N242(L)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

VIULA ONEA & MINNIE LAM EX PARTE AMY VIULA

Waigani: Miles J
23 July 1980; 25 July 1980

REASONS FOR DECISION

MILES J: This was an ex parte application for a writ of habeas corpus ad subjiciendum directed to Viula Onea and Minnie Lam of Apeava Village, Abau Sub-province in the Central province, requiring them to produce to the Court the child of the applicant who is at present in their de facto custody.

The matter was heard and decided by me on 23rd July and I adjourned the matter for the purpose of giving my reasons.

The applicant is the mother of the child. The respondents are the maternal grandparents. The child was born on 10th January 1979 and has lived with the grandparents since she was about two months old.

The father of the child is Pontau Lavika. He and the applicant, according to her affidavit, live together on a permanent basis but are not married according to the Marriage Act nor according to their respective customs. The applicant comes from the Central Province and the father comes from the Mortlock Islands in the North Solomons Province.

The applicant and the child’s father have not been able to get adequate accommodation in Port Moresby where they both work. The father has now been transferred to Arawa where married accommodation is available. The applicant wants to take the child and go and live in Arawa, but the grandparents will not yield up the daughter.

A writ of habeas corpus to restore custody of the child will not lie unless there is clear legal entitlement to custody in the part of the applicant and unlawful detention on the part of the respondent: Nora Ume v. Martin Beni. The child in this case was not born within a marriage and I raised with counsel the question as to whether a mother of an ex-nuptial child has any right to custody without obtaining a court order.

It is not clear whether at common law a mother of an illegitimate child has any rights in respect of the child at all, but the point is academic because the matter has for a long time been affected by statute and equitable principles.

The decision of the N.S.W. Supreme Court in Ex parte Vorhauer; re Steep & Another seems to me to cover the situation as it is in Papua New Guinea. The headnote does not quite accurately summarise the case when it says that "the mother of an illegitimate child in N.S.W. has the right to custody of that child at common law". What the judgment of Asprey J.A. clearly shows is that the mother has the right to custody on the state of the current law in N.S.W., based on the relevant legislation which lays down an extended definition of the word "parent" and which provides that in an application for custody, even in the common law division of the court, equitable rules are to be applied.

The Infants Act 1956 of Papua New Guinea contains a similar definition and there is no distinction in the National Court between common law jurisdiction and equitable. I think therefore that the mother of an illegitimate child in Papua New Guinea has a prima facie right to custody sufficient to entitle her to cause the issue of a writ of habeas corpus.

As Pritchard J. pointed out however the writ is directed to the production of the child to the court. The writ does not command that the child be returned to its mother or anyone else. Although Mr. Amet for the applicant sought an order absolute in the first instance, the order nisi should not be made absolute in my view until the respondents have been given an opportunity to be heard should they so wish.

The jurisdiction to make orders in the nature of a prerogative writ is given to both the Supreme Court and National Court: Constitution s. 155 (4). I previously took the view that the power could be exercised equally in either Court: The State v. Police Appeal Tribunal ex parte Lawrence Allen Sausau. I now understand that other judges consider that the rules require that an order nisi should normally be returnable in the Supreme Court: see In the matter of an Application for a Writ of Certiorari and In the matter of the Police Force (Interim Arrangements) Act 1973 and In the matter of a Ruling made by the Police Appeal Tribunal at Lae. I therefore direct that the order nisi in this case be returnable in the Supreme Court. I would expect that the order will be served on the respondents as soon as possible.

I expressed the view during argument that in a case of this nature proceedings by way of application to the National Court under the Infants Act 1956 for an order of custody may be preferable to application for the issue of a writ of habeas corpus. If there is any contest as to where the custody ought lie, application to the National Court may well be speedier. Moreover the making of an order for custody will require the unsuccessful respondent merely to hand over the child to the successful applicant. The issue of a writ of habeas corpus will require the physical production of the child before the Court at Waigani, a cumbersome, expensive and usually unnecessary process.

I adhere to the view I expressed earlier that if an application is made for a prerogative writ, it should be made in the name of the State, as it was formerly made in the name of the Sovereign and be directed to named respondents. I have entitled these reasons accordingly.

If I am wrong in either of these two views no doubt the Supreme Court will say so.

Order nisi to issue returnable at the Supreme Court, Waigani on Thursday 31st July 1980 at 9.30 a.m. Costs reserved.

Solicitor for the Applicant: D.J. McDermott, Acting Public Solicitor.
Counsel: A.K. Amet.