N529(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

PR

V

SC

Lae & Waigani
Los J
10 May 1985
14 March 1986

INFANTS AND CHILDREN - Custody and maintenance - Illegitimate child - Jurisdiction of District Court - Jurisdiction under Deserted Wives and Children Act (Ch No 277), s 3(1)(b) - Interests of child paramount - Child Welfare Act (Ch No 276) - Infants Act (Ch No 278).

Held

(1) That under the provisions of the Deserted Wives and Children Act (Ch No 277), s 3(1)(b), the District Court has jurisdiction to make orders for maintenance and custody of children born out of wedlock, that is, illegitimate children.

(2) On an application for custody of a child born out of wedlock the paramount consideration is the best interests of the child.

RG v MG [1984] PNGLR 413, followed.

Cases Cited

Daisy Derbyshire v Graham Tongia [1984] PNGLR 148.
Hevago-Koto v Sui-Sibi [1965-66] PNGLR 59.
James Allan Sannga (deceased), Re, Timereke v Ferrie and Johns [1983] PNGLR 142.
RG v MG [1984] PNGLR 413.
SCR No 1 of 1985; Inakambi Singorom v Kalaut [1985] PNGLR 238.
SCR No 4 of 1985; Omaro Garo v The Police [1985] PNGLR 320.
State, The v Danny Sunu [1983] PNGLR 396.

Appeal

This was an appeal from an order for custody and maintenance made by the District Court pursuant to the Deserted Wives and Children Act (Ch No 277) in respect of an illegitimate child.

Counsel

R J Everingham, for the appellant.
T A Doherty, for the respondent.
Cur adv vult

14 March 1986

LOS J: This matter came before me in Lae in May 1985 as an appeal from a custody and maintenance order made by the District Court on 7 January 1985 under the Deserted Wives and Children Act (Ch No 277). This order was in respect of the child B R who was born on 8 July 1983. The learned magistrate found that the parties were not married and that the appellant was the father of the child. His Worship thereupon ordered the custody of the child to the respondent and ordered the appellant to pay a sum of K20 per fortnight for the maintenance of the child. The notice of appeal listed two grounds of appeal initially but at the hearing another ground was added.

The first two grounds are not relevant here, as the hearing of the appeal has been adjourned until:

(a) a Social Welfare Report has been obtained, and

(b) what is the purpose of this decision, the question of jurisdiction of the District Court is decided upon?

The question is:

Does the Deserted Wives and Children Act relate to a child born out of wedlock ie an illegitimate child?

Mr Everingham appearing for the appellant initially argued in the negative. Since then and after I called for further submissions in writing he seemed to have altered his stand. However, for the purpose of answering the question I follow his original argument. His main arguments as I understand them are that first the definition of "child" in the Deserted Wives and Children Act (the Act) does not extend beyond the children who have been born out of wedlock but have been legitimated by subsequent matrimonies. Secondly he has argued that even if the Act did apply to the children born out of wedlock, the Act no longer applied when the Child Welfare Act (Ch No 276) was passed. The definition of "child" is provided in s 1:

"‘Child’ means child under the age of 16 years whether born in wedlock or not."

One could be forgiven for putting such an interpretation on the definition of "child" in the Act. When looking at the title of the Act as I am entitled to do to ascertain the objective of the Act (The State v Danny Sunu [1983] PNGLR 396 at 403) the seemingly first and outstanding objective that appears to me is that the Act provides for married women and their children. This is because I am caught off guarded by the words "wives" which appears before the word "children". Therefore, to say that the Act extended to children born outside wedlock whether legitimised or not would be absurd.

