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GN and RN, an Application [1985] PGNC 12; [1985] PNGLR 121; N506 (27 May 1985)

N506

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

IN THE APPLICATION OF G N AND R N PURSUANT TO THE ADOPTION OF CHILDREN ACT (CH NO 275) FOR AN ADOPTION ORDER IN RESPECT OF CHILD A

Waigani
Pratt J

24 May 1985
27 May 1985

INFANTS AND CHILDREN - Adoption - Jurisdiction - "Residence" as requirement of - Some degree of permanence required - Visitor not resident - Adoption of Children Act (Ch No 275), s 3.

The Adoption of Children Act (Ch No 275), s 3, provides that an adoption order shall not be made unless the applicant or applicants are, at the time of filing the application, "resident or domiciled in the country" and the child is present in the country.
Held

(1) For the purposes of the Adoption of Children Act (Ch No 275), s 3, "resident" means to have one’s usual dwelling place or abode, and connotes some idea of permanence.
Henry v Boehm [1973] HCA 32; (1973) 128 CLR 482 at 497; [1973] HCA 32; 1 ALR 181 at 191, adopted and applied.

(2) Accordingly, a person with a usual and permanent dwelling place in Australia and visiting the country with a purpose of obtaining an adoption order in respect of his natural child, a citizen of Papua New Guinea did not satisfy the jurisdictional requirements of the Act.

Cases Cited

Brokelmann v Barr [1971] 2 QB 602; 3 WLR 108; 3 All ER 29.
Dunn v Dunn [1963] P 192; [1963] 2 WLR 311; 1 All ER 440.
Head v Head [1963] P 357; [1963] 3 WLR 326; 3 All ER 640.
Henry v Boehm [1973] HCA 32; (1973) 128 CLR 482; 1 ALR 181.
Morgan v Murch [1970] 1 WLR 778; 2 All ER 100.

Summons

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

Counsel

K Y N Kara, for the applicant.
Cur adv vult

27 May 1985

PRATT J: I have before me a joint application by G N and R N for the adoption of A, the natural-born son from a union between G N and R Q of Morobe province, who is apparently a Papua New Guinea citizen. The child is now 5½ and is before the court. The male applicant, an Australian citizen, is before the court also, but the female applicant is outside the jurisdiction, being resident in Australia. She deposed to the fact that she holds a Papua New Guinea passport and that her domicile of origin is Papua New Guinea. The production of her person and her passport before me would have been most advisable especially in view of the fact that domicile and residence were obviously going to be an area of difficulty. However, that could have been met by an adjournment to a later date but will not in the end result be necessary. I might add here I accept Mr Kara’s submission that a domicile of origin is supported in law by a very strong presumption indeed — the leading texts relying on the highest authorities point out that the presumption of domicile of origin in common law jurisdiction is such that "almost overwhelming evidence is required to shake it off": Cheshire & North, Private International Law, (10th ed, 1979) at 175.

The facts before me on affidavit and from G N in the witness box disclose that he left Papua New Guinea more or less permanently in May 1981. He has returned here on a number of occasions, one of which was to marry the female applicant in October 1982. The child has been staying with his natural mother for much of his life but there have also been periods where he stayed in Moresby with the family of R N. She and the male applicant live in a caravan park in Cairns and it is clear this is the present family home and has been for some time. There is one child of the present union, now six years old and a considerably older child born previously to Mrs N. Both children are attending school in Cairns. There is a favourable welfare report before me received from the Department of Children Services, Brisbane, Queensland. I have also a consent to the proposed adoption by the natural mother as required under the Adoption of Children Act (Ch No 275), s 15 and s 16(2), and duly authenticated under the Act and regulations. There is no material covering any interview between the natural mother and our own Department of Child Welfare.

In addition to his earlier visit to Papua New Guinea, the immediate last being January 1984, Mr N has been here since 17 April 1985. The application herein was lodged in the National Court registry on 16 May 1985, so that the period of twenty-one days mentioned in s 3 of our Act has been exceeded. He has been staying for this period with his wife’s relatives in a suburb of Port Moresby except for a period of six days or so when he went to Rabaul in order to collect his son from the natural mother, who recently transferred there for work reasons. It is clear to me that Mr N is in Papua New Guinea for the main objective, if not the sole objective, of trying to finalise the formalities associated with the adoption of his son. The question is: has he established residency here?

The Adoption of Children Act (Ch No 275), s 3, reads as follows:

"3. When jurisdiction may be exercised

(1) The 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 or domiciled in the country; and

(b) the child was present in the country.

(2) For the purposes of Subsection (1), where the Court is satisfied:

(a) that an applicant was resident or domiciled in the country; or

(b) that the child was present in the country,

within 21 days before the date on which an application was filed in the Court, the Court may, in the absence of evidence to the contrary, presume that the applicant was resident or domiciled in the country, or that the child was present in the country, as the case may be, at the time of the filing in the Court of the application."

I make several preliminary observations here:

(1) This is a joint application in which I must be satisfied as to the domicile and/or residence of both parties who are applicants. For the purpose of the remainder of this judgment I am presuming the applicant R has a domicile within the terms of s 3.

