DC6066

PAPUA NEW GUINEA
IN THE DISTRICT COURT OF JUSTICE
APPELLATE JURISDICTION
FC NO. 24 OF 2021

Between:
JAKAPI ARIGO
Applicant

And:
BRENDA ARIGO AND MORIS EDWIN
Respondent

Tari:	Mr. E. Komia
04th and 06th August 2021

FAMILY COURT – application for customary adoption of a child – application pursuant to s.53 and 54 of Adoption of Children Act Ch. 275 - requirements for such application – paramount consideration given to welfare of the child – need for a child to be groomed and reared in a loving and peaceful environment – orders for customary adoption and certification.

Legislations

Adoption of Children Act Ch. 275
Lukautim Pikinini Act 2015
Local Courts Repealed Act 2000

Papua New Guinea cases cited

Bean v Bean [1980] PNGLR 307
Mini v Nele [2020] PGDC 8; DC 4044 
RG v MG [1984] PNGLR 413
Susan Tom v Mazion Kayiak [1992] PNGLR 171
Ubuk v Darius [1994] PGNC 33; N1278 (25 November 1994) 
WP v DP [1982] PNGLR 1

A.	INTRODUCTION

1.	This is an Application for a customary adoption of a female child KA. The applicant is the elder sister of the female respondent, and due to the urgency to obtain the child’s visa to travel to Australia, the applicant requested for the application to be heard urgently, and I granted the applicant leave to move her application in my chambers.

2.	This is my ruling on that application.
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        
B.	FACTS.

3.	The applicant is the sister of the female applicant, and the two respondents are parents of the child, that is the subject of this adoption proceeding.

4.	The child is initialed as KA, and she was born on 23rd October 2012. She is now eight years and some months heading for her ninth year now.

5.	The male respondent had out-rightly denied the paternity of the child, and as such it was the female respondent that had taken care of her daughter. 

6.	The respondent has given her consent for the applicant to adopt the child.

7.	The applicant is highly an educated person and is highly qualified with a Master Degree in Science majoring in Computer Science. She currently resides in 103 Hertford Street, Upper Mount Gravatt, 4122, Brisbane, in Queensland, Australia. She is employed as a IT Business Analyst.

C.	ISSUE

8.	Whether the applicant should be granted the Certificate of Customary Adoption.

D.	EVIDENCE

9.	The applicant relies on her affidavit filed this morning on 04th August 2021.

10.	The applicants evidence deposed in the affidavit that she is educated and is employed, and is a single woman. Her qualification, address, and work status are provided under the introduction.

11.	The respondent Brenda Arigo is her sister, and the child is her daughter by custom and she is more or less the de facto mother in the event that Brenda is incapacitated through natural cause or death, she can step in as the mother.

12.	The male respondent has had no interest in taking care of the child and has all along denied the paternity of the child, and is no longer interested in the child’s welfare.

13.	The grandparents of KA, and the applicant and female respondent’s parents are old and are not capable of taking care of KA, and the applicant has been solely taking care of KA. The respondent has openly told the court that she has agreed for the adoption as the applicant is her big sister and has taken over the role of parenting the child.

14.	The respondent Brenda Arigo is now attending college and she has not been able to maintain her child, and as such, the applicant is now applying to adopt the child because the welfare of KA is important and she deserves to be given proper attention and care.

E.	CUSTOMARY ADOPTION AND CERTIFICATE OF ADOPTION

15.	An application for adoption of a child pursuant to the customary laws of Papua New Guinea is provided for under s.53 of the Adoption of Children Act Ch. 275. Upon the Court’s deliberation of the application, the court can then issue orders granting the application for customary adoption which is evidenced through a Certificate as to Adoption provided under s.54 of the Act. 

