A. Singh for the ApplicantsThe parent in person - Respondent
Dates of Hearing: 5th September, 16th October 1997
Date of Judgment: 24th November 1997
JUDGMENT
This is an application for adoption of a female child who was born on 1st August 1981. The application was referred to the High Court
from the First Class Magistrate's Court at Nausori sitting as a Juvenile Court, the learned Magistrate being of the opinion that
although it was in the interest of the child that she be adopted by the Applicants, who are her uncle and aunt, he considered the
adoption might be prevented because of the provisions of Section 6(4) of the Adoption of Infants Act. That sub-section states that an Adoption Order shall not be made in favour of any Applicant who is not resident in Fiji or in respect
of any infant who is not so resident.
There is no question that the infant is not a resident of Fiji but the problem raised by the application is whether the Applicants
can be said to be resident in Fiji. Like the learned Magistrate I should have no hesitation on the merits in acceding to the application
but the question which confronts me in limine, like the learned Magistrate in Nausori, is whether I have the jurisdiction to do so.
The evidence before the Court is contained in various affidavits, by the mother of the infant, by her brother, an Army Officer in
Fiji, by the male Applicant and lastly by a Justice of Peace. From these affidavits the following facts emerge:
The father of the infant died on the 29th of May 1992 at the age of 42.
The infant is the only child left with the mother in Fiji. Her other daughter is married and lives in Australia where she is well
settled.
The mother is unemployed and depends on the Social Welfare Department and donations from her close family members. She receives $43.00
per month from the Social Welfare Department. She does not educate the infant because she has no funds to offer her any better education
and a prosperous life, such as she believes her daughter will have if an Adoption Order is made in favour of the Applicants.
She believes that the infant will be very happy with the Applicants as the mother's elder daughter is married to the son of the male
Applicant. She believes that the infant will be well looked after in Australia if an Adoption Order is made.
The affidavit on behalf of the Applicants sworn by the male Applicant states that he was married to his wife at Korovou, Tailevu on
the 4th of September 1965 when both he and his wife were aged 18 years.
The Applicant and his wife became Australian citizens on the 3rd of September 1981. The male Applicant has assets in Australia valued
at $426,000 consisting of a residence in a country town in New South Wales on 5 acres of land, farming plant and equipment and a
motor vehicle. The Applicant is a businessman and has 5 children from his marriage all of whom are married.
He is President of Prakash Ramayan Mandali of Australia and is also an active member of Hindu Religious Association, especially being
a Vice-President of Shiri Sanatan Dharam Pratinidhi Sabha of Australia. The Brahman Purohit Sabha of Australia Inc. recommends the
Applicant as a suitable father for the infant he and his wife wish to adopt.
The Applicant is the Managing Director of Cape Bank Pty Ltd which is an import and export business. He and his wife have known the
Applicant and her mother since 1992 and wish to adopt the child and take her to Australia where they will educate her and support
her until she marries as they have no child living with them now.
The Applicant finally states that since 1992 he has been travelling frequently to Fiji and staying with the infant with whom he says,
she has maintained a good father and daughter relationship.
It appears from his passport that since April 1992 the Applicant has come to Fiji numerous times and has been admitted as a visitor
for periods of 4 months.
The last affidavit is by a Justice of Peace who says that he has known the mother and her late husband since 1987 and has known the
male Applicant since 1977. He too believes that the infant will have a prosperous future in Australia where she will be given education
and a decent life.
In his very comprehensive submission Mr. Singh has referred me to numerous authorities mainly dealing with the question of residence.
Many of these authorities were referred to by Cullinan J. in his unreported judgment of the 2nd of November 1984 in the matter of
P. (An Infant) Civil Appeal No. 5 of 1984. His Lordship there was considering an appeal from the refusal of the Magistrate's Court
at Sigatoka to make an Adoption Order on a ground which does not arise in the instant case, namely that the learned Magistrate considered
the application before him was not bona fide but merely an attempt to circumvent the Citizenship Act.
The learned Magistrate held that the Applicant child was on a visitor's permit and as such not a resident within the meaning of Section
6(4) of the Act.
Cullinan J. upheld the appeal against the Magistrate's Order but in the course of doing so had to consider the case law relating to
the phrase "resident in Fiji".
His Lordship pointed out that the word "resident" is not defined in the Adoption of Infants Act, although the term "residence" is defined by implication. His Lordship said, and I respectfully agree, that "residence"
for the purposes of the Immigration Act is not determined by duration. He also said however, and again I respectfully agree, that for the purpose of that Act a holder of
a visitor's permit is not deemed to be a resident in Fiji.
