K, Re [1979] PGNC 21; [1979] PNGLR 520 (21 September 1979)

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IN THE MATTER OF THE ADOPTION OF CHILDREN ACT 1968 IN THE MATTER OF AN APPLICATION FOR AN ADOPTION ORDER RE K. (ADOPTION)

INFANTS AND CHILDREN - Adoption - Discretion - Older sister adopting younger sister - Applicants Australian citizens - Child citizen and resident of Fiji - Object of application ultimately to acquire Australian citizenship - Whether “accommodation” adoption - Genuine reasons for adoption - Public policy - Applicant less than sixteen years older than child - Exceptional circumstances justifying making of order - Adoption of Children Act 1968, ss. 8, 11[dcxlvii]¹.

A husband and wife of Australian nationality but resident in Papua New Guinea, aged thirty-six and twenty-nine respectively and with children of their own aged four and three years, sought to adopt the sixteen year old sister of the wife, who was a citizen and resident of Fiji. The parents had been for some years in loco parentis to the child who was attending school in Port Moresby. One of the objects of the application for adoption was to enable the child to obtain resident status in Papua New Guinea and ultimately to obtain Australian nationality. All concerned persons were prepared to consent to the adoption and no objections were forthcoming from the Director of Child Welfare or other authorities in Papua New Guinea.

N1>(1) The proposed adoption could not be regarded as a mere “accommodation” adoption, as, apart from the object of acquiring Australian citizenship, there were genuine reasons for the proposed adoption, and there was nothing which would make the order sought contrary to the child’s interests or to public policy.

The attitude of the Department of Foreign Affairs and Trade to the granting or refusing of entry permits, is relevant in determining public policy.

N1>(2) The close blood relationship of an applicant for adoption and the child is not an automatic impediment to such an adoption.

N1>(3) The close family relationship which had existed since the birth of the child and the mature age of the applicants amounted to “exceptional circumstances” within s. 11 of the Adoption of Children Act 1968, justifying the making of an adoption order despite the fact that the female applicant was less than sixteen years older that the child.

N1>(4) In all the circumstances and including the welfare and interests of the child the order for adoption should be made.

This was an application under Pt 111 of the Adoption of Children Act 1968 for the adoption of a female child aged sixteen years by her married sister aged twenty-nine years and her husband aged thirty-six, both of the applicants being Australian citizens, resident in Papua New Guinea and the child being a citizen and resident of Fiji.

WILSON J: This is an application by notice of motion by a husband of Australian nationality who is domiciled in Australia but resident in Papua New Guinea, and his wife, formerly of Fiji but now a naturalised Australian citizen, with children of their own for an order authorising them to adopt the wife’s sixteen year old younger sister (hereinafter called “the child”) who is a citizen and resident of Fiji. An order is sought pursuant to the provisions of Pt 111 of the Adoption of Children Act 1968.

Mr. M. W. Wright appeared for the applicants. The application first came on for hearing on 29th June. Because the facts are unusual and seemed to raise questions of principle with regard to the exercise of the discretion which the Act gives this Court to make or refuse to make an adoption order, I adjourned the case for argument and so that the State Solicitor might be represented at the hearing to argue the case as amicus curiae and present such arguments as he might think proper for my assistance. Mr. I. Peterson appeared as counsel in response to my invitation. I am grateful to him, and to Mr. Wright, for the assistance which they have given me.

With one exception to which reference will be made later in this judgment, all the procedural requirements of the Act have been complied with. The applicants are suitable to be adoptive parents. The report of the Director of Child Welfare is a favourable one and the application is fully supported by the Director. The male applicant is thirty-six years old and is a company director. The female applicant is twenty-nine years old. The applicants have two natural daughters of their own aged four years and three years respectively. The female applicant has a natural daughter of a previous marriage who is aged nine years. The natural parents of the child are both citizens of Fiji, they have no right of permanent residence in either Papua New Guinea or Australia, and they are presently residing in Fiji. They each consent to the proposed adoption of their natural child by the applicants. The child, who also consents to her proposed adoption is a citizen of Fiji, but she has resided in Papua New Guinea with the applicants and their family since January 1977; the child has lived en famille with the applicants.

The child has been attending Port Moresby International High School. She has been the holder of temporary entry permits (as a visitor) which have allowed her to remain in Papua New Guinea; she has returned to Fiji during school holidays; she was at the date of the filing of the application present in Papua New Guinea. The applicants have substantial assets both in Papua New Guinea and Australia and have the financial means properly to care for the child. The applicants have fully accepted the child into their family. It is the intention of the applicants, if an order is made, to bring up the child and provide for her in every respect as if she were their own natural child. The applicants are in good health. I am in no doubt that it will be in the welfare and interests of the child that the order be made.

Mr. Peterson informed me that the Papua New Guinea authorities have no objection to the proposed adoption and have no objection to the child residing in Papua New Guinea on the same terms as the adopting parents subject to her having a current entry permit, which permit is expected to be granted without difficulty or delay in the event of an adoption order being made. Mr. Peterson also informed me that he had checked with the Australian immigration authorities and had been assured that Australian citizens adopting a non-Australian child can expect to gain entry for that child into Australia, but at the discretion of the Australian authorities; it is not automatic; however, no problems in acquiring citizenship are foreseen.

