PR v SC [1986] PNGLR 68

• Jurisdiction: Papua New Guinea
• Judge: Los J
• Judgment Date: 14 March 1986
• Citation: [1986] PNGLR 68
• Docket Number: Peter Rarai v Susan Collins
• Court: National Court
• Year: 1986
• Judgement Number: N529(M)

Full Title: Peter Rarai v Susan Collins; PR v SC [1986] PNGLR 68

National Court: Los J

Judgment Delivered: 14 March 1986

1 INFANTS AND CHILDREN—jurisdiction of District Court over illegitimate children—provisions of Deserted Wives and Children Act not impliedly repealed by Child Welfare Act—best interest of child ultimate consideration under both Acts

2 INFANTS AND CHILDREN—Custody and maintenance—Illegitimate child—Jurisdiction of District Court—Jurisdiction under Deserted Wives and Children Act (Ch277), s3(1)(b)—Interests of child paramount—Child Welfare Act (Ch276)—Infants Act (Ch278).

3 Statutory interpretation—repeal of earlier Act by later Act—implied repeal

4 Derbyshire v Tongia [1984] PNGLR 148, Hevago–Koto v Sui–Sibi [1965–66] PNGLR 59, Re James Allan Sannga [1983] PNGLR 142, RG v MG [1984] PNGLR 413, SCR No 1 of 1985; Inakambi Singorom v John Kalaut [1985] PNGLR 238, SCR No 4 of 1985; Omaro Garo v The Police [1985] PNGLR 320 and The State v Danny Sunu [1983] PNGLR 396 referred to

Held:

(1) That under the provisions of the Deserted Wives and Children Act (Ch277), s3(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.

(3) RG v MG [1984] PNGLR 413 followed.

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 (Ch277) in respect of an illegitimate child.

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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 (Ch277). This order was in respect of the child BR 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 matrimony. 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 (Ch276) was passed. The definition of "child" is provided in s1: "'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–guard 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 (Ch278) 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 Ch276 in the Revised Laws. The Infants Act (Ch278) has limited application: the Infants Act (Ch278) does not apply to national children; Re James Allan Sannga [1983] PNGLR 142; Derbyshire v 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 cannot 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 (Ch278). To follow such a course would be to undermine the assumption that the legislature is an ideal person that does not make a mistake: 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...