IN THE FAMILY DIVISION OF THE MAGISTRATE’S COURT AT NAUSORI

FILE No: Adoption 25 of 2011
Adoption 26 of 2011

BETWEEN:

SHALENDRA CHANDRA & SANGEETA DEVI CHANDRA
Applicants

AND:

WARSHA NANDNI KUMAR
Respondent

AND:

SOCIAL WELFARE OFFICER, Nausori
Guardian Ad-Litem

AND:

[i] SANYA CHANDRA
[II] SHARYA CHANDRA
Infants

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APPEARANCES/REPRESENTATIONS
APPLICANTS : SHALENDRA CHANDRA & SANGEETA DEVI CHANDRA /
 [MESSRS M. A. KHAN ESQ]

RESPONDENT : WARSHA NANDNI KUMAR / NOT REPRESENTED

INFANTS :   [I] SANYA CHANDRA and 
[ii] SHARYA CHANDRA through Guardian Ad-Litem Social Welfare Officer, Nausori

DECISION OF : RESIDENT MAGISTRATE MR MOSESE V.W. NAIVALU

DELIVERED AT : NAUSORI MAGISTRATES COURT

DELIVERED ON : 14TH DECEMBER, 2012.
____________________________________________________________________________

ADOPTION OF INFANTS ACT [CAP 58] – application for adoption order – law relating section 6(4) of the Adoption of Infants Act discussed – findings that requirements of section 6(4) not complied with – Rules 3(2),(3) & 4 of the Adoption of Infants (Magistrates Courts) Rules not complied with - applications dismissed.
____________________________________________________________________________

Adoption of Infants Act Cap 58 – s.3; s.15.

Social Welfare Officer v Marshall [2008] FJHC 283
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DECISION OF THE COURT

1.	This is a Ruling on an adoption application pursuant to the Adoption of Infants Act Cap 58 (“Act”) even though the applications were filed separately.

2.	The applicants have filed the following documents in files numbered 25 of 2011 and 26 of 2011 respectively for adoption orders in respect of a Sanya Chandra and a Sarya Chandra (“the infant twins”)

[i] Notice of Motion dated 9 November 2011(for appointment of Guardian ad-litem);

[ii] Notice of application for an adoption order dated 7 December 2011;

[iii] Application for an adoption order by Shalendra Chandra and Sangeeta Devi Sharma aka Sangeeta Devi Chandra dated 9 November 2011;

[iv] Affidavit of Warsha Nandhi Kumar (for dispensation of consent by biological father) sworn on 9 October 2011; 

[v] Supplementary Affidavit of Shalendra Chandra sworn on 31 May 2012 in support of Application in [ii} above.

Facts

2. According to the first Social Welfare Report (“first report”) dated 3 February 2012 the first applicant is a citizen of United States of America and had an arranged marriage with the second applicant on 31 January 2002 in California, United States of America. Originally, he is from Visama, Nausori and received his primary, secondary and even tertiary education locally and holds a Bachelor of Arts degree in accounting from the University of South Pacific. He is the second youngest of three siblings. It is because of this United States of America citizenship of the first applicant that the issue of Section 6(4) of the Adoption of Infants Act arises hence the case authority of Social Welfare Officer v Marshall [2008] FJHC 283 being relevant. 

3. The infants are Sharya Chandra of Wainasasa, Baulevu Road, Nausori, a female born on 11 June 2011 and her twin sister Sanya Chandra born on the same day also at the same location. Subject to adoption they will then be known as Sharya Shivani Chandra and Sanya Shivani Chandra respectivley

4. The applicants do not have children of their own after some nine years of marriage. According to the said report the second applicant is anatomically unable to conceive arising from a permanent impairment. The couple were very sad at this development and it has proved a bit stressing on their relationship.

5. Therefore it would be fair to say that the motive behind the application for adoption is that the second applicant could not conceive and that the couple were lonely at times and so decided on an adoption. Hence upon their chance meeting with the Respondent after visiting a friend at the Colonial War Memorial Hospital and after learning from a staff nurse of the Respondent’s plight together with the plans that they originally had decided to provide the necessary care and protection for the twins.

6. Mr Tirath Sharma as the applicant’s former solicitors had promptly advised the court that as a further gesture of their genuineness in all intents and purposes the first applicant was applying for Fiji citizenship which was followed with leave by an affidavit of the first applicant which should have been in fact a supplementary affidavit which annexed his application for citizenship fees as well as a confirmation from the Immigration Department dated 30 May 2012 of his citizenship status. I cure the defect under the “slip rule”. At this stage Mr Sharma had submitted to the court in a nutshell that the authority of Marshall (supra) did not apply as the first applicant now had citizenship and therefore was on an equal citizen status as the second applicant. Furthermore, that it is in the best interests of the infant twins that adoption be in fact granted.

