Filer, In re [2017] PGNC 363; N7047 (22 May 2017)

N7047

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.571 OF 2013

IN THE MATTER OF THE ADOPTION OF CHILDREN ACT, CHAPTER 275

AND:

IN THE MATTER OF AN APPLICATION BY COLIN SIDNEY FILER AND ANGELA SASAKO MANDIE-FILER

Waigani: David, J
2017: 22 May

PRACTICE AND PROCEDURE – adoption of a child — jurisdiction — whether all the applicants were resident or domiciled in Papua New Guinea at time of filing application for order for adoption — time of application means time of filing originating process —whether child present in the country at time of filing application for order for adoption – whether an adoption order can be made in favour of one of the applicants - application refused – Constitution, Section 155(3)(4), 166 - Adoption of Children Act, Sections 2, 3, 5, 7 & 9.

Cases cited:

Application by RW and SW (1991) N1012
Re TK (An Infant) (1965-66) PNGLR 189
Re G (An Infant) (1980) PNGLR 495
SCR No. 2 of 1981 [1982] PNGLR 150
Re TTB (An Infant) (1983) PNGLR 215
Re Child A; In the Application of GN and RN [1985] PNGLR 121
Uma More v UPNG [1985] PNGLR 401

Counsel:

M Kokiva, for the Applicants

JUDGMENT

22^nd May, 2017

1. DAVID J: This is a decision on an application for adoption by the applicants, Colin Sidney Filer (Colin) and Angela Sasako Mandie-Filer (Angela) of a female child, IM under the Adoption of Children Act.
   
2. The applicants were married on 14 December 1985 at the University of Papua New Guinea.
   
3. Colin was born on 24 November 1948 at Wanstead, London in the United Kingdom and is a British citizen. Apart from his other academic qualifications, he obtained a doctorate (PhD) in Social Anthropology from the University of Cambridge in 1978 in the United Kingdom. He is an Associate Professor at the Crawford School of Public Policy at the Australian National University (the ANU), Canberra, Australia and is currently the Convener, Resource Management in Asia-Pacific Programme, Research School of Pacific and Asia Studies at the ANU, Canberra. He has been resident in Canberra since or about 2001 after he took up employment with the ANU as an academic.
   
4. Angela was born on 24 September 1958 at Tongwinjamb village, Ambunti in the East Sepik Province and is a Papua New Guinea citizen. She holds Papua New Guinea Passport No.B351984 which was issued by the Papua New Guinea Immigration and Citizenship Services Authority, Port Moresby on 21 March 2013 and expires on 21 March 2018. Apart from her other academic qualifications, she obtained a Bachelor of Education (Science) from the University of Papua New Guinea having studied there between 1977 and 1981. She then obtained a Master of Arts degree in Education from the Macquarie University in Sydney, Australia after completing the programme in 1989. Between 1996 and 2003, she enrolled to do a PHD programme at the Australian National University in Canberra, but has not yet completed the programme for varying reasons. She is currently an International Development Consultant in Papua New Guinea. She resides with the child at one of the Units at Allotment 10 Section 220, Turuha Place, Gordons 5, (the Gordons residence) a property owned by both applicants.
   
5. Both applicants have their own biological grown-up children who were all born in Port Moresby, but now live in Australia. They are Max Mambav Mandie-Filer (DOB 19 May 1986), Emma Lalitha Ukmai Filer (DOB, 19 May 1989) and Richard Andrew Kuas Filer (DOB, 13 June 1993). Max completed school and is working as an apprentice motor mechanic with Toyota Australia in Canberra. Emma is a lawyer admitted to the bar and teaches at the Canberra Girls Grammar School. Richard is currently studying for a (PhD) doctorate.
   
6. The child, IM, a female and a Papua New Guinea citizen was born on 9 May 2003 at the Angau Memorial Hospital in Lae, Morobe Province. She is now over the age of 14 years. She is directly related to Angela by blood because her natural mother, TMJ is Angela’s blood sister’s daughter, hence is niece to her. TMJ gave the child to Angela in 2004 when she was only 9 months old. Since the marriage of the applicants, the child has lived with and under the sole care, custody and attention of the applicants. The child currently resides with Angela in Port Moresby. She completed Grade 7 at the St Joseph’s International School in Port Moresby in 2016 and currently attends the Port Moresby International School where she is in Grade 8. She has known the applicants as her parents all her life.
   
