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Application by RW and SW [1991] PNGLR 308 (22 August 1991)

Papua New Guinea Law Reports - 1991

[1991] PNGLR 308 - Application of RW and SW 

[1991] PNGLR 308

N1012

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

APPLICATION OF RW AND SW

Madang

Doherty J

22 August 1991

INFANTS AND CHILDREN - Adoption - Jurisdiction - Residence or domicile at time of “application” - Means time of originating process - Adoption of Children Act (Ch No 275), s 3.

The Adoption of Children Act (Ch No 275), s 3, provides:

“3(1)   A 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 and are domiciled in the country;

(b)      the child was present in the country.”

Held

The time for determining the residence or domicile of the applicants for the purposes of s 3 of the Adoption of Children Act (Ch No 275) is the date of filing of the originating process.

Cases Cited

Application of GN and RN; Re Child A [1985] PNGLR 121.

Summons

This was an application for adoption under the Adoption of Children Act (Ch No 275).

Counsel

M Miva, for the applicants.

22 August 1991

INTERIM JUDGMENT

DOHERTY J: The applicants RW and SW apply jointly for the adoption of an infant child D.

The matter has come before the National Court in Madang on two previous occasions, and, from the records, it is apparent there have been delays because the report of the Director of Child Welfare has not been filed. A letter was sent from the National Court directing the filing and as a result the Director wrote a minute, not a report, voicing concern that the natural father of the child did not appreciate what he was signing when he signed the consent to adoption.

I am satisfied on the affidavit of the Senior Provincial Magistrate, Mr Bidar, and having interviewed the father in Chambers that the natural father fully appreciates that he has agreed to relinquish legal custody of his child.

I have pointed out to counsel for the applicants that certain aspects of application, other than the report from the Director of Child Welfare, are not in order. These are the medical reports, which must be filed within thirty days of the application for an order and the medical report for the child.

These matters can be overcome by fresh evidence but the problem which I see as insurmountable to the application proceeding at this time is the provisions of s 3 of the Adoption of Children Act (Ch No 275).

This provides that:

“3(1)   A 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 and are domiciled in the country;

(b)      the child was present in the country.”

The Act provides that if the applicant or the child was present within twenty-one days before the date in which application was filed the court is vested with a power to presume that the applicant or the child was resident or domiciled.

The affidavits filed in this application show that the applicant husband and wife were working near Madang town in 1989. The natural father of the child was employed at the same place as the applicants. The natural mother of the child died approximately four days after the birth and the natural father together with leaders from his home area decided to ask the applicants to take care of the child. The child was given to the applicants following the request by the father and village leaders and he came into their custody one or two days after his birth.

A few weeks later the applicants wrote and informed the Director of Child Welfare of this situation but received no reply.

Some three or four months later the applicants’ employment was terminated in Madang and they were obliged to leave Papua New Guinea in accordance with legislation and they returned to their home country in Australia.

From the affidavits before me it would appear (although it is not clearly stated) that the applicants were not expecting to have their employment terminated.

I recite the above facts to make it clear that the applicants did not come to Papua New Guinea with the sole purpose of finding a child to adopt and left immediately thereafter with the child.

Newspaper reports suggest that such things happen in other countries and it may be that the provisions of s 3 of the Adoption of Children Act which I have recited are intended specifically to avoid such a situation occurring in this jurisdiction.

The provisions of s 3 were fully discussed in Application of GN and RN; Re A Child [1985] PNGLR 121 when Pratt J discussed the meanings of the words “resident” and “domiciled” as used in the Act.

It is clear that the provisions of s 3 are mandatory and do not give the court any discretion to make an order if the domicile or residency provisions are not met by the applicants and the child. The originating summons in this application was filed in the National Court on 19 October 1990; that is approximately a year after the applicants left Papua New Guinea and some ten months before this interim hearing today.

I have given consideration to the meaning of the word “application” as used in the Act. The Act refers to “an application” but does not define what exactly constitutes the application; is it the originating process filed in the National Court to initiate the procedures for hearing of the adoption or is it the actual hearing of the case?

The Act refers to “filing in the court of the application” and the National Court Rules refer to “an application” but Form 102 in the National Court Rules is headed “Summons”. Form 102 in the National Court Rules further states “the plaintiff requests that this application ...”. Clearly that the word “application” is intended to denote the originating process initiating the procedures for hearing before the court and the relevant date for determination for residency or domicile in the case before me was the date the document named “originating summons” was filed viz 19 October 1990.

As it is clear that neither the applicants nor the child were resident nor domiciled in Papua New Guinea either on 19 October 1990 nor twenty-one days before that the Court has no jurisdiction or power to make an order.

This is an unfortunate circumstance. As I have outlined above the applicants’ departure from Papua New Guinea is not a matter within their control and for the welfare of the child who has been with them virtually since the time of birth, I hope that this matter can be speedily resolved.

No order is made at this time.

No orders made

Lawyers for the applicants: Miva and Associates.