(2) The child, I have also presumed, comes within s 3.

(3) Although s 3(2)(a) and (b) are expressed in the alternate, there can be no suggestion that consequently s 3(1)(a) and (b) may be also construed in the alternate. Subsection (2) gives assistance to the court in one case or the other or both, if necessary, in order to come to a conclusion on residence or domicile.

In examining s 3 I am also conscious of the emphasis which counsel has laid on s 4 which provides:

"Rules of private international law ... not to apply.

The jurisdiction of the Court to make an adoption order is not dependent on any fact or circumstances not expressly specified in this Act."

The principles of private international law may well not be a basis for establishing jurisdiction in this Court. The court’s jurisdiction rests squarely within the four corners of the Adoption of Children Act itself. I am not prepared, however, to agree, in the absence of full argument, that s 4 means what the editor has written in the section heading. Nor do I take s 4 to mean that when the term "residence" and "domicile" have to be defined I should abandon the decisions made by other common law jurisdictions, and more particularly the underlying English common law if I believe that they can assist me in arriving at a proper meaning of those terms as used in s 3.

It seems to me that in ordinary parlance Mr N is a "visitor", that is a person visiting the country for a comparatively short period of time in order to renew friendships and attend to business. Prior to this visit he was certainly resident in Cairns, Queensland, living there together with his wife and family. "Residence" in the Shorter Oxford English Dictionary is defined, inter alia, as "to have one’s usual dwelling place or abode; to establish oneself; to settle". One may have of course a number of residences (as mentioned in Morgan v Murch [1970] 2 All ER 100) where the time spent and the intention which the person has during that time are directed to more than a "temporary visit". The fact that an Act requires residence for a particular number of days (as in our s 3) does not add to or subtract from the substance of the matter one jot. Either a person is resident or he is not. All the Act specifies is what minimum period of time such residence must cover (for example, Dunn v Dunn [1963] 1 All ER 440 and Head v Head [1963] 3 All ER 640).

Although the United Kingdom courts were concerned with particular legislation, I believe I gain great assistance from them in my task here and also from the matters referred to by Ashworth J in Brokelmann v Barr [1971] 3 All ER 29 at 36. His Honour there says:

"The word ‘residence’ has come before the courts in a number of cases of which the most familiar are those relating to income tax and voting rights. In an often-cited passage taken from Leven v Inland Revenue Commissioners [1928] UKHL 1; [1928] AC 217 at 222, 223; [1928] UKHL 1; [1928] All ER 746 at 749, Viscount Cave LC said: ‘My Lords, the word "reside" is a familiar English word and is defined in the Oxford English Dictionary as meaning "to dwell permanently or for a considerable time, to have one’s settled or usual abode, to live in or at a particular place". No doubt this definition must for present purposes be taken subject to any modification which may result from the terms of the Income Tax Act and Schedules; but, subject to that observation, it may be accepted as an accurate indication of the meaning of the word "reside".’ "

Down at the bottom of the page, Ashworth J goes on:

"This passage was followed and applied by Lord Denning MR in Fox v Stirk [1970] 2 QB 463 at 475; 3 All ER 7 at 11. In the judgment of this Court there has gradually been developed and established a rule of construction that prima facie at least residence involves some degree of permanence. As was said by Lord Justice Widgery in Fox v Stirk (supra): ‘It is imperative to remember in this context that "residence" implies a degree of permanence. In the words of the Oxford English Dictionary, it is concerned with something which will go on for a considerable time. Consequently a person is not entitled to claim to be a resident at a given town merely because he pays a short, temporary visit. Some assumption of permanence, some degree of continuity, some expectation of continuity, is a vital factor which turns simple occupation into residence.’"

The idea of permanence has been adverted to in a number of Australian cases one of the more recent being Henry v Boehm [1973] HCA 32; (1973) 1 ALR 181, a Constitutional matter before the High Court of Australia. At 191 Gibbs J (as he then was) at lines 15 to 20 said:

"It seems to me that ... it connotes some idea of permanence."

Mr N works out of Cairns during the season on prawning trawlers. He is endeavouring to obtain a shore job, especially in view of the more difficult times being faced by the trawling industry in Eastern Australia at the moment. As I have said his family is in Cairns, though his wife is from Papua New Guinea, and naturally enough her parents and relatives are still here. Despite my sympathies for the applicants it would be an abuse of ordinary language, let alone legal interpretation to say that Mr N was or had been for one day or twenty days resident in Papua New Guinea at any stage since 1981. The plain fact is, he is on a visit to the country lasting for some six weeks or so and he will return to Cairns in the near future. He had hoped to return with his son. I am at a loss to understand why the Australian authorities say this cannot be so in view of the natural mother’s consent to the adoption and to the affidavit material put before me. I trust the position can be resolved quickly. I can only say that a return to Cairns with the boy would establish a basis for making an adoption application in Queensland. Sadly, Mr N’s lack of residence in Papua New Guinea does not permit such application to be granted here. I must therefore refuse the application.

Application refused

________________________________

Lawyer for the applicant: K Y N Kara.

[1985] PNGLR 125 - Talasanga Tolison v Thomas Samuel Tolison and Phillisity Dukaduka