What appears to be a sensible interpretation in the first place becomes absurd. The Deserted Wives and Children Act first came into being in 1952 (Act No 5 of 1952). The only other closest Act that came into being was the Infants Act which came into being in 1956 (Act No 20 of 1956) which is now the Infants Act (Ch No 278) in the Revised Laws. The next relevant piece of legislation came into being in 1961, which is the Child Welfare Act 1961 (Act No 34 of 1961) now (Ch No 276) in the Revised Laws. The Infants Act has limited application: the Infants Act does not apply to national children; Re James Allan Sannga (deceased), Timereke v Ferrie and Johns [1983] PNGLR 142; Daisy Derbyshire v Graham Tongia [1984] PNGLR 148; RG v MG [1984] PNGLR 413. The effect of all these cases would be that until the Child Welfare Act came into being illegitimate children who were nationals did not have any relief under any Act.

I do not think the first interpretation was what the legislature had in mind. I can not proceed on the basis that the legislature inadvertently failed to make any provisions in the Act for the category of the children that had been placed outside the ambit of the Infants Act. To follow such a course would be to undermine the assumption that the legislature is an ideal person that does not make a mistake: SCR No 4 of 1985; Omaro Garo v The Police [1985] PNGLR 320. So I look again to see if there is a different but sensible objective. There appear to be two objectives in the Act. First the Act relates to the married women who are unlawfully left without means of support and secondly the Act relates to all children who are unlawfully left without means of support irrespective of their status at birth. This appears to be the correct interpretation. Indeed as Miss Doherty, counsel for the respondent has pointed out there is a distinction in the wording used in the Deserted Wives and Children Act, s 3(1)(a) and s 3(1)(b), which falls in line with the definition of "child" in s 1. Section 3(1) provides: On hearing of a complaint under s 2, the court shall inquire into the matter and:

"(a) where it is satisfied that:

(i) The wife is left without means of support;

(ii) ...

the Court may:

(iii) order the defendant to pay such allowance as it considers reasonable for the use of the wife; and

(iv) commit the legal custody of a child of the marriage to a wife or some other person; and

(b) where it is satisfied that:

(i) a child of the defendant is left without means of support;

(ii) ...

the Court may:

(iii) order the defendant to pay such allowance as it considers reasonable for the support of the child; and

(iv) commit the legal custody of the child to the mother or some other person." (Emphasis added.)

Section 3(1)(a) talks about "the wife" and "a child of the marriage", whereas s 3(1)(b) talks about "a child of the defendant" and "a legal custody of the child to the mother". The Act in my view makes a distinction between the children of a marriage and the children who are born out of wedlock. Hence when read in conjunction with the definition of "child" in s 1, it does make sense.

Further support for such an interpretation may be found in s 11 of the Deserted Wives and Children Act. This section does not limit itself to "wife", "child" and "husband" but also includes "parent".

Section 11 "Variation of Order

(1) On application by or on behalf of a wife or child or the husband or parent, and on notice given in such manner as it directs to all parties affected, a Court may vary, suspend or discharge an order made by a Court under this Act."

The next argument is that even if the Act related to children born outside wedlock, these relevant provisions have been repealed by the Child Welfare Act which came into effect after the Deserted Wives and Children Act. There is no express provision in the Child Welfare Act that the Deserted Wives and Children Act insofar as it relates to children born out of wedlock has been repealed. The next step is to see whether there is an implied repeal. The principles on implied repeal have been well discussed in various cases. It is sufficient to adopt just a part of McDermott J, set out in The State v Danny Sunu at 412:

"... In matters of implied repeal, it is settled law that a later affirmative enactment does not repeal an earlier affirmative enactment unless the words of the latter import a contradiction of the former words, that the contrariety between the two enactments must be such that ‘effect cannot be given to both at the same time’. Kutner v Phillips [1891] 2 QB 267 at 272; Hack v Minister for Lands (1905) 3 CLR 10 at 23, 24; see generally Hill v Hall (1876) LR 1 Ex D 411 at 413-414; Flannagan v Shaw [1920] 3 KB 96."

