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Hamboken and Asini (re Isaac Jimmy Napkai, an infant), Regina v [1973] PGSC 18; [1973] PNGLR 288 (18 August 1972)

Papua New Guinea Law Reports - 1973

[1973] PNGLR 288 - Regina v Ben Hamboken and Asini (re Isaac Jimmy Napkai, an infant)

[1973] PNGLR 288

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

REGINA

V

BEN HAMBIKEN AND ASINI RE ISAAC JIMMY NAPKAI AN INFANT

Rabaul

Kelly J

16-18 August 1972

INFANTS AND CHILDREN - Habeas Corpus - Custody - Adoption Local Court - Procedure - Abandonment of infant - Welfare of child - Adoption of Children (Customary Adoptions) Ordinance, 1969 ss. 5[cccxxv]¹, 6[cccxxvi]², 9[cccxxvii]³, Infants Ordinance, 1956 ss. 6[cccxxviii]⁴, 15[cccxxix]⁵, 17[cccxxx]⁶.

N. a sub-inspector of police was the father of a legitimate child born in December 1970 of a native customary marriage. N. and the mother of the child lived together for short periods only, the mother retaining possession of the child at all times. In March 1972 whilst N. was on duty in the Highlands the mother placed the child with B.H. and I. In May 1972 N. remarried and went on recreation leave and on his return in July 1972 was informed by B.H. and I. that they had obtained an adoption order in respect of the child from the Local Court. N. had not received notice of these proceedings which were heard on the day the application was made. N. then sought an order that a writ of habeas corpus issue.

Held

N1>(1)����� The conclusiveness which s. 6 (2) of the Adoption of Children (Customary Adoptions) Ordinance 1969 gives to Local Court adoptions can only apply to certificates of adoption validly granted.

N1>(2)����� By reason of s. 9 of the Adoption of Children (Customary Adoptions) Ordinance, 1969 a certificate of adoption pursuant to s. 6 (2) can only be validly granted if the Local Court is satisfied that all persons interested have had a reasonable opportunity of making any representation that they wish to make on the subject.

N1>(3)����� N., as the natural father, was clearly a �person interested� for the purposes of s. 9 of the Adoption of Children (Customary Adoptions) Ordinance 1969 and should have received notice of the application.

N1>(4)����� Accordingly, the certificate of adoption was not validly granted.

Circumstances in which a natural parent has �abandoned or deserted� a child within the meaning of ss. 15 and 16 of the Infants Ordinance, 1956 so as to give the Court a discretion whether or not to issue the writ for the production of the child, discussed.

Motion for Issue of Writ of Habeas Corpus

James Airau Napkai moved the Supreme Court for an order that a writ of habeas corpus should issue directed to the respondents Ben Hamboken and Asini to have the body of his child, Isaac Jimmy Napkai, before the Supreme Court at Rabaul. All relevant facts appear in the judgment.

Counsel

G. R. Keenan, for the applicant.

Pearce, for the respondents.

Cur. adv. vult.

18 August 1972

KELLY J: The applicant James Airau Napkai seeks an order that a writ of habeas corpus should issue directed to the respondents Ben Hamboken and his wife Asini to have the body of Isaac Jimmy Napkai before the Supreme Court at Rabaul. An order having been made that the respondents show cause why an order should not be made for the issue of the writ, the matter now comes before me on the return of the order nisi. The purpose for which the issue of the writ is sought is to have the custody of Isaac Jimmy Napkai given to the applicant.

Isaac Jimmy Napkai is a legitimate native child born on 22nd December, 1970. The applicant is its father and the mother of the child is Liat Olga Pelis (who is also referred to as Lieth Olga Pellice). The respondents at present have possession of the child which was placed in their care by the mother in about March this year. On 30th May, 1972, on the application of the respondents a certificate under the provisions of the Adoption of Children (Customary Adoptions) Ordinance, 1969 was issued by the Local Court at Rabaul; this certificate declares that a permanent adoption has been made in accordance with native custom and shows the respondents as the adopting parents.

The applicant and Liat were married in March 1970 the marriage being a native customary marriage. The applicant is a sub-inspector of police and in April 1970 he was transferred to Konos Police Station in New Ireland. Liat accompanied him but after some trouble concerning the applicant�s alleged friendship with a woman named Lavinia, Liat left in October 1970 and returned to her village in the Duke of York Islands. After the birth of the baby in Rabaul in December 1970 Liat returned to her village and in about May 1971 rejoined the applicant who had meanwhile been transferred to Kavieng. The applicant says that he sent money for the support of his wife and child at the time of the birth but Liat says that the applicant sent no money after the baby was born. Liat says that she obtained from her cousin the money to pay her plane fare to Kavieng whereas the applicant says that the fare was paid by his uncle. When she arrived at Kavieng, Liat says that the applicant had a woman named Siami living in the house. The applicant denies that he was living with this woman but says that he �went around� with her. The respondent Ben Hamboken says that when he visited the applicant in Kavieng on two occasions in 1971, Siami was living with the applicant in the house. Liat stayed with the applicant at Kavieng for only a very short time, about one week, and then returned with the child to her village where she remained until December 1971; she says that during this period the applicant did not send money to look after the child and the applicant agrees that this is so.

