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A.B., Re [1965] PGSC 1; [1965-66] PNGLR 53 (20 April 1964)

Papua New Guinea Law Reports - 1965-66

[1965-66] PNGLR 53 - A.B.Re

[1965-66] PNGLR 53

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

RE AB

Minj

Smithers J

20 April 1964

INFANTS AND CHILDREN - Adoption - Whether adoption just and reasonable - Whether payment of money in consideration of the adoption should be paid to the mother of illegitimate children - Child Welfare Ordinance 1963.

The applicant, an Australian citizen, was the natural father of two children by a native woman. The father and mother had ended their relationship and the mother had returned to live in a native village and had become the mother of a full-blooded indigenous child. The father wished to adopt the children. The mother was willing to consent to an adoption order being made on payment to her of �200 in cash.

Held

N1>(1)����� An applicant for the adoption of illegitimate children must satisfy the court that, having regard to all the circumstances, it is just and reasonable that the applicant be authorized to adopt the children. Powerful reasons must be shown before a court can properly deem it just and reasonable to sever the relationship between a child and its mother, and in deciding whether such reasons exist the welfare of the child and the interests and desires of the parents and, particularly of the mother of an illegitimate child, must be fully considered. It does not always follow that material advantages which would flow to the child from the making of an order are the dominating consideration.

N1>(2)����� Where the mother of an illegitimate child applies under s. 104 of the Child Welfare Ordinance 1961 for payment of a sum of money in consideration of the adoption, the court is charged with the duty of doing what is just and reasonable and in this regard reference may be had to native custom with respect to such payments.

N1>(3)����� The adoption order should be made on an understanding by the applicant to pay to the Public Solicitor the sum asked for.

Case Cited

Mace v. Murray (1955) 28 A.L.J.R. 642.

Application for Adoption

The facts are sufficiently stated in the judgment.

Counsel

Noble, for the applicant.

Cruickshank, for the respondent.

20 April 1964

SMITHERS J:� The applicant is the natural father of the two infants, who are aged six and four respectively. He is an Australian citizen about 36 years of age who has a long association with New Guinea. He has a plantation and other interests in the Territory. The mother of the two children is a native woman of the Awagi Sub-District of the Territory of New Guinea. The children are the result of a relationship between the applicant and the mother which sprang up at the applicant�s plantation and which continued from 1957 until shortly after the birth of the younger of the two children at the end of 1959. The mother speaks Pidgin English but has no education.

The application originally came on before me in Port Moresby, Mr. Noble appearing for the applicant. From the papers before me it did not appear clearly that the mother was fully apprised of the significance of the proceedings and, following the practice in Re �X� adopted by me at Goroka in 1963, I directed that the application be brought to the notice of the Public Solicitor so that the interests of the mother might be properly protected. The matter was adjourned to Minj. The matter duly came on for hearing at Minj on the 20th March, 1964. Mr. Cruickshank of the Public Solicitor�s Office appeared for the mother.

On behalf of the mother, Mr. Cruickshank informed me that she consented to the adoption order subject to the payment to her of the sum of �200 at the rate of �2 per month to be made at Kerowagi. He called the mother as a witness and from her evidence it became clear that she then understood the nature of an adoption order and that she had no basic objection to such an order being made. However, in the witness box she indicated that she would only consent to the application if the �200 were paid to her in cash forthwith instead of in the instalments suggested above.

In these circumstances two questions arise:

N2>(a)����� should the adoption order be made at all?

N2>(b)����� should the court sanction the payment of any sum of money in connexion therewith?

I am clearly of opinion that the adoption order ought to be made. This is one of those cases where because of the fundamental differences in their racial characteristics, general habits of life, education and their personal antipathy, the two parents are now entirely at arm�s length. There is no likelihood of any change in this and the result is that from now on it is certain that their lives will take different paths. It is desirable, therefore, that the status of the children be firmly established. In circumstances where parents part, it sometimes happens that there is a contest between the father and the mother for the control and custody of the children. In this case there is no contest of that nature. The mother does not suggest that she desires or has the capacity to take the custody of these children. She lives the life of a village indigenous person. In addition she has recently become the mother of a full-blooded indigenous child. Her future is obviously with her own people. The mother has never lived with these children in the full sense or taken any part in their up-bringing. For some period of time she lived on the same plantation but not in the house of the applicant. The children have always lived and slept in the house and the mother�s contacts with them have been external and minor. This will not change.

So far as the applicant is concerned, he has behaved in all respects most properly towards these children. He has raised them in his own home in European fashion, he has provided them with education appropriate to their years and he has treated them in every respect as though they were his legitimate children. They are obviously well-cared for and happy in his care. He has plans to educate them well and otherwise to give them every opportunity to live full useful lives at European standard. As soon as these proceedings are concluded, he proposes to marry a woman who is fully apprised of the situation relating to the two children and who has indicated to the court her willingness to co-operate with the applicant in bringing up the children as planned.

