Division 4 of Part XII of the Lukautim Pikinini Act 2015 is headed Parenting Orders (Custody).
This Division deals with an application for and making of parenting orders and general obligations created by parenting orders.
“Custody” means parental responsibility. “Care” includes parental responsibility, custody and supervision.
Under older law “custody” meant physical care and “guardianship” meant decision-making authority. The Act equates custody with parental responsibility, so a parenting order allocates the whole bundle — where the child lives, and who decides about schooling, medical treatment and religion.
It also carries the section 8 duties and the section 5(4) obligations.
Section 101(2) — six categories
(a) either or both of the child’s parents;
(b) the child;
(c) a grandparent of the child;
(d) any other person concerned with the care, welfare or development of the child;
(e) any guardian, whether appointed under this Act or by will or otherwise;
(f) any person acting in a fiduciary capacity who is, under any will, gift, settlement or otherwise by law, possessed of any fund for the maintenance or education of the child, or any fund a portion of which may be so applied.
(b) The child. A child may apply for a parenting order in their own right. That is the strongest expression in the Act of section 5(1)(l) — the child’s right to express views and have them given due weight — and it connects with paragraph (j) of the protection definition, covering a child with serious differences with his parents.
(c) A grandparent. Named expressly, without needing to show anything further. In Papua New Guinea grandparents frequently raise children, and section 9(2) recognises relatives exercising parental responsibility under custom.
(d) Any other person concerned with the care, welfare or development of the child. Very wide — an aunt, an uncle, a foster carer, a teacher, a person with whom the child has been living. It is the provision that lets the Act follow the way children are actually raised.
A person holding money on trust for a child’s maintenance or education may apply. That allows a trustee to ask the Court to settle who has parental responsibility before the fund is released — a safeguard against money for a child being paid to the wrong hands.
Compare section 52(1), under which a permanent care order makes the Director responsible for the property of the child until the child is 18.
What governs the decision
| Provision | Effect |
|---|---|
| s 102(1) | The Court must ensure the best interests of the child as the paramount consideration |
| s 102(2) | The Court must ensure the child spends equal time or substantial and significant time with each parent |
| s 102(3) | Where equal shared parental responsibility is ordered, consider whether equal time is in the child’s best interests and reasonably practicable |
| s 103 | Two primary considerations and nine additional considerations |
| s 5(1)(a) | Best interests paramount, and paramount over any other person’s interests |
Parenting orders and divorce custody orders
Section 101 operates in the Family Court — a District Court — and applies to every child, whatever the parents’ marital status.
Section 74 of the Matrimonial Causes Act (Chapter 282) operates in the National Court, only within a matrimonial cause, and section 4 of that Act excludes customary marriages entirely.
So for the great majority of Papua New Guinean families, section 101 is the only route. It is also cheaper, closer and quicker: proceedings begin by complaint, and section 95(1) allows the Court to proceed informally and without regard to legal forms.
A parenting order does not exhaust the Court’s powers over a child. Section 104 allows the appointment of a guardian, including where a parenting order was made in favour of a person who has since died, cannot be found, or refuses to act. Section 108 provides for maintenance, and section 99 for protection orders. Publication identifying the child is an offence, and appeals lie to the National Court within 40 days.
Sources
- Lukautim Pikinini Act 2015 — ss 2, 5, 8, 9, 88, 95, 96, 99–104, 108, 115
- Matrimonial Causes Act (Chapter 282) — ss 4, 74
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.