7. Because of this development the court and in all fairness to the applicants allowed a supplementary Social Welfare Report (“second report”) which was dated 25 July 2012. However, as the court retired to write its ruling, MA Khan Esq filed a Notice of Change of Solicitors dated 23 August 2012 and therefore came on the record by which time I, as Magistrate-in-carriage had been transferred to the Ba jurisdiction.

8. Again, in fairness to the applicants and because the above case authority was pivotal and in appreciating that Mr Khan’s arguments may not be the same as his predecessor the court allowed further time for Mr Khan to submit on the issue on whether this was an application or one of the type of applications that the court in the Marshall case disallowed. Mr Khan filed his submissions on 5 November 2012. However, together with the submissions were filed another supplementary affidavit of the first applicant sworn on 6 November 2012. This is struck out for defectiveness where leave should have been first applied and obtained. The court was anticipating the filing of submissions not another supplementary for that matter. There is a huge difference between the two procedurally.

A PRELIMINARY POINT 

9. The court in the interests of justice always and having considered all the documents before it wishes to address a preliminary point.

10. As it so happened and by some stroke of fortuity it became apparent to the court that this application was the second such kind. The first was by way of an application before my current sister Resident Magistrate Vandhana Lal presiding in the Suva Family Court Division being Chandra v Kumar Adoption Nos 65 and 66 of 2011(9 November 2011). This was never revealed to the Court in any way whatsoever and at any stage throughout these proceedings. There the applications were unsuccessful and orders not granted because the court found that primarily the applicants did not meet the provision of Section 6(4) of the Adoption of Infants Act in not being residents of Fiji and were only in Fiji for the purposes of adoption. Of note however, in the Suva application their addresses were that “they were former residents of Fiji and now reside at 5987 Kuvasz Court, Citrus Height, CA 95621, United States of America”. Their occupations were “Service Manager and Inventory Clerk respectively”. 

7. It seems with that unsuccessful attempt behind them they then applied in the neighbouring Nausori jurisdiction to have a second bite at the cherry with their second adoption application. This time their addresses were “of Wainasasa, Baulevu Road, Nausori. Their occupations changed drastically somewhat to “Unemployed and Accounts Manager respectively”. Significantly, the time between dismissal of application being 21 October 2011 and date of filing in the Nausori jurisdiction being 9 November 2011 were exactly 20 clear days apart, just under 3 weeks.

8. According to Chandra v Kumar (supra), there was one Guardian ad-litem report (“first report”) dated 20 September 2011 and one supplementary report dated 18 October 2011 (“second report”). Their recommendation in the first report was negative firstly, that they are not residents of Fiji hence do not qualify for adoption and secondly, the copy of home study report attached with their application was not requested through the Department of Social Welfare but rather was provided through their adoption agency and thirdly, the applicants did not meet the probationary period as stated in Section 15(1) of the Act. In the second report however, there is a change of heart by the Social Welfare Department the recommendation was positive in that the applicants had satisfied Section 15(1) above and that the first applicant had been granted exemption as a spouse of a Fiji citizen(the second applicant) and has been allowed to reside in Fiji until 25 August 2012 and is not to be engaged in any form of employment without the approval of the Fiji Immigration Department.

9. In this current application similarly there was one Guardian ad-litem report dated 3 February 2012 (“first report”) and one supplementary report dated 27 July 2012 (“second report”). Their recommendation in the first report was negative because it did not satisfy Section 6(4) of the Act. In the second report however, there is a change of heart by the Social Welfare Department the recommendation was positive in that the first applicant was now a Fiji citizen, the applicants had bonded with the twins over and above the Section 15(1) of the Act threshold and apart from being financially stable the adoption would be in the best interest of the twins.

9. The court notes however that nowhere throughout the affidavit in support of the Respondent, Warsha Nandhi Kumar sworn on 9 November 2011 nor the first and second reports was this first application ever highlighted or alluded to or its dismissal. Might I add here that had I not been eluded to the Chandra v Kumar (supra) authority although not for persuasiveness but rather to confirm the first application this adoption would most probably have been “one that slipped through the net”. Tragically, if it was not picked up by Mr Sharma then then the onus lay on the applicant’s new counsel, Mr Khan to detect which he still didn’t do uptil current. Moreso, when the court allowed him further time to consider his position fully and in doing so accorded the applicants some fairness. 

