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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS NO: 298 OF 2015
IN THE MATTER OF THE ADOPTION OF CHILDREN
ACT CHAPTER 275
AND
IN THE MATTER OF AN APPLICATION FOR ADOPTION
BY ROSALIND DAWN GLASS
Plaintiff
Waigani: Davani .J
2016: 13th & 15th July
INFANTS AND CHILDREN – Adoption – plaintiff resident in Australia – child resident in PNG – plaintiff, single
applicant – Adoption of Children Act chapter 275.
INFANTS AND CHILDREN - Plaintiff not a PNG resident – plaintiff not domiciled in PNG – plaintiff has customarily adopted
child
Facts :
The plaintiff wishes to adopt a child from PNG. She is a single applicant, is an Australian and resides in Cairns, Australia. The
application for adoption is filed 4 years after the plaintiff left PNG.
The plaintiff has already adopted the child by custom.
Held :
PNG Cases
Application of RW and SW [1991] PNGLR 308
The Application of GN and RN [1985] PNGLR 121
Overseas Cases
Counsel:
Joseph Poponawa of Jopo Lawyers, for the plaintiff
DECISION
15th July, 2016
1. DAVANI J: The plaintiff Rosalind Dawn Glass (the “plaintiff”), applies for the adoption of a female Papua New Guinean child, DGM. She applies for adoption orders, moving on Originating Summons filed on 20th May, 2015 and relying on the Adoption of Children Act Chapter 275 (the “Act”).
Facts
2. These facts are taken from the plaintiff’s affidavits, which were tendered into evidence and marked as exhibits.
3. The plaintiff is a single woman and is an Australian citizen. She was born on 2nd September, 1953, in a town called Dwellingup in Western Australia. She is an Anthropologist by profession and resides in Cairns,
Australia.
4. In October, 2004, the plaintiff customarily adopted the child DGM, after she was born on 18th February, 2004, at Moke village, Okapa in the Eastern Highlands Province. Because DGM was born out of wedlock and because the plaintiff
cared for DGM’s natural mother during and after her pregnancy, her natural mother and her line were prepared and willing for
the plaintiff to customarily adopt DGM. This occurred whilst the plaintiff was pursuing her PHD research in Moke village, Okapa,
Eastern Highlands Province. The plaintiff now wishes to formalise the adoption because she wants to take DGM to Australia where DGM
can attend school and have accessible to her, all the good things an Australian child would have available to it.
5. The plaintiff first entered PNG in 2001. From 2003 to 2005, she conducted her PHD research in Moke Village, Okapa. During that time,
the plaintiff occasionally returned to Australia to do her write ups. It was during that time, when DGM was 4 years old, that the
plaintiff took her to Cairns Australia where she attended Prep school. However, DGM had to return to PNG because she was on a visitor’s
visa.
6. In 2010, the plaintiff made similar arrangements and DGM returned to Cairns where she stayed for another 3 months. During that period of time, she did grade 1. However, DGM had to return home to PNG after 3 months because of Australian Immigration requirements.
7. Although in 2011, the plaintiff requested a visitor’s visa for DGM, Australian immigration refused to grant such a visa because it was of the view that the plaintiff was involved in human trafficking.
8. Since then, the plaintiff has been travelling to PNG to visit DGM and has been sending funds to her for her up keep. The child DGM presently resides at the 5 mile settlement in Port Moresby with the plaintiff’s partner and his relatives. She is aged about 12 years and has reached puberty.
9. I should also state for the record that the plaintiff’s evidence is that her partner and her have severed their relationship.
10. DGM’s natural mother has filed the necessary consent for DGM’s adoption by the plaintiff.
11. I also have a welfare report which is favourable to the plaintiff.
Analysis of evidence and the law
12. This matter came before me several times because I was concerned the application was filed so late in time and why that was so. It
seems the plaintiff has most probably been led to believe, maybe by her lawyers, that it is quite proper for her to file an application
for adoption several years after she has left PNG. Indeed, that would be a very irresponsible act by her lawyer. I say this because
of s.3 of the Adoption Act, states specifically, that an applicant must be domiciled or resident in PNG, when the application for adoption is filed. This provision
reads;
“3. When jurisdiction may be exercised
(1) The Court shall not make an order for the adoption of a child unless at the time of the filing in the Court of the application for the order –
- (a) the applicant, or ( in the case of joint applicants) each of the applicants was resident or domiciled in the country; and
- (b) the child was present in the country.
(2) For the purposes of subsection (1), where the Court is satisfied –
- (a) that an applicant was resident or domiciled in the country; or
- (b) that the child was present in the country ,
within 21 days before the date on which an application was filed in the Court, the Court may, in the absence of evidence to the contrary,
presume that the applicant was resident or domiciled in the country, or that the child was present in the country, as the case may
be at the time of the filing in the Court of the application.”
13. The plaintiff was neither domiciled nor resident in PNG, when the originating summons was filed on 20th May, 2015. This is because the time for determining the residence or domicile of an applicant, for the purposes of s.3 of the Adoption of Children Act, is the date of the filing of the Originating process (see Application of RW and SW [1991] PNGLR 308). On 20th May, 2015, when the summons was filed, the Applicant was a resident of Cairns, Australia and is domiciled in Australia.
