Domestic Violence And Family Law In Papua New Guinea

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Domestic Violence and Family Lawin Papua New GuineaLindy Kanan and Judy PuttFebruary 2021IntroductionFamily law in PNGThis paper arose from a research project on familyprotection orders (FPOs) in Papua New Guinea (PNG),during which it became apparent that many mattersbeing brought to the police and courts involvedboth domestic violence and family law issues. It alsobecame clear that there was a lack of current information available regarding family law in PNG, with the onlycomprehensive textbook on the subject last updatedover 25 years ago (Jessep and Luluaki 1994). Thispaper seeks to provide an overview of PNG’s familylaw architecture, explain how it is administered by PNGcourts and discuss the interaction between familylaw and domestic violence matters. It concludes withsome suggestions that could make the system easierto navigate for PNG citizens. The annex provides alist of the family law legislative instruments currently inforce, as well as those that have been repealed.Family law deals with issues relating to family anddomestic relationships. Major topics covered by familylaw include marriage, divorce, child maintenance, property claims following separation and the custody andadoption of children (Jessep and Luluaki 1985:11).ContextWhile domestic violence and family law issues areclosely interrelated anywhere in the world, this appearsparticularly true in PNG with its high rates of domesticviolence. The interrelationship between family lawmatters and domestic violence was evident in ourresearch (Putt and Kanan 2021), with family law matters regularly cited in affidavits, court hearings andinterviews relating to FPOs. Another recent researchproject (Putt and Dinnen 2020) highlighted the lack ofinformation and options for citizens seeking assistancewith family law matters, with police Family and SexualViolence Units (FSVUs) dealing with a large numberof ‘welfare’ cases.1 Family disputes and the separation of intimate partners can be additionally complexto navigate given the interplay between statutory andcustomary laws in PNG.Much of PNG’s family law legislation was adopted asa result of the Australian colonial administration andreflects the laws of Australia and the United Kingdomprior to PNG’s independence in 1975. Legislation in thiscategory still in force in PNG today includes: the Marriage Act 1963the Matrimonial Causes Act 1963the Civil Registration Act 1963the Adoption of Children Act 1968 andthe Adoption of Children (CustomaryAdoptions) Act 1969.The following pieces of family law legislation also predateindependence but have now been repealed: the Deserted Wives and Children Act 1951 the Infants Act 1956 and the Child Welfare Act 1961.In the three decades immediately following independence, only one new law was introduced in this sphere:the Adultery and Enticement Act 1988. This Act allowsan individual to claim compensation of K1000 for adultery2and K500 for enticement3 through the District Court.An action under the Act can be brought against thespouse, the person with whom the spouse committedadultery, or both.Another quiet couple of decades ensued, followed bya suite of legislative reforms in the 2010s that intersectwith family law issues, namely: the Family Protection Act 2013The Australian National University Department of Pacific Affairs 1

Domestic Violence and Family Law in Papua New Guinea the Family Protection Regulation 20174the Juvenile Justice Act 2014the Lukautim Pikinini Act 2015 andthe Lukautim Pikinini Regulation 2011.The Lukautim Pikinini Act (LPA), roughly translatableas the Looking after Children Act, was first introducedin 2007, then replaced in 2009 (Sullivan 2013:16) andagain in 2015.This paper focuses on the most recent suite of legislation and attempts to explain how it interfaces with thecourts. However, there are many aspects of family lawnot discussed here, such as marriage, divorce andproperty. A full list of legislative instruments relevant tofamily law in PNG is provided in Annex 1.The Family CourtPNG’s Family Court was established by the LPA 2015.5The 2007 and 2009 LPAs also referenced a court withsimilar functions called the Pikinini Court. The LPA 2015confirms that all District Court magistrates are FamilyCourt magistrates.6Though the Family Court was established by theLPA, it also deals with matters under other pieces oflegislation, including the Family Protection Act (FPA),Juvenile Justice Act (Family Law Legislations 2017)and Adultery and Enticement Act.Across PNG, District Courts sit in their Family Courtjurisdiction when they deal with civil matters relating tothe previously mentioned legislation.7 While there are70 District Court locations in PNG — which in theoryalso cover 400 circuit court locations (MagisterialService of Papua New Guinea 2011) — it is only theNational Capital District (NCD) that has a designatedFamily Court building with specialised Family Courtmagistrates.According to a 2016 report (Child Frontiers 2016:41), theMagisterial Service of Papua New Guinea is developinga plan to establish Family Courts and train designatedmagistrates. The current status of this plan is not clear.Children and family lawIn some jurisdictions, child protection issues are notstrictly considered ‘family law’, but in PNG, the LPA isfront and centre of Family Court matters. The LPA is notconfined to child protection matters, however, and alsodeals with family law matters such as spousal maintenance, child maintenance and child custody and access.2The LPA 2015 states that the Family Court has jurisdictionto hear and determine matters relating to: child protectionparenting orders (child custody)maintenance of a child and parentaccess to a childguardianship of a childadoption of a child andany other powers given under the LPA 2015.Domestic violence and family lawThe key pieces of legislation relating the domesticviolence in PNG are the FPA 2013 and the FamilyProtection Regulation 2017. The FPA brought in acriminal offence for domestic violence and a regimefor issuing civil FPOs.A distinction to make when considering domesticviolence and family law matters is the jurisdiction(criminal or civil) and the different standards of proofrequired for adjudication. With criminal matters, theburden of proof is beyond reasonable doubt, whilewith civil matters it is on the balance of probabilities.Criminal offences such as the domestic violenceoffence and the breach of protection order offenceunder the FPA are heard in District Courts sitting intheir criminal jurisdiction.8 Family law issues such asadultery and child custody are civil matters becausethey are disputes between private citizens. As such,they do not involve the state as a party (for example thepolice prosecutor) or involve criminal offences. FPOsare also civil matters.While District Courts across the nation can sit ineither their criminal or civil (for example, Family Court)jurisdiction depending on the matter being heard, theNCD Family Court in Port Moresby can only hear civilmatters. So, when it comes to the FPA, the NCD Family Court can conduct FPO hearings but cannot hearcriminal matters such as domestic violence offences.Matters such as child abuse and neglect can be dealtwith as either civil or criminal matters depending on thenature of the alleged harm, the outcome being soughtand by whom.There is a large array of potential legal issues involvingfamilies, and different avenues for legal recourse tobe sought depending on the issue. This makes thelegal system complex to navigate and provides someexplanation as to why police FSVUs deal with so many

