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TK (an Infant), Re [1965-66] PNGLR 189 (5 January 1966)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 189 - T.K. (an Infant), Re

[1965-66] PNGLR 189

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

RE T.K.

(AN INFANT)

Port Moresby

Frost J

3 December 1965

6 December 1965

14-15 December 1965

5 january 1966

INFANTS AND CHILDREN - Jurisdiction of Territory courts to make adoption orders when applicants domiciled outside jurisdiction but infant resident within jurisdiction - Recognition of foreign adoption orders - Nationality of child no basis of jurisdiction - Child Welfare Ordinance 1961-1965, s. 90 - Migration Ordinance 1963, ss. 50 (1) (3) (4), 51 - Nationality and Citizenship Act (Commonwealth) 1948-1959, s. 3A; Citizenship Regulations, No. 62 of 1960, r. 5 (1) (a) (2); Papua and New Guinea Act 1949-1963, ss. 52, 53, 55.

The applicants, former residents of the Territory and now resident in New Zealand where they were born, applied on motion under Part 13 of the Child Welfare Ordinance 1961-1965 for an adoption order in respect of a boy of seventeen years who is a native of Bongainville. In 1949 the boy in question was placed in the applicants’ care while they were working as missionaries at Bougainville. He stayed with the applicants until 1958, when they retired from missionary work and returned to New Zealand. They were unsuccessful in their application to have the boy accompany them to New Zealand, but in 1962 a permit was granted under the Migration Ordinance 1963 authorizing the boy, for the purpose of education, to leave the Territory. Since then the boy had been at boarding school in New Zealand and generally under the care of the applicants. Both the natural parents of the boy were dead.

Held:

(1) As the applicants were not domiciled in the Territory an order made by this court would not be recognized elsewhere and possibly not in New Zealand, the country of the applicants’ domicile, so there could be no adoption order which would affect their status or the succession to their property. But this should not deter the court from making an order if it had jurisdiction.

(2) The Child Welfare Ordinance 1961-1965 applies to all children resident within the Territory and the jurisdiction of the Supreme Court to make adoption orders under Part 3 of the Ordinance is not limited to the making of orders in respect of children domiciled in the Territory.

(3) If the child is ordinarily resident in the Territory, then the court will have jurisdiction notwithstanding that the child is absent from the Territory at the time of the application. In this case the child had a right to leave the Territory by virtue of the permit issued under the Migration Ordinance 1963, to further his education on condition he return at the permit’s expiration. This was sufficient to make the child an ordinary resident of the Territory as to bring him under the jurisdiction of the court so that an adoption order could be made in respect of him notwithstanding that the applicants were not domiciled in the Territory.

(4) It is within the inherent jurisdiction of the court to make orders in respect to the custody, maintenance, or education of a child who is a British subject or who, as a resident, owes his allegiance to the Crown; but the power of the court to make orders for adoption can be determined only by looking at the terms of the ordinance.

Cases referred to:

Johnson v. Commissioner of Stamp Duties, [1956] A.C. 331; Delaney v. Great Western Milling Co. Ltd. [1916] HCA 46; (1916), 22 C.L.R. 150; City Finance Co. Ltd. v. Matthew Harvey & Co. Ltd. [1915] HCA 75; (1915), 21 C.L.R. 55; British Coal Corporation v. The King, [1935] A.C. 500; Hughes v. Munro [1909] ArgusLawRp 47; (1909), 9 C.L.R. 289; Re Valentine’s Settlement, [1965] Ch. 831; Ashbury v. Ellis, [1893] UKLawRpAC 25; [1893] A.C. 339; Renton v. Renton (1918), 25 C.L.R. 291; Re an Infant [1933] NSWStRp 63; (1934), 34 S.R. (N.S.W.) 349; Re R.M.I., an Infant, [1959] VicRp 69; [1959] V.R. 475; Re X, an Infant, [1960] VicRp 109; [1960] V.R. 733; Re P. (G.E.) (an Infant), [1965] Ch. 568; Re Adoption Application No. 52/1951, [1952] Ch. 16.