Between August 1971 and 22nd May, 1972, except for a period of about two weeks in December 1971, the applicant was on duty in the Highlands with a police mobile squad. During the period for which he was in Rabaul in December 1971, the applicant saw Liat and the child on occasions at Tomaringa Police Barracks; there was a conflict of evidence as to whether the applicant brought Liat and the child to the barracks and later returned them to Rabaul or whether Liat went herself with the child to see the applicant; on these visits the applicant gave Liat sums of money totalling $35.00. After this there was no subsequent contact between the applicant and his wife and child and he sent no further money for their support. Liat again returned to her village but early in 1972 again came to Rabaul where she saw the respondents whom she has previously known in Kavieng. The respondent Ben Hamboken, is, like the applicant, a sub-inspector of police. Liat and the child then stayed with the respondents for about two months. Early in her stay the respondent Ben Hamboken spoke to the applicant, who was then on duty in the Highlands, by radio and the applicant told the respondent that his wife and child should return home.

About two or three weeks after Liat and the child left the respondents� house at the end of their stay, Liat again saw the respondents. She was then working at the Travelodge in Rabaul and she gave the child to the respondents to look after. At about this time Liat commenced an association with another man and lived with him for about four months, but she says that she has not remarried.

On his return to Rabaul on 22nd May, 1972, the applicant spoke to the respondents and was told by them that Liat had remarried and that they were caring for the child. The applicant said that he did not care about the woman but that he wanted his child. On 25th May the applicant married Lavinia and on that day also he went on recreation leave to his home on Sakar Island in the Morobe District where he said he made arrangements for the child to be cared for by his parents. The applicant did not see the child before going on leave; he says that he was advised by the respondent Ben Hamboken not to go to their house as Liat was �after� him and as he thought he might start a fight he did not do so. The respondent Ben Hamboken says that he asked the applicant to come to his house about the child.

Shortly after his return to Rabaul from recreation leave the applicant saw the respondents on 25th July and told them that he would take his son from them as he had made arrangements for his parents to care for him. The respondents then told him that they had adopted the child through the Local Court and that they would keep him in their custody. The applicant says that he was never informed of the application to the Local Court in relation to the adoption of the child and that he had never consented to the child being adopted and there is no evidence to the contrary on this. The applicant says that if he regains custody of the child his intention now is that it be looked after by Lavinia who is living with him at Tomaringa.

The Adoption of Children (Customary Adoptions) Ordinance 1969 provides by s. 6 as follows:

N2>�(1)��� A Local Court may, upon application by a party (including a natural or adoptive parent and the adopted child) to an adoption to which subsection (1) of section 5 of this Ordinance applies, and upon being satisfied that the adoption has been made or has terminated in accordance with native custom and as to any relevant limitations and conditions referred to in subsection (2) of section 5 of this Ordinance, grant a certificate that the adoption has been so made or has so terminated, and as to the relevant limitations and conditions.

N2>(2)����� Subject to the provisions of Part VI of the Local Courts Ordinance 1963-1966, a certificate under subsection (1) of this section is conclusive as to the adoption or termination of adoption, and as to any relevant limitations and conditions referred to in subsection (2) of section 5 of this Ordinance.�

Section 5 (1) provides:

�Notwithstanding the provisions of any other law of the Territory but subject to the succeeding provisions of 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 native custom, then for the purposes of any law of the Territory the child shall be deemed to have been adopted by that person or by those spouses jointly, as the case may be.�

Section 9 provides:

�A Local Court shall not grant or vary a certificate under this Ordinance unless it is satisfied that all persons interested have had a reasonable opportunity of making any representations that they wish to make on the subject of the certificate.�

Reference must also be made to s. 3 of the Ordinance which states that the Ordinance shall be incorporated and read as one with the Adoption of Children Ordinance 1968. In view of the widely differing schemes of the two enactments I find considerable difficulty in seeing how this can satisfactorily be done but I shall leave that aspect for the moment.

