In re Bray v 'Otunuku [1993] TOCA 2; 140 of 1983 (23 June 1993)

IN THE TONGAN COURT OF APPEAL

CASE NO. 140/083

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL BY DOUGLAS HARRISON BRAY AGAINST A GRANT OF LETTER OF ADOPTION IN RESPECT OF ONE SI'EKINA-HE-LOTU 'OTUNUKU.

CORAM: Mr Justice Roper
Mr Justice Ryan
Mr Justice Morling

COUNSEL: Dr Bray in person

HEARING: 14 June 1993
JUDGMENT: 23 June 1993

JUDGMENT OF THE COURT

This is an application for leave to appeal against a grant of letters of adoption made on the 16th June 1983 by the then Chief Justice, Mr Justice Hill in respect of a 10 year old boy who was the illegitimate child of the sister of Dr. Bray's wife.

The application for adoption which is dated the 14th June 1983 and signed by both Dr. Bray and his wife reads:-

"May I humbly pray Your Lordship that you grant us an Adoption Order to adopt one SI'EKINA-HE-LOTU 'OTUNUKU an illegitimate son of my sister SESILILI 'OTUNUKU.

When my sister suffered a severe burn of first degree, I took the child to my care when he was two years old and now I am married to Mr. D. H. Bray of 469 Albert St., Palmerston North, N.Z. a former lecturer of Massey University, New Zealand who is here in Tonga with me until Friday morning 17th June, 1983.

My husband agreed to the adoption and will provide all necessities. May Your Lordship wish to interview us, it would be a pleasure for both of us before my husband leaves early Friday morning as stated.

Thanking you,

Yours faithfully,

Loleta Bray (Mrs)

D. H. Bray (Mr)

Wit: Tomiteau Finau"

This was accompanied by a consent to adoption "by Mr and Mrs D H Bray" signed by the boy's natural mother.

The matter came before the Chief Justice on the 16th June 1983 when, according to Dr Bray, he discovered for the first time that it was proposed to make him an "adoptive father", although that intention seems quite clear from the application he signed. He said that he informed the Chief Justice that he was quite happy for his wife to be the adoptive mother but was unwilling for an order to be made against himself, whereupon the Chief Justice said that both parents must adopt, or neither. According to Dr. Bray the Chief Justice allowed him time to consult a lawyer in New Zealand and said he would not make the order until Dr. Bray had communicated his decision.

It seems obvious that there was some misunderstanding because the court records show that the order was in fact made on the 16th June 1983.

Dr. Bray said that he consulted a lawyer in New Zealand pursuant to what he understood the arrangement with the Chief Justice to be. There is no doubt that he did consult a lawyer, now a District Court Judge in New Zealand, who has filed an affidavit confirming the interview.

Dr. Bray, as might be expected, was strongly advised against the adoption and warned of the legal implications for his estate on death.

Having received this advice, Dr. Bray said he wrote this letter to the Chief Justice on the 5th July 1983.

"In regard to my undertaking of support for my wife, Loretta, to adopt a nephew, Si'ekina 'Otunuku, I greatly appreciate your kindness in allowing me to consider the matter further after your pointing out, when we came before you on the 6th June, that I, too, as her husband would be required to adopt.

Since returning to New Zealand I have taken legal advice which has been to the effect that it would be prudent to get to know the boy before taking such a step which would also have implications for my will in which, as virtually sole heir of my mother's estate, I have made allowance for obligations to my brother and his children of whom he had none when she made her will at a time when he was working in a good position overseas. My lawyer suggested that we might initially consider fostering. I immediately wrote to Loretta, who has been staying on with her family in Tonga, to tell her of this advice.

It is now exactly two weeks since I was given it during which time I have been giving much thought in balancing it against my strong desire to support Loretta in her wish to adopt the boy. I find the decision very difficult but must not postpone it longer, especially in view of the fact that your term as Chief Justice will soon finish.

All things considered, I have come to the conclusion that it would be wise for me not to go ahead with the adoption at present but rather consider fostering now and reconsider applying for adoption later.

May I express all good wishes to you, your honour, for your future on stepping down from your most responsible position."

There is no record of that letter having been received by the Court in Tonga but it is conceivable that as the Chief Justice left Tonga at about that time it was forwarded to him as a personal letter.

In about September 1983 Dr. Bray was told by his wife after she returned to New Zealand from Tonga that an adoption order had been made in respect of both of them. Dr. Bray then sent the following letter to the Justice Department in Tonga:-

"I write in regard to the application initiated by my wife, Loretta Macheta Bray, for the adoption of her nephew, Si'ekina 'Otunuku, which resulted in the application being heard by the Chief Justice of Tonga on 16 June 1983 when he deferred his decision until he would hear from me after my return to New Zealand: I wrote to him on 5 July by air mail.

