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Bruce v President of the Funafuti Lands Court [2003] TVHC 22; HC Civil Case No 18 of 2002 (25 September 2003)

IN THE HIGH COURT OF TUVALU

CIVIL JURISDICTION

CASE NO: 18/02

KAFOLAU BRUCE

Applicant

v

PRESIDENT OF THE FUNAFUTI LANDS COURT

Respondent

James Duckworth for applicant
Respondent in person

Hearing: 25 September 2003
Judgment: 25 September 2003
Reasons: 30 September 2003

Judgment

This is an application to set aside an adoption order made by the Funafuti Land Court. I refused the application and said I would give written reasons. I do so now.

The applicant, Kafolau Bruce, is the father of the subject of the adoption order, Tila Bruce. Tila is living in New Zealand and who's proceeding in the Land Court was, as the applicant concedes, undertaken solely to help Tila in his application for New Zealand residency.

The applicant's own adopted father, Lota Vakai, was born in Tokelau and it was decided that he should adopt Tila so he could then apply as his son and gain the benefit of his new father's birthplace. The application, therefore, was for Lota to adopt Tila. At the hearing, the applicant "represented" his son.

The proceedings at court were remarkable and made all the more so by the fact that the person to be adopted was, at the time of the application, 36 years old and was not present in court or, indeed, in the country at any stage of the proceedings. No evidence was heard and the court did not question whether the person to be adopted was willing to be adopted or whether he even knew of the application.

The record of the proceedings shows that Lota told the court he wished to adopt Tila for personal reasons and to help him apply for his citizenship in New Zealand. He was asked if his true children knew and told the court they did not. The present applicant then stated that he accepted the adoption and the court expressed the view there was no problem. It was then immediately granted.

It is all too apparent that this was not a proper way to conduct an adoption hearing nor a proper basis for adoption. However, it is not necessary to deal with that save to say that the Funafuti Land Court should not allow its proceedings to be used in this way. The court was all too clearly concurring in a ruse to give the absent subject of the adoption a means of getting round the immigration rules in New Zealand. Such actions do nothing for the reputation of the court and neither do they help other Tuvaluans who may wish to make proper application to New Zealand in the future.

When it was presented, the New Zealand authorities would not accept the Certificate of Native Adoption so the applicant now comes to this court to seek to set aside the very decision for which he was the principal mover.

This case raises a number of serious points of law but I am not willing to hear a case founded on an action in the lower court which was little short of fraudulent and which has been brought to this court effectively to enable a successful party to set aside the result he sought and achieved.

I regard this as an abuse of the court process and, for that reason, I have refused the application.

Dated this 3^rd day of September, 2003

THE COURT.