Graham v Graham [1986] CKCA 1; DIVORCE No 05.1986 (2 December 1986)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT SUVA, FIJI
DIVORCE NO. 5 OF 1986

BETWEEN

TITAINA JOAN GRAHAM
APPELLANT

AND

HUGH GRAHAM
RESPONDENT

Coram: Roper J (presiding)
Mishra J
O'Regan J

Counsel: M.C. Mitchell for Appellant
G.D. Sceats for Respondent

Date of Hearing: 31^st October 1986
Delivery of Judgment: 2 December 1986

JUDGMENT OF THE COURT

O'Regan, JA

The marriage of the parties was dissolved by decree of divorce made by Speight C.J. on 19 August 1986. At the same time, the learned Judge, after a defended hearing, in an ex tempore judgment granted the respondent custody of the only child of the marriage, William Tauraheimata Tcheng Graham, aged 4 years, with liberal access reserved to the appellant.

The evidence disclosed that the appellant intended to settle with her parents on the island of Raiatea in Tahiti and that the respondent intended to continue residence in the Cook Islands. Those intentions created potential problems and difficulties as to access to the child by whichever parent was denied custody of him. To meet such the learned Chief Justice reserved leave to apply for the definition of access and ordered that the child was not to be removed from the Cook Islands unless the respondent acknowledged in writing that she accepted the order of the Court.

Before considering the problems the appeal poses, we remark that the case is an unusual one of its kind in that both parties did not seek to denigrate or asperse the other in any way whatsoever. They have joined in submitting the statement that the child is a well brought up boy; that he has strong relationships with his parents and grandparents on both sides and that he loves both parents and they both love him. In evidence the respondent spoke well of the appellant and of her parents, who live in Tahiti.

The Respondent is a senior constable in the Cook Islands Police Force. He is 23 years of age. Since May 1985 he has been living with Matakeu Robati a woman aged 25.

The Respondent's parents live in the Cook Islands as do his two brothers and one of his two sisters. The parents are well known and highly respected citizens. His elder sister, aged 25 lives in a de facto relationship and has had a child of that association, a boy aged 5 years. His elder brother, also a member of the Cook Islands Police Force, is married with one child, a boy, aged 2 years. His father and mother, aged 51 and 50 respectively, both work. Miss Robati works in the Public Service. At the time of hearing she and the respondent were occupying a rented house at Tupapa. The tenancy, however, was then about to expire and according to Miss Robati they intended to live with her parents until they found other accommodation.

All the members of the respondent's family, so far referred to, with the exception of the elder sister, Elizabeth, go out to work. Elizabeth resides with her parents at Arorangi some six or seven miles from the respondent's parents' home. They have all expressed their willingness to assist the respondent in caring for the child. The respondent works various shifts. One week in three he works from 7a.m. to 3p.m. In that week his duties would preclude his looking after the child until after 3p.m. each day, and Miss Robati, of course, would be at work, except on Saturdays and Sundays during normal office hours. She would in all likelihood be in a position to prepare him for and take him to kindergarten or school, as that case may be, but would be unavailable for home duties until the late afternoon. One week in three, the appellant works from 11p.m. to 7a.m. and in another 3p.m. to 11p.m. In the first instance he would be available to take the child to and from the kindergarten and to attend to his needs afterwards but in the latter he would be unavailable for any purposes from mid afternoon onwards. How these various difficulties were to be met was not canvassed in evidence. In particular nothing was said as to how and when the respondents elder brother would or could step into the breach. If, as it would seem, it would be left to Elizabeth to meet all these exigencies. The difficulties arising from the fact that her home is seven or eight miles from the respondent's residence are many. And there is no guarantee that she will be permanently available for more than a year or so. She has said she may go back to work after that period of time. In the nature of things, the major part of the tending to the needs of the child are likely to fall on Miss Robati when she is available - preparing and giving him his meals, preparing him for school and bathing and tending to his other needs in the evening.

Indeed, if her relationship with respondent endures, she will in short order become the mother figure to the child.

The learned Judge formed an unfavourable view of Miss Robati. He said he was not over-enthusiastic about her but did not elaborate. In evidence she had advanced matter that reflected ill on the respondent - matters which she had not confided to the Welfare Officer who reported, and none of which were mentioned by the appellant or the other witnesses. She knows the child well. She and respondent had the child in their household for some three months, in early 1986. She stated that she gets on well with the child and that he is happy in her home. But, of course, the relationship may not subsist, and in any event, she is able to attend to him and his needs only outside her hours of work.

