Papua New Guinea Law Reports - 1984
[1984] PNGLR 25
N455(L)
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
ET AND CT
V
DIRECTOR OF CHILD WELFARE
Waigani
Pratt J
9 December 1983
1-3 February 1984
10 February 1984
INFANTS AND CHILDREN - Adoption - Application for - Practice and procedure on - Welfare Officer’s report - Access to by applicants - Access in unusual circumstances - Applicants being kept in dark.
INFANTS AND CHILDREN - Adoption - Principles - Welfare and interests of child - Cross-cultural identity problem - Need for expert evidence - In absence of evidence common sense to prevail.
INFANTS AND CHILDREN - Adoption - Application for - Breaches of Act - Not of itself ground for refusing order - Relevance to suitability of applicants - Adoption of Children Act (Ch. No. 275), ss 9(a), 9(b), 43.
STATUTES - Interpretation - Effect of Revision of Laws Act - No substantive changes authorised - Resort to original legislation - Use of “and” for “or” a substantive change - Change to be ignored - Adoption of Children Act (Ch. No. 275), s. 15.
On an application for adoption of a Papua New Guinean girl of three years of age from an urbanised family by non-national persons being ex-patriate Australians:
Held
(1)      Applicants for adoption may not have access to the reports of the welfare officer or the Director except in “special or unusual circumstances”.
(2)      Unusual circumstances may exist where the circumstances are such that refusal of access would amount to an injustice to the parties because they are being kept in the dark as to the real nature of the case they have to meet.
(3)      The effect of any future identity crisis or problem of cross-cultural identity should, if propounded as a ground for refusing adoption, be the subject of expert evidence: in the absence of appropriate evidence the court must assess the situation in the light of common knowledge and common sense.
(4)      An adoption order should not be refused on the sole ground that there has been an alleged breach of the Act by an applicant.
Re T.L.R. (An Infant) (1968) 87 W.N. (N.S.W.) 40, considered.
(5)      An alleged breach of the Act and whether it is deliberate or arises from ignorance of the law may be taken into account in determining whether or not applicants for adoption are persons of good repute within s. 9(1)(a) of the Adoption of Children Act (Ch. No. 275), or suitable persons within s. 29(a).
(6)      As the Revision of Laws Act 1973 as amended in 1976 did not authorise substantive changes to legislation, where a substantive change has occurred, resort may be had to the original legislation for the purposes of interpretation.
(7)      The use of the conjunction “and” in place of the conjunction “or” in s. 15 of the Adoption of Children Act (Ch. No. 275) is an unauthorised change in substance and should be ignored.
(8)      In all the circumstances an order for adoption should be made.
Cases Cited
G. (An Infant), Re [1980] P.N.G.L.R. 495.
K. and K. v. The Director of Child Welfare [1981] P.N.G.L.R. 333.
T.L.R., (An Infant), Re (1967) 87 W.N. (N.S.W.) 40; [1968] 1 N.S.W.R. 776.
Application For Adoption
This was an application for the adoption of a Papua New Guinean child by ex-patriate Australians.
Counsel
S. Cory, for the applicants.
S. Kaipu, for the respondent.
Cur. adv. vult.
10 February 1984
PRATT J: Following notification being given to the Director of Child Welfare that an application would be made by Mr and Mrs T. for the adoption of the child A, this matter came before me initially on 9 December 1983. The Director was represented at that hearing and objected to the adoption order being made in favour of the applicants. The grounds of the objection were, broadly speaking, three-fold:
(1)      The child was already three years of age at the time of the adoption and as she had been living with her mother up until that time together with the mother’s relatives and her own elder sister, this was not an appropriate case for an adoption order.
(2)      The application was based on an insuperable defect, namely, that the consent of the mother was not in general form as required under the Act, but specified the present applicants as the only adopting parents.
(3)      The Director was doubtful as to whether or not a genuine consent to adoption had been made by the mother to the extent at least, as to whether or not she appreciated the full consequences of the order especially the complete severance of all legal, moral and other rights and claims to the child.
