Adoption of an Infant, R [1976] PNGLR 81 (9 March 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 81 - Re the Adoption of an Infant, R 

[1976] PNGLR 81

N29

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN RE THE ADOPTION OF AN INFANT R

Port Moresby

Prentice DCJ

26 February 1976

5 March 1976

9 March 1976

INFANTS AND CHILDREN - Adoption - Applicants domiciled Australia, resident New Guinea - Child, foreign national previously adopted by female applicant and then husband - No evidence of effect of adoption order under law of child’s nationality - Relevant considerations - Welfare of infant paramount - Evidence of effect of adoption order desirable - Where no evidence disadvantages to be weighed with other considerations.

The applicants, on an application for adoption of an infant R., who was of South African nationality and had been previously adopted by the female applicant and her then husband, were domiciled in Australia and resident in Papua New Guinea. By order of the Supreme Court of South Africa made in 1968 the female applicant had custody of the infant, and from documents filed in the proceedings the father under South African law approved of the proposed adoption; there was no evidence of the effect of an adoption order made in Papua New Guinea on South African law.

Held

(1)      The paramount consideration in adoption cases is the welfare of the infant, but where the child is a foreign national the court should consider whether its order will be recognized elsewhere unless the case is one in which it is clearly for the welfare of the infant that an order should be made irrespective of its consequences elsewhere; but where it is not possible to furnish evidence to show that the order will be recognized by the foreign court then the disadvantages of the infant, having one status here and another in other countries, or even a doubtful one, must be weighed against other considerations in favour of the adoption.

In re B.(S.) An Infant, [1968] Ch. 204, and Re an Infant G. and the Adoption of Children Act (1968) 87 W.N. (N.S.W.) (Pt. 1), p. 561 followed.

(2)      The making of the order sought was so clearly for the welfare of the infant that an order should be made irrespective of its consequences by way of recognition elsewhere.

Application for Adoption

This was an application under the Adoption of Children Act 1969 for the adoption of a child R. aged nearly ten years who was of South African nationality, by applicants who were domiciled in Australia but resident in Papua New Guinea.

Counsel

A Crane solicitor for the applicants

Cur. adv. vult.

9 March 1976

PRENTICE DCJ:  This is an application for the adoption of a child named R. who is of South African nationality.

The applicants are of European race and are husband and wife — the male applicant is of Australian nationality and is a corporal in the Royal Australian Electrical Mechanical Engineers Corps of the Australian Army. Under an agreement between the Governments of the Commonwealth of Australia and of the Independent State of Papua New Guinea, he is seconded for service with the Papua New Guinea Defence Force for a period of two years. His term of secondment commenced on the 7th February, 1975. His wife and the child concerned accompanied him on his posting. The child is attending primary school in Port Moresby.

The female applicant, born P.S.H., was formerly married to one R.A.F. and resided with him in the Republic of South Africa.

The white male child, the subject of this application, was born on 7th July, 1966 and named P. By order of the Commissioner of Child Welfare at Pine Town, South Africa on the 18th January, 1968, P. was ordered to be adopted by the then spouses R.A.F. and P.S.F. and his name changed to R.

Unfortunately, shortly after this adoption was made, R.A.F. deserted his wife, the female applicant herein. This happened on the 10th February, 1968. The child had been living with the female applicant and R.A.F. from about one month after his birth, but could not be adopted by them until the female applicant turned twenty-five, which occurred on 18th January, 1968. The child’s change of name to R. is recorded in Abridged Birth Certificate 74290 of the Republic of South Africa, dated 8th February, 1968.

On 7th June, 1968 by order of the Honourable Mr. Justice Friedman in the Supreme Court of South Africa. (Durban and Coast Local Division) at Durban, the marriage of the F.s was dissolved, and the female applicant given custody of the child R. Her former husband was ordered to pay maintenance for the said child at the rate of R30 per month, and he has continued to do so as ordered.

On the 12th November, 1969 R.A.F. apparently in contemplation of an application of the kind now being made, gave a power of attorney, certified by a Public Notary, to the female applicant, in terms following:

“... to be my lawful attorney and agent in my name, place and stead in the Republic of South Africa and in any and all other countries to act for and on behalf of the said R. in any matter or thing of any nature whatsoever capable or required to be done by his guardian; to assist him to enter into any contract and/or other thing requiring the assistance of his guardian and/or to sign any and all documents necessary to effect the adoption of the said R. by R.A.S. and/or the said P.S.S.”

Under the common law applicable in this country by virtue of Sch. 2.2 of the Constitution; the applicants would seem to be domiciled in Australia and the child to be foreign under Papua New Guinean law, as he may be under Australian law.