Application for Adoption.

The facts appear sufficiently from the judgment.

Counsel:

Andrews, for the applicants.

Quinlivan, Assistant Secretary for Law (amicus curiae).

Cur. adv. vult.

5 January 1966

FROST J: This is a motion under Part 13 of the Child Welfare Ordinance 1961-1965 of the Territory of Papua and New Guinea for an adoption order authorizing the applicants to adopt a boy, who is a native of Bougainville, whom I shall refer to as “T.K.”.

The applicants are husband and wife now living in New Zealand. The boy has turned seventeen. In 1949 the applicants, who were born in New Zealand, were working as missionaries in Bougainville.

Early in January, 1949, the infant who was then only a week or so old, was brought to the applicants’ home by a native who said he was the uncle of the child who had been born a few days before at a nearby village. The applicants undertook to look after the child. Thereafter the child was brought up entirely by the applicants and, whilst they were in Bougainville, he lived with them, except for two occasions, one in 1950, and the other in 1954, when the applicants went on furlough and they left the boy at the mission station.

In 1958 the applicants retired from missionary work and went to New Zealand. They sought permission from the Administration authorities in Bougainville to take the boy, then nine years of age, to New Zealand to be educated, but the application was unsuccessful. The boy remained with various mission people in Bougainville until, in July, 1962, the Department of District Administration granted a permit under the Migration Ordinance 1963 authorizing the boy, for the purpose of education, to leave the Territory. During the hearing of this case the permit was extended. Since then the boy has been at boarding school in New Zealand, and generally under the care of the applicants. Both the natural parents of the boy are dead. On all the facts I would have no hesitation in granting this application on the merits, but the question is whether this court has jurisdiction to make an order.

When this application first came on for hearing, Mr. Andrews appeared for the applicants and Mr. Quinlivan appeared on behalf of the Secretary for Law as amicus curiae to assist the court on the issue of jurisdiction. Mr. Andrews argued that a sufficient condition of jurisdiction was that the child should be domiciled in the Territory, or resident therein, and he argued that the boy was both domiciled and resident in the Territory, he being temporarily absent for the purposes of education. Mr. Quinlivan in a helpful argument submitted that to be given full recognition outside the Territory, it would be necessary for the adopting parents to be domiciled in the Territory, and he considered that an application should also be made in New Zealand, but that this court also had jurisdiction to make an order which would be effective in the Territory, if the child was domiciled in the Territory. He argued that the court should have regard to the purpose of the legislation, now the Migration Ordinance, which was the protection of Pacific Islanders; and an adoption order made by this court would show to the court of the applicant’s domicile that there was no objection in the Territory’s legislation to the adoption being made.

On 14th December, 1965, I reserved my decision, but after further consideration I asked counsel to assist the court by further argument as to whether the nationality of the child was a basis of jurisdiction. Accordingly, on 5th January, 1966, the matter was again argued and both counsel submitted that the child was an Australian protected person under the Nationality and Citizenship Act 1948-1959 of the Commonwealth of Australia and that this was a sufficient test of jurisdiction.

On the issue of jurisdiction it can be stated at the outset that the applicants are both plainly domiciled and resident in New Zealand. The boy has, however, his domicile of origin, which is the Territory of Papua and New Guinea. Neither the applicants nor the boy are present in this jurisdiction.