In addition to these three specific grounds, there was the general ground that as the adoption was cross-cultural in that the adopting parents were naturalised Australians, and the child was the result of a union between a Papuan woman and a Papuan man both from the Gulf Province, this created very special psychological and sociological problems for the child especially when she grew older and had been removed from her own country with all involved in such a cultural severance and severance from the members of her extended family of grandparents, uncles and aunts.
I made available to the applicants a copy of the welfare officer’s report and the further report by the Director dated 14 September 1983 addressed to the presiding judge. In exercising my discretion to do so under s. 84 of the Adoption of Children Act (Ch. No. 275), I took into account the comments made in unpublished judgment No. N221 of 23 May 1980, and more especially the views of the acting judge in that matter concerning a requirement of “special circumstances” prevailing before the report is released. I am especially conscious of the relevance of the learned judge’s remarks pertaining to the desirability of welfare officers believing that what they report would be treated as confidential. Although there are a number of matters appearing in that particular judgment with which I certainly do not agree, I do not necessarily differ from the view that it is only under a “special circumstance” that the report be made available to the parties. Where the circumstances of the case compel the court to the view that a refusal of such access would amount to an injustice to the parties because they were being kept in the dark as to the real nature of the case they had to meet, then it seems obvious to me that an order disclosing the content of the report must clearly be made. It is only when both sides know what the other is thinking and consequently, are in a position to put forward material in support of their own contention, that a resolution is possible. I would perhaps prefer the term “unusual circumstances”.
At the conclusion of submissions on 2 February, counsel for the Director made reference to the letter of 14 September. Despite the fact that the Director had been called in evidence, no attempt was made to tender this letter as an exhibit. At the time I thought that the reference to the Director’s report in s. 9 of the Act was restricted to the printed form together with the explanatory statement normally attached thereto by the welfare officer. On further reflection, however, I am now of the view that the letter or report of 14 September, and indeed any other material that may be forwarded by the Director to the court under the provisions of s. 9 of the Act do not need to be formally tendered in evidence, as the section directs the court to take notice of it. Accordingly, I did in fact refresh my memory from the report and took into account certain material contained therein. In the upshot however, I did not consider it necessary in the interests of justice to recall counsel in order to address me on the contents of the report of 14 September for as I had intimated during the hearing such material as dealt with cross-cultural adoption could be given little weight in view of the inability of the Director to qualify himself in this area, whilst other material really amounted to matters of common knowledge. Some of it however, did cover general matters of psychological expertise which were within the training and experience of the Director since his graduation in 1978.
Some brief assessment of the background of this adoption I think is necessary. The applicants are married and are both in employment here, having arrived in 1981. On present indications Mr T. will complete his period of employment in 1985 or 1986. They were married in 1968 and have two male children of the marriage, aged fifteen and thirteen respectively. They are attending the high school here in Port Moresby. Prior to mid-1983 discussions had taken place not only between the applicants themselves but between both of them and the boys concerning adoption into the family of a Papua New Guinean girl. The evidence indicates that the boys accepted this proposal put to them by the parents and as a result, Mr T. approached several possible sources including two of the major hospitals in the country. I am not clear at what stage the first approach was made to the Welfare Department, but I am positive that Mr T. was completely unaware at the time of the provisions of s. 43 of the Adoption of Children Act (Ch. No. 275) despite having consulted several lawyers sometime in mid-1983. Indeed I understand that the form of consent and/or authentication signed by the mother in favour of the applicants on 16 August 1983 was drawn up by one of the lawyers practising in the town. This consent of course is quite invalid as it specifies the persons who shall adopt the child, whereas the Act makes it clear that any consent must be in general form only. Whether or not there has been an offence committed under s. 43 of the Act is not for me to say, but I am convinced that if there was a breach it was one committed in complete ignorance of the provisions laid down by Parliament. As a result of the inquiries initiated by Mr T. a mother did come forward with the request that a child be considered suitable for the adoption and thereupon the applicants contacted the Welfare Office, following which a home visit was made on 9 August 1983 by one of the welfare officers. The result of that visit was incorporated in a report dated 13 September and was forwarded to the court registry together with the already mentioned report of 14 September for information of the judge who would eventually deal with the adoption.
Following the initial hearing on 9 December 1983, a further consent in general form as required under the Act was signed by the mother on 15 December and has now been put before me. Consequently, the objection based on the particularity of the previous consent is now no longer valid. However, counsel for the Director has still urged upon me the serious consequences which flow from the breach of the section and submits that such consequences are not altered by the new form of consent.
