X v Y [1977] PNGLR 34 (23 February 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 34 - X v Y 

[1977] PNGLR 34

N82

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

X.

V

Y.

Lae

Prentice DCJ

22-23 February 1977

INFANTS AND CHILDREN - Affiliation and maintenance - Native child - Jurisdiction of Local Court and Children’s Court concurrent - Local Courts Act 1963, s. 18[xli]¹ - Child Welfare Act 1961 s. 37(1)[xlii]² and s. 37(4)[xliii]³.

INFERIOR COURTS - Local Courts - Children’s Court - Jurisdiction - Affiliation and maintenance proceedings - Native child - Jurisdiction of Local Court and Children’s Court concurrent - Local Courts Act 1963 s. 18[xliv]⁴ - Child Welfare Act 1961 s. 37(1)[xlv]⁵ and s. 37(4)[xlvi]⁶.

APPEAL - Inferior Courts - Local Courts - Jurisdiction - Papers variously entitled District Court, Local Court, Children’s Court - Proceedings under Pt. IX of Child Welfare Act - Whether appellant prejudiced - Whether miscarriage of justice - Child Welfare Act s. 37(2)[xlvii]⁷.

A Local Court Magistrate in affiliation proceedings in respect of a native child, ordered that the appellant should pay K50 confinement expenses for the respondent and K15 per week maintenance for the child. The court papers were variously entitled “District Court”, “Local Court”, and “Children’s Court”. On appeal therefrom on the grounds that the order was made without jurisdiction, and that the order made was excessive;

Held

(1)      In regard to affiliation and maintenance proceedings for an exnuptial native child, a Children’s Court and a Local Court in the same area, have concurrent jurisdiction under Pt. IX of the Child Welfare Act 1961.

(2)      Section 37(2) of the Child Welfare Act 1961, which provides that nothing in s. 37(1) shall abridge or prejudice ... (b) the powers of justices to — (i) take an information, complaint or application; (ii) issue a summons, will operate to allow process issued in the name of the District Court in respect of a proceeding that lies properly in the Children’s Court or Local Court under Pt. IX of the Child Welfare Act 1961, to support a subsequent hearing thereon in a Children’s Court or Local Court.

(3)      Such divergencies as appeared in the process and the court file, were not such as to have prejudiced the appellant.

(4)      No substantial miscarriage of justice had occurred.

(5)      The appeal on the ground that the order was made without jurisdiction should be dismissed.

(6)      The appeal on the ground that the maintenance order made was excessive should be allowed and there should be substituted therefore an order that the appellant pay K4.50 per week for the maintenance of the child.

Appeal

This was an appeal against a decision of the Local Court Magistrate given in affiliation proceedings in respect of an ex nuptial native child. The appeal was on the grounds that the order was made without jurisdiction, and that the order made was excessive.

Counsel

C. J. P. Russell, for the appellant.

S. B. Passigan, for the respondent.

Cur. adv. vult.

23 February 1977

PRENTICE DCJ: The appeal herein is brought from a decision of the Local Court at Lae given on 17th August, 1976. Appeal was begun by telegram of 16th September, 1976. The Registrar of this Court, by letter dated 15th October, 1976, directed copies of court documents and reasons for judgment be forwarded to the National Court. In this as in so many appeals, no papers or copies of reasons for judgment have been received in this Court. By favour of counsel for the respondent I have been handed what appears to be a photostat of reasons actually drawn up by the learned magistrate concerned.

The proceedings were of the nature of an affiliation application; and by an order of the Local Court therein, it was adjudged that the appellant should pay to the Director of Child Welfare K50.00 confinement expenses for the respondent, and K15.00 per week continuing in respect of the child.

On this appeal I have allowed evidence to be given by the appellant as to his earnings. This evidence was unchallenged, and reveals that the appellant earns as a clerk in a Government Department, K43.12 per fortnight after tax. The appellant swore that he has regular outgoings per fortnight for rent of K2.50, and for food K20.00. He estimates his clothing expenses would average some K5.00 per fortnight. I am inclined to believe that the last figure may be somewhat high; but certainly he would have other necessary casual expenses. It will be seen that on these figures, he would be left with K15.62 per fortnight from which to pay maintenance to the tune of K30.00. The learned magistrate himself appears to have regarded his order as being excessive, for his “reasons” include the comment:

“In actual fact, the maintenance order was too excessive, this court proceed(ed) ex parte. This Court did not have any case history from the appellant in order to give out fair and reasonable maintenance order.”

The appellant has recently fallen into arrears in the impossible payments. One is unable to understand how an infant child now some 10 months old, could require an order for payment of K15.00 per week for its support. (The mother is in fact employed as a ledger machinist in a bank where she earns K52.00 per fortnight — more that is than the appellant.) The Court must bear in mind that any order is not for the support of the mother. If I were to assess an amount for maintenance, I should estimate K4.00 or K5.00, a generous one at the present time. I have some doubt whether child minding expenses may properly be included in calculating a proper amount of maintenance. Since argument was concluded, I have been able to peruse the Court file which indicates that the respondent mother spoke of having regular expenses for the child of K1.75 per week for food, and K4.50 for child minding.