7. The Filers are of the unanimous view that it is in the best interests of the child that the adoption order be granted.
   
8. The application for an adoption order was brought before me by originating summons filed on 21 December 2015 and amended by amended originating summons filed on 6 December 2016 pursuant to an order of 30 November 2016.
   
9. An order for the Court to dispense with the giving of a notice of application for an adoption order required under Section 10(1) of the Adoption of Children Act was obtained on 11 March 2016. Notwithstanding the order, the application has the support and consent of both TMJ, the natural mother of the child and the child herself.
   

10. In support of the application, the applicant relies on all documents filed in support of the application, particularly the following:

1. Affidavit of Angela Sasako Mandie-Filer sworn on 18 December 2015 and filed on 21 December 2015;
2. Affidavit of Colin Sidney Filer sworn on 11 February 2016 and filed on 17 February 2016;
3. Affidavit Attaching Medical Report of Angela Sasako Mandie-Filer sworn on 18 December 2015 and filed on 21 December 2015;
4. Affidavit Attaching Psychological Report of Angela Sasako Mandie-Filer sworn on 8 August 2016 and filed on 16 August 2016;
5. Further Affidavit in Support of Angela Sasako Mandie-Filer sworn on 6 September 2016 and filed on 7 September 2016;
6. Consent to Adoption of TMJ dated 4 November 2015 and filed on 21 December 2015;
7. Authentication of Instrument of Consent of TMJ of Eunice Sipison declared on 4 November 2015 and filed on 21 December 2015.
8. Consent to Adoption of IM dated 5 May 2017 and filed on 8 May 2017;
9. Authentication of Instrument of Consent of Hubert Kikira of the child IM declared on 5 May 2017 and filed on 8 May 2017.
   

11. A Home Study Report provided by the Director of Lukautim Pikinini (Child Welfare) (the Director) concerning the proposed adoption in accordance with Section 9(1) of the Adoption of Children Act was received by the Court on 20 May 2016. The report is favourable to the applicants, the Director recommending that the application for the adoption of the child be granted to confirm the existing situation between the applicants and the child who have been in a foster relationship since early childhood.

12. I have perused the above-mentioned documentation and considered the applicants’ submissions, both oral and written.

13. Before I proceed with the consideration of the substantive application, I need to consider whether the Court has jurisdiction to entertain the application? I raised this issue earlier at the initial stage of the hearing and that resulted in the applicants making a successful application to amend the originating summons filed on 21 December 2015 which I granted on 30 November 2016. If the answer to the question is in the affirmative, I will proceed to discuss the substantive application. However, if the answer is in the negative, I will not enter into any detailed discussion of the substantive application.

14. It was conceded at the hearing that at the time of filing in the Court of the application for the order for adoption, only the female applicant, Angela and the child were resident or domiciled in the country. At the time of filing of the application, they were and still are living at the Gordons residence in Port Moresby. At the time of filing the application, Colin, the male applicant was not so resident or domiciled in the country. He was resident and still is resident in Canberra, ACT, Australia.

15. In the amended originating summons, the applicants rely on Section 2 of the Adoption of Children Act and Section 155(3)(b) and or (4) of the Constitution as the basis upon which the Court should exercise jurisdiction to grant the order for the adoption of the child to both applicants. In the alternative relief sought, the applicants rely on Section 7(2) of the Adoption of Children Act upon which the Court can exercise jurisdiction to grant the order for the adoption of the child only to Angela.

16. The applicants through Ms Kokiva of counsel submitted at the hearing that Section 2 of the Adoption of Children Act and Sections 155(3)(b) and/or (4) and 166 of the Constitution give the Court jurisdiction to make an order in favour of both applicants notwithstanding that one of them is neither resident nor domiciled in the country at the time of filing of the application. It is submitted that it is a matter of the Court exercising discretion dependent on the exceptional circumstances of the present case. In addition, it was submitted that the exceptional circumstances must relate to the welfare and interest of the child which Section 5 of the Adoption of Children Act not only advocates, but stipulates that to be regarded as the paramount consideration.