16.	Ss. 53 and 54 are as follows;
			
			53.	Adoptions by custom.
(1)	Notwithstanding any other law but subject to this section, where a child is or has at any time been in the custody of and is being or has been brought up, maintained and educated by any person or by two spouses jointly as his, her or their own child under any adoption in accordance with custom, then for the purposes of any law the child shall be deemed to have been adopted by that person or by those spouses jointly, as the case may be.

(2)	An adoption to which Subsection (1) applies takes effect in accordance with the custom that is applicable and is subject to any provisions of that custom as to limitations and conditions, including limitations and conditions as to the period of the adoption, rights of access and return and property rights or obligations.
			
			54.	Certificates as to adoptions.
					(1)	A Local Court may—
		(a) on application by a party (including a natural or adoptive parent and the adopted child) to an adoption to which Section 53(1) applies; and

		(b) on being satisfied that the adoption has been made or has terminated in accordance with custom, and as to any relevant limitations and conditions referred to in Section 53(2),

grant a certificate that the adoption has been so made or has so terminated, and as to the relevant limitations and conditions.
(2)	Subject to Part VI. of the Local Courts Act (Chapter 41), a certificate under Subsection (1) is conclusive as to—
		(a)	the adoption or termination of adoption; and
	(b)	any relevant limitations and conditions referred to 
					in Section 53(2).

17.	This application is made without any objection, and therefore there is really not much to be discussed with regard to this application. The only issue which would be purportedly questioned in the future would be regarding to future disputes that may be raised by the other respondent Moris Edwin.

18.	I would also like to point out here that the Act allows for adoption procedures specifically for the National Court, as the Act defines Court to be the National Court. While that is the case, s. 53 allows for customary adoption applications to be dealt with by the local court. Since the local courts have been abolished by Local Court Repealed Act 2000, s. 4 of the Local Court Repealed Act allows for all local court matters to be transferred to the District Court and the District Courts now assume jurisdiction of the local courts, hence this court has the jurisdiction to deal with such customary adoption application that is now before it. 

19.	Having said that, I now look not the application and its merits. The evidence given to this court clearly establishes that Moris Edwin has had zero involvement in the upbringing of the child due to his denial of paternity. From the general practical aspect, a father to a child may at times deny the paternity of the child during the early stages between the time of birth and the age of five to six years, and would later come back to see the child or at least make an attempt to see the child. 

20.	In this instance, the respondent Moris Edwin has not even done so, which gives an unambiguous statement to this court that he is not interested in the child, and would not be even interested in this adoption proceeding. There is therefore no need to ascertain his position regarding the adoption of the child, KA. In actual fact KA is not his child as he has openly put in public, as deposed in the applicant’s affidavit, which I will consider and take that, that has been the position and is the position at the time of this application.

21.	I am therefore impressed that there is no need for this court to gauge the views of the respondent Moris Edwin. I am therefore of the view that this application should proceed to be herd without Moris Edwin. 

22.	From the evidence provided by the applicant, and the respondent Brenda Arigo, the applicant has been taking care of the welfare of KA and has now filed this application to formally adopt KA as her daughter to ensure that her upbringing is well taken care of.

23.	In Huli custom, children born to women who have the same grandparent are regarded as sisters, and such is similar to the male persons. In this instance, the applicant and respondents are sisters and KA is by default the daughter of the applicant. There is no need for further evidence to establish whether there were customary practices and fulfillment of customary obligations prior to this adoption being granted by virtue of the fact that the applicant currently takes care of KA, and the respondent gives her full consent for the adoption.

24.	It is also important to consider that the “interest of the child” is a paramount consideration when dealing with such application, and the Court must remind itself of that prior to granting such orders. There are many cases concerning the paramount interest of a child and one such case is the case of Mini v Nele [2020] PGDC 8; DC 4044 (23 September 2020), in which I discussed the principles regarding custody. 