Table 1: Domestic violence and family law: civil and criminal distinctionsCivilExamplesof types ofmattersPartiesCourtStandard ofproofCriminal FPO issued under the FPA Adultery (Adultery and Enticement Act) Parenting order (child custody) (issuedunder the LPA) Maintenance order (child or spouse)(issued under the LPA) Adoption of child (LPA)Private citizen versus private citizen District Court sitting in Family Courtjurisdiction NCD Family CourtBalance of probabilities‘civil’ matters — people are not sure where else to goto have their issues resolved. Provincial CommunityDevelopment divisions and public solicitors alsoassist with matters relating to families, including childprotection, custody and maintenance.Given the high rates of domestic violence in PNG, andthe experiences of other countries,9 it is likely that manycitizens who are grappling with family law matters arealso dealing with domestic violence. One FSVU officerin-charge told us that 60 per cent of their domesticviolence cases involve ‘adultery’ where the man has anew partner but continues to threaten and abuse theformer partner.Where multiple issues are at play, for example acombination of domestic violence, adultery and childcustody, seeking support through the legal system isnot straightforward and three separate legal processeswould need to be initiated to seek recourse through aDistrict Court.Village Courts in PNG comprise another tier of the justicesystem. Village Courts have the authority to issue FPOsunder the FPA, however, uptake of this provision hasbeen extremely limited (see Putt and Kanan 2021). Still,in most provinces ‘marriage problems’ is one of themost common matters heard by Village Courts,10 withassault, bride price and threatening words being thenext most common (Village Courts and Land MediationSecretariat 2011). Though Village Courts have not beena focus of our research, given these statistics, we caninfer that a complex assortment of domestic violence Domestic violence offence (issuedunder the FPA) Breach of FPO (issued underthe FPA)State versus private citizenDistrict Court sitting in criminal jurisdictionBeyond reasonable doubtand family law matters are being brought to the attentionof Village Courts.Conclusion and recommendationsCitizens of PNG with issues relating to family law face acomplex system if they seek to resolve matters throughlegal avenues. There are multiple places were issuescan be reported and support sought, including policestations, Village Courts, District Courts, public solicitors’ offices, civil society organisations and CommunityDevelopment departments. In Port Moresby, there areadditional options including the NCD Family Court andthe Office for Child and Family Services.Some of this complexity could be ameliorated, atleast in Port Moresby, if, for example, one court wasdesignated (and resourced) as a specialist DomesticViolence and Family Court that dealt with both criminaland civil domestic violence and family law proceedings. Ideally, a range of common matters (for exampledomestic violence, maintenance, custody and adultery)could be heard by one magistrate as part of a single case,which would reduce the need for individuals, particularlysurvivors of violence, to file multiple cases and tell theirstory multiple times, which can be retraumatising.Co-location of services could also assist the publicin navigating the various actors in the system. Forexample, having a representative from the Office ofthe Public Solicitor available at the court premises toprovide advice and assist with documentation couldgreatly improve the experience of court users.The Australian National University Department of Pacific Affairs 3