Before the boy could leave the Territory he had to obtain a permit under the Migration Ordinance 1963, and it will be convenient to refer immediately to that Ordinance. Under that Ordinance the Administrator may issue a permit in the prescribed form for a native to leave, or to be removed from the Territory: s. 50 (1). Except where the Administrator in a particular case otherwise directs, a permit shall not be issued unless the applicant lodges a bond for the performance of the conditions of the permit: s. 50 (3). A permit shall be issued subject to such conditions as are prescribed or such conditions as the Administrator thinks proper: s. 50 (4). Subject to the provisions of the relevant division of the Ordinance, a native shall not leave or be removed from the Territory unless a permit under s. 50 has been issued and is in force, and except in accordance with its conditions: s. 51. The Administrator may by notice in writing to a person to whom a permit under s. 50 has been issued revoke the permit, and order the return of the native in relation to whom the permit was issued in such manner and to such place in the Territory as he thinks fit: s. 53.

Although the boy had the Administrator’s permission to leave in July, 1962, for some reason not mentioned, the permit was not issued until 1965. The permit granted was in the following terms:- “T.K. of L ..., Bougainville, is authorised to leave the Territory of Papua and New Guinea to proceed to New Zealand for the purposes of Education. This permit is valid from 1st August, 19.... to 31st December, 1965, and the said T.K. shall present himself to a District Officer at Sohano (Bougainville) not later than the last mentioned date. This permit is issued subject to the conditions prescribed under the Migration Ordinance 1963 and the following special conditions:- That T.K. is to return to the Territory of Papua and New Guinea at the expiration of this permit. Dated at Port Moresby this 12th day of July, 1965. T. G. Aitchison, delegate for the Administrator.”

As to the effect of an adoption order, if made, upon such a permit, Mr. Thompson, who is the Director of Child Welfare in the Department of District Administration, has deposed in an affidavit that there would be no official objection by the Department to the making of an adoption order. Thus if an order were made, the Administration would recognize the adoption order and would not insist on the performance of the condition of the permit that the boy was to return at its expiration.

So far as New Zealand is concerned, it appears from a letter which was produced to me, and received from the Department of Labour of New Zealand, that as from the 18th April, 1965, for the purposes presumably of its migration legislation, the boy is deemed to be a permanent resident of New Zealand. This status does not, however, affect his nationality or citizenship. As the boy was born in New Guinea he is an Australian protected person and thus for the purposes of the Nationality and Citizenship Act of the Commonwealth of Australia he is under the protection of the Australian government: Nationality and Citizenship Act, 1948-1959, s. 3a; Citizenship Regulations, No. 62 of 1960, reg. 5 (1) (a) (2).

Turning now to the adoption legislation, s. 90 of the Child Welfare Ordinance 1961-1965 provides that upon application by a person desirous of adopting a child the court may, subject to the provisions of Part XIII, make an adoption order authorizing the applicant to adopt the child. The Ordinance is made by the House of Assembly for the Territory, which is a subordinate legislature having its powers defined by the provisions of the Papua and New Guinea Act 1949-1963. Its powers are limited. An Ordinance passed by the House of Assembly shall not have any force or effect until it has been assented to as provided in the Act: s. 53. Certain Ordinances of a wide description must be reserved for the Governor-General’s pleasure: s. 55. Subject to that Act, the House of Assembly may make Ordinances for the peace, order and good government of the Territory: s. 52. Being a subordinate legislature, its legislative powers must be limited to the making of laws restricted to operate within its territory, unless extra-territorial jurisdiction can be said to have been conferred expressly or by necessary implication. (Wynes, Legislative, Executive & Judicial Powers in Australia, 3rd ed., p. 86, and cases there cited.)

Legislation on any subject matter which has no relevant territorial connexion whatever with the Territory falls outside the power of the legislature. Johnson v. Commissioner of Stamp Duties[clxxix]¹.

Thus the general words of a statute of a legislature of limited jurisdiction must be construed as applying only to persons and things subject to its jurisdiction. Delaney v. Great Western Milling Co. Ltd.[clxxx]². Prima facie a statute conferring jurisdiction on a court will be construed as limited in its application to persons within the territorial jurisdiction. City Finance Co. Ltd. v. Matthew Harvey & Co. Ltd.[clxxxi]³ But this principle or rule that the powers of a subordinate legislature are limited by the doctrine forbidding extra-territorial legislation was said by the Privy Council to be a doctrine of somewhat obscure extent: British Coal Corporation v. The King[clxxxii]⁴. The corresponding rule of construction was stated by Griffith C.J. in the sense that it should be assumed prima facie that the legislature did not intend to meddle with matters wholly outside its territorial limits: Hughes v. Munro[clxxxiii]⁵ (Isaacs J.).

