N4875

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

O.S.NO. 542 OF 2012

IN THE MATTER OF the Infants Act Chapter 1956 No. 278

AND:

IN THE MATTER OF an Application by RM and PM

Waigani: Kariko, J
2012: 17th & 19th October

FAMILY LAW – Custody application – Orphaned infants – Applicants resident overseas – One applicant a blood relative – Application supported by immediate relatives of infants’ parents – Welfare of infants the paramount consideration - Court’s inherent jurisdiction – s.2(1), Infants Act; ss.158(1) & 166(1), Constitution

Facts:

The maternal uncle and aunt of orphaned infants aged 4 and 2 years applied for their custody and to take them to live in Australia where the applicants live.

Held:

(1)	By virtue of section 2 of the Infants Act, the National Court has retained an inherent jurisdiction to determine custody of children and such power is part of the Royal Prerogative parens patriae.

(2)	Such inherent jurisdiction is derived from sections 158 and 166 of the Constitution. 

(3)	 The paramount consideration in a custody application is the welfare of the infant.

(4)	Application granted.

Cases cited:

Papua New Guinea Cases

Yamba v Geru [1975] PNGLR 322
Bean v Bean [1990] PNGLR 307
RG v MG [1984] PNGLR 413

Overseas Cases

In re L (an infant) [1968] P.D. 119

Counsel:

Mr T Cooper, for the applicants

19th October 2012

1.	KARIKO, J: RPM and PM have been married for nearly 21 years and reside in Queensland, Australia. RPM is an Australian while PM is of Papua New Guinea origin.

2.	PM’s younger sister K passed away on 20th August 2011 leaving two infant children GMJ and EJ now aged 4 and 2 years respectively. Sadly, K’s husband and father of the children JE also passed away just over 2 months after K’s death, thereby leaving the children as orphans. K’s parents assumed parental responsibilities for the children but are unable to properly provide largely due to their limited finances, the living environment at Ranuguri Settlement. Konedobu and their ages (both being well into their 60’s). The families of both deceased parents (K and JE) are of the unanimous view that it is in the best interests of the children that RPM and PM take custody of them and raise them. 

Application for custody

3.	The M’s are ready willing and able to accept this responsibility and have applied to this Court for custody of the infants and to take them to live in Australia.

4.	Initially the application was based on sections 4 and 6 of the Infants Act but when the matter first came before the court counsel agreed that they may not be the relevant jurisdictional references. Subsequently the application has been based on sections 2(1) of the Infants Act and this court’s inherent jurisdiction pursuant to sections 158 and 166 of the Constitution. 

5.	Section 2(1) of the Infants Act states that the National Court’s jurisdiction to appoint or remove a guardian or otherwise in respect of infants is not restricted in any way by the Act. This means the National Court has retained an inherent jurisdiction to determine custody cases concerning children and such power is part of the Royal Prerogative referred to as parens patriae that now derives from the provisions of the Constitution and in particular sections 158(1) and 166(1) which together provide that the judicial authority of the People is vested in the National Judicial System which includes the National Court, a court of unlimited jurisdiction.

6.	Lord Denning M.R. in In re L (an infant) [1968] P.D. 119 said of the inherent jurisdiction of the Court of Chancery in relation to infants at p.156: 

"... It derives from the right and duty of the Crown as parens patriae to take care of those who are not able to take care of themselves. The Crown delegated this power to the Lord Chancellor, who exercised it in his Court of Chancery ...” 

7.	Frost, CJ in Yamba v Geru [1975] PNGLR 322 which is a case decided soon after Independence concluded in deciding the position under the power of the former Supreme Court of Papua New Guinea to sanction settlements on behalf of infant plaintiffs:

“In my opinion it follows from the judgments in The State v John Mogo Wonom [1975] P.N.G.L.R. 311 that it is no longer the law that that part of the prerogative is delegated by Her Majesty to the Judges. It has been displaced by reason of the constitutional provision that, subject to the Constitution, the judicial power of the people is vested in the National Judicial System. (Constitution s.158(1).) But there can be no doubt that the judicial power of the people is as plenary as the Royal Prerogative which attached to the Queen as the dispenser of justice or as  parens patriae, and is amply sufficient to support the well-established rules for the protection of infants.

The same conclusion follows, in my opinion, from the constitutional provision that subject to the Constitution the National Court is a court of unlimited jurisdiction (Constitution s.166 (1)). “

8.	The paramount consideration in a custody application is of course the welfare of the infant; Bean v Bean [1990] PNGLR 307, RG v MG [1984] PNGLR 413.

9.	From the affidavit material in support of the application, I am satisfied that the applicants are a stable and happy couple, are financially well-off owning several properties in Australia and have shares investments. They also live in their own home and would more than adequately cater for the infants' welfare, health and security. Clearly the children will have access to good education and health care in Australia and generally more opportunity for advancement in life than if they remain with their ageing maternal grandparents at Ranuguri Settlement. 

10.	While they will be a long way from Papua New Guinea and miss relatives this will be overcome in time and in any case communication technologies nowadays and the frequency of flights between Papua New Guinea and Australia are such that distance between these two countries is really no issue. I am also confident that the M's would not sever the children's connections with Papua New Guinea as they have continued to be in touch with the family here and after all, Mrs M is a Papua New Guinea national and a blood-relative of the infants. In Papua New Guinea custom generally and the Gulf Province where Mrs M hails from, the children would regard Mr M as their "big father" and refer to Mrs M as "big mother". The applicants are no strangers to the infants. They are family with the infants.

11.	As stated earlier, relatives of the children from both sides of their parents strongly support this application. Certain persons of good standing both in Australia and Papua New Guinea and who know the M's well also vouch that the couple are fit and proper persons to be guardians of the orphaned infants. 

12.	Adoption is an option that may be pursued later in Australia but for the moment it is difficult to obtain an adoption order in Papua New Guinea because of the legal requirement for applicants to be domicile in this country. An affidavit deposed to by the M's solicitor in Queensland states that custody of the children would assist the M's apply to Australian Immigration for an Orphan Relative Visa Subclass 117 which would allow the children to live with them in Australia. 

Decision

13.	In all the circumstances, I am satisfied that I should exercise this Court's inherent jurisdiction and grant the application for custody. While a custody order granted to a parent under section 4 of the Infants Act ceases to have effect once the concerned infant reaches 16 years of age, in exercising my inherent jurisdiction to do justice in the best interest of the children, I consider 18 years to be the appropriate age for the custody order to cease to have effect as both children would by then be considered adults, be of voting-age and would have completed their secondary education. If they have not been formally adopted by then, they would obviously be at liberty to decide whether to remain in Australia or return to Papua New Guinea. 

Orders

14.	The orders of this court are:

(1)	The applicants RPM and PM are granted custody of the infants GMJ born 18th August 2008 and EJ born 4th September 2010 until the infants reach the age of 18 years.

(2)	As guardians of the infants GMJ and E J Pursuant to these orders, the applicants RPM and PM are entitled to permanently remove the said infants from Papua New Guinea.

(3)	The time for entry of these orders is abridged to the time of settlement by the Registrar which shall take place forthwith. 

___________________________________________________

Twivey Lawyers: Lawyer for the Applicants