Domestic Violence and Family Law in Papua New GuineaThis report was prepared as part of a larger researchproject on FPOs in PNG. The main report, authored byJudy Putt and Lindy Kanan, is titled ‘Family ProtectionOrders in Papua New Guinea’ and is available onlineat the Department of Pacific Affairs, The AustralianNational University. The research project was supportedby the government of Australia in partnership with thegovernment of Papua New Guinea as part of the PacificWomen Shaping Pacific Development Program, theJustice Services and Stability for Development Programand the Pacific Research Program.Author notesLindy Kanan is a senior research officer and Judy Puttis research fellow with the Department of Pacific Affairsat The Australian National University, Canberra.Endnotes1. The research found that between one-fifth andalmost half of the complaints received by the police’sFSVUs relate to non-criminal ‘welfare’ matters suchas divorce, adultery and maintenance, as well aschild protection matters such as neglect (Putt andDinnen 2020:23).2. The legislation defines adultery as an act where aspouse engages in voluntary sexual intercoursewith a person other than his/her spouse.3. The legislation defines enticement as persuading orattempting to persuade the spouse of another personto commit an act of adultery, regardless of whetherthe contemplated act of adultery is committed or not.4. The Family Protection and Lukautim Pikinini regulationsplay an important role in assisting justice practitionersto interpret and implement the corresponding Acts. Inboth cases, the regulations came in a few years afterthe original Act once it was clear further guidancewas needed.5. See Part XII, Division 1 of the LPA 2015.6. ibid.7. See, for example, Kongoni v Anis [2012], where theLae District Court sat in its Family Court jurisdiction tohear a matter relating to the Adultery and EnticementAct 1988.8. See, for example, State v Kaivi [2018], where the BukaDistrict Court sat in its criminal jurisdiction to hear amatter relating to a domestic violence offence.49. In Australia, for example, 70 per cent of family lawmatters dealt with by the Federal Circuit Courtinvolve allegations of family violence (Commonwealthof Australia 2017:102).10.Other common matters heard by Village Courts arestealing, debt and property damage.ReferencesChild Frontiers 2016. The Child Protection System inPapua New Guinea: An Assessment of Preventionand Response Services for Children and Families.Commissioned by Save the Children. Hong Kong:Child Frontiers.Department of Justice and Attorney General 2019.Index to the Laws of Papua New Guinea.Department of Justice and Attorney General 2019.Index to Repealed Acts.Family Law Legislations 2017. Lukautim Pikinini Act Consultation Workshop. Port Moresby, 23–27 October.Jessep, O. and J. Luluaki 1985. Principles of FamilyLaw in Papua New Guinea. Waigani: University ofPapua New Guinea Press.Jessep, O. and J. Luluaki J 1994. Principles of FamilyLaw in Papua New Guinea (2nd edition). Waigani:University of Papua New Guinea Press.Magisterial Service of Papua New Guinea 2011. Magistrates of the District Courts of Papua New Guinea.Commonwealth of Australia 2017. Parliamentary Inquiryinto a Better Family Law System to Support andProtect Those Affected by Family Violence. Canberra:Commonwealth of Australia.Putt, J. and S. Dinnen 2020. Reporting, Investigating andProsecuting Family and Sexual Violence Offences inPapua New Guinea. Canberra: ANU.Putt, J. and L. Kanan 2021. Family Protection Orders inPapua New Guinea. Canberra: ANU.Sullivan, N. 2013. Desk Review of Child ProtectionServices in PNG Today for World Vision.Village Court and Land Mediation Secretariat 2011. Reporton Joint Magisterial Services and Village Courts Indicator Workshop. Port Moresby, 1–2 August.CasesKongoni v Anis [2012] PGDC 4; DC2056.State v Kaivi [2018] PGDC 30; DC3068.

