Solomon v Attorney-General - [2020] NZHC 2521

NOTE: PURSUANT TO S 22A OF THE ADOPTION ACT 1955, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-001349

[2020] NZHC 2521

UNDER the Adoption Act 1955

IN THE MATTER OF

a decision to refuse an application to adopt Taitu Solomon and Sisay Solomon

BETWEEN

KALEB SOLOMON

Appellant

AND

THE ATTORNEY-GENERAL

Respondent

Hearing: 9 and 18 September 2020

Counsel:

V A Crawshaw QC and S M Wilson for Appellant T M Bromwich and S Deng for Respondent

M Casey QC to Assist the Court

Judgment:

25 September 2020

JUDGMENT OF EDWARDS J

[anonymised and redacted version]

This judgment was delivered by me on 25 September 2020 at 4.00 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar

SOLOMON v ATTORNEY-GENERAL [2020] NZHC 2521 [25 September 2020]

[1] Mr Kaleb Solomon (Kaleb) appeals from a decision of the Family Court declining his application to adopt his two half-sisters, Sisay Solomon (Sisay) and Taitu Solomon (Taitu).1 Sisay and Taitu are Ethiopian nationals who were born and reside in Sudan.

[2] The application was declined in the Family Court because the Judge could not be satisfied that the girls were under 20 years of age as required by s 3 of the Adoption Act 1955 (Act). That factual finding is challenged on appeal and leave was granted to adduce new evidence directed at establishing the age of the girls.2

[3] The appeal proceeds by way of re-hearing and the principles in Austin Nichols & Co v Stichting Lodestar apply.3 The key issue on appeal is whether there is sufficiently reliable evidence of the girls’ dates of birth for the Court to be satisfied that they are both under 20 years of age.

Family circumstances

[4] Kaleb was born in Ethiopia in 1990 but fled from the civil war to Sudan as a young child. Habtamu Solomon (Habtamu) is his father, and Habesha Mamo (Habesha) is his mother. Kaleb has an older sister, Magdala Solomon (Magdala), who now resides in Australia.4

[5] Soon after the family settled in Sudan, Kaleb’s parents separated. Habtamu remarried Falasha Gebru (Falasha), and they lived in Khartoum, Sudan. Sisay and Taitu are the daughters of Habtamu and Falasha.

[6] Magdala immigrated to New Zealand to join her husband in mid-2001 under a refugee quota programme. She subsequently sponsored Kaleb under the refugee quota family reunification category, and he joined her in New Zealand in April 2008. In

1 Re [Solomon] [2020] NZFC 5878. For ease of identification I will refer to the appellant and each family member by their first name. I mean no disrespect in doing so.…

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.

Continue reading Solomon v Attorney-General

Details

AGLC: Solomon v Attorney-General [2020] NZHC 2521
Case: [2020] NZHC 2521
Decision Date: 25 September 2020

CaseChat Overview and Summary

Kaleb Solomon appeals a decision of the Family Court declining his application to adopt his half-sisters, Sisay Solomon and Taitu Solomon. The application was declined because the Judge could not be satisfied that the girls were under 20 years of age as required by s 3 of the Adoption Act 1955. The appeal proceeds by way of re-hearing and the principles in Austin, Nichols & Co Inc v Stichting Lodestar apply. The key issue on appeal is whether there is sufficiently reliable evidence of the girls’ dates of birth for the Court to be satisfied that they are both under 20 years of age.

The Court found that there is sufficient evidence to be satisfied that both Sisay and Taitu are under 20 years of age. The threshold under s 3 of the Act is met in this case. The Court also found that all other statutory requirements under the Act have been met before an order may be made.

The Court found that the adoption is in the best interests and welfare of both girls under s 11(b) of the Act. The intention is for both girls to live with Kaleb, his wife, and their two girls, as part of a family unit. They will go to school in New Zealand, and enquiries have already been made about enrolling them in a school that takes children up to the age of 24 years.

The appeal is allowed. The application for a final order of adoption is granted. For the purposes of the order, Sisay’s date of birth shall be recorded as [redacted] October 2000, and Taitu’s date of birth shall be recorded as [redacted] November 2002.

Orders