In deciding whether or not I should make an order in favour of the applicants, there are a number of matters upon which I must be satisfied especially matters set forth within Pt 3 of the Act and s. 3. There is no dispute that the applicants are residents in the country, that the child is present in the country, that the applicants are over the age of twenty-one or going specifically to s. 9(1)(a), that they are of “good repute” and can fulfill the responsibilities of parenthood. However, the Director has grave doubts as to whether the applicants are “suitable persons” within the meaning of s. 9(1)(b) because they come from a different social and cultural background to that of the child. If I may combine what is contained in his report with what he said in the witness box, the Director believes that although the child is entering into a full and apparently happy nuclear family, it will nevertheless be removed from a very much wider extended family presently enjoyed by it, and will within the reasonably near future also be removed from its country of birth, culture and traditional society. Consequently, the Director urges before me that I could not be satisfied of the third requirement under s. 9 namely, that the welfare and interest of the child will be promoted by the adoption.
Indeed some reference was made in the witness box by the Director to the problem of cross-cultural identity, a problem it is said, which could arise particularly a little later on in the child’s life, maybe in the early teens. However, I was not prepared to allow the Director to continue with evidence in this area as he was not able to qualify himself as a person who had knowledge and experience in the field. Mr Kaipu directed my attention to the provisions of s. 28 of the Act which allows the court to act on any material which it thinks may be of assistance, but I cannot see how I can find assistance from the statement of opinion by a person expert in one area in respect of matters arising in another. Nor do I feel I could obtain a great deal of assistance from the various statements set forth by the learned judges in the Supreme Court decision of K. and K. v. The Director of Child Welfare [1981] P.N.G.L.R. 333, other than to learn to be wary of any claim that a crisis of identity problem arises in cross-cultural adoptions at all. I must be particularly careful about the inferences which may be drawn from that case because not only has no material been placed before me but what does appear in the report is not the evidence itself but their Honours’ assessment and analysis thereof.
In the absence of evidence of any sort either by reference to learned works or expert opinion, I think I can only assess the situation in the light of common knowledge and common sense. Of course, that is not an unusual situation for any tribunal of fact to find itself in — namely, that it must find certain facts and from those facts draw particular inferences. The most pertinent facts here, of course, are that a three-year-old girl was taken out of particular material circumstances with the full consent of her mother and placed in another and quite different set of material circumstances, different that is, to what she had been used to up until that time. Furthermore, she was separated from her older sister as well as from a number of relatives. There is no doubt in my mind that the matters referred to by the Director in his evidence and the report are very real and very serious. It would be both foolish and unreasonable to conclude that special problems would not arise where a Papuan child became part of a family unit thoroughly oriented to a western culture especially when that family returned to a country where such culture forms the exclusive basis of existence. These matters were specifically adverted to for example by Narokobi A.J. (as he then was) in the previously mentioned judgment No. N221, by Miles J. in Re G. (An Infant) [1980] P.N.G.L.R. 495 and by the three judges in the previously referred to Supreme Court case of K. and K. v. Director of Child Welfare [1981] P.N.G.L.R. 333.
Should the child be separated from her present family unit she would certainly carry with her, for probably most of her life, recollections of her present grandparents and certainly of her own mother, as well as some recollections of her uncles and aunts and of her eldest sister. No doubt she would wonder from time to time what her mother was really like. She would wonder what it would be like to be back in Port Moresby again. She would wonder what she would be doing if she had remained in Port Moresby. These and other matters however, undoubtedly occur to the mind of any adopted child, whether the adoption be cross-cultural or not. One problem which does not arise here is a recollection of a traditional way of village life, for all the evidence points to the fact that the family with which she had been associated until the time she came to the house of the applicants had become completely urbanised. Certainly, neither the child nor her mother knew any life other than that of living in the suburbs of Port Moresby city.