The conclusiveness which s. 6 (2) gives to the certificate granted by the Local Court clearly can only apply to a certificate which is validly granted. By reason of s. 9 such a certificate can only be validly granted if the Local Court is satisfied that all persons interested have had a reasonable opportunity of making any representations that they wish to make on the subject. There is no doubt that the natural father of a child the subject of the certificate is a �person interested� for the purpose of s. 9. In this case application was made to the Local Court on 30th May, and the certificate was granted the same day. The court record, which is of the most meagre description, consisting only of the application, a record of appearances and the certificate, shows that there were appearances by Liat and by the respondents and on the evidence before me it is apparent that the court could not possibly have been satisfied that the present applicant had a reasonable opportunity of making any representations he may have wished. Indeed the evidence shows that the certificate was granted on the very day on which the application was made so that the present applicant had no opportunity of hearing about the matter let alone making any representations.

I therefore conclude that by reason of non-compliance with s. 9 the certificate was not validly granted. As to the purported adoption itself to which the certificate relates, there is no evidence before me which would enable me to determine whether there was an adoption in accordance with native custom, so that I must proceed on the footing that the respondents are unable to show any basis on which they are entitled to retain custody of the child.

Under s. 6 of the Infants Ordinance, 1956 unless the court should order otherwise under s. 7 of that Ordinance the father and mother of an infant are jointly and severally entitled to its custody. In the present circumstances then, unless there were some reason which in the interests of the child would make it proper for me to adopt some other course, custody of the child would be given to the applicant since as between himself and the respondents, who are strangers, he is the one who is entitled to that custody. I am of course concerned only with the position as between the applicant and the respondents as no question arises before me as between the father and the mother of the child.

There are two sections of the Infants Ordinance which require consideration in the light of the evidence. The first is s. 15 which provides:

�Where the parent of an infant applies to the court for a writ or order for the production of the infant and the court is of opinion that the parent has abandoned or deserted the infant or that he has otherwise so conducted himself that the court should refuse to enforce his right to the custody of the infant, the court may decline to issue the writ or make the order.�

The other section is s. 17 which is in these terms:

�Where a parent has:

(a)����� abandoned or deserted his infant; or

(b)����� allowed his infant to be brought up by another person at that person�s expense for such a length of time and under such circumstances as to satisfy the court that the parent was unmindful of his parental duties,

the court shall not make an order for the delivery of the infant to the parent unless the parent has satisfied the court that, having regard to the welfare of the infant, he is a fit person to have the custody of the infant.�

On the evidence before me I would not consider that it could be said that the applicant had abandoned or deserted his child. Until 22nd May, 1972, that is eight days before the purported certificate of adoption was granted, he had been absent from Rabaul in the course of his duties for many months. On 25th May he went on leave, in the course of which he says that he made arrangements for the child to be cared for by his parents and there is no reason I should not accept that this was so. It does seem that his contributions towards the support of the child during the present year have been minimal, being limited to the $35.00 which he gave Liat in December 1971, but this does not lead me to the view that he has abandoned or deserted the child.

The allegations as to the applicant�s improper association with other women are not made out to the degree of satisfaction that would cause me to form the opinion that the applicant has so conducted himself that I should refuse to enforce his rights to the custody of the child.

The evidence shows that the child has been brought up by the respondents at their expense for a period of from four to five months. For the first part of this period the applicant was, as I have said, absent from Rabaul on duty and it would seem that it was not until his return to Rabaul that he knew that the child was with the respondents. The position is admittedly different as to the latter part of the period, that is from 22nd May onwards, for most of which time the reason for the applicant�s absence from Rabaul was that he was on recreation leave. However, I would not consider that the length of time for which it could be said that the applicant had allowed the child to be brought up by the respondents at their expense and the circumstances under which that occurred were such as to satisfy me that the applicant was unmindful of his parental duties.

On the view which I thus take I do not consider that either s. 15 or s. 17 of the Infants Ordinance operates so as to cause me to decline to make the order sought. In considering the interests of the child there is nothing before me which would show that the material or moral well-being of the child would be better cared for if he were to remain with the respondents rather than to go into the custody of his father.

I therefore consider that the child should be given into the custody of the applicant. Counsel for the applicant has asked that in the event that I resolve the issue in favour of the applicant, as I have done, I should make an order pursuant to O. 82 r. 8 of the Rules of the Supreme Court (Queensland, adopted) instead of making the order absolute and actually issuing the writ; that rule enables the court on the return of the order nisi to direct the disposition of the person in question without the issue of the writ. It seems to me in the circumstances that to have the writ actually issue with the consequence that a return must then be made to it is an unnecessary procedural step as I have no reason to suppose that any order which I make would not be obeyed.

Accordingly I order that the custody of Isaac Jimmy Napkai be given by the respondents to the applicant.

Order accordingly.

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

Solicitor for the respondents: P. J. Clay, Crown Solicitor.