Re Application under Adoption of Children Act (Ch275) for the Adoption of a Child, MM [1982] PGNC 27; N392 (22 October 1982)

Unreported National Court Decisions

N392

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

M.P. NO. 14 OF 1982
IN THE MATTER OF AN APPLICATION UNDER THE PROVISIONS OF THE ADOPTION OF CHILDREN ACT CH. 275 FOR THE ADOPTION OF A CHILD M.M.

Goroka

Ramage AJ
22 October 1982

RAMAGE AJ: This concerns an applicatiication by an expatriate Australian male and his wife of Papua New Guinea birth and citizenship to adopt an illegitimate girl child an automatic citizen of Papua New Guinea, aged some ten years at the time of the hearing of this application. The child has no relationship by blood to either of the applicants. The application is opposed by the natural mother and the applicants seek an order under section 21 of the Adoption of Children Act ch.275 dispensing with the consent that is required by s.15(2) (b) of the said Act. By consent of all parties it was heard together with M.P. 26 of 1981, an application by the first named applicant and cross petition, or application, by the natural mother for custody of the said child under the Infants Act. The original respondent to that custody application was the aunt and former wife by customary law of the first applicant (one ANL). Because of the immediate effect of the provisions of s.28 of the Act and the secrecy provisions enshrined in s.14 of the Act I feel that it is appropriate that separate orders should be made in each matter. On the hearing of the application pursuant to s.11 I admitted the Director of Child Welfare and the natural mother to be joined as parties and both were represented by Counsel. The original respondent to M.P. 26 of 1981 (ANL) was not specifically represented and did not appear at the hearing. No explanation was given for this.

Before proceeding to deal with the substantive facts of this application I should say that I am satisfied that each of the applicants is resident or domiciled in the country and the child was present in the country at the time of the filing of the application. Each of the applicants gave evidence before me and with consent of the parties I saw the child in the chambers.

I am further satisfied that the child is a person of whom the court may make an order pursuant to s.6(1) (a) (if not 6(1) (b) as well) and that the reports signed by a medical practitioner being annexure “C” to the affidavit of the first applicant of the 6th of April 1982 complies with the provisions of s.9(3).

Turning to the facts. The child was born on 17th April 1972 at Wewak, East Sepik Province. The father came from Manus Province. His name, unknown to the court and it is not clear on the evidence whether he ever resided with the natural mother. What is clear according to the natural mother’s evidence is that he left after, or on the birth of the child, and his present whereabouts are unknown. It is also undisputed that the natural mother and her child lived with the natural mother’s father (child’s grandfather) and the grandmother (until she became ill and died) in a compound at Wewak. There is some dispute about how long this was for. The applicants sought to produce evidence to convince the court that the child was abandoned shortly after birth. I did not allow this evidence as whilst the first applicant may well have believed it to be true it was quite clearly hearsay which went directly to one of the issues, viz abandonment of the natural mother under section 21(1) (c). This was one of the matters relied on specifically by the applicant’s counsel. The natural mother gave evidence by way of affidavit and was cross-examined at same length. On this point I accept her evidence and am satisfied that the natural mother left the child with her parents when the child was as she puts it “walking around on her two legs”; probably in excess of two years of age. I say probably because the natural mother claimed to be living with her father and the child when she married one T.H. but she also said that she went to Port Moresby in December 1974, but married T.H. in February 1975. What is certain is that from the end of 1974, beginning of 1975 the natural mother has had very little contact with her child. She had various confused explanations for this. She claimed that the grandfather did not initially want the child to go with her and wouldn’t let the child live with her and T.H. It is not clear whether this was before or after her marriage to T.H. where she used the phrase “he didn’t like me to stay”. She also claimed that she hadn’t told her father she was married to T.H. at least initially. However, again it is clear that until mid 1977, when she visited Wewak, she had no contact and apparently no news of the child. Her only attempted contact was a letter she wrote to her father enclosing K10 in about January 1975 and requesting permission to take the child. This was not replied to and the natural mother did not write again for the reason “because there was nobody who could read or write on behalf of my father”. It is not apparent how she expected her first note to be responded to. She was cross-examined at some length about her not bringing the child to Port Moresby and something was made of in fact that in her affidavit she had said it was due to financial difficulties, (though her husband (T.H.) had a well paid job), and in her oral evidence she said that the reason was that she hadn’t got permission from T.H. In view of the fact that she was not working and the sole source of any funds was infact largesse from T.H. I am not satisfied that there is any real contradiction in her evidence on this point, sufficient to make me doubt her desire to see her child. However, her total lack of attempts to get news of the child from early 1975 to 1977, including no attempts through Welfare or otherwise does make doubt her real concern for the child and what has ocurred then does not allay these doubts.

