Marumaru v Wetara [2009] SBHC 28; HCSI-CC 238 of 2009 (28 July 2009)

HIGH COURT OF SOLOMON ISLANDS
CIVIL JURISDICTION

Civil Case No. 238 of 2009

BETWEEN:

JACKSON MARUMARU (Infant)

AND:

FRANK RUHIA WETARA of 16 Littlejohn Street Hillsborough Road, Auckland, New Zealand
Applicant

AND:

MARYLACE WETARA of 16 Littlejohn Street Hillsborough Road, Auckland, New Zealand
Applicant

(Mwanesalua, J.)

Date of Hearing: 20th July 2009
Date of Judgment: 28th July 2009

Mr G K Fa’iatoa for the Applicants

JUDGMENT

Mwanesalua J: This is an application for an adoption order under the Adoption Act 2004 (the Act).

The Applicants were married in 1997. They wish to adopt the infant who was born in 14th August 2007. The natural mother of the infant is Docus Nanazoana, who consents to the adoption knowing the impact of the application and any adoption order which the Court may make in favour of the Applicants.

The Applicants are Solomon Islands citizens who are permanent residents and working in New Zealand. The Applicant husband arrived in Solomon Islands on 16 June and will return to New Zealand on 28 July 2009. The Applicant wife visited Solomon Islands from 2nd June to about 7th July 2009.

The health status of both Applicants is good as confirmed by their doctor. They are fit to adopt the infant. Their joint income would be sufficient to support themselves and the infant. The health status of the infant was not so good when he was seen by a doctor in June 2009. He was then in the hands of a care giver being abandoned by his natural mother. The doctor recommended that he be adopted so that the Applicant wife could become his mother to ensure his growth and well-being.

This Court may make an adoption order when a person domicile in Solomon Islands makes an application in the prescribed manner[1]. There is no evidence to suggest that the Applicants have changed their Solomon Islands domicile and thus still retain it although they are permanent residents of New Zealand. Lord Cranworth said "By domicile we mean home, the permanent home; and if you do not understand your permanent home, I am afraid that no illustration drawn from foreign writers and foreign languages will very much assist you."[2]. "The mere fact of a man residing in a place different from that in which he been before domiciled, even though his residence there may be long and continuous, does not of necessity show that he has elected that place as his permanent and abiding home. He may have taken up and continued his residence there for some special purpose, or may have elected to make his temporary home. But domicile, although in some of the case spoken of as ‘home’ imports an abiding and permanent home, and not a temporary one" per Turner CJ in Jopp –v- Wood[3]. It is clear to this Court that the Applicants took up continuous and permanent residence in New Zealand merely for purposes of education and work.

The word "prescribed" in Section 3(1) of the Act means prescribed by regulations made by the Minister[4]. These regulations were made and are called the Adoption Regulations 2008. An application for an adoption order under Regulation 3 of the regulations must be either in Form 1 or in Form 2, whichever is appropriate. The relevant form in this case is Form 2 because there are two spouses applying for the adoption order.

The provisions of Regulation 3 are imperative. Its provisions relevantly state "An application for an adoption order...under the Act must be made to the Court in the appropriate form set out in the schedule." The appropriate form is filled in whilst other requirements such as medical reports and consent of parents are attached with the relevant form and filed in Court after it has duly sworn or affirmed.

This Court is prohibited from making an adoption order in respect of an infant unless the infant has been continuously in the care and possession of the applicant for at least three consecutive months immediately preceding the date of the order[5]. Non of the applicants here had taken continuous care and possession of the infant for this period.

The Court is very grateful to Mr Fa’aitoa’s detailed and very useful submissions. However, the Court is not lawfully able to make the adoption order sought by Applicants as they have not taken care and possession of the infant for the period set by law. Their application is therefore refused and dismissed. Order accordingly.

F Mwanesalua J
THE COURT

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^[1] S.3(1) of the Adoption Act
^[2] Whicker –v- Hume (1858(7HJ Cas 124 at p.160.
^[3] (1865) m 4DeG.J & Sm.616, at pp 62 and 622.
^[4] Section 2 of the Act
^[5] Section 5(1) of the Act.