The question of the jurisdiction of this court arises because the Ordinance omits any conditions of jurisdiction. Such a question could not arise, for example, under the English legislation, which provides that an adoption order shall not be made in favour of any applicant who is not domiciled and resident in England or in respect of any infant who is not so resident (subject in the case of the requirement of residence to certain qualifications): Adoption Act 1958, s. 1.

The question which has arisen in England is the recognition to be given foreign adoption orders. It has recently been held by the Court of Appeal that an English court will recognize a foreign adoption order only when the adopting parents are domiciled in the country where the order was made: Re Valentine’s Settlement[clxxxiv]⁶. In that case, Lord Denning held that for the foreign adoption to be recognized everywhere, it was also a requirement of jurisdiction that the child should also be ordinarily resident in the country of the adoption, for it is the courts of the ordinary residence which have the pre-eminent jurisdiction over the child, but of this Danckwerts J. was not sure.

As the applicants are not domiciled in the Territory, if Re Valentine’s Settlement[clxxxv]⁷ settles the law (and this court should ordinarily follow the Court of Appeal)-an order made by this court will not be recognized elsewhere, and possibly not in New Zealand, which is the country of the applicants’ domicile, so that there will be no adoption order which affects their status or the succession to their property. But this should not deter the court from making an order if it has jurisdiction, cf. Ashbury v. Ellis[clxxxvi]⁸; Renton v. Renton[clxxxvii]⁹.

The question of jurisdiction has also risen in Australia where, both in New South Wales and Victoria, the legislation is in the same general terms as the Ordinance. In Re an Infant[clxxxviii]¹⁰, Davidson J. of the Supreme Court of New South Wales had to consider a preliminary objection that a valid order under the N.S.W. Child Welfare Act could not be made unless the child was resident in New South Wales at the date of the application. It was held that the court had jurisdiction to make an adoption order providing that the adopting parents were in New South Wales at the time of the application “and if the child is also in the State or is domiciled in New South Wales. But in these events the change of status, if any, would be limited to the territorial boundaries of New South Wales. On the other hand, if both the adopting parents and the child should be domiciled in this State the order would be valid and of general effect.” Davidson J. held that as the purpose of the legislation was to affect the status of the adopted child, and status depends on the law of the domicil, the rule that every statute was to be interpreted and applied, so far as its language admits as not to be inconsistent with the comity of nations or with the established rules of international law, could be applied so as to extend the operation of the legislation to cases where the child was domiciled but not resident in New South Wales. This reasoning would seem now not to be open: Re Valentine’s Settlement[clxxxix]¹¹.

In Victoria, where as I have said the legislation is in the same general terms as the Ordinance, the matter has been considered by the Supreme Court in Re R.M.I., an Infant[cxc]¹², and Re X, an Infant[cxci]¹³. In the former case Hudson J. held that the jurisdiction of the Victorian Supreme Court to make adoption orders under the Adoption of Children Act 1958 is not limited to the making of orders in respect of children domiciled in Victoria, and on the application of a person resident and domiciled in Victoria, he granted an application in respect of a child resident in Victoria but domiciled elsewhere. Dean J. followed the earlier Victorian decision, and he held that the Victorian Court has jurisdiction to make adoption orders under the Adoption of Children Act 1958 in favour of applicants who were resident, although not domiciled, in Victoria. In the case before Dean J. the child was domiciled and presumably resident in Victoria.