As said above, she went to Wewak about mid 1977 and was then she says informed by her father for the first time that the child had been taken by her sister (ANL), and the first applicant. Her explanation is that she was told the child had been taken for a short time and would be returned to the village. The explanation for the child’s being given was that her mother (grandmother) was sick and there was no one to look after her. I interpolate here that the first applicant had commenced living with A.N.L. in January 1975. His evidence was that she (ANL) had several entopic pregnancies and was unable to conceive and in about July 1976 she told him of the girl in Wewak, the illegitimate daughter of her sister who was being looked after by her father so they “decided to go down and find out whether the child could be given to A.N.L. and me”. They spoke to the grandfather and the first named applicant claims that the grandfather gave him the first named applicant permission to take the child from the village “and raise her as his child”. The child returned with the first applicant and ANL to the Eastern Highlands after Christmas 1976. The first applicant denied that there had been any understanding that the child should shortly return to Wewak - “it never came up in conversation ... I saw it as a permanent arrangement”. In response the natural mother claimed in evidence that the first applicant was asked to return the child but the child was already in school. This was not put to the first applicant to rebut, but I do not accept it as reliable evidence because again it was probably hearsay in view of the natural mother’s oral evidence that she had not asked for the child’s return because “I didn’t know the address of (the child) and they hadn’t written to me”.

However the natural mother did see the child later that year in September and in November when the first applicant and ANL visited the natural mother and the husband T.H. in Port Moresby. There is a dispute as to whether there were one or two overnight stays and I am unable to resolve this dispute. However, what is clear, is that the natural mother did not seek to claim the child and I accept that she treated the child as “the child of a guest, she did not greet her, she did not hug her” and “she was happy the child was going to be with us and going to Australia”. (the evidence of the first applicant). When cross-examined on this, the natural mother conceded that she hadn’t requested the child to stay with her and when asked why she said “I was happy to see them so I didn’t get the impression/feeling to let (the child) stay with me”. I am satisfied that as at this stage viz 1977 the natural mother was content that the child should remain with the first applicant and A.N.L. However, I am of the opinion that both the initial consent of the grandfather (which is referred to in the reports submitted by the Director Generally), and the natural mother’s consent at this stage, relied largely on the child being with her aunt that is A.N.L., rather than the first applicant. This view is reinforced by the fact that the natural mother apparently on the 18th of February 1980 signed some form of consent to the adoption of the child by or to A.N.L. Counsel for the applicant sought to rely on this, though neither he nor any of the other parties produced the actual document or copy of same and different reasons were given which for its coming into existence. This, (according to the Director’s report made in the course of a home study of the first applicant) was a consent sought in order to have the child’s legal status clarified for travel purposes; whereas the first applicant claimed initially that it was obtained in 1979, then claimed it was in 1980, when he sought to obtain a subsidy for the child as his dependent. I am not satisfied in the evidence that this was a consent as provided for under s.18 of the act, and accordingly I can’t be satisfied it was given in accordance with the Act (s.21(a)). I make no finding on whether on the evidence it may come with s.19, (that is improperly obtained) because in any event it purports to be made in favour not of the applicants but of A.N.L. and there is no suggestion that any Court Order was ever made. Its only relevance can be that the natural mother was prepared to have her sister A.N.L. adopt the child knowing that she was living with the first applicant and thus, by implication, she considered the first applicant to be a fit and proper person to be in presence of the child. I pause here to say that it was never suggested in the affidavits or in cross-examination that both of the applicants were not fit and proper persons and I am satisfied that the applicants are of good repute, are fit and proper persons to fulfil the responsibilities of parents of the child, that they are of suitable age being 34 and 26 respectively, of good in health, and satisfactory education. It is probably irrelevant to mention at this stage that even this document (of purported consent) may have been influenced by the fact that the husband of the natural mother T.H. had died in January 1979, leaving her with her male child approximately 1 year 5 months old.

I should mention at this stage that counsel for the applicants did seek to argue that the child had been adopted by the first named applicant in accordance with native custom. I rejected the submission as there was no evidence of such custom before me and since it was conceded that native custom varies throughout the country, it was not a matter of which I could take judicial knowledge. Applicants’ counsel after the evidence was completed sought leave to reopen to call the first applicant to rectify this absence in the evidence. This I rejected both because of when it was made and the obvious bias that could attach to such evidence being given by interested party.