From a legal point of view this court has to make up its mind whether, having regard to all the circumstances, it is just and reasonable that the applicant be authorized to adopt the children.

It is the law that powerful reasons must be shown before a court can properly deem it just and reasonable to sever the relationship between a child and its mother and thus make the child, for most purposes of law, the child of another person. See Mace v. Murray[xxiii]¹. In my opinion powerful reasons do exist in this case.

It is sometimes thought that the only consideration in such matters as these is the welfare of the child, but this is not so. In relation to questions of adoption the interests and desires of the parents, and particularly of the mother of an illegitimate child, must be fully considered. It does not always follow that material advantages which would flow to the child from the making of an order are the dominating consideration.

However, in this case I must have regard to the following matters:

N2>(a)����� because of the inevitable divergence between the paths of life of the applicant and the mother the interests of the children require the court to perform the task of deciding between the claims of the applicant and the point of view of the mother;

N2>(b)����� whether or not an adoption order is made there is no likelihood that the mother will have any real part in the lives or up-bringing of the children;

N2>(c)����� the mother has no plans for the children and indeed accepts the fact that they have adopted and are to continue to adopt the mode of life of the applicant. The inevitable consequence is that her contacts with them are fleeting and insubstantial;

N2>(d)����� the reluctance of the mother to consent to the order is related only to her own immediate financial interest and does not relate in any way to any motherly interest in the children or to their welfare;

N2>(e)����� should the court refuse the application the welfare of the children would be seriously prejudiced but nothing of practical value would be achieved for the mother;

N2>(f)����� the court is satisfied that the appellant will give the children all the advantages of a European home, parental affection, a good education and full opportunity to make successful careers;

N2>(g)����� from the point of view of the children the legal advantages of becoming adopted children of the applicant are most important. He is a man of substantial financial resources, with excellent prospects. In respect of his fortune the children, as a result of an order, will have all the advantages of children born to him in wedlock.

When all is considered, therefore, it would seem that from the point of view of what one may call the case of each parent the advantage is clearly in the applicant as against the mother. When one proceeds from that to consider the welfare of the children there is an overwhelming case for the making of this order. I therefore consider it is proper to make this order and to do so whether the mother consents or not. Although at one stage of her evidence she appeared to consent on the terms mentioned by her counsel, I am not sure that she did. I therefore dispense with her consent on the ground that in all the circumstances of the case it should be dispensed with. See s. 92 (5) (e) of the Child Welfare Ordinance, 1961.

The next problem is whether the payment of money should be sanctioned. Section 104 of the Ordinance says: �A person shall not give or receive a payment in consideration of the adoption of a child except with the consent of the Court�. As between persons of European race it would be a rare case in which the court would sanction any such payment. The court, of course, sets its face against any transaction which savours in the least of what might be described as the purchase of a child. Nevertheless, in these matters the court is charged with the duty of doing what is just and reasonable. It is my opinion that in the case of this native mother it is just and reasonable that such a payment should be sanctioned. The provisions of the Native Customs (Recognition) Ordinance 1963 are in point. This recent statute provides that, subject to certain exceptions, native custom shall be recognized and enforced by, and may be pleaded in, all courts. The exceptions relate to repugnance to humanity, inconsistency with other laws, incompatibility with public interest and, in a case affecting a child, whether or not in the opinion of the court the recognition of the custom would be in the best interests of the child. It is clear, therefore, that in this case the court should have regard to relevant native custom.

Mr. Ryan, the Assistant District Officer at Minj, has given uncontested evidence that the making of a payment to the female line by the father of a male child is a normal occurrence in the family life of the mother�s people. He has explained that it is the custom of these people that the male child becomes attached to the male line and that for this the male line is required to compensate the female line. This compensation is payable whether or not the father and mother continue to live together. He has informed the court that it is not unusual for a native affairs officer to be called upon to arbitrate concerning the amount and kind of compensation to be paid. The relationship between these people appears to be based on the notion that there is inherent hostility between lines. Thus when a man from one line takes a wife from another line there is actual or presumed hostility between the lines and the line losing the woman must be appeased by compensation in the form of bride price. This notion of compensation to appease actual or presumed inter-line hostility appears in many aspects of their lives, including the attachment of the male child to the male line. To my mind, therefore, there is nothing reprehensible in the mother receiving, and the applicant paying, an amount of money in connexion with this major event in their lives and the lives of their children. It is not something upon which the law should frown.

I, therefore, sanction the payment and make the order authorizing the applicant to adopt these children, he undertaking to the court to pay the sum of �200 to the Public Solicitor�s Office forthwith, such sum to be paid by the Public Solicitor to the treasurer of the native moneys trust account for payment to the mother at the rate of �2 per month at the sub-district office at Kerowagi.

Judgment accordingly.

Order and sanction accordingly.

Solicitor for the applicant: J. Irwin Cromie, Port Moresby.

Solicitor for the respondent: W. A. Lalor, Public Solicitor.

[xxiii] (1955) 28 A.L.J.R. 642.