The respondent in evidence, said that she was returning to Tahiti because she has no right to permanent residency in the Cook Islands.

Her parents are obviously very well to do. They own two businesses in their home island. Evidence shows that they gave the parties a motor car as a wedding present and have since provided a substantial sum towards the cost of a home which was in the course of erection when the parties separated.

The appellant proposes to work in her parent's businesses, probably doing the banking and "just helping". She said that, in those circumstances, with flexible hours, she could be able to spend more time with the child than, presently, when she works fixed hours.

The nub of the learned Judge's decision is to be found in the following passage from his judgment:

"If the child goes to Tahiti with Mrs Graham it will be spoilt by the grandparents, but she herself is undoubtedly a capable and loving mother. But as far as I can see only Mrs Graham will be there in the parenting situation for an indefinite period and there seem to be no close relatives such as cousins for the boy to grow up with on their island. In Rarotonga, the boy who is a Cook Islander, has close relatives - Mr Graham has a brother and sister of comparable age and there are small cousins about. The functioning of the extended family concept is well known in both countries and beneficial. The one in Cook Islands is certain - the one in Tahiti is speculative. As a member of the Henry family he not only has a large extended family to turn to but as is important for a small boy he will grow into youth and manhood in the company with others of his own character and age and stature and in familiar surroundings. Mrs Graham is a charming woman and no doubt of good character. If she stayed here so that her boy would have contact with his many relatives I would give custody to Mrs Graham but her intention to leave for Tahiti tips the scales against her. I think he would be better in this environment than on the island where her parents reside".

Mr Mitchell, in his submissions, stressed the passage in which the learned Judge said he would have granted custody to the appellant "if she stayed here (in the Cook Islands) so that her boy would have contact with his many relatives I would give custody to Mrs Graham but her intention to leave for Tahiti tips the scales against her". He submitted that this passage reveals that in all other respects the appellant, as he put, "had the edge". He also submitted that the Judge over-emphasised the situation when he said that, as far as he could see, in Tahiti "there seem to be no close relatives such as cousins for the boy to grow up with". He said this overlooked the appellants' evidence as to cousins and family generally. She had said she had cousins who had families ranging in age from four to thirty. However, she also said that they lived on a different island from that on which her parents lived but nothing as to the distances they are apart. She also said she had two single sisters older than herself. The evidence lacks precision but there is no doubt that the Judge was right in saying that there were "no such relatives such as cousins to grow up with on their island". But there are family members other than the mother and grandparents.

On the other hand, the evidence is that the child has two cousins in Rarotonga - the sons of the respondent's elder brother and of his sister Elizabeth.

Mr Mitchell also submitted that in deciding as he did the Judge paid no cognizance to "The mother principle - the principle or presumption that the welfare of a young child is better served by the granting of its custody to its mother. Before dealing with this submission, we record that it is common ground that until 1981 when the law was altered in New Zealand, the law of the Cook Islands and New Zealand was identical, the requirement being in each case that the court should have regard to the welfare of the child as the first and paramount consideration. Prior to 1981 the New Zealand Courts in cases involving young children paid cognizance to the mother principle - see, for instance, the discussions in Palmer v Palmer, at first instance (1961) NZLR 129 and, on appeal, (1961) NZLR 702, and the cases listed in the judgment of Woodhouse P in G v G (1978) 2 NZLR 444 at p. 448 et seq. The 1981 amendment in New Zealand required henceforth that there should be no presumptions in favour of either father or mother. No such amendment is of application in the Cook Islands and accordingly, Mr Mitchell submits, the practice that the courts should pay heed to the principle, as a starting point at least, should still be followed in that jurisdiction. The logic of this argument is compelling but the question, in our view, is rather whether, because of the great social changes of the last quarter century the presumption has lost if not all, a great deal of its force."

The matter was discussed in the various judgments of the High Court of Australia in Gronow v Gronow [1979] HCA 63; 29 ALR 129 Murphy J had this to say (at p.142)...."In the 19^th century, the attitude altered; the industrial revolution took most fathers into employment for long hours away from the household and left mothers as full time mothers. In property, the predominance of the husband's rights was diminished by the operation of equitable doctrines and later by Married Woman Property Acts. In custody, the "mother" principle emerged that (if a choice had to be made between mother and father) unless a mother was unfit, the welfare of a child "of tender years" especially a female, was promoted by its custody being placed with her." Many cases demonstrate the acceptance of this principle - see Kades v Kades (1961) 35 ALJR 251. In recent times, the industrial system has changed its character. Perhaps the greatest phenomenon of the mid 20^th century in Australia and similar countries has been the movement of women into the industrial work force. That industrial change has been accompanied by a social change. Many women have become part-time mothers. The attitude to property rights has changed in the direction of equality between the spouses, including their rights and duties in relation to the care of the children. In consequence, the "mother" principle has been greatly weakened in recent times. The Family Court of Australia said in Raby v Raby 12 ALR 669 "we are of the opinion that the suggested 'preferred' role of the mother is not a principle, a presumption, a preference or even a norm. It is factor to be taken into consideration where relevant".