Another matter which I must keep clearly to the fore of my mind, in such circumstances as the present, is my own social and cultural background. This is of course much more akin to that of the applicant than that of the adopted child and remains so despite my long residence in and association with this country. Consequently, I must be on my guard that when I approach a problem such as this, I try to obviate as much as humanly possible certain preconceived notions and unconscious presumptions especially as to what one society as opposed to another may regard as good for a child or not good, desirable or undesirable. I am fully aware that western society has been subjected to the long-media propaganda of consumerism which has led to a great emphasis on material welfare, something to which the Melanesian culture is just becoming subject. I must also remember that within the Anglo-Australian society from which I come, at least in those years since the second world war, there has been considerable orientation to the small nuclear family, whereas Melanesian society depends a great deal on the extended family. However, I am certainly not prepared to find as a fact that the extended family is something alien to western culture particularly to a number of countries in Europe and especially to those areas where families are brought up outside large cities.
Section 9(1)(c) of the Act directs that I must be satisfied that the welfare and interest of the child would be promoted by the adoption. Within the context of that particular section the feature of welfare and interest is not singled out for any greater emphasis than are other matters covered by the section. Such emphasis however is unnecessary in view of s. 5 which makes it quite clear that the welfare and interest of the child “shall be regarded as the paramount consideration”. Our own legislation of course bears considerable similarity to that operating in other jurisdictions, for example, New South Wales. In earlier legislation the phrase used there was “the first and paramount consideration”, which led the authorities to formulate the view that there were matters other than welfare which should be considered. The deliberate change by dropping the phrase “the first and” has led one judge to the belief that the present wording was intended “to make the welfare and interests of the child in fact paramount, that is, the welfare of the child will overcome all considerations opposed to it”: see Re T.L.R. (An Infant) (1967) 87 W.N. (N.S.W.) 40 at 43. Consequently, what is conducive to the advancement of national egotism, or what will please or displease the adopting parents, or will please or displease the consenting natural mother, or please or displease the Director of Child Welfare, or those who become highly emotional at the suggestion that the child will be moved out of the Melanesian social and cultural environment, are of themselves irrelevant to me. Whatever view I come to concerning matters covered in s. 9(1)(a) I must still conclude in the final analysis that the adoption is for the best interest of the child. If the adoption is not to that end then it cannot take place. In coming to a decision on “best interest” it would be very difficult to imagine circumstances where one could view such interests promoted by applicants who were not of good repute or were not fit and proper persons or were not suitable having regard to matters generally, and to the specific matters mentioned in s. 9(1)(b)(i) and (ii). I shall return to this area shortly.
Learned counsel for the Director laid considerable emphasis on the fact that Mr T., having received certain information as a result of inquiries, directly approached the mother of the child and discussed with her the possibility of adoption. Having confirmed that the mother wished for the child to be adopted Mr T. then consulted a legal firm as a result of which a formal document of consent and authentication in favour of Mr T. and his wife was drawn up, albeit, such document was in clear breach of the provisions of s. 43 of the Act. Mr Kaipu firstly pointed out that to grant an adoption in this case would clearly encourage persons to “jump the queue” because they had never been listed with the Director as persons seeking adoption on the informal and unofficial registry kept by him. Consequently, they would be obtaining an unfair advantage, and that, by following an illegal course. In addition to this however, and far more importantly, Mr Kaipu stressed the fact that for me to grant an adoption order would be to make a mockery of the penalty provisions concerning private negotiations. An adoption order in the circumstances of this case, said Mr Kaipu, would mean that the court was in effect approving a course of conduct which was illegal. I appreciate the force of counsel’s submissions and indeed have been greatly troubled that any order on my part in favour of an adoption might well be construed by others as an encouragement to break the law. On further reflection however, I am finally persuaded by Mr Cory that I must at all times keep in mind my primary task, namely, the welfare of the child. If there has been wrongdoing on the part of the applicants, punishment should be visited upon the wrong-doer and not vicariously also passed on to the child. Putting this another way, it seems to me that Mr Kaipu’s submission really asks me to refuse an adoption order because there is an alleged breach of the Act by the applicant, irrespective of the fact that to refuse to make such an order may be against the best interest of the child. I do not think that can be the intention of the Act, and although the penalties imposed under s. 42 and s. 43 are extremely low, the proper course is for the authorities to pursue prosecution under those sections so that the person concerned may be adequately dealt with under the law if an offence is found proved. No doubt where such offence had been found to have been committed as a deliberate act, the penalty will be much heavier than where the wrongdoing really arose from ignorance of the law. I think such a distinction is certainly relevant to a determination of whether or not the applicants are fit and proper persons to perform the parental role required of adopting parents under the Adoption of Children Act. It is also obviously related to whether or not they are persons of good repute. In the circumstances of this case I find that the conduct of the applicants was innocent and has no effect upon their repute or good character. It may well not be so in other cases.