The Child Welfare Act is more elaborate as its provisions extend to the welfare of the children, for example in the field of education and employment. It establishes the office of the Director of Child Welfare to administer the provisions of the Act. The latter may mean that under the Deserted Wives and Children Act the mother of a child takes a leading role in laying a complaint that the child has been left without means of support whereas under the Child Welfare Act if the mother does not lay a complaint, the Director of Child Welfare may do so or another person authorised by the Director.

Section 51 provides:

"(1) Where the father of an illegitimate child has left it without means of support and it [the child] is over the age of 16 years, a complaint may be made, in accordance with this section before a magistrate:

(a) by the mother of the child; or

(b) by the Director; or

(c) by a person authorized in writing by the Director to make a complaint under this Part."

In my view this is an advantage rather than contradiction.

The only provisions under the Child Welfare Act that appear to conflict with the Deserted Wives and Children Act are the provisions relating to the establishment of the Children’s Court and the powers of the Children’s Court in Pt VI.

"Court" is defined in s 1 of the Child Welfare Act as:

"(a) a Children’s Court, or

(b) a District Court exercising the jurisdiction of a Children’s Court under Section 33."

The jurisdiction in child welfare matters is given to the Children’s Court. That jurisdiction can be exercised by a District Court as authorised by s 33 of the Act when a Children’s Court has not been established for the area where the complaint has been instituted: SCR No 1 of 1985; Inakambi Singorom v Kalaut [1985] PNGLR 238. However the provisions of the Act establishing the Children’s Court and giving it jurisdiction in child welfare matters do not seem to affect the affiliation proceedings in Pt IX of the Act. The definition of "court" in s 49 has been extended to include a local court and no limitation has been put on the definition of "magistrate".

Section 49(1) provides:

"In this part:

‘Court’ includes a Local Court ...

‘Magistrate’ means a magistrate of a court."

It seems to me that the establishment of Children’s Court is not contradictory to the provisions under the Deserted Wives and Children Act giving jurisdiction to the District Court. The provisions on the Children’s Court relate to children who breach the criminal law, they do not relate to affiliation proceedings. In my view therefore there is no contradiction between the two Acts except that a proceeding under the Child Welfare Act may be more advantageous to a child as the child has the backing of the child welfare officers.

The only way in which the Child Welfare Act may be said to have repealed the Deserted Wives and Children Act is that the Child Welfare Act makes specific provisions for the maintenance of an illegitimate child but not the custody of an illegitimate child. A case for an implied repeal may be stronger if the custody provisions in the Deserted Wives and Children Act are read to mean that the common law position of a natural father is ignored while the provisions of the Child Welfare Act assume the common law position of a natural mother. Section 3(1)(b)(iv) of the Deserted Wives and Children Act empowers the court to commit the legal custody of a child to the mother or "some other person". "Some other" person may include the defendant father. On the one hand the non reference to custody in the affiliation proceedings provisions may imply that the mother factor principle at common law regulates custody under the Child Welfare Act. On the other hand this may be an over assumption. In many cases in this country the natural mother or her relatives would have already had custody of the child and the claim, if one looks deeper, would be limited to the maintenance only. However, even if the common law position has been assumed in the Child Welfare Act, it does not mean the sole determining factor in the custody of a child is the mother factor. Ultimately the best interest of the child has to determine the custody of the child (RG v MG) and the court may be prepared to take notice of the wishes of the natural father because his proposals are directed to the welfare of the child: Hevago-Koto v Sui-Sibi [1965-66] PNGLR 59. The ultimate result in my view therefore cannot be any different from a result obtained under the Deserted Wives and Children Act.

From what I have said my answer to the question raised on the appeal is in the affirmative.

Orders accordingly

__________________________

Lawyer for the appellant: Public Solicitor.
Lawyer for the respondent: T A Doherty.

[1986] PNGLR 73 - Don Kapi v Mana Yaliock (Deceased) by His Widow (Betty Tramun)
[1986] PNGLR 73