Division 1 of Part XII of the Lukautim Pikinini Act 2015 sets out how a case gets before the Family Court.
(1) A proceeding under this Part shall be instituted by way of a complaint.
(2) The complaint shall be as prescribed.
Why a complaint, and not a writ
A complaint is the ordinary originating process of the District Court, and section 87(5) applies District Court practice and procedure to the Family Court with relevant modifications.
That is a deliberate choice. A complaint is simpler, cheaper and quicker than a National Court writ or petition, and it can be filed at the District Court registry nearest to where the parties live.
Compare the divorce petition under the Matrimonial Causes Act (Chapter 282), which must be filed in the National Court in a prescribed form under rules of court.
The District Courts Act (Chapter 40) is not available on PacLII at the time of writing.
Who can bring proceedings
| Proceeding | Who may bring it |
|---|---|
| Child protection — s 93(1) | The Director, who shall apply as soon as practicable where Part V applies to a child |
| Parenting order — s 101(2) | Either or both parents; the child; a grandparent; any other person concerned with the child’s care, welfare or development; a guardian; a person holding a fund for the child’s maintenance or education |
| Affiliation / maintenance — s 106(1) | The mother; the Director; a person authorised in writing by the Director; an affected person by leave |
| Adopted child — s 113(1) | The same four categories as s 106(1) |
| Lost or runaway child — s 49(6) | The Office, where mediation has failed |
A parenting order may be applied for by the child, by a grandparent, and by any other person concerned with the care, welfare or development of the child.
That reflects the reality of extended-family child-rearing recognised in section 9(2), and gives effect to section 5(1)(l) — the child’s right to express views on matters concerning his welfare.
Section 106(2) — the content of a maintenance complaint
(a) be in writing and made on oath; and
(b) state (i) the name of the mother; (ii) the name of the child; (iii) the name of the father; and (iv) that the person named as father or mother has left the child without means of support; and
(c) be in the form prescribed in the District Courts Act (Chapter 40).
Section 113(2) requires the same content for a complaint about an adopted child. Note the operative allegation in both: that the person named has left the child without means of support.
Section 92 — getting the respondent to court
Where a complaint is made and the complainant produces evidence on oath, either oral or on affidavit, in corroboration of the same material particular as to the paternity or maternity of the child, the magistrate may —
(a) summon the person complained against to appear before the Court to answer the complaint; or
(b) if satisfied that the circumstances require it, issue a warrant for his apprehension.
The complainant must produce evidence on oath, oral or by affidavit, in corroboration of the material particular as to paternity or maternity.
The requirement is confined to parentage, because that is the fact on which the whole liability rests and the fact most often denied. It is a protection for a person wrongly named — a complaint on the mother’s word alone will not produce a summons.
Corroboration in practice may be a birth record, a witness to the relationship, evidence of acknowledgment, or evidence of support previously given.
Paragraph (b) allows a warrant of apprehension where the magistrate is satisfied the circumstances require it — typically where the person is evading service, or is about to leave the area.
It is a serious power, and the words “if satisfied that the circumstances require it” mark it as exceptional. A summons is the ordinary course.
Once the case is on foot, the Court may conduct proceedings informally and without regard to legal forms (s 95(1)), may sit in camera (s 95(2)), and in a child protection hearing may on its own initiative summon any person to testify or produce documents (s 93(2)). Publication of information identifying a child is an offence under section 96, and appeals lie to the National Court within 40 days.
One time limit applies throughout: section 112 provides that, notwithstanding anything in a law, a proceeding under this Part shall not be commenced after the child attains 18 years of age.
Sources
- Lukautim Pikinini Act 2015 — ss 5, 9, 49, 87–96, 101, 106, 112–115
- Matrimonial Causes Act (Chapter 282) — s 56
Before relying on anything here, read the current text of the Marriage Act (Chapter 280) and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.