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Magistrates Court of Fiji |
IN THE MAGISTRATES COURT AT NASINU- FAMILY DIVISION
Adoption Case No. 10/2013
BETWEEN:
JULIAN DISMAS SING of 5/15, Dawson Street,Hamilton East ,Hamilton 3126 , New Zealand, Business Development Manager .
Applicants
AND:
BELINDA LUISA SINGH of 26Vere Road,Laucala Beach Estate, Suva, Fiji, Secretary
1st Respondent
AND:
KELERA IOWANA DILIONI SING of 26Vere Road, Laucala Beach Estate, Suva, Fiji, Student.
2ndRespondent Infant
AND
The Gardian Ad Litem
3nd Respondent
Ms. Milinia Dorova (Parshotam Lawyers) for the Applicants.
The 1st & 2nd Respondent appeared in person.
Judgment on Adoption
1] This case was emanated by filing of Adoption papers by the applicants for child namely KELERA IOWANA DILIONI SING.
2] There are One applicant and the particulars of applicants are as follows;
Name of Applicant 1: JULIAN DISMAS SING
Address: 5/15, Dawson Street, Hamilton East ,Hamilton 3126 ,New Zealand.
Occupation: Business Development Manager
Date of Birth: 24.05.1977
Relationship of Infant: Maternal Uncle
3] The applicant is Fiji Citizen and resident of Fiji and New Zealand. He is not married.
4] The Applicants filed this application to adopt the child and Infants particulars are as follows;
5] The current guardian of the infants is her grandmother MARIA SING.
6] Along with application, Applicant has produced His sisters (the biological mother of infant) his and the infant’s birth certificates. These birth certificates prove that the applicant and 1st respondent and 2nd respondent infant are belongs to one family and cognates. As per application the applicant is the maternal uncle. The 2nd respondent infant was given to hands of the applicant when she was born on 4th June 1997. Since then the applicant has provided the 2nd respondent with the help of his mother that the maternal grandmother of the infant till today. He further mentioned that the infant has been continuously in their own joint care and possession for 11 years.
When the infant attained the age of 13 years in 2009 he had to migrated to New Zealand. He had travelled to and from Fiji on a regular basis. Now the applicant has acquired New Zealand residence. But still the applicant claims to be a Fijian citizen. This court noted that the applicant is a well qualified gentleman who is a bachelor and has no intention of getting married. He was a graduate at the University of the South Pacific in 1998 and 1999. He attained his Bachelor of Arts degree major in Tourism in 1998 and also did his Post Graduate.
In the application he has stated that he did not made a previous application Order in respect of the infant. Further, he have not received or given any reward or payment for or in consideration of the adoption of the infant or for giving any consent to the making of the adoption order. As far as they know, no person or body had taken part in the arrangements for placing the infant in our care and possession. He prayed adoption in respect of this child.
7] Apart from those documents, the applicants tendered an affidavit of natural mothers consenting to the adoption order.
8] Upon the application on 20th day of June 2013 the Nasinu Social Welfare Office was appointed as Gardian Ad Litem and social welfare report was called.
9] On 22nd August 3013 the social welfare report was filed with confirming the fact mentioned as correct and true. Further the report has referred 2 legal limitation mentioned in the Adoption of Infant Act ( CHAP 58) of Fiji more specifically section 6(2) AND section 6(4). Except the legal barriers the social welfare report has not raised any issue of intention of the applicant or the respondents.
10] Since the court was satisfied with the information tendered by the social welfare the matter was fixed for further trail. Evidence of the grandmother , 1st respondent was led in the trial and since there is no party to contest this matter, Court requested to file an affidavit of Applicant to support his application as there should be substantial evidence before this court, which he did trough his solicitors on 08th September 2014.
11] At the trail on 16/09/14 it was revealed that the fact mentioned in the application as correct and true. This adoption is interfamily. The Applicant is the maternal uncles of the infant. The Applicant is the Respondent’s younger brother. The Infant is a 17 years old female child and she was in the possession of the Applicant and 1st respondent and grandmother since she was six years old. The infant is the issue of the 1st Respondent before marriage. The 1st Respondent is currently married and had three children. After 1st respondent married and moved away the infant has continued to be with applicant and his mother until today. The 1st respondent the biological mother has consented for this adoption arrangement.
12] The Applicant is a permanent residence of New Zealand and has been resident of the said country since 2009. The Applicant is a bachelor and a single Applicant in this matter. Further the grandmother of the infant stated that the applicant has brought up the infant up to day with the help of witness. The infant used to visit her uncle on school holy days at New Zealand.
14] The motive of the adoption is clear. This is an interfamily adoption. According to the Applicant, since he has raised the infant till today and will not marry and have children, the opportunity of raising this infant triggered him to adopt her as his own, hence the reason for adoption. According to SWO Report the infant also attracted to the applicant. The child was interviewed by this court and he consented to the application and willing to reside in New Zealand with the Applicants. Hence, this Court cannot see any sinister by allowing this application.
15] The Social Welfare officer recommends the adoption but she reserves her comment on Section 6(2) and 6(4) of the Adoption of Infants Act [Cap 58]. Section 6 normally deals with the restriction of the Adoption Orders. I reproduce it for clarity. It says;
“6. (1) An adoption order shall not be made unless the applicant or, in the case of a joint application, one of the applicants-
(a) has attained the age of twenty-five and is at least twenty-one years older than the infant in respect of whom the application is made; or
(b) has attained the age of twenty-one and is a relative of the infant, or
(c) is the mother or father of the infant.