However, the question has been argued on appeal as to whether the order was made without jurisdiction and should in law be quashed rather than varied. The Court file displays a confusing picture. The complaint herein was entitled “In the District Courts Act”, as was the summons actually issued and served. Various affidavits were sworn as being in the District Court. The summons required the appellant to appear in the District Court on 29th July. The appellant was not present at the hearing — and no objection was taken to jurisdiction. The learned magistrate presiding was in fact a Local Court Magistrate and he sealed his “reasons” with the seal of the Local Court. What appears to be his Bench Sheet notes however, are headed “Maintenance Children’s Court Lae”. I understand all Local Court Magistrates are gazetted as Children’s Court Magistrates.

It would seem to me that in fact it was the Local Court which dealt with the matter. Jurisdiction would seem to have been assumed by the Local Court under s. 18 of its Act of 1963 which is in the following terms:

“18(1) The jurisdiction conferred by the Deserted Wives and Children Act 1951-1961 or by Part IX of the Child Welfare Act 1961-1962 may be exercised by a Local Court in the case of a marriage by native custom or of an ex-nuptial native child.

(2)      The jurisdiction conferred by the last preceding subsection is in addition to and not in substitution for or derogation of the jurisdiction conferred by the Deserted Wives and Children Act 1951-1961 and the Child Welfare Act 1961-1962.”

Part IX of the Child Welfare Act of 1961 contains provisions as to affiliation proceedings in respect of illegitimate children.

Section 36(e) of that Act provides that a Children’s Court shall hear and determine all complaints and applications under the Act. And s. 37(1) provides that:

“37(1) Subject to this section, on and after the establishment of a Children’s Court the jurisdiction of every Court of Summary Jurisdiction in respect of matters as to which a Children’s Court has jurisdiction shall cease to be exercised within the area determined to be the area in and for which that Children’s Court may exercise its jurisdiction.”

“Courts of Summary Jurisdiction” was defined as meaning “a District Court or Court of Petty Sessions”. Section 37(4) provides that:

“37(4) Where no Children’s Court has been established to exercise jurisdiction under this Act over a particular area, a Court of Summary Jurisdiction may exercise in that area the jurisdiction of a Children’s Court under this Act as if it were a Children’s Court under this Act.”

A Children’s Court has been established in Lae since 1962.

It has been argued on the one hand that s. 18 of the Local Courts Act, which Act is later in date to the Child Welfare Act, intended to grant power to a Local Court to act even in an area where a Children’s Court has been established. And on the other hand, that the section merely spells out those restricted categories of matters under the Deserted Wives and Children Act and the Child Welfare Act, which might be entertained by a Local Court, as distinct from another Court of Summary Jurisdiction, under s. 37(4) of the Child Welfare Act in areas where no Children’s Court has been established.

The intention of the legislation is by no means clear. But in order that s. 18(1) of the Local Courts Act be construed as granting additional powers and not be in derogation of jurisdiction already granted I consider it should be read as granting power to deal with an ex-nuptial native child (as in question here) under Pt. IX of the Child Welfare Act, to the Local Court of an area, even where a Children’s Court has been established in that area. No previous decisions on the point have been cited to me.

If that be so, the situation is that in regard to an ex-nuptial native child, a Children’s Court and a Local Court in the same area have concurrent jurisdiction under Pt. IX of the Child Welfare Act (as to which s. 15 of the Local Courts Act would apply). One should have regard also to the provision of s. 27 of the Local Courts Act that “No objection shall be taken ... to a complaint or summons ... for an alleged defect therein whether of substance or of form ...”, and to s. 37(2) of the Child Welfare Act which provides that nothing in s. 37(1) shall abridge or prejudice:

“(b)    the powers of justices to:

(i)       take an information, complaint or application;

(ii)      issue a summons;

...”

I take it that the last mentioned section operates to prevent process issued in the name of the District Court in respect of a proceeding that lies properly in a Children’s Court or Local Court under Pt. IX, failing to support a subsequent hearing in a Children’s or Local Court thereon.

I form the view that such divergencies as appear from the process and court file, are not such as to have prejudiced the appellant. (Indeed after perusing the court file, I drew counsel’s attention to its somewhat eccentric details, and understood it was not desired to urge that prejudice arose therefrom.) I am satisfied that no substantial miscarriage of justice has occurred in the area of jurisdiction.

I propose to dismiss the appeal on the ground that the order was made without jurisdiction. But I consider that the appeal should be allowed on the second ground of excess in the amount of maintenance ordered. Having heard the evidence of the appellant, which has not been sought to be challenged by cross examination or further evidence on behalf of the respondent mother, I consider I should substitute what I consider the correct decision, for that of the learned magistrate.

I allow the appeal on the second ground. I quash the order for payment of K30.00 per fortnight to the Director for the child’s maintenance. In lieu I order that the appellant pay K4.50 per week to the Director for the child’s maintenance. The order in respect of confinement expenses is to stand. Credit is to be given, of course, to the appellant for the payments of K15.00 per week which he has already made.

I may add that I sympathize with the Magistracy in their need to cope with a somewhat complicated set of Acts granting them jurisdiction, with the aid of a not always well-educated staff.

Appeal allowed.

Orders accordingly.

Solicitor for the appellant: W. J. Andrew, Acting Public Solicitor.

Solicitor for the respondent: B. W. Kidu, State Solicitor.

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[xli]Infra p. 36.

[xlii]Infra p. 36.

[xliii]Infra p. 37.

[xliv]Infra p. 36.

[xlv]Infra p. 36.

[xlvi]Infra p. 37.

[xlvii]Infra p. 37.