25.	Whilst this is an adoption case, and the Mini (supra) was a custody case, I find the principles concerning the “interest of the child” an important and relevant principle for me to discuss herein before I arrive at my decision in this adoption case. In Mini, I arrived at a conclusion that an application for custody shall ensure that the ‘paramount interest of the child’ must be the focal discussion, coupled with the demeanor of the parties prior to, at the time of the proceeding and then make an effort to conclusively project the welfare of the child after the custody has been awarded and I stated, that;

“Whilst the Lukautim Pikinini Act 2015 establishes that, a careful considerations of authorities in the National Court cases such as WP v DP [1981] PGLawRp 623; [1982] PNGLR 1 (16 December 1981), Tom v Kayiak [1992] PGLawRp 584; [1992] PNGLR 171 (2 July 1992) Ubuk v Darius [1994] PGNC 33; N1278 (25 November 1994) RG v MG [1984] PGLawRp 465; [1984] PNGLR 413 (14 December 1984) all continue to point towards the essential aspect of child’s welfare and wellbeing being of paramount considerations in awarding custody to any party of the marriage or relationship.
Sevua J in Ubuk v. Darius (supra) which concerned a custody of an infoat of 20 months old decided to grant custody to the mother, discussed the following relevant considerations in those authorites and summed up the authorites well and stated: in Bean v Bean [1980] PNGLR 307 at 320, Kapi, J (as he then was) said, "the welfare of the infant is usually referred to as the comfort, health, moral, intellectual and spiritual welfare of the child. These elements, in turn, are fundamentally dependent on the existence of security, stability, wise discipline and genuine affection in the home. In every custody application, when considering the welfare of the children, the Court must have regard to all these matters."
In Susan Tom v Mazion Kayiak [1992] PNGLR 171, Los, J said at 172, "the law is settled in the country that in any custody application the paramount consideration is the best interest of the children." His Honour cited the decision of McDermott, J in RG v MG [1984] PNGLR 413 where His Honour in the latter case stated the following as relevant considerations;
(1) The claim of the mother and what is often referred to as her preferred role, WP v DP [1982] PNGLR 1;

(2) The relative circumstances in which it is intended to raise the child;

(3) The ability to provide for the child's advancement in life;

(4) The age of the child; and

(5) Provision of the maintenance of existing relationships.