(2) An adoption order shall not be made in any case where the sole applicant is a male and the infant in respect of whom the application is made is a female unless the court is satisfied that there are special circumstances which justify as an exceptional measure the making of an adoption order.
(3) An adoption order shall not be made upon the application of one of two spouses without the consent of the other of them:
Provided that the court may dispense with any consent required by this subsection if satisfied that the person whose consent is to be dispensed with cannot be found or is incapable of giving such consent or that the spouses have separated and are living apart and that the separation is likely to be permanent.
(4) An adoption order shall not be made in favour of any applicant who is not resident in Fiji or in respect of any infant who is not so resident” ( Emphasis Added)
16] This court is satisfied with the circumstances’ of this case. Therefore this court has no doubt or hesitation to use its discretion mentioned in section 6(2) of the Adoption of Infants Act [Cap 58].
17] It is noted that the Applicant has obtained his Permanent Residency in New Zealand recently. Thus, the only issue to be resolve by the bench is whether the Applicant is not residents of Fiji and under section 6(4) of the said Act and is there a patent impediment to obtain an adoption order. It is to be noted this is not first time these type of application had copped up in Fiji.
18] In Re Adoption Application No. 52/1951, ( 1951) 2 All ER. 931, [1952] 1 Ch. 16, His Lordship, Justice Harman said, in interpreting the similar provision which applied in England;
"The court must be able to postulate at the critical date that the applicant is 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 by holding that she is not resident in this county; she is merely a sojourner here during a period of leave; she is 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 applicants is resident in England at present."
19] In Fiji, His Lordship Justice Byrne address the similar question in Re S (an Infant) [1997] FJHC 183; [1997] 43 FLR 292 (24 November 1997) [1997] 43 FLR 292, The High Court, held "the concept of residency involves an element of permanent settlement for a foreseeable period of time and not merely some temporary period or sojourn" and accordingly the application failed. This type of application again dismissed in Social Welfare Officer v Marshall [2008] FJHC 283; HBA11.2006 (7 March 2008).
20] It is so regretted that this provision hindrance the application of Adoption at this point. In HBJ0027 of 1995 The State v. Attorney-General of Fiji ex-parte: Joseph Nainima delivered on 21st October 1997 the court held that it is the function of the Courts only to interpret the law but not to amend it. Therefore this court thinks that it is vital to further interpret this procedure as there is a lacuna or is creates injustice/prejudice to infant's future.
21] In line with the current regime of Adoption, I now turn to consider right of Child, that is international perceptive on children's welfare which have recognised under article 42 of constitution of republic of Fiji.
22] Article 3 of the Convention on the Rights of the Child, G.A. res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force Sept. 2 1990, are as follows;
"1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (Emphasis added)
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision."
23] Article 12 of the International Covenant on Civil and Political Rights Adopted and opened for signature, ratification and accession by General Assembly resolution2200A(XXI)of 16 December 1966, entry into force 23 March 1976, in accordance with Article 49, read as follows;
"1. Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence."
24] Article 23 of the International Covenant on Civil and Political Rights provides;
"1. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
2. The right of men and women of marriageable age to marry and to found a family shall be recognized."
25] The Applicant has chosen New Zealand as his residence. It is there basic Human Right and Article 23 of the said Covenant recognises the family is the natural and fundamental, basic unit of the society and it need to be protected by the State. Thus, protection of law must be there in line with the basic international norms. The Applicant must not be declined his right because he obtained a permanent residency in New Zealand. But yet he is a Fijian citizen.
26] It should be noted that law and society must see that children are gifts of creation, a hope for the future rest on children's protection, safety and well being. Court current responsibility is to protect these basic norms. "The best interests' standard necessarily invites the judge to rely on his or her own values and biases to decide the case in whatever way the judge thinks best. Even the most basic factors are left for the judge to figure out as upper guardian of the children.
27] In Rex v. Devall in 1763[1763] EngR 90; , (1763) 97 Eng. Rep. 913, 914 (K.B.), court ruled that any decision regarding custody was left to the discretion of the judges, "according to the circumstances that shall appear before them".
28] As per the judgment of Her Worship Madam Anjala Wati (As she then was)'s Suva family Court Case Number 14 of 2009. In that event similar question arose and considering the Citizens of Fiji, the Adoption Order was granted. In the instant case also the Applicant also citizen of Fiji.
30] Therefore this application can be sustained. In line with the above paramount interest of the children, I wish to act under Section 13(1) of the Adoption of Infants Act [Cap 58]. I make following orders;
i) Adoption Orders granted to the Applicant.
ii) Applicant cannot take the child out of jurisdiction for whatever the reason unless she accompanied by the grandmother of the infant.
iii) The Safety, Protection, well being of the child to be with the Applicant.
Orders granted accordingly.
On 27th November 2014 at Nasinu, Fiji Islands
Neil Rupasinghe [Mr.]
Resident Magistrate-Nasinu
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URL: http://www.paclii.org/fj/cases/FJMC/2014/176.html