In the course of his judgment, Dean J. referred to the general terms of the Victorian legislation, and proceeded:-“But general though this language is it is plain that it must be read down at least so as to confine its application to cases where the infant is within Victoria, or perhaps was born in Victoria and, probably, to cases where the applicant is within Victoria at the time of the application. It cannot be said to be applicable to persons outside Victoria.”

He then went on to consider whether the legislation should be further restricted by reading “any person” and “an infant”, as confined to persons and infants domiciled in Victoria. Although he considered there were very strong considerations to confine the operation of the Act to persons domiciled in Victoria, he decided to follow the reasoning of Hudson J. that no limitation based on domicil could be incorporated into the Victorian legislation, having regard to the wide terms of the Children’s Welfare Act 1928, which had formerly contained the adoption provisions. He decided that the basis of jurisdiction was the presence within the jurisdiction of an infant.

In the Victorian cases the problem before the court was, whether the legislation should be read down on the basis it “did not purport or intend to affect the status or successory rights of persons not domiciled in Victoria”. In deciding to the contrary, Dean J. was influenced by the difficulty as to whether the domicil of both applicants and child or either of them was to be considered as a test of jurisdiction, which has since been resolved in Re Valentine’s Settlement[cxcii]¹⁴, where the majority of the court held the child’s domicil to be irrelevant.

In New Zealand it is expressly provided that there is no requirement of either the child’s or applicants’ domicil as a condition of jurisdiction: Adoption Act 1955, s. 2. Indeed, according to Campbell’s Law of Adoption in New Zealand, 2nd Edition 173, it was the practice to make adoption orders in cases where the parties had come to New Zealand for the express purpose of applying for such an order[cxciii]¹⁵.

As to the terms of the legislation, the Child Welfare Ordinance 1961 deals not only with the adoption of children but also with allowances in respect of destitute children, mentally defective children, children’s courts, affiliation proceedings, wards and employment of children. The Ordinance repealed the Adoption of Children Ordinances 1951, 1956 and 1959, which were concerned exclusively with the adoption of children and then proceeded to include the former legislative provisions relating to adoptions, together with the above-mentioned subjects concerning the welfare of children. In its present form, this legislation is thus similar to the New South Wales Child Welfare Act, considered by Davidson J. in Re an Infant[cxciv]¹⁶ and to the Victorian Children’s Welfare Act 1928, considered by Hudson J. in Re R.M.I., an Infant[cxcv]¹⁷. Part 3 of the Ordinance, concerned with adoption, alone relates to status, and having regard to the other wide range of subjects, the Ordinance on its proper construction must apply to all children within the Territory whether domiciled therein or not. I agree with Hudson J. that no limitation of domicil can be read into these wide legislative provisions.

The next question is what nexus must exist between the child and the Territory so as to allow the court to have jurisdiction. Actual presence would not seem absolutely essential. Thus if the child were ordinarily resident within the Territory the fact that the child was, for example, at school in Australia at the time of the application should not deprive the court of jurisdiction, nor would it seem to matter that the child was away for part of the school year, a school year or even a period of school years: see P. (G.E.) (An Infant)[cxcvi]¹⁸. There is support for the view that the courts of ordinary residence should have jurisdiction in adoption cases: Re Valentine’s Settlement[cxcvii]¹⁹; see also Re Adoption Application No. 52/1951[cxcviii]²⁰.

In accordance with the presumption against extra-territoriality, and having regard to the territorial restrictions upon the powers of the legislature, I consider that the Ordinance must be restricted to children resident within the Territory. In the circumstances of this case, although the child had no particular place within the Territory which could be said to be his “settled headquarters”[cxcix]²¹, under the Migration Ordinance he had the right to leave the Territory limited for education purposes and on condition that he was to return to the district of Bougainville within the Territory at the expiration of his permit, and this seems to me sufficient to make the child ordinarily resident in the Territory so as to bring the child under the jurisdiction of the court. After the applicants left for New Zealand, and the boy had to be left in Bougainville, the applicants’ home was no longer his ordinary residence.

