In re application of Masunu Utumapu [2004] WSDC 6 (30 November 2004)

IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

IN THE MATTER of the Infants Ordinance 1961

AND

IN THE MATTER of an application by MASUNU UTUMAPU of Faleula, Teacher and SENERITA MASUNU his wife to discharge an order of adoption dated 30 May 1986 in respect of KAPENETA an adopted infant.

Counsel: Meredith & Ainuu for the Applicants

Decision: 30 November 2004

DECISION OF NELSON, DCJ

The applicants seek an order discharging the order of adoption made by this Court on the 30th day of May 1986 in respect of Kapeneta Masunu a male infant born 02 July 1982 at Motootua Hospital in Samoa. The question that must first be addressed is whether the court has jurisdiction to entertain the application given that adoption orders are made under the provisions of the Infants Ordinance 1961 and are only made in respect of persons under 21 years of age. As at the date of the application, the adoptee Kapeneta was over the age of 21 years.

Adoptions are a process that were only given legal recognition by statute. It did not exist at common law and indeed at common law, the rights and duties of the natural parents were considered to be sacred and inviolable. Interestingly, it is recorded that the Dominion of New Zealand was one of the first countries of the British Empire to enact adoption legislation by the Adoption of Children Act 1881. This certainly reflected a modern and enlightened approach to the matter and one that was also in keeping with the kitanga Maori of indigenous New Zealand at the time.

In this jurisdiction, the making of adoption orders is governed by Part II of the Infants Ordinance 1961. The Ordinance is stated to be an ordinance aimed at consolidating and amending the laws relating to infants and children and does not deal solely with adoptions. Other parts of the legislation deal with guardianship and custody and various matters involving the protection of children. A “child” is defined by section 2 as an infant under the age of 16 years and an “infant” is defined as a person under the age of 21 years. Part II relates specifically to the adoption of “an infant”.

The Infants Ordinance does not define “adoption” but it does prescribe the processes by which an adoption order may be obtained. It also lays down the legal effect of such an order and provides for the variation and discharge of such orders. Conceptually perhaps the best description of the adoption process is that given by Trapski’s Family Law vol. 5 at paragraph A.6 where he says:

“Adoption is a legal process culminating in the making of an adoption order by which the child’s biological parents lose their status as parents and are absolved from their parental responsibilities. By the adoption order, the adoptive parents assume the status of parenthood and the accompanying rights and responsibilities in relation to the child. The child gains a new parent or parents and acquires a new set of relatives traced through the adoptive parent(s). The child loses its birth parents and the set of relatives traced through them. Adoption authorizes and effects a legal transplant of the child, severing relationships with its family of origin and creating a new set of family relationships through the adoptive parent(s).”

For present purposes, as counsel for the applicants correctly points out, section 11 of the Ordinance confers on the court jurisdiction to vary or discharge an order of adoption. Section 11 reads as follows:

“11. Adoption order may be varied or discharged – (1) The Court may in its discretion vary or discharge an order of adoption subject to such terms and conditions as it thinks fit.

(2) Upon an order of adoption being discharged then subject to the conditions, if any, named in the discharging order the infant and its natural parents shall be deemed for all purposes to be restored to the same position inter se as existed immediately before the order of adoption was made:

Provided that the discharge of the order of adoption shall not affect anything lawfully done or the consequences of anything unlawfully done while the order of adoption was in force.”

The section is modelled on section 20 of the Adoption Act 1955 (NZ) which in turn is derived from section 22 of its predecessor the Infants Act 1908 (NZ). Section 11 uses almost identical wording to its New Zealand counterpart although the New Zealand provision seems to confer less discretion on the court – see subsection (2) of section 20. No such limitations are to be found in section 11 and the courts discretion may be exercised “subject to such terms and conditions as it thinks fit” to impose. In particular there is no age limitation placed on the wide jurisdiction purportedly conferred by section 11(1).