17. The submissions are misconceived therefore I will reject them for reasons I give below.

18. First, Section 155(3)(b) of the Constitution makes it abundantly clear that the National Court “has such other jurisdiction and powers as are conferred on it by this Constitution or any other law”. Those are in addition to the Court’s inherent power to review any exercise of judicial authority under Section 155(3)(a) of the Constitution. Section 2 of the Adoption of Children Act specifically confers jurisdiction on the National Court to make an adoption order in accordance with that Act.

19. Second, in my opinion, Section 155(4) of the Constitution is not the source of primary jurisdictional power. The Court’s primary power or jurisdiction to grant an order for adoption of a child in this country is given by Section 2 of the Adoption of Children Act in conjunction with Section 3 of that Act. Section 155 (4) confers jurisdiction on the Court to issue facilitative orders in the exercise of its inherent power in aid of enforcement of a primary right conferred by law, whether such right be conferred by statute or subordinate legislation enacted under the enabling statute: SCR No. 2 of 1981 [1982] PNGLR 150 at 154, Uma More v UPNG [1985] PNGLR 401 at 402.

20. Third, the National Court is, under Section 166 of the Constitution, a court of unlimited jurisdiction. However, whilst Section 166(1) provides that to be the case, the phrase “Subject to this Constitution” found at the commencement of the provision connotes that there must be some limitation to the exercise of jurisdiction imposed by laws applicable in the country by virtue of the Constitution. In the present case, the limitation to the exercise of the Court’s jurisdiction is provided by the Adoption of Children Act.

21. The power of the Court to make an order for the adoption of a child can be determined by looking at the terms of the Adoption of Children Act which is the legislation relating to the adoption of children in Papua New Guinea. As I have alluded to already, the jurisdiction is conferred on the National Court by virtue of Section 2 of the Adoption of Children Act.

22. As to when jurisdiction may be exercised, Section 3 of the Adoption of Children Act is the relevant provision and it states:

“3. When jurisdiction may be exercised.

(1) The Court shall not make an order for the adoption of a child unless at the time of the filing in the Court of the application for the order—

(a) the applicant, or (in the case of joint applicants) each of the applicants, was resident or domiciled in the country; and

(b) the child was present in the country.

(2) For the purposes of Subsection (1), where the Court is satisfied—

(a) that an applicant was resident or domiciled in the country; or

(b) that the child was present in the country,

within 21 days before the date on which an application was filed in the Court, the Court may, in the absence of evidence to the contrary, presume that the applicant was resident or domiciled in the country, or that the child was present in the country, as the case may be, at the time of the filing in the Court of the application.”

23. The requirements under Section 3 are mandatory and do not give the Court any discretion to make an order if the residency or domicil requirements are not met by an applicant or the child subject of an application for an adoption order. The two criteria must be satisfied before an order for the adoption of a child can be made, i.e., at the time of the filing in the Court of the application for an adoption order:

1. the applicant or in the case of joint applicants, each of the applicants, was resident or domiciled in the country; and

2. the child, was present in the country.

24. For purposes of the criterion under Section 3(1)(a), I am satisfied that Angela was present in the country within 21 days before the application for an adoption order was filed in the absence of any evidence to the contrary.

25. As to whether Colin has met the criterion in Section 3(1)(a), I have referred to and will be guided by the National Court decisions in Re Child A; In the Application of GN and RN [1985] PNGLR 121 and Application by RW and SW (1991) N1012.

26. In Re Child A; In the Application of GN and RN, Pratt, J held that for the purposes of Section 3, the expression “resident” refers to one’s usual dwelling place or abode and connotes an idea or degree of permanence.

27. In Application by RW and SW, Doherty, J held that the expression “application” used in the legislation meant the time for determining the residence or domicile of an applicant is the date of filing of the originating process and not the date of hearing of the application. The court was unable to exercise jurisdiction as the applicants and the child were not resident or domiciled in the country. The applicants’ employment were terminated some three to four weeks after the natural father of the child who was employed at the same place as the applicants asked them to take care of the child as the natural mother died some four days after giving birth to the child. The child came into the applicants’ custody one or two days after his birth. As a result, they were obliged to leave the country and returned to their home in Australia.

28. On the evidence before me, it is clear that at the time of filing in the Court of the application for an order for the adoption of the child, the applicant was a British citizen residing in Canberra in the Australian Capital Territory, Australia. His permanent place of residence or domicile was and is in Canberra, Australia rather than Papua New Guinea. He has not met the criterion in Section 3(1)(a).

