In the Application of GN and RN pursuant to the Adoption of Children Act (Ch275) for an Adoption Order in respect of A [1985] PNGLR 121

• Jurisdiction: Papua New Guinea
• Judge: Pratt J
• Judgment Date: 27 May 1985
• Citation: [1985] PNGLR 121
• Court: National Court
• Year: 1985
• Judgement Number: N506

Full Title: In the Application of GN and RN pursuant to the Adoption of Children Act (Ch275) for an Adoption Order in respect of A [1985] PNGLR 121

National Court: Pratt J

Judgment Delivered: 27 May 1985

1 Adoption—resident—application for an adoption order in respect of Child A—Adoption of Children Act (Ch275)—necessity to establish as a resident—jurisdiction—s3 Adoption of Children Act—some degree of permanence required—visitor not a resident

INFANTS AND CHILDREN—Adoption—Jurisdiction—"Residence" as requirement of—Some degree of permanence required—Visitor not resident—Adoption of Children Act (Ch275), s3.

The Adoption of Children Act (Ch275), s3, 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 (Ch275), s3, "resident" means to have one's usual dwelling place or abode, and connotes some idea of permanence.

Henry v Boehm (1973) 128 CLR 482 at 497; 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

The following cases are cited in the judgment:

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) 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 (Ch275).

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Pratt J: I have before me a joint application by GN and RN for the adoption of A, the natural–born son from a union between GN and RQ 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 and North, Private International Law, (10th ed, 1979) at 175.

The facts before me on affidavit and from GN 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 RN. 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 (Ch275), s15 and s16(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.

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