Once again I have obtained assistance from the case Re T.L.R. (An Infant) (1967) 87 W.N. (N.S.W.) 40 brought to my attention by Mr Cory. In that case the learned judge could not grant the application because there were specific requirements in the New South Wales legislation which permitted an application only from the Director or from a “principal officer of a private adoption agency”. By regulation, there existed a register of persons seeking adoption and although it was not mandatory for prospective adoptors to enter their names on the register if they wish to have it so entered, then it had to be done on the prescribed form. The Director had a complete discretion as to whether such application be accepted or rejected. The regulations also laid down that the order of priorities for adoption took place in accordance with the date upon which the application was filed. In the case before the learned judge the baby had been left with the foster parents by a minister of religion some eighteen months before they applied to the court for adoption. They had not placed themselves on the register and it is not clear if they were even aware of the existence of such a register. Of course, it could be said that they also were “jumping the queue” but Myers J. at 43 of the report was clearly of the view that a failure to go onto the register could not justify refusal to make an order in their favour. “In fact, when one examines the Act, I have been unable to envisage any case in which the Act would permit a refusal for that reason alone.” Not only do I respectfully agree with his Honour but I think a similar line of reasoning applies in the present matter. Because the register in New South Wales was a document officially kept by virtue of the regulations, failure to place one’s names upon it was obviously of some relevance to the court, but Myers J. took the view that:
“... when the court considers an application in which an applicant is not on the register, the question whether it will exercise its discretion to refuse to make the order on that ground only arises when it is satisfied that the order should otherwise be made, because unless that stage is reached, the application would fail in any event, and there could be no question of exercising the discretion”.
Before the discretion can arise the court will have already decided whether the welfare and the interest of the child will be promoted by the adoption order, and any refusal to make the order in the exercise of the discretion would deprive the child of an adoption which would promote the welfare and interest of that child. This of course is quite contrary to the provisions of the Act. As his Honour concludes at 44 “... where it would not adversely affect the welfare and interests of the child to do so. In this case I cannot imagine how non-inclusion on the register could affect the right of the applicants to an adoption order”.
I am acutely aware that in the present circumstances I must try to avoid, if possible, the appearance of giving encouragement to people to skip the proper channels and not register their requests for adoption in the manner which has developed in practice. It may be that there should be a similar section here to that of New South Wales which not only makes registration an official procedure but directs the court to take that into account as a factor in assisting it to reach a decision. Of course the applicant’s position is stronger in this case than in New South Wales for here, registration is merely a matter of practice, though a very proper one. It would obviously be better if the matter were covered in the regulations.