Other members of the Court Wrote in the same strain, and, in the final result, the court held that there is now no presumption that a child should be left in the mother's custody but the notion is an important factor and the precise weight to be given it depends on the circumstances of the case.

Mr Mitchell asked us to accept the contrary opinion expressed by Woodhouse P. in G v G (1978) 2 NZLR 444 at p. 448 at et seq. We decline to do so. Rather, we accept and follow the decision of the High Court.

In the present case the weight to be given to the notion is diminished by the fact that the mother has been going to work five or six days a week and necessarily leaving the child in the care and attention of another. And that situation would also, to some degree, obtain in Tahiti, although because of the nature of the employment, she would be able to devote much more time to the child.

As to the approach an appellate Court should take in circumstances, such as here obtain, where it is determining an appeal brought against the exercise of a discretion conferred by statute in the High Court, we accept the approach laid down in G v G (supra) where following Osenten v Johnston (1942) AC 170 it was held that - (p. 446)

".....An appeal against the exercise of a discretion will be upheld if the Court is persuaded that the Judge has acted in accordance with a wrong legal principle or, in the area of factual matters, if satisfied either that the Judge gave too much weight to certain aspects of the evidence or that he gave insufficient weight to aspects of the evidence or in a more broad way that the exercise of his discretion was wrong."

In our view the learned Judge did not give sufficient weight to the following matters:

(a) The effects of the work commitments of the appellant Miss Robati, his sister Elizabeth, his elder brother and his parents and their limited availability to assist the appellant in the care of the child;

(b) The fact that, in the nature of things, Miss Robati will play a large part in the care and upbringing of the child whilst both she and the child are under the appellant's roof and having regard to his observations concerning her, to the likely undesirable consequences of that;

(c) The material advantages that will accrue to the child particularly in long term if he is reared in Tahiti.

We think also that he gave too much emphasis to the family support available to the child in Rarotonga and too little regard to the available family support in the respondent's home island in Tahiti.

We think, therefore, that the appeal should be allowed and it is allowed accordingly. The order for custody and access in the Court below are set [aside] and in lieu thereof we order that custody of the child be granted to the appellant with access to the respondent. Leave is reserved to the parties to apply to the High Court for definition of the terms of access.

The question of costs raises unusual factor, strictly speaking, beyond our purview but which, we feel, should be recorded.

At the time of the hearing of this appeal it was the only appeal pending in this Court. To have had it heard in the ordinary way in Rarotonga would have involved bringing three Judges of the Court from New Zealand to Rarotonga with the consequential costs of their transport, accommodation and emoluments of office. As two of the Judges of the Court, who have sat on this appeal, Roper and O'Regan JJ, were to proceed to Fiji for the October sessions of the Fiji Court of Appeal, it was decided to appoint Mishra J, Judge of the latter court, a Judge of this court and thereby constitute the necessary court of three to hear the matter in Fiji. It was a comparatively short case heard later in a day on which the Judges had sat in the Fiji Court of Appeal. The judges have signified their intention to forego emolument for the hearing and consequential work. The fares and accommodation of the New Zealand members is being paid by the Fiji Government. All in all, by the convening of the Court in Fiji, the Government of the Cook Islands has been saved to the order of $7000. On the other hand, the parties have been put to additional expense. It so happened that Mr Mitchell, counsel for the appellant had to be in Fiji on other matters. His client has accordingly been spared the costs of his travel to Suva and hotel expenses there. The air fare and accommodation costs on counsel for the respondent are costs referable to the change from the normal venue. The additional time he necessarily had to spend away from his chambers in Rarotonga is a factor which, we would think, increases his fee above what it would have been if the case had been heard in Rarotonga.

The Registrar is to bring this judgment to the notice of the Minister of Justice who, in all the circumstances, may be disposed to make an ex gratia grant to the respondent to meet or help to meet the additional expenses incurred by him consequential upon the decision to have the appeal heard in Fiji.

There will be no order as to costs in this court.

ROPER J
MISHRA J
O'REGAN J