Pineri v Balus [1993] PGNC 33; N1183 (14 October 1993)

N1183

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

AP. 17/93

KANAI PINERI
(Appellant)

-v-

LINA BALUS
(Respondent)

RABAUL: DOHERTY, J
1993: 14TH OCTOBER

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

An appeal against a decision of a Childrens Court in affiliation proceedings where the record showed that the Magistrate sat alone.

HELD:

1. The provisions requiring a lay person to constitute a Childrens Court were mandatory.
2. Provision that at least 1 person constituting a Childrens Court be a woman is mandatory.
3. A "complaint" in a Childrens Court includes a complaint under S 55, Child Welfare Act. Since the Court was improperly constituted the decision was void.
   

Mr. Tamusio for the Appellant
Respondent appeared in person

DECISION

DOHERTY, J.: The Appellant appeal against the decision of the District Court at Rabaul where he was judged the punitive 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, 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 is to be a woman.

The provisions of S 29(1) are mandatory. They provide that there shall be the Magistrate and the Lay member. S 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. S 32(1)(c) is also mandatory.

An affiliation proceeding is laid first under S 51 of the Child Welfare Act. It states that it was lay by way of a complaint in writing on Oath. Hence it is a complaint that has to be determined, pursuant to S 31(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 and 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 and a date to be fixed by the Clerk of Court.

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Lawyer for the Appellant: Public Solicitor
Lawyer for the Respondent: Appeared in person