As indicated earlier, this case has one particularly unusual aspect, namely, that the mother and child have already been together for a period of three years prior to the child’s going into the house of the applicants. The mother has given evidence before me and deposed to certain other matters by affidavit. The sum total of the evidence discloses that she is over twenty-three years of age, that she was not in fact married to the father of the child, as had been understood by the applicants, but was living in a de-facto relationship with him. There were two children born of that relationship, the elder in 1977 and the younger in 1980. In the circumstances therefore, I find as a fact that there was no marriage between the natural mother and the natural father, and consequently, there is no requirement for his consent to be obtained. In fact he was located in the middle of last year and a consent was given by him, duly authenticated, again authorising the applicants as the adopting parents. Since that time however, he has disappeared from the scene and cannot be located. He originally left the mother and the two girls in June 1981 and went to live with another woman by whom he has now two children. For a time he paid maintenance in respect of the children of his first relationship, after court orders had been taken out, but has not paid anything since April 1983. Had it been necessary I would have had no hesitation in finding that even had there been a marriage the father’s consent would be dispensed with under s. 21(1)(a), (c) and (d). As I have indicated, however, I am satisfied that under the provisions of s. 15(2)(b), the children are illegitimate. The evidence also discloses that the grandparents of the mother, they being treated as head of the family, were consulted in relation to the adoption and as far as I can ascertain no opposition was offered by them but there was no evidence as to whether or not they acted as “guardians of the child”. In the revised version of s. 15(2) of the Act (Ch. No. 275) certain difficulties have been introduced by a change of conjunction. Although no written record is in existence of a ruling made by me last year. I propose to take the same course in the present matter and construe the word “and” appearing in subpar. (b) and also in subpar. (b)(i) of subs. (2) of s. 15 to read “or”. I could see the possibility of an argument that where a child was illegitimate, and under the customary law such child had both a mother and also guardians who, because the woman was not married either by custom or by the church, could not be thought to have given any rights in her offspring to a natural father or his line. I cannot however, see how this argument could be used in the circumstances covered by par. (i). I am further confirmed in my belief that the conjunction “or” was meant to appear in this section but for a slip of the typeset or pen, by an examination of the pre-revised Adoption of Children Act No. 8 of 1969. Sections 18(2) and (3) reveal that the conjunction “or” is there used. Sections 6 and 7, and especially s. 9 of the Revision of Laws Act 1973, as amended in 1976, make it abundantly clear that the Parliament did not deliver into the hands of the revising draftsman the powers of the people to change substantive law. In my view, the use of the conjunction “and” in place of the conjunction “or” in the present s. 15 of the Adoption of Children Act (Ch. No. 275) is a change in substance and must be ignored. This is not the only such slip. There are several similar examples in the Criminal Code (Ch. No. 262). In view of the tremendous task undertaken by the revisors, the achievement of a complete set of the laws untainted by human error would be tantamount to the performance of a miracle. In the end result, I have no difficulty in finding that the consent of the putative father and of the grandparents of the mother is not required.
The mother goes on to say that her father is dead, and she is living in a three-bedroom house in the suburb of Hohola with twelve other people. One room is occupied by herself, her eldest daughter and her sister, whilst her mother, one sister and one brother occupy another bedroom. The third bedroom is occupied by three other teenage brothers, whilst her grandmother and grandfather sleep in the lounge. The mother (that is the grandmother of the child to be adopted) endeavours to assist the family income and food situation by regularly visiting the seaside to catch fish. Until the beginning of February, the mother of the child was the only person who has brought money into the household for some considerable period of time. With the exception of one brother, none of her brothers or sisters attend school or are in employment. She herself works as a domestic. The one brother who does work, commenced employment only on Monday, 31 January, and just how long he will remain in employment is a matter of speculation. The whole family comes from the Gulf Province and are clearly what may be termed part of the “urban drift”, most having been born it seems in Port Moresby. So far as the mother is concerned, she has had little, if any, contact with her home area and I would be surprised if the same situation did not pertain with her brothers and sisters. Of course, it is fairly common knowledge that a number of the Gulf people living in Port Moresby have been doing so for several generations and have had little, if any, contact with traditional village life and its consequent symbolism, ceremony, and so on. Perhaps the new road will change that.
It is obvious from what I have said, that the mother has been desperately worried about the financial circumstances of the family and it would be flying in the face of reality for me to assume that the situation will improve in the immediate future. Even if the brothers were to obtain work, they themselves in all probability will marry and have their own family responsibilities to attend to. At present the younger brothers who remain at home have indicated that if they are expected to look after the two young children then they must be paid for doing so. This in itself presents a problem to the mother both because of the financial difficulties of paying such money and because she feels that her younger brothers should not have to perform such a task. No doubt it is just another source for friction within the family.