In late November 1980, the first applicant and A.N.L. separated and the child stayed with A.N.L. until January 1981 when the first applicant removed the child back to his care because the child was not being properly cared for. There are other reasons which I will not go into at this stage. No opposition appears to have been raised to this by A.N.L., nor by the natural mother and A.N.L. was later granted access rights of one day per week which appeared to have been exercised for some period of time but not in the last recent months before this hearing. The natural mother appears to have visited Goroka twice, once in 1981 and again this year. The evidence is unclear precisely when. But she said she saw the child on Sundays and that she used “to think of her and talk to her”, but it is germane to note that she appears to make no attempt to adopt a mother’s role.

In 1981, the child first met the 2nd applicant who commenced to live as his wife and man with the first applicant in June 1981. She, as said above, is of the Melanesian race and has two children of her previous marriage aged 4 and 9 respectively, also pure Melanesian. In June 1981 the families combined and have since then lived together as one unit. The applicants were married in October 1981. Before marriage the child referred to her as “aunty” and since then she calls her “mummy”. She that is the second applicant is prepared and indeed is already bringing the child up as her own. The child has been accepted by the second applicant’s father and has close and affectionate relationships with him and her cousins. She has also been accepted totally by the first applicant’s family who reside in Australia and who are “in constant contact” by telephone.

To sum up, at this stage, the child is part of the family unit of which the pivot so far as she is concerned is the first applicant. He is the one constant in her life and has been so with the exception of approximately 1 month since just after Christmas 1976. I describe it as constant; another way of describing it as the word psychologist called by the applicant’s labelled it; that is “he has remained the stabilizing influence in her childhood” and “any deprivation from him would be detrimentally emotionally and psychologicaly to (the child)”. Because of the evident factual inaccuracies about the child’s early years (based on material given by the first applicant which I have rejected), I have some doubt as to the full value of the psychologist’s evidence in his report but I do accept the above statement as a correct statement of the position. I would have been happier if some attempt had been made by him to interview the natural mother and his report might have shown more objectivity, but again I accept that the child has no image of the natural mother and that when he asked her did she know “M” using the name of the natural mother, the child replied “was that the lade that came and visited (A.N.L.) once”. I also accept the picture he painted of a happy integrated family unit as was supported by other affidavits including the headmaster of the International School the child attends who described her as a “well adjusted child both emotionally and socially, who is well liked by teachers and peers”. I should add that psychologist’s evidence was that the child perceived the second applicant as her mother which in view of the long separation from her real natural mother is not surprising. The child is presently in grade 3 and as said above I saw her in Chambers and was impressed at her dress, deportment and intelligence. Though not a matter to be taken into account specifically under the Act, I noted that nothing she had to say was inconsistent with the case advanced and evidence given by the applicants. She appeared content with her home and happy with her life with the applicants.

As said above A.N.L. did not appear to contest or give evidence and showed little interest in the proceedings though I am informed that she is here present today whilst this judgment is being given. After some difficulty, solely through the combined efforts of the applicants and the public solicitor, the natural mother was as will be apparent from above, brought to the court and gave evidence. She had been allowed to see the child the day before the hearing, but either through sensibility or indifference appears not to have put herself forward as a mother but talked only of A.N.L. She reside with her child of her marriage to T.H. in a bush house (though with a corrugated iron roof) in a village in East Sepik area. She has a very modest salary from the sale of copra and cocoa and some form of pension from the Government resulting from T.H’s death.

Her relatives are prepared to support or help her and she would propose that the child attend a local community school. She gave her evidence in pidgin and whilst this is no reflection on her, it is of note in the sense that both the applicants and the child herself speak English well and both applicants are well educated. The first applicant has expressed the desire that she be educated to suit her academic achievements or abilities. This prospects in my view on this less likely to occur this child returns to live in the East Sepik village.

