [1993] PNGLR 475 (14 October 1993)

PNG Law Reports 1993

[1993] PNGLR 475 - Kanai Pineri v Lina Balus 

[1993] PNGLR 475

N1183

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KANAI PINERI

V

LINA BALUS

Rabaul

Doherty J

14 October 1993

INFERIOR COURTS - Appeal against decision in Children's Court - Child Welfare Act - Constitution of Children's Court.

INFANTS AND CHILDREN - Affiliation - Proceedings in Children's Court - Record showed that the Magistrate sat alone - Court improperly constituted.

Facts

This is an appeal from a decision of the District Court, sitting as Children's Court, in Rabaul which, after hearing a complaint for maintenance under the Child Welfare Act Ch 276, adjudged the appellant as the putative father of a female child. When the Court sat, it sat with only one magistrate. Under s 29(1) of the Child Welfare Act, it is a requirement that when a District Court sits as a Children's Court to exercise jurisdiction under the Child Welfare Act, it must consist of a magistrate and a lay member appointed under s 28(2)(c). Further, by virtue of s 28(3), at least one person constituting the court has to be a woman.

The main ground of appeal was that the Children's Court was improperly constituted when hearing and determining the complaint under the Act.

Held

N1>1.       The requirements of ss 28(3) and 29(1) are mandatory provisions, and these had not been complied with.

N1>2.       The original order of the District Court is void, as it was reached by an improperly constituted court.

N1>3.       The case to be remitted for proper re-hearing.

Counsel

T Tamusio, for the appellant.

Respondent, appeared in person.

14 October 1993

DOHERTY J: The appellant appeals against the decision of the District Court at Rabaul, where he was judged the putative father of a female child born to the respondent in April 1991.

The decision was reached after a hearing. The appellant says that the decision cannot be supported as there was no corroborative evidence. It is apparent from the Court record that when the Court sat, it sat with one magistrate alone. The provisions of the Child Welfare Act Ch 276 s 28 state that a Children's Court shall consist of a magistrate and a lay member. Section 28(3) provides that at least one person constituting the court shall be a woman.

The provisions of s 29(1) are mandatory. They provide that there shall be the magistrate and the lay member. Section 32(1)(c) provides that the jurisdiction of a Children's Court includes the power to hear and determine all complaints and applications under this Act. Section 32(1)(c) is also mandatory.

An affiliation proceeding is laid first under s 51 of the Child Welfare Act, which states that it shall be made by way of a complaint in writing on oath. Hence, it is a complaint that has to be determined, pursuant to s 32(1)(c), by a Children's Court. It is clear on the record before me that the mandatory provisions of s 28 and s 29 were not followed in the case. Therefore, I consider that the original order is void, as it was reached by an improperly constituted court.

In the light of this, I remit the matter for proper re-hearing at a date to be fixed by the Clerk of Court.

Lawyer for the appellant: Public Solicitor.

Lawyer for the respondent: Appeared in person.