The terms of section 11(1) are quite clear and unambiguous. The jurisdiction conferred would appear to have no limits indicating a Parliamentary intention not to have the courts discretion fettered by any factors. An uncertainty however does arise because of the phrasing of the next succeeding provision, viz. section 11 subsection (2). That subsection provides that upon an order being discharged then subject to any conditions of discharge, “the infant and its natural parents” shall be deemed for all purposes to be restored to their pre-adoption positions. The introduction of the words “the infant” in subsection (2) of section 11 can from one perspective be taken to impliedly mean that Parliament intended for section 11 to be applicable only to infants i.e. only to persons under 21 years of age. Adoptees of full age would therefore be precluded from applying for a variation or discharge of their adoption orders.

This very argument was considered by the Court in Wingfield and wife v. Bartholomew [1933] NZGazLawRp 78; [1933] NZLR 693 when dealing with the equivalent New Zealand provisions, as they then stood, of section 11. The court found at page 695 that the equivalent phrase as used in the New Zealand legislation was only being used to define “the effect of the discharge and is here a term of reference merely denoting the person adopted.” The learned judge went on to note –

“It would be an unusual method of legislation to confer power generally and then to restrict the power in a subsection which purported to define the effect of an order made within jurisdiction.”

And towards the end of his judgment the learned justice says –

“It was of course competent for the Legislature ...... to do more than state the intention specifically and to limit the power to repeal an order of adoption. In my view the provisions of subsection (2) do however no more than state the effect of an order of discharge.”

Subsequent decisions of the New Zealand courts have upheld this approach and it is now settled law in New Zealand that applications for discharge can be made even though the adoptee is of full age. Thus for example in an Application by C & K (adoption) (1984) 3 NZFLR 321, a lapse of 20 odd years did not preclude setting aside an order on grounds of mistake and misrepresentation the “children” in that case being aged 39, 37, and 31; see also Re I (an infant) (1947) 42 MCR 45 where the time lapse was 25 years; R v E (1991) 7 FRNZ 530 where a 33 year old woman successfully applied for discharge of an adoption order; a more recent example is RLK v HH and HTWK [2003] NZFLR 625 a successful application by a 41 year old oyster opener from Invercargill for discharge of an order made in the Invercargill Maori Land Court on 07 August 1961; see also the NZ Court of Appeal observations in Attorney General v Prince [1998] 2 NZLR 262.

The decisions also make it clear that the jurisdiction is one to be exercised carefully and sparingly and only in appropriate cases. As was noted by Sir Michael Myers CJ in In re H (an infant) [1944] NZLR 367 at page 370 of his judgment:

“the jurisdiction conferred is a very delicate one which should be exercised with the greatest care and discretion, and an order of adoption should not be discharged lightly. Particularly is this so in any case where an existing order of adoption has been in force for many years and the child is well cared for. Both the adoption parent and the child acquire certain rights under an order of adoption (and, in the case of the adoption parent, liabilities), and these rights may be very seriously affected by a discharge of the order.”

Whilst there are no reported decisions of the courts of this country on the issue, there seems in my respectful view no reason why the position that prevails in New Zealand should not also be applied in Samoa particularly considering the common genealogical origins of our section 11. I agree with the reasoning of the court in the Wingfield Case and there seems no reason why the wide jurisdiction conferred by section 11(1) should be read as being limited only to applications from infants/persons under 21 years of age. There is also no good reason for supposing or concluding that it was Parliaments intention that relief could not be given by the court in respect of adoption orders obtained on the basis of fraud mistake duress or misrepresentation merely because the adoptee is of full age. Any doubt on this issue should now be put to rest and accordingly I find the court has jurisdiction to entertain and deal with any application under section 11 of the Infants Ordinance 1961 for variation or discharge of an adoption order irrespective of the age of the adoptee. It is also clear from the above authorities that such an application may be brought by the adoptee personally or by some other interested or affected party.

In the present case, the application is brought by the adoptive parents and is based on medical problems being suffered by the adoptee and the necessity for ongoing medical treatment in New Zealand. The application is supported by the biological mother and the adoptee himself and it has much merit. There is no question it would be in the best interests of the adoptee to have the order discharged given his current predicament and circumstances. Accordingly there will be an order to issue discharging the order of adoption dated 30 May 1986 made in respect of the adoptee. No conditions are sought or therefore attach to the order for discharge.

DISTRICT COURT JUDGE