His Honour McDermott, J in RG v MG (supra) was dealing with the custody application of an illegitimate female child, aged three years, by the mother. His Honour in that case awarded custody to the mother with access to the father.
I agree with McDemortt, J and Los, J that on an application for custody, the paramount consideration is the best interests of the child. And I also agree with Kapi, J (as he then was) that the Court must have regard to all those matters he alluded to pertaining to the welfare of the infant in Bean -v- Bean. I further agree with Andrew, J and Los, J that the mother factor can be a decisive factor in an award of custody in fact, for my part, I would adopt and apply the rationale applied by the Full Court of the Family Court and the High Court in Hobbs v Ludlow (1976) FLC 75, 536 at 539 and Gronow v Gronow (1979) 54 ALJR 243 at 249 respectively as cited by His Honour Andrew, J in WP v DP. Whilst the mother factor is not a rule of law, I cannot say Their Honours, (Mason and Wilson, JJ) erred in saying that it was a cannon of common sense founded on human experience. I agree, it is a matter of weight or value and I cite my learned brother Andrew, J in WP v DP at 3:
In Tom v Kayiak [1992] PNGLR 171, His Honour Justice Los made some very important remarks which this court adopts and considers important in determining the issue of custody or parental order and in deciding, concluded that mother factor is not cannot be paramount where it is shown that she is not in a best position. I that case, the applicant, the mother of two girl children, 5 and 4 years old, claimed custody of the children. She argued that her relationship with the respondent, the children's father, was not a marriage by custom because of the insufficiency of the bride price. The court found that there was a marriage between the parents according to custom and it was subsequently blessed according to the rites of the Lutheran Church. Following a disagreement arising because of a demand for K10,000 by the applicant's father, she and the children were taken away by him and she, shortly thereafter, formed a relationship with another man, with whom she had one child.
The applicant was unemployed and her de facto husband had only part-time employment. The respondent was an employed mechanic. It was held amongst others that, the law is settled in the country that in any custody application the paramount consideration is that of the best interest of the children, and the mother factor can be a decisive factor in an award of custody like in WP v DP [1982] PNGLR 1, but if it is shown that the mother is not in a best position then that factor cannot take a paramount role. The welfare of the children will be best served by granting the custody to the respondent.
Finally in the case of Bean v Bean [1980] PNGLR 307, Kapi J (as he then was) said at 320:
"... the welfare of the infant is usually referred to as the comfort, health, moral, intellectual and spiritual welfare of the child. These elements, in turn, are fundamentally dependent on the existence of security, stability, wise discipline and genuine affection in the home.... In every custody application, when considering the welfare of the children, the court must have regard to all these matters."
The mother factor can be a decisive factor in an award of custody, like in WP v DP [1982] PNGLR 1, but I consider that if it is shown that the mother is not in a best position then that factor cannot take a paramount role. The children the subject of this application are no longer babies and breast feeding. The mother has an infant from the new relationship with another man (the new man). She is unemployed.
The new man is only employed part time. If the mother is given the custody of the children, she and the new man need to raise their own child as well the two children. In Bean v Bean at page 312, Kidu CJ said:
"The welfare of the child demands that assessment be made of any person who is to have a hand in looking after an infant. As Selby J said in Chisholm v Chisholm (1966) 7 FLR 347 at 350:
'It is most important in a situation such as this that the Court should be placed in a position in which it can assess for itself the character of the man who may become the stepfather of the child, the subject of the application, or who will on the respondent's own case stand to some extent in loco parentis to her. But I have been given no opportunity to make any such assessment and I am not disposed to accept the judgment of the respondent on so important a matter.'"…..
where the courts were faced with custody issues, and applications were made pursuant to the Infant Act, although the matters were concerning statutory marriages in which National Courts had jurisdiction, the common denominator that binds the principles of custody in the “Best Interest of the Child”. 

26.	As I alluded to in the latter part of this judgement, the principles of an application for custody must be given consideration and equally applied in the application for customary adoption as well. Questions such as the applicant’s capacity to look after the child, whether the applicant is a drunkard person or a person of sober habit, applicant’s employment status, marital status, and most importantly, whether the applicant has been taking good care of the child and whether she can be able to continue on with that. Those important considerations go to directly address the question of whether the customary adoption is in the ‘best interest of the child’.

27.	In my assessment of the application before me, I note that the applicant is employed and has residency status in Brisbane, the State of Queensland in Australia and she is highly educated, and is a Christian with sober habit, and has been the caretaker of KA for a very the last eight years since KA’s birth. All I am satisfied that all the checklists concerning customary adoption and also the ‘best interest of the child’ has been fully met.

28.	I note that the scenario would be different if the child KA had a father who was at the time of this application taking care of her. Then this would change the Courts perception on the application and the court would have taken a different approach in determining the adoption application, whilst giving due consideration to the welfare of the child.

29.	I am therefore satisfied that in the ‘best interest of the child’, and for purposes of conformity with s.53 of the Adoption of Children Act Ch. 275, the applicant has made out a case for adoption pursuant to s.53 of the Act, and therefore, I make the following orders.

THE COURT HEREBY ORDERS THAT:

1.	After hearing the nature of the application, and taking judicial notice of the consent given by the Brenda Arigo, and the application made by Jakapi Arigo, this Court is satisfied that the application is proper and genuine, and leave is granted for the application to be moved in Chambers.

2.	Pursuant to s. 54 of the Adoption of Children Act Ch. 275, this Court orders that the applicant is granted the Application for Adoption, and that a Certificate As To Customary Adoption is to be issued forthwith to the Applicant for the adoption of K A.

3.	Time for the entry of this order is abridged.

BY THE COURT
Magistrate Mr. E. Komia