I write again now to ask as to the decision reached by him: as to whether he approved or declined the adoption to Loretta and me. I would appreciate if you could inform me of this at the above address as soon as you can.

To meet the expenses of your reply I enclose a postal note (D212074) for one dollar in New Zealand currency to cover air mail postage to New Zealand."

That letter was certainly received by the Department but was not acknowledged. Dr. Bray later received confirmation that an order had indeed been made against him and prepared this document which was deposited with his will held by his New Zealand Solicitors:-

"STATEMENT ABOUT BEING ORDERED TO BE AN ADOPTIVE FATHER

Having arrived in Tonga the previous afternoon I, accompanied my wife, Loretta, visited a Tongan lawyer, T. Finau of M. F. Finau and Associates (P.O. Box 550, Nuku'alofa) on Tuesday 14 June 1983 at his office in Nuku'alofa and I was given to read an application for adoption of Si'ekina 'Otonuku by Loretta and me. I was unwilling to sign this as I had no intention to become his adoptive father. However, I said I would be agreeable to support an application by my wife to become his adoptive mother.

Mr. T. Finau said that this would be in order. He prepared an application to this effect which I later signed.

Two days later Loretta and I, with Si'ekina and his mother, Sesilili 'Otunuku, appeared before Mr Justice H. H. Hill, Judge of the Supreme Court of Tonga, and he expressed a readiness to grant the adoption. However, he said he wished to check with the New Zealand High Commission as to whether Si'ekina would be allowed to enter New Zealand and I went to bring back to him a statement from an officer of the Commission. On my return I discovered that he was intending to make me an adoptive parent. I drew his attention to the fact that this was not asked for in the application. He commented, "I should have picked this up" and pointed out that both husband and wife adopt other than in exceptional circumstances. He gave me the opportunity to consider the matter further by seeking legal advice in New Zealand and promised to defer making a decision until having a communication from me from New Zealand. He then sent for Loretta who was waiting outside and explained to her that his decision would be deferred until he had further information from New Zealand. In saying this he had an interpreter, a young Tongan lady, to repeat in Tongan what he had said.

I returned to New Zealand the next day, Friday 17 June 1983, by air and on the following Tuesday, 21 June, I consulted Mr. David C. McKegg, Crown Solicitor, of the firm of McKegg, Walshaw and Co., (P.O. Box 548, Palmerston North) and after reflecting on his advice I wrote and posted a letter by air mail on Tuesday 5 July (to catch the Wednesday air mail from here) to Mr Justice H. H. Hill, The Courthouse, Nuku'alofa, Tonga, in which I stated, with reasons, my unwillingness for the adoption. A copy of this letter is appended.

It is, therefore, with great surprise that I have learned some three months later that Mr Justice H. H. Hill signed a court order that I be appointed adoptive father of Si'ekina who is therefore to have my surname and that he has been so registered, with Loretta and me as his adoptive parents, for the district of Tongatapu, by the Registrar of Births, Deaths and Marriages, Tonga, on 23 September 1933 - registered by 'O. Palau. The judicial decision is, I consider, untenable and so irrelevant to my Will."

Dr. Bray took no steps to appeal against the order until early 1993 when he was revisiting Tonga and discussed the problem with Mr Justice Ward. His reasons for this failure to pursue with urgency what he perceived to be a gross injustice were his belief that his word could not prevail over the actions of the Chief Justice in making the grant; ill health for a period from 1987; and absence from Tonga between 1984 and 1993, we do not see any of those reasons as being convincing or justifying a delay of over 9 years.

From 1983 Si'ekina has born the name "Bray", although admittedly the Doctor has tended to distance himself from the boy to a degree. He has had schooling in both Tonga and New Zealand. He has been supported indirectly by Dr. Bray who provides his wife with financial support and is presently living with the Doctor and his wife in Palmerston North.

What the legal consequences would be for Si'ekina if the adoption order in respect of Dr. Bray is annulled are to say the least uncertain but it is undoubtedly a serious matter to make an order which must affect the boy's status. This is a circumstance which does not appear to concern Dr. Bray unduly.

The doctor's prime concern is that on his death the distribution of his estate will be seriously affected by the adoption. Having regard for the nature of the relationship it may be that his concerns are largely unfounded.

What really weighs with us is the failure to pursue this important matter with urgency.

We therefore grant leave but in the circumstances dismiss the appeal.

THE COURT OF APPEAL.