The jurisdiction of this Court to make orders for adoption of children is to be found in ss. 5, 6 and 7 of the Adoption of Children Act 1969 of Papua New Guinea:

“5.      Jurisdiction is conferred on the Supreme Court in proceedings instituted in the Court in accordance with this Act.

6.

(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 Papua New Guinea; and

(b)      the child was present in Papua New Guinea.

(2)      For the purposes of subsection (1) of this section where the Court is satisfied that an applicant was resident or domiciled in Papua New Guinea, or that the child was present in Papua New Guinea, on a date within twenty-one 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 Papua New Guinea, or that the child was present in Papua New Guinea, as the case may be, at the time of the filing in the Court of the application.

7.       The jurisdiction of the Court to make an adoption order is not dependent on any fact or circumstance not expressly specified in this Act.”

The jurisdiction of the pre-Independence Supreme Court is now vested in the National Court of Papua New Guinea.

This Court is a superior court of record and of unlimited jurisdiction. It has been established that the applicants were resident in, and the child was present in, Papua New Guinea at the time of filing of the application. This state of affairs continues.

An order of this Court, if made, would be recognized in the States of Australia and would destroy the relationship there between the child and its (South African) parent. The effect of the order outside Papua New Guinea and Australia would depend on the extent to which other countries will recognize the order.

Lord Denning M.R. has pointed out (In re Valentine’s Settlement)[cvii]¹ that if “ ... a legitimate relationship of parent and child has been validly created by the law of the parents’ domicile at the time the relationship is created, then the status so created should be universally recognized throughout the civilised world, ...” But it seems that in countries where the legal system is based on the Code Napoleon or on the civil law, nationality is the test, and even in countries that adopt the test of domicile it is often a different conception from that held in the Australian States.

The applicants’ counsel is unable to obtain here, assistance in regard to the content of South African law. It is possible that the making of an order by me may result in the child remaining that of the female applicant and R.A.F. under South African law, while in Australia and in Papua New Guinea he will become the child of the applicants. With conflicting status in Papua New Guinea and Australia on the one hand, and abroad on the other, he would become a “limping infant”, in Professor Cheshire’s phrase.

A case somewhat similar to the present was before Goff J. in the U.K. in In re B (S.) (An Infant)[cviii]² when applicants domiciled in England sought there an adoption order in respect of a child resident there but domiciled in Spain. His Honour stated in his judgment at p. 1445:

“In my judgment therefore, where the child is or may be domiciled abroad or is a foreign national or was until recently ordinarily resident there, the court should consider whether its order will be recognized elsewhere unless the case is one in which it is clearly for the welfare of the infant that an order should be made irrespective of its consequences elsewhere, as in refugee cases: see, for example, In re R. (Adoption) [1966] 3 All E.R. 613. With that exception, in my judgment in all cases where there is such a foreign element as I have described, evidence should be furnished to show that the order, if made, will be recognized by the foreign court and, if so, then the English court is free to proceed regardless of any question of foreign law or procedure, but if not, then the court will have to weigh the disadvantages of the child having one status here and another in other countries, or even a doubtful one, against the other considerations there may be in favour of adoption.”

Later he added that the problem was one:

“... of considering factually whether, having regard to the foreign element, the English order will have general recognition, and if not whether the order would still be for the welfare of the infant.”

The law as so stated was adopted with approval by Myers J. the judge of the Supreme Court in charge of adoptions, in New South Wales. (Re an Infant G. and the Adoption of Children Act)[cix]³.

The paramount consideration with which I must concern myself is the welfare of the child involved.

I am satisfied that there is little likelihood of the child’s or the female applicant’s returning to South Africa. I am satisfied that a stable family atmosphere, which includes two other children, is available to the child presently in Papua New Guinea, and is shortly to be so available in Australia, and that his future lies in all probability in Australia. I am satisfied that his father under South African law approves of his being adopted by these applicants. I do not think I am justified in holding up this application until information were obtained as to the provisions of South African law. I am informed that the applicants have long sought to regularize the position of the child but have been thwarted by the various postings to which the husband, the male applicant, has been subjected.

I am satisfied that the applicants are of good repute, fit and proper persons and suitable to adopt this child. I am satisfied that the welfare and interests of the child should be promoted by my making the order asked and rendering the child a legal member of the family group to which he has for some years factually belonged. I am satisfied that the making of the order as asked is so clearly for the welfare of the infant that an order should be made irrespective of its consequences by way of recognition elsewhere.

I ORDER that the applicants herein be and are authorized as spouses to adopt the child referred to in the Notice of Motion dated 27th November, 1975 and I APPROVE the names R.R.S. as the names of the child.

Orders accordingly.

Solicitor for the applicants: A. Crane, instructed by Major J. Brown.

[cvii] [1965] Ch. 831, at p. 842.

[cviii][1968] Ch. 204.

[cix](1968) 87 W.N. (Pt. 1) (N.S.W.) 561.