Annex 1. Table of PNG legislation relevant to family lawThe below table provides a list of legislation that relates to family law. The status of the laws are taken from the2019 Department of Justice and Attorney General documents Index to the Laws of Papua New Guinea and Indexto Repealed Acts. Legislation currently in force is shaded green while legislation that has been repealed is white.Name of act/regulationStatusFamily law issues coveredIn forceAdoption of childrenIn forceAdulteryAdoption of Children Act 1968Adoption of Children (Amendment) Act 1971Adoption of Children (Customary Adoptions) Act1969Adoption of Children (Customary Adoptions)Regulations 1970Adoption of Children RegulationAdoption of Children (Temporary Provisions)Regulations 1971 [Amendment]Adultery and Enticement Act 1988Adultery and Enticement (Amendment) Act 1989Child Welfare Act 1961Child Welfare Act 1961Child Welfare Act 1962Child Welfare Act 1963Child Welfare Act 1965Child Welfare Act 1966Child Welfare Act 1968Child Welfare (Amendment) Act 1971RepealedChild welfare, children’s courts,Replaced by Lukautim custody of neglected children,Pikinini (Child) Act 2007children’s institutions, childmaintenance, parentageChild Welfare (Amendment) Act 1983Child Welfare (Destitute Children) Act 1968Child Welfare (Reciprocal Arrangements) Act 1968Child Welfare (Reciprocal Arrangements)(Amendment) Act 1969Child Welfare Regulations 1962In forceChild welfareCivil Registration Act 1963In forceRegistration of births, deaths,marriage and adoptionCriminal Code (Sexual Offences and Crimes AgainstIn forceChildren) Act 2002Sexual assault of childrenCustoms Recognition Act 1963Customary marriage, divorce,custody and guardianshipIn forceThe Australian National University Department of Pacific Affairs 5

Domestic Violence and Family Law in Papua New GuineaName of act/regulationDeserted Wives and Children Act 1951Deserted Wives and Children Act 1955Deserted Wives and Children Act 1961StatusFamily law issues coveredRepealedCustody of children andmaintenance of women wherethe man has left withoutproviding a means of supportReplaced by LukautimPikinini (Child) Act 2015District Courts Act 1963 (and approximately 26In forcerelated District Court Acts and regulations)Dissolution of customarymarriageFamily Protection Act 2013In forceDomestic violenceFamily Protection Regulation 2017In forceDomestic violenceInfants Act 1956RepealedInfants (Amendment) Act 1975Replaced by LukautimPikinini (Child) Act 2015Custody and welfare of infantsRepealedJuvenile Courts Act 1991Replaced by JuvenileJustice Act 2014Juvenile courtsJuvenile Justice Act 2014In forceJuvenile justice systemRepealedLukautim Pikinini (Child) Act 2007Replaced by LukautimPikinini (Child) Act 2015RepealedLukautim Pikinini (Child) Act 2009Replaced by LukautimPikinini (Child) Act 2015Lukautim Pikinini (Child) (Amendment) Act 2014Lukautim Pikinini (Child) Act 2015Protection and promotion ofchild rightsProtection and promotion ofchild rights and wellbeingIn forceProtection and promotion ofchild rights and wellbeing, andrelated mattersIn forceMaintenance of a wife,husband or childLukautim Pikinini (Child) Regulation 2011Maintenance Orders Enforcement Act 1970Maintenance Orders Enforcement (Amendment)Act 1970Maintenance Orders Enforcement (Amendment)Act 1976Maintenance Orders Enforcement (Amendment)Regulations 1976Maintenance Orders Enforcement Regulations1971Maintenance Orders Enforcement (UnitedKingdom) Regulation 19836

Name of act/regulationMarriage Act 1963StatusFamily law issues coveredIn forceMarriage registration, marriagerestrictions, customarymarriages, marriageable age,bigamyIn forceMarriageIn forceCapacity, property and liabilitiesof married womenIn forceGrounds for divorce, custodyand maintenance of childrenfollowing divorce or nullity ofnon-customary marriageMarriage Regulations 1964Marriage Regulations 1965 [Amendment]Marriage (Amendment) Regulation 1979Marriage (Amendment) Regulation 1986Marriage (Amendment) Regulation 1998Married Women’s Property Act 1953Married Women’s Property (Amendment) Act 1970Matrimonial Causes Act 1963Matrimonial Causes Rules 1965Matrimonial Causes Rules (No 2) 1965Matrimonial Causes Rules 1971 [Amendment]The Department of Pacific Affairs (DPA) in the ANU College of Asia& the Pacific is a recognised leading centre for multidisciplinaryresearch on the contemporary Pacific. We acknowledge theAustralian Government’s support for the production of the PolicyBrief series. The views expressed in this paper are those of theauthor/s and do not necessarily reflect those of the ANU or theAustralian Government. See the DPA website for a full s@anudpaThe Australian National University Department of Pacific Affairs 7dpa.bellschool.anu.edu.au

Department of Pacific AffairsCoral Bell School of Asia Pacific AffairsANU College of Asia and the PacificCoombs Building9 Fellows RoadActon ACT 2601 Australia 61 2 6125 152dpa@anu.edu.audpa.bellschool.anu.edu.au

Family law in PNG Family law deals with issues relating to family and domestic relationships. Major topics covered by family law include marriage, divorce, child maintenance, prop - erty claims following separation and the custody and adoption of children (Jessep and Luluaki 1985:11). Much of PNG's family law legislation was adopted as

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