Section 74 of the Matrimonial Causes Act (Chapter 282) governs children in a divorce.
Section 74(1) — the governing principle
In proceedings with respect to the custody, guardianship, welfare, advancement or education of children of a marriage —
(a) the Court shall regard the interests of the children as the paramount consideration; and
(b) subject to paragraph (a), the Court may make such order in respect of those matters as it thinks proper.
The children’s interests do not compete with the parents’ claims on equal terms. Everything else — who was at fault, who petitioned, what either parent wants — is subordinate.
Note the breadth of the subject matter. Section 74 is not confined to custody. It covers guardianship (the legal authority to make decisions), welfare, advancement and education.
The same principle now appears in far more developed form in section 103 of the Lukautim Pikinini Act 2015, which sets out a statutory list of matters going to the best interests of the child, and in Constitution section 55 on equality.
Section 74(2) — adjourning for a report
The Court may adjourn any proceedings referred to in subsection (1) until a report has been obtained from a welfare officer on such matters relevant to the proceedings as the Court thinks desirable, and may receive the report in evidence.
A divorce hearing is a contest between two adults, each presenting their own account. Section 74(2) lets the court obtain an independent assessment — of the households, the children’s wishes and circumstances, and the practical arrangements proposed.
The report is received in evidence, so it is not merely advisory. Note that section 95(1) extends the publication restrictions to a report made to the court by an officer investigating a matter.
Welfare officers under the Lukautim Pikinini Act 2015 are now child protection officers, working through the Office for Child and Family Services.
Section 74(3) — custody to someone else
In proceedings with respect to custody, if the Court is satisfied that it is desirable, it may make an order placing the children, or such of them as it thinks fit, in the custody of a person other than a party to the marriage.
Section 74(3) follows from the paramountcy principle. If the children’s interests are best served by placement with a grandmother, an aunt or another relative, the court may order that — even though neither parent asked for it and both object.
This fits the extended-family reality of custody in Papua New Guinea, where children are frequently raised within a wider kin group rather than by two parents alone.
Note also “such of them as it thinks fit” — the children need not all go to the same place, though separating siblings requires justification on the paramountcy test.
Section 74(4) — access
Where the Court makes an order placing a child in the custody of a person, it may include in the order such provision as it thinks proper for access to the child by parties or a party to the marriage.
| Subsection | Power |
|---|---|
| 74(1) | Any proper order on custody, guardianship, welfare, advancement, education — children’s interests paramount |
| 74(2) | Adjourn for a welfare officer’s report; receive it in evidence |
| 74(3) | Place children with a non-party where desirable |
| 74(4) | Include access provisions in a custody order |
Section 74 in the wider scheme
Section 59 — a decree nisi cannot become absolute until the Court has declared that proper arrangements have been made for children under 16. Section 74 is how those arrangements are put in place.
Section 76 — supplies the machinery: orders pending disposal, for a fixed term, until further order, and the power to discharge, suspend or vary.
Section 73 — child maintenance, which normally follows the custody decision.
Section 66(b) — the Principal Legal Adviser may intervene in proceedings in relation to the custody or guardianship of children where relevant matters may not be put before the court.
Section 86(1) allows the Court to enforce by attachment or sequestration an order made in respect of custody of or access to children — so a custody order is backed by the contempt power, not only by persuasion.
But section 4 excludes customary marriages from this Act entirely. For the great majority of PNG families the route is a parenting order in the Family Court under the Lukautim Pikinini Act 2015, which applies to every child regardless of the parents’ marital status.
Section 72 also matters here: in this Part “marriage” includes a purported marriage that is void, so section 74 is available on a nullity petition too. And section 2(3) applies the definition of “children of the marriage” to a void purported marriage as if it were a marriage.
Sources
- Matrimonial Causes Act (Chapter 282) — ss 2, 4, 59, 66, 72–76, 86, 95
- Lukautim Pikinini Act 2015 — ss 101–110
- Constitution — s 55
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.