I wish now to say something on the curious role of the Director of Child Welfare in these proceedings. Despite repeated requests and telephone calls by the applicant’s solicitor no report was initially made as is his duty, under the Act and it required proceedings for an order prior before a Report was forthcoming in June this year. Further, despite a direction given by Mr. Justice Bredmeyer on the 9th of August 1982 that the Director of Child Welfare pay the natural mother’s airfares from Wewak to Goroka if she wished to contest the application no assistance was given by the Director or his Officers and counsel for the Director said that he that is the Director was unable to provide any funds to get the natural mother to the hearing. I am told that there were further refusals by the Department of Child Welfare at Wewak to provide any assistance with transport at Wewak to enable the natural mother to get the plane. I regard this as conduct totally unbefitting the Department of Child Welfare and its Director. But I also regard the Director’s attitude towards this application in itself as perculiar. The Report as presented (to which I granted all parties access) after being what I would describe as in favour of the applicants concludes with what can only be described as a bald recommendation against the applicants. Counsel representing the Director asked no questions, produced no evidence, made no submission and had instructions limited simply to opposition. Needless to say the Director’s attitude was not only of no assistance to the court, but directly designed to hamper it. One can only conjecture whether approach was based in part on a failure to read or understand K v. KN392.html#_edn982" title="">[cmlxxxii]¹.

Certainly the Director refused to have given no real consideration to subsection 5 of the Adoption of Children Act (and the cases thereunder) which declare that the Welfare and interests of the child shall be the paramount consideration. This is the ultimate test whether the application for adoption be with or without consent though in the latter case s.21 provides that a court may dispense with consent in certain situations (and by a rule of exclusion presumably cannot where these situations did not exist). Various of these situations were urged upon me by counsel for the applicants. 21(1) (a) and 21(1) (b) are clearly irrelevant and I am not satisfied that the evidence supports 21(c). Nor am I satisfied that there is no reasonable course on the part of the natural mother. However, I do find that there are special circumstances by reason of which the consent may be dispensed with and these are to be found in the history of the child’s upbringing as set out above. I do not intend to attempt to itemize them but the contrast between the continual loving care and support by the first applicant of the child for almost 6 years and the natural mother’s approach and the fact that the first applicant has bean for so long the constant factor in itself are obviously special circumstances in themselves. So I find that there are special circumstances. But the special circumstances cannot be isolated from the questions of what will best advance the interest of the child. I have had some difficulty in resolving this question because the Draconian effect of such an order is that the child loses her natural mother and thereby her blood relatives on the natural mother’s side. True it is that she gains as it were a real father and mother and that family but I was concerned particularly with the following matters. These were; firstly whether the child would be brought up to appreciate the culture of her birthright. The first applicant is an expatriate whose contract expires in 1983, but who has had a long stay in and experience of this country, and possesses a full appreciation of Papua New Guinea culture, close contact with it, and who desires to remain in the country. Everything points to his being able to remain in the country and to the granting of his application for citizenship which is presently pending. Should he not be able to either get citizenship or remain I am satisfied that not only would he be able to take his family, including the child, to Australia but the adoption would be recognised in that country.

(See adoption of H v. HN392.html#_edn983" title="">[cmlxxxiii]²). I am also satisfied that through both him, his wife and her Papua New Guinean relations the child will have the benefit of both cultures that is both P.N.G. culture and western culture. Secondly I was concerned at what might happen to the child if the first applicant were to die, particularly as, as set out above, he is the constant factor in her life. Whilst there was no evidence before me that he had given the matter a great deal of thought, I accept that on the Doctor’s report referred to above he has no (known) medical problems and at 34 a premature death is not to be supposed. Even allowing for this factor after seeing the second applicant listening to her evidence, and reading the affidavits I am satisfied that she will, and her family, will bring the child up as her own (natural born) child, should the first applicant die. I am further satisfied that there will be support money both from the first applicant’s superannuation rights and the second applicant’s land rights if this unfortunate eventuality should occur. I also note that the second applicant’s health is good and that the child is being brought up in the Christian faith, which though not perhaps strictly relevant is, though of a different denomination the faith of the natural mother.

In all the circumstances I am satisfied after considering the Report of the Director and all the evidence that the grounds of s.21 are satisfied and the Welfare and interests of the child will be promoted by the adoption by the applicants. I therefore make the order for adoption as sought.

Order that the State pay the costs of this application including the costs of all interlocutory and other applications before and during the course of this hearing.

Solicitor for Applicant: Mr. W. Neil

Counsel for Respondent: Mr. Vagi

Counsel for Director of Child Welfare: Mr. Unagui

<82">N392.html#_ednref982" title="">[cmlxxxii]^{Supreme Court Judgment SC207 of 28th August 1981}

N392.html#_ednref983" title="">[cmlxxxiii]^{Supreme Court Judgment SC176 of 30th May 1980}