ASUMAN - [2017] SASC 123

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules)
ASUMAN
[2017] SASC 123
Judgment of Judge Roder a Master of the Supreme Court
25 August 2017
FAMILY LAW AND CHILD WELFARE - CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION - CHILDREN IN NEED OF PROTECTION - GUARDIANSHIP OF CHILDREN - APPOINTMENT BY COURT
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - DECLARATIONS - JURISDICTION
Application to be appointed guardian of infant children - consideration of the Court's jurisdiction to grant order sought.
Held:
1. Court retains an inherent power to appoint guardians of infants.
2. Ms Asuman appointed guardian of MMK and AMK.

ASUMAN
[2017] SASC 123
JUDGE RODER:

On 14 July 2017 I made an order awarding custody of the infant children MMK and AMK. I had been asked to make an order appointing the plaintiff guardian of the children. I was satisfied that the evidence would warrant the making of such an order, but reserved to consider the question of jurisdiction to make such an order. I had no doubt that the evidence warranted the making of such an order, if there were jurisdiction.
I find that the Court retains an inherent power to appoint guardians and keepers of infants and therefore make an order that Ms Asuman is appointed guardian of MMK and AMK.
Background
Introduction
On 16 July 2013 Victor Majaliwa Kizamba (“Victor”) and Nadi Soda Asuman (“Nadi”) came to Australia as refugees with their two children, MMK and AMK, who are now 11 and 5 years old respectively. On 25 July 2014 Victor and Nadi had a third child, TMK.
On 15 February 2015, Victor, Nadi and the three children were involved in a motor vehicle accident. Victor, Nadi and TMK died. Both Victor and Nadi died intestate.
Since the accident, MMK and AMK have resided with Ms Asuman and her husband and their four children. Ms Asuman is Nadi’s sister. She arrived in Australia on 4 April 2014 – also as a refugee. Ms Asuman applied to the Court for an order that she be appointed as the guardian of MMK and AMK.
The application invoked s 6 of the Guardianship of Infants Act 1940 (SA). That section provides:
6—Power to make orders as to custody etc
(1)The court may, upon the application of a person who has a proper interest in the welfare of an infant, make such orders for the custody of, and access to, the infant as it thinks fit.
(2)The court may upon the application of any person who has the guardianship of an infant jointly with some other person (whether or not one or both of those persons are parents of the infant) make any order that it thinks proper in relation to a matter in dispute between those guardians affecting the upbringing or welfare of the infant.
(3)In exercising its powers under this section, the court shall have regard to the conduct of the parents of the infant, and of any other person who may be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: ASUMAN [2017] SASC 123
Case: [2017] SASC 123
Decision Date: 25 August 2017

CaseChat Overview and Summary

The Supreme Court of South Australia was presented with an application by Ms Asuman to be appointed as the guardian of MMK and AMK, the children of her deceased sister, Nadi Soda Asuman. The children had been residing with Ms Asuman since their parents, along with their youngest sibling, tragically died in a motor vehicle accident. The legal issues before the Court were whether the Guardianship of Infants Act 1940 (SA) empowered the Court to appoint a guardian for the children and whether the Court had the jurisdiction to do so.

The Court found that section 6 of the Guardianship of Infants Act 1940 (SA) did not explicitly empower the Court to appoint a guardian, but rather to make orders for custody and access. However, the Court recognised that it had inherent power to appoint guardians of infants, and that this power was not limited to instances where the parents were deceased. The Court also found that it had jurisdiction to appoint a guardian under section 16 of the Act, which allowed the Court to remove or appoint guardians for the welfare of the infant. The Court concluded that it was appropriate to make a custody order under section 6 and to appoint Ms Asuman as the guardian of the children.

The Court made an order that Ms Asuman be appointed as the guardian of MMK and AMK, and noted that the order was not contingent on her residence in South Australia or any intention to leave the State. The Court also noted that the order was not a final order, and that it could be varied or discharged if circumstances changed. The Court emphasised the importance of considering the welfare of the children in making its decision.

In summary, the Court found that it had the power and jurisdiction to appoint a guardian for the children of deceased parents, and that it was appropriate to appoint Ms Asuman as their guardian. The Court recognised the inherent power it had in such matters, and exercised its discretion to make an order that was in the best interests of the children.

Orders

Orders of the court

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Background

Background to the litigation

I find that the Court retains an inherent power to appoint guardians and keepers of infants and therefore make an order that Ms Asuman is appointed guardian of MMK and AMK. BackgroundIntroduction On 16 July 2013 Victor Majaliwa Kizamba (“Victor”) and Nadi Soda Asuman (“Nadi”) came to Australia as refugees with their two children, MMK and AMK, who are now 11 and 5 years old respectively. On 25 July 2014 Victor and Nadi had a third child, TMK. On 15 February 2015, Victor, Nadi and the three children were involved in a motor vehicle accident. Victor, Nadi and TMK died. Both Victor and Nadi died intestate. Since the accident, MMK and AMK have resided with Ms Asuman and her husband and their four children. Ms Asuman is Nadi’s sister. She arrived in Australia on 4 April 2014 – also as a refugee. Ms Asuman applied to the Court for an order that she be appointed as the guardian of MMK and AMK. The application invoked s 6 of the Guardianship of Infants Act 1940 (SA). That section provides:6—Power to make orders as to custody etc(1)The court may, upon the application of a person who has a proper interest in the welfare of an infant, make such orders for the custody of, and access to, the infant as it thinks fit.(2)The court may upon the application of any person who has the guardianship of an infant jointly with some other person (whether or not one or both of those persons are parents of the infant) make any order that it thinks proper in relation to a matter in dispute between those guardians affecting the upbringing or welfare of the infant.(3)In exercising its powers under this section, the court shall have regard to the conduct of the parents of the infant, and of any other person who may be a party to the application.(4)The court may vary or discharge an order made under this section.(5)The fact that a person who seeks an order for the custody of an infant under this section is resident outside this State, or contemplates leaving this State, shall not of itself constitute a ground for denying custody of the infant to that person.(6)The court may make such orders for costs in relation to proceedings under this section as it thinks fit.(7)For the purposes of this section a person has a proper interest in the welfare of an infant if that person—(a)is the mother or father of the infant; or(b)is a guardian of the infant; or(c)is a person who, in the opinion of the court, has in the circumstances of the case a proper interest in the welfare of the infant. I do not understand s 6 to empower the Court to appoint a guardian. I was, however, satisfied that it was appropriate to make a custody order under that section and made such an order. I reserved the question of whether the Court could make an order for guardianship. Jurisdiction of the Supreme Court to appoint a guardian for an infant It is clear that the Court does have some powers in respect of guardians of infants. An example is s 16 of the Guardianship of Infants Act:16—Power to remove guardianThe court may, in its discretion, on being satisfied that it is for the welfare of the infant, remove from his office any testamentary guardian, or any guardian appointed or acting by virtue of this Act, and may also, if it deems it to be for the welfare of the infant, appoint another guardian in place of the guardian so removed.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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