29. For purposes of the criterion under Section 3(1)(b), I am satisfied that the child was present in the country within 21 days before the application for an adoption order was filed in the absence of any evidence to the contrary.

30. The two criteria have not been satisfied by the applicants. Consequently, I have no jurisdiction and will refuse the joint application by the applicants.

31. Given that, do I have jurisdiction to make an order for the adoption of the child under Section 7(2) of the Adoption of Children Act as sought by the applicants as the alternative relief?

32. The applicants submit that Section 7(2) and (3) allow for an adoption order to be made in favour of one person if the Court is satisfied that exceptional circumstances make it desirable to do so. It is instructive that I set out Section 7 and it states:

“7. Persons in whose favour adoption orders may be made.

(1) Except as provided by Subsection (2), an adoption order shall not be made otherwise than in favour of a husband and wife jointly.

(2) Subject to Subsection (3), where the Court is satisfied that exceptional circumstances make it desirable to do so, the Court may make an adoption order in favour of one person.

(3) The Court shall not make an adoption order in favour of one person if that person is married and is not living separately and apart from his or her spouse.

(4) The Court may make an adoption order in favour of a husband and wife jointly notwithstanding that one of them is a natural parent of the child.”

33. I will reject the applicants’ submission as misconceived and or untenable. I am of the opinion that I do not have jurisdiction on the following grounds.

34. First, Section 7(1) only expressly permits an adoption order to be made in favour of a husband and wife jointly unless exceptional circumstances make it desirable to do so when an order can be made in favour of one person by virtue of Section 7(2).

35. Second, the applicants do not invoke Section 7(3) in the amended originating summons.

36. Third, notwithstanding that Section 7(3) was not invoked, sub-section (2) nevertheless must be read in conjunction with that sub-section which means that an adoption order cannot be made in favour of a married person who is not living separately and apart from his or her spouse. In my opinion, there must be some element of permanency in the separation and of the living apart for a continuous period from an applicant’s spouse and there is no reasonable likelihood of cohabitation being resumed. There is no evidence before me that Angela and Colin live in an estranged relationship. From the evidence before me, the converse appears to be the case. The Filers are a happy family and treat the child as one of their own, the child having travelled to and from Australia with Angela and with the rest of the Filers for holidays in New Zealand and Africa and they all are looking forward to the formal adoption of the child. The applicants themselves appear to be a stable and happy couple. They are financially well-off, both applicants having good salary packages, they own several properties in Canberra (56 A & B Clianthus Street, O’Connor) and in Port Moresby, the Gordons residence (Units 1 & 2), motor vehicles and white goods with a combined value estimated at K6.52 million.

37. Section 7(2) permits the Court to make an adoption order in favour of one person where the Court is satisfied that exceptional circumstances exist that make it desirable to do so, but that is subject to sub-section (3). “Exceptional circumstances” may vary from case to case. Some examples would be; a person already taking care of the child for some time; a person with special skills looking after a child with medical or behavioural problems; a single male applicant being the child’s natural father as in Re G (An Infant) (1980) PNGLR 495; and the father of an ex-nuptial child in an existing relationship with the child as in Re TTB (An Infant) (1983) PNGLR 215.

38. Clearly, if the Court were minded to grant the adoption order, the child will have access to good education, health care and generally exposed to more opportunities to advance in her life than if she were to remain in the country. If I had jurisdiction, I would consider the application favourably. Unfortunately, whilst I do sympathize with the applicants having had the custody of the child since she was 9 months old initially by Angela and then jointly as a couple after their marriage, the existing law will not allow me to grant the adoption order they seek.

39. Given the peculiar facts and circumstances of the present case, I would suggest that the applicants consider making application for the custody of the child in order to formally legitimize the existing relationship between the child and the applicants or the Filers. Once that is achieved, the applicants could file further proceedings for an adoption order in Australia if permitted by Australian law.

40. In the result, the application for the adoption of the child, IM either jointly by the applicants Colin Sidney Filer and Angela Sasako Mandie-Filer or in the alternative by Angela Sasako Mandie-Filer is refused.

Ordered accordingly,

_______________________________________________________________
Martha & Associates: Lawyers for the Applicants