Like myself Cullinan J. first looked at Stroud's Judicial Dictionary 4th Edition Volume 4 at pp.2358/2366, where a formidable if not
bewildering body of authority is set out concerning the meaning of the words "reside", "residence" and "resident".
From this it is clear that the words have different meanings in different contexts and in particular in different legislation. Thus
for example in fiscal legislation the courts and legislatures have adopted artificial standards in determining what constitutes "residence".
His Lordship considered many of the authorities but, like myself considered the case of Re Adoption Application No. 52/1951 (1952) 1 Ch. 16 the most helpful in determining the question now before me. That case turned on the provisions of the English Adoption Act 1950 which
was based on earlier legislation on which our Adoption of Infants Act Cap. 58 is also based. Section 1(1) of the (1950) Act provided that an Application for an Adoption Order could only be made by a
person domiciled in England or Scotland. Section 2(5) of the 1950 Act however read so far as relevant:
"(5) An adoption order shall not be made in England unless the applicant and the infant reside in England, and shall not be made
in Scotland unless the applicant and the infant reside in Scotland."
The facts in Re Adoption Application No. 52/1951 were that the joint Applicants were ordinarily resident in Nigeria where the husband was employed in the Nigerian Colonial Service,
returning to England his native country for three months leave in every fifteen months. Usually the couple stayed with his or her
parents on leave, but they had recently purchased a house in England and intended to reside permanently there when his service in
Nigeria terminated in the normal course after seven years. The couple made application for the adoption of an infant but as the husband
was obliged to return to duty in Nigeria the application continued with the wife as sole applicant; she remained behind in England,
her intention being to return to Nigeria taking the infant with her if the application were successful.
Like Cullinan J. I found the very learned judgment of Harman J. (as he then was) which was delivered ex tempore particularly instructive
on the question now before me. For example at p.22 he said:
"Throughout the Act of 1950 residence in England or residence in Great Britain and residence abroad are contrasted as being two
things which are the converse one of the other, and that seems to make it difficult to suppose that in this Act, unlike the fiscal
Acts, a person may be resident in two places. For the purpose of the Income Tax Acts, if a person has two residences available to
him and habitually resorts for more than temporary purposes to two jurisdictions, he may be resident in one place for part of the
year and in the second place for another part; but that does not seem to fit the scheme of the Act of 1950.
The crucial matter therefore is the construction of section 2(5) which prohibits an adoption order being made except in favour of
an applicant who is "resident" in England."
His Lordship then quoted the remark of Lord Cave L.C. in Levene v. Inland Revenue Commissioners [1928] UKHL 1; (1928) A.C. 217 at 222 who cited the Oxford English Dictionary, saying:
"The word 'reside' is a familiar English word and is defined in the Oxford English Dictionary as meaning 'to dwell permanently
or for a considerable time, to have one's settled or usual abode, to live in or at a particular place'."
I consider that passage most apposite to the facts of the instant case.
Among the many cases cited by Mr. Singh was Keserue v. Keserue (1962) 2 All E.R. 796 which Mr. Singh relied on, mistakenly in my view, for the proposition that as little as four weeks presence in England constituted
residence simpliciter. This is not what this case decided. It is true that the husband had come to England from Australia for approximately
four weeks hoping to effect a reconciliation with his wife and in order to safeguard his position regarding the child of their marriage.
Karminiski J. held that on those facts there was such residence in England to found a petition by the wife for judicial separation,
since although the husband did not intend to reside permanently, he had come to England deliberately for the purpose I have mentioned.
Accordingly His Lordship held that his residence in England was not merely casual or in itinere.
Likewise in another case cited by counsel, In Re Mackenzie (1941) 1 Ch. 69 Morton J. held that an Australian woman, domiciled in Australia, who came on a visit to England in 1885, and shortly
afterwards became of unsound mind, continued to live in England until her death 54 years later, remaining of unsound mind throughout
that period, was ordinarily resident in the United Kingdom for the purposes of the Finance Act.
That case however is clearly distinguishable on its facts from the present.
Again I quote from Mr. Justice Harman in Adoption Application 52/1951. At p.23 referring to an argument by counsel for the Applicants
that while the Applicants were on leave in England they were for the time being "resident" there, His Lordship said:
"I should say they were for the time being staying here, and I do not think that is the same as being resident."