N2>1. So that the child may complete her education at Port Moresby International High School.

N2>2. The natural father of the child is not in good health; the natural parents are in receipt of only a small income, and they would find it difficult to maintain the child to the standards to which she has been accustomed whilst living in Papua New Guinea with the applicants.

N2>3. So that the child might continue to be part of the household of the applicants in the manner of the past two years.

N2>4. So that it will be possible for the child to stay in Papua New Guinea or Australia with the applicants.

The main question in this case is whether this is an “accommodation” adoption and whether, on that account, I should in the exercise of my discretion decline to make an adoption order. Although I am satisfied that one of the objects of this application (and one that is no doubt important to the applicants and the child) is that the child shall acquire the same Australian citizenship as the applicants and, on that account, acquire for the time being resident status in Papua New Guinea, that is not the only object of this application. That the child should become in law a full member of the applicants’ family is also a genuine objective.

Therefore this adoption is not, in my judgment, an “accommodation” adoption of the type that resulted in Cross J. in Re A. (An Infant)[dcxlviii]² refusing to grant an adoption. I can see nothing which would be contrary to the child’s interests or to public policy in the making of the order sought. Regarding public policy it might have been otherwise if the Department of Foreign Affairs and Trade had some objection to the child as a foreigner obtaining another entry permit to enable her to reside in Papua New Guinea or if the government of Papua New Guinea had some objection on diplomatic grounds or otherwise to facilitating the child’s ultimate entry into Australia, a nation which is a near neighbour of Papua New Guinea having special ties with it.

I fully accept that this child may receive benefits beyond the statutory transfer of parental rights and duties and that there may be what Cross J. called “some collateral consequences” of the making of an order. However there can be no basic objection to this application; the applicants are in loco parentis to the child and for these reasons, subject only to the statutory requirements being complied with, I would feel obliged to exercise my discretion to grant this application and make an order.

One of the subsidiary questions in this case is whether there are any reasons why a woman, in the position of the female applicant, should not be permitted to adopt her own younger sister. The researches of counsel, and my own researches as well, have revealed that there is no automatic impediment to such an adoption. There is precedent in Papua New Guinea for such an adoption; in Re T. (An Infant)[dcxlix]³ Minogue C.J. granted an adoption when the applicant was the child’s half-sister. The close relationship between the female applicant and the child in this case is not, in my opinion, a bar to this adoption in circumstances in which there is no reason to suppose the dual relationship between the female applicant and the child will “sow the seeds of grievous unhappiness” (see Re D.X. (An infant)[dcl]⁴ per Vaisey J.) If a significant problem was likely to arise, I would have expected the Director of Child Welfare to mention it in his report; no mention was in fact made.

N2>“11. The Court shall not make an order for the adoption of a child in favour of a person who or persons either of whom:

(b) being a male person, is less than eighteen years older than the child, or, being a female person, is less than sixteen years older than the child,

unless the applicant, or at least one of the applicants, is a natural parent of the child or the Court considers that there are exceptional circumstances that justify making the adoption order.”

That section precludes this Court from making an order for adoption of a child in favour of a female applicant who is less than sixteen years older than the child unless the applicant or at least one of the applicants is (and neither applicant is in this case) a natural parent of the child or the court considers there are exceptional circumstances that justify making an adoption order. The female applicant here is only thirteen years older than the child. I am satisfied that the close family relationship which has existed since the birth of the child and the mature age of the applicants amounts to “exceptional circumstances”. The legislature when inserting into the Act the usual requirement that a female applicant be sixteen years or more older than the child was undoubtedly intending to ensure as far as possible that an appropriate generation gap exists between adopting parents and adopted child and to minimize social and psychological problems that might arise if adopting parents and adopted child viewed each other more as contemporaries than as parents and child. The fact that the Act permits an adoption where the ordinary age requirements have not been met in the case of an application in which one or both of the applicants is a natural parent of the child provides a pointer to the social policy underlying the Act. If it is acceptable, for example, that a nineteen year old wife can adopt her husband’s six year old child, it can hardly be said to be unacceptable for a twenty-nine year old woman to adopt her sixteen year old sister. The fact that the age difference is thirteen years instead of sixteen years is of little consequence in the circumstances. A short-fall of three years might be significant if the female applicant and the child were strangers to each other and a relationship of fondness, devotion, guidance and influence had yet to be established; aliter, as here, where fondness and devotion have existed for years and it only remains to substitute parental guidance and parental influence for the sisterly bond. For these reasons I consider that there are exceptional circumstances that justify the making of this adoption order.

For these reasons and for all purposes incidental to this application regarding the welfare and interests of the child as “the paramount consideration” (s. 8), I make an adoption order in favour of the applicants.

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[dcxlvii] Infra p. 524.

[dcxlviii] [1963] 1 W.L.R. 231; [1963] 1 All E.R. 531.

[dcxlix] [1973] P.N.G.L.R. 364.

[dcl] [1949] Ch. 320, at p. 321.

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National Court of Papua New Guinea

K, Re [1979] PGNC 21; [1979] PNGLR 520 (21 September 1979)

Papua New Guinea Law Reports - 1979