10. Accordingly Rule 4 of the Rules of the Act states:

“If it appears to the court that the applicant has made a previous application under the Act in respect of the same infant and that such application has been refused, the court shall not make an adoption order or an interim order unless satisfied that there has been a substantial change in the circumstances”

11. This then begs the questions whether Nausori Court is the right jurisdiction to hear this second application? Secondly, has there been a substantial change in the circumstances between the first application and the current one? These are the issues that this court needs to address initially even before becoming adventurous so as to venture into the substantive arguments of Marshall (supra). I will start with the second issue first.

12. Judge Pathik D while sitting in the Labasa High Court in Devi v Sami [1996] FJHC95;Hba0006j.95(6 February 1996) discussed a change in circumstances which was a provision once appearing under Section 8 of the previous Maintenance and Affiliation Act Cap. 52 which stipulated, in so far as it is relevant, as follows:

"8. - (1) A magistrate having jurisdiction in the place in which an order under the provisions of this Part has been made may, upon the application of either spouse and upon cause being shown upon evidence of a change in circumstances  not occasioned by the default or neglect of the applicant, to the satisfaction of the magistrate, at any time alter, vary or discharge any such order and may upon any such application from time to time increase or diminish the amount of any weekly payment order to be made."

(underlining mine for emphasis) 

Under the said section 8(1) evidence of "change in circumstance" is required. As stated in HALSBURY 4th Ed. Vol. 13 para 1323:

"However as the court will approach an application for the exercise of such powers" (of alteration, variation and discharge) "on the basis that the original order was correctly made, it will in practice be necessary to demonstrate either that there has been a change in circumstances since the hearing or that evidence has come to the knowledge of the applicant since the hearing and could not by reasonable means have come to his knowledge before that time; to that extent fresh evidence must be adduced in support of the application." (underlining mine for emphasis).

13. Judge Lyons J discussed change in circumstances as well in Ali v Raniga [1996] 195 (27 September 1996) and quoted from Collier v. Howard McLelland CJ (In Equity, unreported decision 23rd of April 1996) which enunciated the rule as follows:

"Generally speaking, the interests of justice as between the parties, fortified by the public interest in the finality of litigation and the efficient employment of judicial resources, require that where an application for interlocutory relief has been made, heard on the merits and refused, a further application for substantially the same relief should not be entertained, unless it is founded on a material change in circumstances since the original application was heard, or discovery of new material which could not reasonably have been put before the Court on the hearing of the original application."

In an earlier decision of Wentworth v Rogers, Mr. Justice Sperling gave detailed reasons with reference to authority for this rule. I do not propose to go into this in much greater depth save to say that I refer to the editorial notes of Mr. Justice Young in the Australian Law Journal under the heading "Recent Cases" in Vol. 70 ALJR (August 1996) at p.613. I am in little doubt that the general rule is that parties are not allowed to relitigate interlocutory applications unless there has been a material change in circumstances  since the original application was heard, or the discovery of new material which could not reasonably been put before the Court on the hearing of the original application (as per McLelland CJ above).

As I have said the application before me is now substantially the same as the other applications in that it seeks the same practical relief. On reading all of the material there is no suggestion that there has been a material change of circumstances or the discovery of new evidence. 

To allow the application now before me to continue would be "a scandal to the administration of justice" (as per Lord Halsbury in Reichel v Magrath (1889) 14 App Cas 665 at 668-70.

14. It is to be noted however that the above two-quoted authorities speak of change in circumstances while Rule 4 speaks of a substantial change. The fact of the matter is that if there was any change then it would have occurred in only 20 days, just under 3 weeks and the change ought to be a substantial one. One of the changes I can deduce between the two applications is that in the first application, the first applicant was employed while the second applicant was unemployed. Come just 20 days later there is a complete role-reversal. The first applicant is unemployed while the second applicant is now employed. But that is because the first applicant was prevented to work by law since he is a citizen of the United States of America he had obtained exemption as a spouse of a Fiji citizen (the second applicant) and had been allowed to reside in Fiji until 25 August 2012. It was not by choice that he was unemployed. Further, that within that same time-frame their addresses have changed from the United States of America to Nausori. Another change noted is that the first applicant has obtained Fiji citizenship. A question that begs the court is did the applicants ever return to the United States of America in these 20 days after the first refusal?

