Fiji Law Reports

Levene v. Inland Revenue Commissioners [1928[1928] A.C. 217

p>State v. Attorney-General of Fiji ex-parte Joseph Nainima HBJ0027 of 1995S
&#br>A. Singh for the cants
The Respt-espt- parent in person

Byrne J <160;<160;
This is an application for adoption of a female child who was bornst Au1981. The applicaplication was referred to the High Court furt from the First Class Magistrate’s Court at Nausori sitting as a Juvenourt, the learned Magistratstrate being of the opinion that although it was in the interest of the child that she be adopted by the Applicants, who are her uncle and aunt, he considered the adoption might be prevented because of the provisions of Section 6(4) of theAdoption of Infants Act. That sub-section states that an Adoption Order shall not be made in favour of any Applicant who is not resident in Fiji or in respect of any infant who is not so resident.

There isuestion that that the infant is a resident of Fiji but the problem raised by the application is whether the Applicants can be said to be resident in Fiji. Like the learned Magistrate I should have no hesitation on the merits in acceding to the application but the question which confronts me in limine, like the learned Magistrate in Nausori, is whether I have the jurisdiction to do so. The evidence before the Court is contained in various affidavits, by the mother of thant, by her brother, an Army Officer in Fiji, by the male Aale Applicant and lastly by a Justice of Peace. From these affidavits the following facts emerge:

The father of the infant died on the 29th of May 1992 at the age of 42.

The infant e only childchild left with the mother in Fiji. Her other daughter is married and lives in Australia where she is well settbr>&#br>The mother is r is unemployed and depends on the Social Welfare Department and donationstions from her close family members. She receives $43.00 per month from the Social Welfare Department. She does not educate the infant because she has no funds to offer her any better education and a prosperous life, such as she believes her daughter will have if an Adoption Order is made in favour of the Applicants.

The Applicnd his wife bife became Australian citizens on the 3rd of September 1981. The male Applicant has assets in Australia valued at $00 consisting of a residence in a country town in New South Wales on 5 acres of land, farmifarming plant and equipment and a motor vehicle. The Applicant is a businessman and has 5 children from his marriage all of whom are married.

He is Presidentrakash Rash Ramayan Mandali of Australia and is also an active member of Hindu Religious Association, especially being a Vice-Prnt of Shiri Sanatan Dharam Pratinidhi Sabha of Australia. The Brahman Purohit Sabha of Aust Australia Inc. recommends the Applicant as a suitable father for the infant he and his wife wish to adopt.

The Applicant is anaginnaging Director of Cape Bank Pty Ltd which is an import and export business. He and his wife have known the Applicant and her mother since 1992 and wish tpt the child and take her to Australia where they will educ educate her and support her until she marries as they have no child living with them now.

Thlicant finally statestates that since 1992 he has been travelling frequently to Fiji and staying with the infant with whom he says, she has maintained a good father and daughter relationship.

It appears from his passport that since April 1992 the Applicant has come to Fiji numerous times and has been admitted as a visitor for periods of 4 monbr>
The last affidavit is by a Justice of Peace who says that he has known the mote mother and her late husband since 1987 and has known the male Applicant since 1977. He too believes that the infant will have a prosperous future in Australia where she will be given education and a decent life.

In his very ehensive suve submission Mr. Singh has referred me to numerous authorities mainly dealing with the question of residence. Many of these authorities were referred to by Cullinan J. in his unrep judgment of the 2nd of Novf November 1984 in the matter of P InfanInfant) Civil Appeal Nof 1984. His His Lordship there was considering an appeal from the refusal of the Magistrates’ Court at Sigatoka to make an Adoption Order on a grouich dot arise in the ithe instant case, namely that the learned rned Magistrate considered the application before him was not bonabut merely an atan attempt to circumvent the Citizenship Act.

The learned Magistrate held that the Applicant chas on a visitor’s permit and as such not a resident within the meaning of Section 6(4n 6(4) of the Act.

Cullinan Jeld tpeal agal against the Magistrate’s Order but in t in the course of doing so had to consider the case law relating to the p “resident in Fiji”.

His Lordship pointed out that the word “#8220;resident” is not defined in the Adoption of Infants Act, although the term “reside8221; is defined by implicaplication. His Lordship said, and I respectfully agree, that “residence” for the purposes of the Immigration Act is not determiy duration. Hon. He also said however, and again I respectfully agree, that for the purpose of that Act a holder of a visitor’s permit is not deemed to besident in Fiji.

Like mysullinan J. firs first irst looked at Stroud’s Judicial Dictionary 4th Edition Volumt pp.2358/2358/2366, where a formidable if not bewildering body of authority is set out concerning the meaning of the words20;re#8221;, “residence” and “resideesident”. From this it is clear that that the words have different meanings in different contexts and in particular in different legislation. Thus for example in fiscal legislation the courts and legislatures have adopted artificial standards in determining what constitutes “residence”. His Lordship considered many of the authorities but, like myself considered the case of Retion Application No. 5No. 52/1951 [1952] 1 Ch. 16 the most hllpful in determining the question now before me. That case turned on the provisions of the English Adoption Act 1950 whichbasedarlier legislatiolation on which our Adoption of Infants Act (Cap. 58) is also based. Section 1(1) of the (1950) Act provided that an application for an Adoption Order could only be by a person domiciled in E in England or Scotland. Section 2(5) of the 1950 Act however read so far as relevant: