Janet Wan v Kail Komun [1990] PNGLR 322

• Jurisdiction: Papua New Guinea
• Court: National Court
• Judge: Woods J
• Judgment Date: 13 July 1990
• Citation: [1990] PNGLR 322
• Judgment Number: N882
• Year: 1990

Full Title: Janet Wan v Kail Komun [1990] PNGLR 322

National Court: Woods J

Judgment Delivered: 13 July 1990

N882

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WAN

V

KAIL KOMUN

Mount Hagen

Woods J

6 July 1990

13 July 1990

INFANTS AND CHILDREN — Custody — Automatic citizens — Application of Infants Act — Relevance and importance of customary law — Strong evidence of custom in rural area — Claim by relatives of deceased father — Three year old female child — Claim granted — Infants Act (Ch No 278), s 2.

Held:

(1) The Infants Act (Ch No 278) by virtue of the bringing into operation of the Revised Laws in 1982, applies to children who are automatic citizens.

Re Sannga Deceased [1983] PNGLR 142, distinguished.

(2) In respect of an application for custody of an automatic citizen from an isolated rural area where the social structure is predominantly laid down by custom, the welfare of the child (in addition to other considerations) must include, his or her social security, relevance to the line in which born and security in belonging to a larger group.

Bean v Bean [1980] PNGLR 307 at 320, considered.

(3) The welfare and best interests of a three year old female child from a rural community whose father had died, would best be served under the influence and demands of custom (as to which there was strong evidence) in the custody of the father's line.

Cases Cited

The following cases are cited in the judgment:

Bean v Bean [1980] PNGLR 307.

Re Sannga Deceased [1983] PNGLR 142.

Tongole v Tongole (Narokobi AJ, N 256, 9 September 1980, unreported).

Application

These were proceedings transferred from the District Court and treated as a contested application for custody.

Counsel:

The applicant in person.

The respondent in person.

Cur adv vult

13 July 1990

WOODS J.: The original complaint in this matter was laid in the District Court under s 3 (1) (a) (iv) of the Deserted Wives and Children Act (Ch No 277). In the circumstances that would appear to be a misapprehension.

The complainant has not been deserted; rather her husband had died and relatives of the husband have taken custody of the child of the marriage.

The District Court transferred the matter to the National Court on the basis that this was a child custody matter and therefore the District Court had no jurisdiction.

However, on what basis do I have cognisance of the matter? It would seem to be either under the Infants Act (Ch No 278) or under the inherent jurisdiction of the National Court. As it is the mother who is seeking custody of her daughter I will deem the matter to be a claim under the Infants Act.

I might note here for the record that neither party was represented by counsel, both parties appeared in accordance with the order of the District Court transferring the matter.

I am satisfied that I have jurisdiction to hear the matter as an application under the Infants Act. Whilst on one interpretation it may appear that the case, Re Sannga Deceased [1983] PNGLR 142, suggests that the Infants Act has no application to automatic citizens I am satisfied that that case must now be distinguished. That case arose when the original Infants Act 1956 with the original s 5 was still in force. However since then, in 1982, the Revised Laws have come into force and the original s 5 was omitted. I am satisfied that the redrafting of the Infants Act was to not confirm a law completely cutting out any application of customary law but clarifying the relevance of a law to the majority of the people and ensuring a balance between custom and more modern concepts of child custody, where applicable, to fit into the changes taking place in Papua New Guinea society.

The newly drafted Act in s 2 (1), which provides: "This Act does not restrict the jurisdiction of the Court to appoint or remove a guardian or otherwise in respect of infants", must be seen as wide enough not to exclude whatever principles apply in any situation whether customary or modern. I find that the Infants Act (Ch No 278) does not exclude automatic citizens but that s 2 (1) has a wider meaning than may have at first been envisaged. Otherwise the Act would be a complete anachronism in a country where the great majority of persons are automatic citizens. I am not disregarding the Supreme Court in Re Sannga, I am saying that, by virtue of the bringing into operation of the Revised Laws in 1982, the situation is now clarified. Of course I am going to have regard to the principle stated in the Sannga case on the role of customary law in a custody situation and I am satisfied that this is covered under s 2 (1).

I am satisfied therefore that I have jurisdiction and it is a matter under the Infants Act if not still within the inherent jurisdiction of the National Court. Section 2 (1) of the Infants Act is wide enough to ensure that this Court is not bound by what could appear to have been, in the old s 5 as referred to in Sannga, a very limited power. I must adopt a broad interpretation of the power of the...