Toligur v Giwa [1978] PGNC 3; N133 (12 May 1978)

Unreported National Court Decisions

N133

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPEAL NO. 30 OF 1978
ESROM TOLIGUR
APPELLANT
V
ELLENEY GIWA
RESPONDENT

Waigani

Kearney J
11-12 May 1978

COURTS - complaint seeking only custody of children - District Court has no jurisdiction.

CUSTODY - children of marriage - jurisdiction of District Court.

KEARNEY J: This is an apfrom a decisiecision of the North Solomons District Court on Buka Island on 30th November 1977, awarding to the respondent the legal custody of the 4 children of a marriage between the appellant and respondent, and making certain ancillary orders.

5 grounds of appeal were listed in the Notice of Appeal, but counsel for the appellant ultimately relied only upon the ground that the District Court had no jurisdiction to determine the matter before it. The respondent does not appear.

From material before me, it appears that the appellant and respondent were married, but have been living apart for some time. In July 1977 their 4 children were living with the parents of the respondent on Buka, when the appellant came and took them away with him, to Rabaul. The respondent then made a complaint to the District Court, seeking custody of the 4 children; she did not seek an order for support. A Summons issued, and eventually came on for hearing on Buka on 30th November 1977; it is to be noted that this was not a Summons under s.5 of the Deserted Wives and Children Act 1951, which relates to the support of a wife or child; it related only to the custody of the children. The appellant did not appear at the hearing; it seems he was working in the Madang Province at the time. The Magistrate had invited him to submit written material, if he could not attend; he did so, but counsel informs me that the Court did not receive that material before the hearing. At the hearing, there was an appearance for the respondent, various witnesses testified on her behalf, and judgment was given in her favour.

The question is, had the District Court jurisdiction to hear and determine an application for the custody of the children of a marriage?

The jurisdiction of a District Court is set out in the ActN133.html#_edn78" title="">[lxxviii]¹. Apart from specific jurisdiction conferred directly under the Act - and that does not include questions of the custody of children - the Court has only such jurisdiction as is conferred upon it by law. The law relating to the custody of the children of a marriage is contained in the Infants Act 1956 and the Deserted Wives and Children Act 1951.

As to these statutes, Pritchard, J. pointed out in a recent case:

“...jurisdiction to award custody under the Infants Act 1956 lay only in the National Court ... under the Deserted Wives and Children Act 1951, (as amended), a court of summary jurisdiction had no right to make an order for custody unless it was consequent to a finding of leaving without means of support and the making of a maintenance order under that Act...”N133.html#_edn79" title="">[lxxix]²

It follows that a District Court cannot hear and determine an application simply for the custody of the children of a marriage. That this is the state of the law, is very unfortunate. I endorse, with respect, the critical comments of Pritchard, J. on this subject (supra)N133.html#_edn80" title="">[lxxx]³. It is of considerable practical importance that the defect be rectified; I note that certain recent proposals of the Law Reform Commission, if adopted, would do soN133.html#_edn81" title="">[lxxxi]⁴.

The judgment and orders of the District Court of 30th November 1977 deal solely with a complaint relating to the custody of the 4 children, a matter which that Court had no power to hear and determine. The judgment and orders have no force or effect, in law. Whether the proceedings before me should have been by way of appeal or by way of an application for certiorari, is perhaps a moot point; however that may be, I would be prepared to treat the Notice of Appeal as an application for certiorari, returnable instanter, and the District Court record as brought up to this Court. The judgment of 30th November 1977 is formally quashed, and the orders then made are set aside.

There is nothing to prevent the respondent from now making a complaint under s.5 of the Deserted Wives and Children Act 1951. There is sufficient material before me to give cause for concern as to the welfare of these 4 children; accordingly I will refer the papers to the Director of Child Welfare, for such action as he considers appropriate.

Solicitor for the Appellant: M. Kapi, Public Solicitor.

Counsel: K. Wilson.

N133.html#_ednref78" title="">[lxxviii]^{See Part III. 2 of District Courts Act, 1963.}

N133.html#_ednref79" title="">[lxxix]^{Ex parte Nora Ume, re , re Martin Beni, (unreported) Judgment N. 129 of 11 April, 1978.}

N133.html#_ednref80" title="">[lxxx]^{Ex parte Nora Ume, re Martin Beni, (unreported) Judgment N. 129 of 11 April, 1978.}

N133.html#_ednref81" title="">[lxxxi]^{Working Paper No. 9, March, 1978: “Family Law”; especially Part VIII and s.45 of the draft Bill.}