14. I also take note of s.4 of the Adoption Act which reads;
“4. Rules of private international law, etc, not to apply
The jurisdiction of the Court to make an adoption order is not dependent on any fact or circumstance not expressly specified
in this Act.”
15. It means that this court’s jurisdiction rests squarely within the confines of the Adoption of Children Act. However, as Pratt. J did in The Application of GN and RN [1985] PNGLR 121, he considered common law cases to assist him in determining the definition of residence and domicile. Pratt. J said the following at pgs 123 and 124 of GN and RN (supra);
“...
Residence” in the Shorter Oxford English Dictionary is defined, inter alia, as “to have one’s usual dwelling place
or abode; to establish oneself; to settle”. One may have of course a number of residences (as mentioned in Morgan v Murch[1970]
2 All ER 100) where the time spent and the intention which the person has during that time are directed to more than a “ temporary
visit”. The fact that an Act requires residence for a particular number of days (as in our s 3) does not add to or subtract
from the substance of the matter one jot. Either a person is resident or he is not. All the Act specifies is what minimum period
of time such residence must cover (for example, Dunn v Dunn [1963] 1 All ER 440 and Head v Head [1963] 3 All ER 640)
...
I believe I gain great assistance from them in my task here and also from the matters referred to by Ashworth J in Brokelmann v Barr
[1971] 3 All ER 29 at 36. His Honour there says:
“The word ‘residence’ has come before the courts in a number of cases of which the most familiar are those relating
to income tax and voting rights. In an often – cited passage taken from Leven v Inland Revenue Commissioners [1928] UKHL 1; [1928] AC 217at 222, 223; [1928] UKHL 1; [1928] All ER 746 at 749,
Viscount Cave LC said: ‘My Lords, the word “reside” is, a familiar English word and is defined in the oxford English
Dictionary as meaning “to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live
in or at particular place”. No doubt this definition must for present purposes be taken subject to any modification which
may result from the terms of the Income Tax Act and Schedules; but, subject to that observation, it may be accepted as an accurate
indication of the meaning of the word “reside” ‘ “.
16. Again, Pratt. J referred to Lord Denning’s decision in Fox v Stirk [1970] 2 QB 463 at 475where Lord Denning held that there has been established a rule of construction that prima facie, at least, residence involves
some degree of permanence. The court said further in that case;
“In the words of the English Oxford Dictionary, it is concerned with something which will go on for a considerable time. Consequently,
a person is not entitled to claim to be a resident at a given town merely because he pays a short temporary visit. Some assumption
of permanence, some degree of continuity, some expectation of continuity, is a vital factor which turns simple occupation into residence.”
17. The evidence is clear that the plaintiff does not intend making PNG her permanent place of abode. She does not meet or satisfy the
requirements set by the learned Judges whose well researched and reasoned decisions I refer to above.
18. The plaintiff, although serious about her intentions to adopt, must satisfy these requirements. S.3 is in mandatory terms. And that
provision is in the Act, to prevent or avoid a situation where an applicant or applicants, enter a country for the sole purpose of
looking for a child to adopt. (see Application of RW and SW (supra)). The plaintiff, although not looking for a child to adopt, does not meet the mandatory requirements under the Act.
19. I should also mention that notwithstanding the fact that the plaintiff has already customarily adopted the child, the subject of the proceedings, she must still satisfy the requirements under the Act, more particularly s.3, which is a very important preliminary requirement, without which this court does not have jurisdiction to deal with the matter and should refuse the application.
20. The Originating Summons was filed on 15th May, 2015, some 4 years after the plaintiff had left Papua New Guinea. Indeed, because s.3 is in mandatory terms, they do not give this court any discretion to make any other order if the domicile or residency provisions are not met by the applicant. As it is, the plaintiff was not resident or domiciled in PNG, either on 15th May, 2015 or 21 days before that. This court has no power or jurisdiction to make an order in the plaintiff’s favour.
21. I trust that the plaintiff can pursue this in the Australian Courts, if she is desirous of adopting DCM, unless she decides to make
PNG her home or at least, there is some permanency about her intentions to be in PNG.
22. The other matter that is concerning is that the plaintiff is presently in her sixties. She is a single applicant. She is without
a partner. DGM is aged about 12. There is no evidence before me that DGM has been in school. There is also no evidence of how she
is faring, residing in the settlement at 5 mile. She is a teenager now and completely unfamiliar with the Australian way of life.
Without any basic education, and trying to fit into an Australian community and lifestyle, will indeed be a challenge for DCM which
brings with it other complex teenage and psychological issues. There is no evidence of how the plaintiff intends to deal with this.
Indeed, without the s.3 argument, if I were to consider the application to adopt, these facts will be a major hurdle for the plaintiff
because it is the interests of the child that will be a paramount consideration (s.9 of the Act).
23. I will dismiss this application. I will make no order as to costs because the application was not opposed. I also give liberty to the plaintiff to reapply, in the event her personal circumstances change.
Formal orders
24. These are the formal orders of the court:
Jopo Lawyers: Lawyer for the plaintiff
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