Part XII of the Lukautim Pikinini Act 2015 creates the court that decides most family matters in Papua New Guinea.
Section 87 — how a Family Court comes into being
(1) The Minister may, on the advice of the Judicial and Legal Services Commission, by notice in the National Gazette, establish a Family Court in and for an area specified in the notice.
(2) The jurisdiction of the Family Court shall be exercised by a Family Court Magistrate.
(3) For that purpose, all District Court Magistrates shall be deemed as Family Court magistrates.
(4) The Clerk of the Family Court shall be appointed in accordance with the District Courts Act (Chapter 40).
(5) The practice and procedure of the District Courts shall apply to the Family Court with relevant modifications where necessary.
The District Courts Act (Chapter 40) is not available on PacLII at the time of writing, so no link is given for it here.
Papua New Guinea does not have a cadre of specialist family judges. Section 87(3) solves the problem by deeming every District Court Magistrate to be a Family Court Magistrate.
The consequence is that a Family Court can sit wherever a District Court sits — which is what makes the Act’s protections reachable. Compare the Matrimonial Causes Act (Chapter 282), under which only the National Court can grant a divorce, and which section 4 denies to parties to a customary marriage altogether.
The Judicial and Legal Services Commission is established by Constitution section 183. Requiring its advice keeps the establishment of courts out of purely political hands.
Sections 89 and 90
Subject to this Act, the Family Court shall —
(a) in respect of all child protection cases, exercise the powers provided in this Act and the District Courts Act (Chapter 40); and
(b) hear and determine all complaints and applications under this Act.
Sittings of a Family Court shall be held at such places as are determined in accordance with the District Courts Act (Chapter 40).
Sections 87(4), 87(5), 89(a) and 90 all point the same way: the Family Court is the District Court, exercising a specialised jurisdiction, using District Court practice, procedure, clerks and sitting places.
What makes it a Family Court is what it decides and how it decides — the section 88 jurisdiction, the informal procedure in section 95, and the best interests principle that governs everything.
What makes proceedings different
| Feature | Provision |
|---|---|
| Proceedings may be conducted informally and without regard to legal forms | s 95(1) |
| Hearings may be in camera, attended only by parties and those with leave | s 95(2) |
| The Court may exclude persons not directly interested — an offence to remain | s 95(3), (4) |
| Publishing information identifying a child is an offence | s 96 |
| The Court may on its own initiative summon witnesses and documents | s 93(2) |
| The best interests of the child are the paramount consideration | ss 5(1)(a), 102(1) |
In ordinary civil litigation a court decides on the evidence the parties choose to call. In a child protection hearing the Court on its own initiative may summon any person to attend and testify or produce any document, and enforce obedience.
That is inquisitorial, and deliberately so. The child is not a party in the ordinary sense, and the Court cannot be confined to what the adults put before it.
Sections 91 and 92 — how a case begins
(1) A proceeding under this Part shall be instituted by way of a complaint. (2) The complaint shall be as prescribed.
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 and answer the complaint; or
(b) if satisfied that the circumstances require it, issue a warrant for his apprehension.
A complaint is the ordinary District Court originating process, which is why section 87(5) applies District Court practice. See how to start proceedings. Appeals lie to the National Court within 40 days, and the decision appealed from is stayed until the appeal is determined.
Sources
- Lukautim Pikinini Act 2015 — ss 5, 87–96, 102, 115
- Constitution — s 183
- Matrimonial Causes Act (Chapter 282) — ss 4, 14
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.