There is no doubt that the primary motive behind the mother’s action in this case is brought about partly by their own financial plight, but mainly by her desire to grasp the opportunity of sacrificing her own personal wishes to improve what she sees as a predicament in which her two children are placed. No doubt of course, despite the fact that she is an attractive young lady, the fact of having two young children tied to her apron strings would make it much more difficult for her to find a suitable husband when one of the consequences of the marriage would mean that he would be expected to take over responsibility of those children as well as any they may have of their own (though of course there are ample cases where this has not been done). I believe there is still a strong bond between the mother and her daughter. I am unable to say to what extent of course that feeling is reciprocated at the moment. I am very conscious of the fact that the mother is a mature adult who has had a great deal of time indeed to decide what she should do. In August last year she signed a specific consent in favour of the applicants and when it was discovered that such consent was invalid she was prepared once again to sign a general consent, which she did in December. No doubt in signing that general consent, she hoped that a court order would be made in favour of the present applicants. The time for the revocation of such consent having expired, it would be too horrendous to contemplate what might happen in this matter if I did not make an order in favour of the present applicants and the Director did not return the child to the mother but in fact adopted it out elsewhere. From a practical point of view I cannot really think such a course possible. I can also appreciate the reasons why the Director felt some doubt as to whether or not the mother fully understood the consequences of the giving of her consent. However, having seen her in the witness box, having evidence before me that two quite separate and independent people have on two different occasions explained to her the full consequences of such adoption, and they having signed certificates accordingly, I have no hesitation in coming to the conclusion that the mother does consent in the full knowledge of what is involved, namely, that she will have no legal or moral claim to the child from the time any adoption order is made.
It may well be that this Court would attract some criticism if it were to make an order in favour of someone simply because the material benefits which they can offer are greater than that of the mother. It might well be said that if such is the case, there is something radically wrong with the system. However, there are no provisions in Papua New Guinea for widow’s pensions, deserted wives and children pensions (where the husband fails to pay), family endowment pensions, educational fee assistance, etc. The little girl has no father. If she remains where she is, even taking into account that in many societies in Papua New Guinea, the uncle can occupy the position even superior to that of the father, I am not satisfied that such a relationship has emerged or would emerge in her present household. Certainly, the understandable requirement for payment for services rendered by some of the younger uncles, leads one to feel that this may not be so. The position is, I just do not have sufficient evidence before me of the attitude to the child of any of the members of the natural mother’s household other than an opinion expressed by the mother. Furthermore, the child has no grandfather, and one can only assume that her great grandparents must be of considerable age indeed. On the other hand, she has entered a family in which she is clearly loved, where she has been accepted by all members including the two elder boys, where the adopting parents have shown a clear appreciation of the problems that will arise, and where a welfare officer has visited and draws no conclusions or comments contrary to those I have made above. The evidence also discloses that both applicants possess skills for which employers are prepared to pay quite well and that therefore no financial problems will face them or the adopted child so far as one is able to see into the future.
There is no doubt that the mother’s financial position is a strong factor in her desire for the child to be adopted. Unfortunately, this has undoubtedly been a factor on many occasions. Mothers part with their child because they believe it is for the child’s own benefit, and this has been going on since the time of Moses and no doubt in this imperfect world will continue. It is clear that if the mother’s financial circumstances were to alter tomorrow she would not consent to the adoption going through. No doubt the same view would have been taken by many other mothers over the centuries who have felt forced to leave their children with far less hope for their future than exists in the present case. As I said during argument the welfare of the child is no doubt the major factor in the majority of mothers taking such a course of action. There is of course the additional factor that it will relieve the mother herself from many overburdening financial and other worries. There will be very few mothers indeed, whose motives would be entirely selfish. Myers J. in the previously mentioned case of Re T.L.R. at 41 adverts to the same problem:
“It is common experience that parents of both legitimate and illegitimate children, who have become unable to care for them, are prepared to have them adopted by persons whom they know and trust and they are naturally fearful of signing a consent which would permit of their adoption by anybody at all.”
Undoubtedly such parents would not be in the best position to decide objectively who would be appropriate for the child. The Welfare Department has trained experts to assist in this very area and in the majority of instances their decision would be beyond reproach. Nevertheless, there are occasions in which the parent is in a better position to make the proper choice even if it be only intuitively. The real factor I am drawing attention to here is that I must take into account the belief and the reasons for coming to such belief by the mother herself, that to have the child adopted out, and adopted out into a family of western cultural background, is for the benefit of the child.