15. In any event, section 6(4) of the Act speaks nothing of citizenship but of residence.

16. On the issue whether the applicants were "residents" under Section 6(4) of the Act Madam Justice Gwen Phillips in Social Welfare Officer v Marshall (supra) at p 7 applied the principles set out by Justice Harman in Re Adoption Application No. 52/1951 which applied in England at the time of his judgment and which is still part of the law in Fiji as follows:

"The Court must be able to postulate at the critical date that the applicant is a resident, and that is a question of fact. Residence denotes some degree of permanence. It does not necessarily mean the applicant has a home of his own, but that he has a settled headquarters in this country. It seems dangerous to try to define what is meant by residence. It is very fortunate that it is not possible to do so, but, in my judgment, the question before the court is in every such case whether the applicant is a person who resides in this country. In the present case I can only answer that question in the case of the wife holding that she is not resident of this country; she is merely a sojourner here during a period of leave; she is a resident in Nigeria, where her husband's duties are, and whether, in pursuance of her wifely duties, she accompanies him. I do not think either of the applicant's is resident in England at present".

Again it comes to me that this passage is also applicable to the facts of the instant case. I a satisfied that the concept of residency involves an element of permanent settlement for a foreseeable period of time and not some temporary period or sojourn, to use the word employed by Mr. Justice Harman. There can be no doubt in my judgment that on the evidence before the court the Applicants have established their roots in Australia for the foreseeable future and that any visits they may make to Fiji are simply stays for a particular time.

17. I therefore find that there has been no substantial change of circumstances as no new evidence was put before the court. The only new evidence that was put before the court was the obtaining of Fiji citizenship by the first applicant. I will address this later. In total there have been two applications in two separate jurisdictions and four reports from the Social Welfare Department in the same jurisdictions. To me the applicants continued to make their applications in a piece-meal fashion which is reflected in the four reports above. 

18. It is difficult not to totally ignore their first application in determining this current second one. The second applicant holds a valid Green Card which is another word for permanent residency in the United States of America as was revealed to the Social Welfare Department through the second report although she still holds her Fiji citizenship. It is usually a natural progression that someone with a permanent resident will eventually apply for citizenship of their adopted country when the law allows them to. The law in Fiji allows for dual citizenship. This enabled the first applicant to apply successfully for one. With the second applicant who still holds a Fiji passport married to the first applicant who is a citizen of the United States of America I am sure that their family arrangement would support her becoming the same immigration status as her husband in due course hence live in America and not Fiji. Hence it is the finding of this court that the principles as enunciated above by Justice Harman ring true in its entirety in this application and find that the applicants are not residents in Fiji for the purposes of section 6(4) of the Act. They simply came to Fiji for the purpose of adopting the infant twins. Their usual place of abode is America and any visits/stays in Fiji is for a particular time only.

19. To the first issue now. If the Rule had stated "a" court or "any" court then I agree the second application could be heard here but the Rule states "the" court therefore the matter should have been heard in Suva where there was first refusal. In their applying in the Nausori jurisdiction it tantamounts to judge-shopping an act frowned by the courts. It is evident that the applicants have tried to circumvent legislative provisions as a means to an end. Therefore in so doing I find that the issues above having being properly addressed no further purpose is served in addressing counsel's submissions.

20. If that was all. There is a further note of preliminary concern that the Application for an adoption order by Shalendra Chandra and Sangeeta Devi Sharma aka Sangeeta Devi Chandra dated 9 November 2011 was incomplete in that it did not comply with Rule 3(2),(3). Rule 3(3) stipulates that the application shall be supported by an affidavit made by the applicant appearing in the said Form 1. When one looks at the said form under paragraph 17 of the said form precedent an Affidavit Verifying Statements in Application appears which must be sworn before a Commissioner for Oaths. This was not done hence in its defective form I therefore strike out the application for an adoption order filed in its entirety together with the Supplementary Affidavit of Shalendra Chandra sworn on 31 May 2012 in support of the said Application for non-compliance of the Rules. Strict adherence to the Rules is trite law.

Conclusion

21. The provision of 6(4) of the Act is a mandatory requirement which I cannot ignore or by-pass. Accordingly, I am refusing any orders for adoption in favour of the applicants in respect of the infant twins and order accordingly. That to allow the application now before me to continue would be "a scandal to the administration of justice".

22. 30 days to appeal.

MOSESE V W NAIVALU
RESIDENT MAGISTRATE
NAUSORI