Later and towards the end of his judgment at p.25 His Lordship said:
"The court must be able to postulate at the critical date that the applicant is resident, and that is a question of fact. Residence
denotes some degree of permanence. It does not necessarily mean the applicant has a home of his own, but that he has a settled headquarters
in this country. It seems dangerous to try to define what is meant by residence. It is very unfortunate that it is not possible to do so, but, in my judgment,
the question before the court is in every such case whether the applicant is a person who resides in this country. In the present
case I can only answer that question in the case of the wife by holding that she is not resident in this country; she is merely a
sojourner here during a period of leave; she is resident in Nigeria, where her husband's duties are, and whither, in pursuance of
her wifely duties, she accompanies him. I do not think either of the applicants is resident in England at present."
Again it seems to me that this passage is also applicable to the facts of the instant case. I am satisfied that the concept of residency
involves an element of permanent settlement for a foreseeable period of time and not some temporary period or sojourn, to use the
word employed by Mr. Justice Harman. There can be no doubt in my judgment that on the evidence before the court the Applicants have
established their roots in Australia for the foreseeable future and that any visits they may make to Fiji are simply stays for a
particular time.
I regret having to come to this conclusion but I consider that do otherwise would be to avoid the clear meaning of Section 6(4) of
the Act.
I was informed by counsel that Magistrates in the Magistrate's Court in Suva if not else where are regularly making Adoption Orders
in cases whose facts are for practical purposes similar to those in the instant case. If this be so then I consider they are acting
wrongly and the practice should cease immediately. In my unreported judgment in HBJ0027 of 1995 The State v. Attorney-General of Fiji Ex-parte: Joseph Nainima delivered on 21st October 1997 I remarked that it is the function of the Courts only to interpret the law but not to amend it. It
may well be that Section 6(4) of the Adoption of Infants Act should be amended at least to provide that any former Fijian national now a naturalised citizen of a country with whom Fiji has always
had a friendly relationship should be allowed to adopt an infant if that would be in the interests of the welfare of the child, such
as I have no doubt is the case here. This is a matter to which I invite the attention of the authorities just as in England the Adoption of Infants Act was amended to alleviate the hardship caused by the interpretation given to the law for example by Mr. Justice Harman. His decision
was criticised as "too narrow" by McClean in "The Meaning of Residence" 11 I.C.L.Q. 1153. Like Mr. Justice Cullinan, to my knowledge the judgment was never reversed but with due respect to Mr. McClean, I consider Harman
J. was correct.
It is possible that the Applicants may be able to adopt this child in Australia and I should see no harm being done if they were to
consult the relevant authorities in New South Wales to see whether this is possible. In the circumstances however I have no alternative
but to reject their application. Although this application was heard in Chambers because of the important question it raises I have
delivered this judgment in open Court.
JOHN E. BYRNE
JUDGE
Legislation and authorities referred to in judgment:
Adoption of Infants Act Cap. 58.
Keserue v. Keserue (1962) 2 All E.R. 796.
Adoption Application No. 52/1951 (1952) 1 Ch. 16.
Levene v. Inland Revenue Commissioners [1928] UKHL 1; (1928) A.C. 217.
In Re Mackenzie (1941) 1 Ch. 69.
State v. Attorney-General of Fiji Ex-parte: Joseph Nainima HBJ0027 of 1995 - unreported judgment of Byrne J. dated 21st October 1991.
In the Matter of P. (An Infant) Civil Appeal No. 5 of 1984 - unreported judgment of Cullinan J. dated 2nd November 1984.
The following additional cases were referred to in argument:
Attorney-General of New Zealand v. Ortiz (1982) 3 ALL E.R. 432.
Brooks v. Blount (1923) 1 K.B. 257.
Hopkins v. Hopkins (1950) 2 ALL E.R. 1038.
Lewis v. Lewis (1956) 1 All E.R. 375.
D'Etchegoyen v. D'Etchegoyen [1888] UKLawRpPro 27; (1888) 13 PD 132.
Forsyth v. Forsyth (1947) 2 ALL E.R. 623.
Carrick v. Hancock (1895) 12 TLR 59.
Harris v. Taylor (1915) 2 K.B. 592.
Platt v. Attorney-General of New South Wales (1878) 3 App. Cases 336.
Raeburn v. Raeburn (1928) 44 TLR 384.
R. v. Committee of Lloyds Ex-parte: Moran (1983) The Times 24th June 1983.
Fothergill v. Monarch Airlines Ltd. [1980] UKHL 6; (1980) 2 ALL E.R. 696.
Jones v. Wrotham Park Settled Estates (1979) 1 ALL E.R. 286.
James Buchanan & Co. Ltd. v. Babco Forwarding & Shipping (UK) Ltd. (1977) 1 ALL E.R. 518.
R. v. Schidkamp (1971) A.C. 1.
Stransky v. Stransky (1954) 2 ALL E.R. 536.
Hbk0059j.97s
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