Let me now turn to the position of the applicants. Is it also necessary that the court’s jurisdiction should be construed as limited to applications by persons within the territorial jurisdiction? The two-fold effect of an adoption order is to destroy the legal relationship theretofore existing between the child and its natural parents, and also to create the legal relationship of parent and child between the adopted child and its adopting parents: Re Valentine’s Settlement[cc]²². Once the adoption order is made, the court cannot prevent the applicants taking the child from the jurisdiction, although an intention so to do on the date of the application would be material in considering the merits of the application: Re Adoption Application[cci]²³.

In the case before Dean J. the applicants were temporarily resident in Victoria for reasons unconnected with the application. If presence is required as a condition of jurisdiction, what length of residence is necessary, and if an applicant resorts to the jurisdiction to assume voluntarily new obligations, why should that fact deprive the court of jurisdiction which mere presence otherwise would ordinarily confer?

A useful test is to consider whether, if the Ordinance expressly provided as the sole condition of jurisdiction for the making of an adoption order, that the child should ordinarily be resident within the jurisdiction, the Ordinance would be invalid as beyond the power of the legislature. I consider that, in the words of Griffith C.J., the legislature could not be said to be meddling with matters wholly outside its territorial limits (Hughes v. Munro[ccii]²⁴), in the case of applicants outside the jurisdiction, if whilst affecting the status of a child resident within the jurisdiction, and over whom it thus had jurisdiction, it also affected the status of applicants resident outside the jurisdiction.

I have, therefore, come to the conclusion that this court has jurisdiction to make an adoption order in the case of a child ordinarily resident, although not present in the jurisdiction, and it is not necessary that the applicants should also be present or resident in the jurisdiction. This seems to accord with the statutory position both in New Zealand and South Africa: see Re Valentine’s Settlement[cciii]²⁵.

On the question whether the nationality of the child was a basis for jurisdiction, I was referred to Re P. (G.E.) (An Infant)[cciv]²⁶. The fact that the child is a British subject, or as a resident owes his allegiance to the Crown, is the basis for the exercise by the court of its inherent jurisdiction. This jurisdiction arises by delegation from the Sovereign and enables the court to make a wardship order whenever the Sovereign as parens patriae has a quasi parental relationship towards the infant: Re P. (G.E.) (An Infant)[ccv]²⁷. Thus the court may make orders as to the child’s custody, maintenance or education. As Australian protected persons are under the protection of the Australian government, this court within its inherent jurisdiction would be enabled to make such orders affecting them, but, in my opinion, the power of this court to make orders for adoption falls outside the inherent jurisdiction of the court, and the jurisdiction of the court can be determined only by looking at the terms of the ordinance.

For all these reasons I have decided that this court has jurisdiction to make the order sought. However, the applicants would be well advised to take proceedings for an adoption order also in New Zealand. Under the New Zealand legislation a court in New Zealand would have jurisdiction to make an adoption order, and having regard to the fact that the applicants are domiciled in New Zealand, any order made by the New Zealand court would be given universal recognition.

Adoption order made.

Solicitor for the applicants: Stan Cory.

ence>[clxxix][1956] A.C. 331

[clxxx][1916] HCA 46; (1916) 22 C.L.R. 150, per Isaacs J., at p. 161.

[clxxxi][1915] HCA 75; (1915) 21 C.L.R. 55, per Griffith C.J. and Gavan Duffy J., at p. 59.

[clxxxii] [1935] A.C. 500, at p. 520.

[clxxxiii][1909] ArgusLawRp 47; (1909) 9 C.L.R. 289, at p. 294.

[clxxxiv] [1965] Ch. 831.

[clxxxv][1965] Ch. 831.

[clxxxvi][1893] A.C. 339.

[clxxxvii](1918) 25 C.L.R. 291.

[clxxxviii][1933] NSWStRp 63; (1934) 34 S.R. (N.S.W.) 349, at pp. 355, 356.