Re TK (an Infant) [1965–66] PNGLR 189

• Jurisdiction: Papua New Guinea
• Judge: Frost J
• Judgment Date: 05 January 1966
• Court: Supreme Court
• Year: 1966
• Judgement Number: No387

Full Title: Re TK (an Infant) [1965–66] PNGLR 189

Supreme Court: Frost J

Judgment Delivered: 5 January 1966

1 Children—adoption; Residence/domicile; Supreme Court—jurisdiction

2 Adoption of orphan native boy by New Zealand couple approved; boy studying in New Zealand; Supreme Court had jurisdiction for child ordinarily resident in Territory of Papua New Guinea; was not necessary that applicants be present residents

INFANTS AND CHILDREN—Jurisdiction of Territory courts to make adoption orders when applicants domiciled outside jurisdiction but infant resident within jurisdiction—Recognition of foreign adoption orders—Nationality of child no basis of jurisdiction—Child Welfare Act 1961–1965, s90—Migration Act 1963, s50(1), (3), (4), s51—Nationality and Citizenship Act (Commonwealth) 1948–1959, s3A; Citizenship Regulations, No 62 of 1960, r5(1)(a), r5(2); Papua and New Guinea Act 1949–1963, s52, s53, s55.

The applicants, former residents of the Territory and now resident in New Zealand where they were born, applied on motion under Part 13 of the Child Welfare Act 1961–1965 for an adoption order in respect of a boy of seventeen years who is a native of Bougainville. In 1949 the boy in question was placed in the applicants' care while they were working as missionaries at Bougainville. He stayed with the applicants until 1958, when they retired from missionary work and returned to New Zealand. They were unsuccessful in their application to have the boy accompany them to New Zealand, but in 1962 a permit was granted under the Migration Act 1963 authorising the boy, for the purpose of education, to leave the Territory. Since then the boy had been at boarding school in New Zealand and generally under the care of the applicants. Both the natural parents of the boy were dead.

Held:

(1) As the applicants were not domiciled in the Territory an order made by this court would not be recognised elsewhere and possibly not in New Zealand, the country of the applicants' domicile, so there could be no adoption order which would affect their status or the succession to their property. But this should not deter the court from making an order if it had jurisdiction.

(2) The Child Welfare Act 1961–1965 applies to all children resident within the Territory and the jurisdiction of the Supreme Court to make adoption orders under Part 3 of the Act is not limited to the making of orders in respect of children domiciled in the Territory.

(3) If the child is ordinarily resident in the Territory, then the court will have jurisdiction notwithstanding that the child is absent from the Territory at the time of the application. In this case the child had a right to leave the Territory by virtue of the permit issued under the Migration Act 1963, to further his education on condition he return at the permit's expiration. This was sufficient to make the child an ordinary resident of the Territory as to bring him under the jurisdiction of the court so that an adoption order could be made in respect of him notwithstanding that the applicants were not domiciled in the Territory.

(4) It is within the inherent jurisdiction of the court to make orders in respect to the custody, maintenance, or education of a child who is a British subject or who, as a resident, owes his allegiance to the Crown; but the power of the court to make orders for adoption can be determined only by looking at the terms of the ordinance.

Cases referred to:

Johnson v Commissioner of Stamp Duties [1956] AC 331; Delaney v Great Western Milling Co Ltd (1916) 22 CLR 150; City Finance Co Ltd v Matthew Harvey & Co Ltd (1915) 21 CLR 55; British Coal Corporation v R [1935] AC 500; Hughes v Munro (1909) 9 CLR 289; Re Valentine's Settlement [1965] Ch 831; Ashbury v Ellis [1893] AC 339; Renton v Renton (1918) 25 CLR 291; Re an Infant (1934) 34 SR (NSW) 349; Re RMI, an Infant [1959] VR 475; Re X, an Infant [1960] VR 733; Re P (GE) (an Infant) [1965] Ch 568; Re Adoption Application No 52/1951 [1952] Ch 16.

Application for Adoption.

The facts appear sufficiently from the judgment.

___________________________

Frost J: This is a motion under Part 13 of the Child Welfare Act 1961–1965 of the Territory of Papua and New Guinea for an adoption order authorising the applicants to adopt a boy, who is a native of Bougainville, whom I shall refer to as "TK".

The applicants are husband and wife now living in New Zealand. The boy has turned seventeen. In 1949 the applicants, who were born in New Zealand, were working as missionaries in Bougainville.

Early in January, 1949, the infant who was then only a week or so old, was brought to the applicants' home by a native who said he was the uncle of the child who had been born a few days before at a nearby village. The applicants undertook to look after the child. Thereafter the child was brought up entirely by the applicants and, whilst they were in Bougainville, he lived with them, except for two occasions, one in 1950, and the other in 1954, when the applicants went on furlough and they left the boy at the mission station.

In 1958 the applicants retired from missionary work and went to New Zealand. They sought permission from the Administration authorities in Bougainville to take the boy, then nine years of age, to New Zealand to be educated, but the application was unsuccessful. The boy remained with various mission people in Bougainville until, in July, 1962, the Department of District Administration granted a permit under the Migration Act 1963 authorising the boy, for the purpose of education, to leave the Territory. During the hearing of this case the permit was extended. Since then the boy has been at boarding school in New Zealand, and generally under the care of the applicants. Both the natural parents of the boy are dead. On all the facts I would have no hesitation in granting this application on the merits, but the question is whether this court has jurisdiction to make an order.

When this application first came on for hearing, Mr Andrews appeared for the applicants and Mr Quinlivan appeared on behalf of the Secretary for Law as amicus curiae to assist the court on the issue of jurisdiction. Mr Andrews argued that a sufficient condition of jurisdiction was that the child should be domiciled in the Territory, or resident therein, and he argued that the boy was both domiciled and resident in the Territory, he being temporarily absent for the purposes of education. Mr Quinlivan in a helpful argument submitted that to be given full recognition outside the Territory, it would be necessary for the adopting parents to be domiciled in the Territory, and he considered that an application should also be made in New Zealand, but that this court also had jurisdiction to make an order which would be effective in the Territory, if the child was domiciled in the Territory. He argued that the court should have regard to the purpose of the legislation, now the Migration Act, which was the protection of Pacific Islanders; and an adoption order made by this court would show to the court of the applicant's domicile that there was no objection in the Territory's legislation to the adoption being made.

On 14th December, 1965, I reserved my decision, but after further consideration I asked counsel to assist the court by further argument as to whether the nationality of the child was a basis of jurisdiction. Accordingly, on 5th January, 1966, the matter was again argued and both counsel submitted that the child was an Australian protected person under the Nationality and Citizenship Act 1948–1959 of the Commonwealth of Australia and that this was a sufficient test of jurisdiction.

On the issue of jurisdiction it can be stated at the outset that the applicants are both plainly domiciled and resident in New Zealand. The boy has, however, his domicile of origin, which is the Territory of Papua and New Guinea. Neither the applicants nor the boy are present in this jurisdiction.

Before the boy could leave the Territory he had to obtain a permit under the Migration Act...