There is of course the question of status and nationality. Like Miles J. in the case of Re G. (An Infant) [1980] P.N.G.L.R. 493 at 499, I have no evidence before me as to whether the adoption will be recognised in Australia, but I think I can take some notice of the fact that his Honour reached a conclusion in law that such adoption could be recognised. Nevertheless, it is an omission which should not occur in future cases. Although his Honour’s decision was made three years ago, I again feel that I can presume the law to be unchanged in the intervening period, and that consequently, as the applicants are Australian citizens the adopted child would become an Australian citizen. In the final analysis, however, I do not think there is any real problem arising from this area because if the child does become an Australian citizen as from the time the adoption order is made, then there is a provision under s. 64(2) of the Constitution permitting the child to make a declaration of loyalty renouncing Australian citizenship at any stage up to her nineteenth birthday, if she has indeed acquired a foreign citizenship. On the other hand, if she has acquired no “real foreign citizenship” she will remain a Papua New Guinean citizen. I agree that this matter of citizenship is a very important factor indeed, but it does not seem to me that looked at in an objective way, and particularly from the point of view of the child herself, it is a factor which remains immutable for all time. The problem was mentioned during the evidence before me of Mr and Mrs T., and I have no doubt that they will apprise the child of her rights fully and fairly. It is clear from the way in which the applicants have consulted their present sons over the adoption that they are not parents who make unilateral decisions where it concerns the welfare and future interest of their children. In the end result I do take this important area of status and citizenship into account, but I do not find it weighs the balance against making the adoption order.
Finally, I come to the most difficult area of all. Within the next one or two years, the little girl will, in all likelihood be removed from her present Melanesian surroundings or such as they may be within a suburban context. I think it will be inevitable, there will come a time when she wishes to return to the place of her birth and inheritance even if only for a visit. It is possible in the interim that she would spend some time in other areas of the Pacific with her adopted parents and there of course, the cultural background would be not unlike that in Papua New Guinea. Undoubtedly, however, she will spend time perhaps most of it, within the Australian community. There has been no evidence before me of circumstances pertaining in that country but it is common knowledge that racial discrimination does exist there. However, I do not believe that it is practised on an extensive scale, and I certainly am of the view on the evidence before me that it is not an attitude which forms part of the applicants’ household. I believe that they are a family unit which could cope with any such problems should they arise. In any case, Papua New Guinea is not without its own aspects of racial discrimination on both sides of the fence. The real area of difficulty is that the child will be cut off from what has been termed her “cultural inheritance”. Even bearing in mind her complete urbanisation, I would agree that this severance is still a very real factor. It is certainly one which weighs against the making of the adoption order.
I am very conscious of the Director’s arguments that a special difficulty is created in this case by virtue of the fact that the child was three years of age when she was first brought to the household of the applicants and that therefore she was fully aware of her mother, sister and relatives and that she will always retain them in her memory. No doubt some problems could emerge from these factors but once again I do not think they are insurmountable nor do I think they are sufficient to warrant my refusing the order. It is another factor which I must put in the balance in order to discover where the pointer finally rests.
Despite the number of matters which I have mentioned I believe an adoption order should be made. Certainly, the wisdom of Solomon in such cases as these would be a great gift to possess but it is one which is given to a few only. The best one can do is to attempt an objective and analytical assessment of the evidence, despite the fact that certain areas which require to be weighed, not least of all the loss of cultural inheritance and contact with one’s “own people”, are difficult to spell out or quantify. As I have said earlier, in endeavouring to reach a conclusion one must always guard against reliance upon underlying assumptions which predispose one in favour of one’s own culture at the expense of another.
I must say that I have been a little disappointed at the absence of reliable material before the court in this case. There was only one visit by the welfare officer to the applicant’s household, and not much was said in the report about the relationship between the proposed adoptee and the other children of the household. I sincerely trust that for future occasions where a cross-cultural adoption is involved a number of visits will be made when it becomes obvious that a conflict will arise between the prospective adopting parents and the Director of Child Welfare and those visits not only to the house of the applicants but to the area and accommodation from which the child comes. Admittedly, this is a most unusual case and hopefully will not arise in similar circumstances before another court in the future, but it does indicate that a little bit of thought to the particular problems created by a given situation can result in material being placed before the court that will be of assistance rather than leaving a complete void.
As the adoption order was already made by me on Friday, 3 February 1984, there is no necessity to repeat the matter here.
Applicants authorised to adopt.
Lawyer for the appellants: S. Cory.
Lawyer for the respondent: T. Konilio, Secretary for Justice.