Pito v Poroi [2007] CKHC 25; DP 16.07 (12 September 2007)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)

DP 16/07

IN THE MATTER of an application for
access pursuant to
Section 6 of the Infants
Act 1908

BETWEEN:

ALAIN PITO of Rarotonga
Carpenter
Applicant

AND:

LYDIA POROI of
Rarotonga, Shop
Assistant
Respondent

Miss L Vakalabure for Applicant
Miss F Tuitupou (assisted by Mr Arnold) for Respondent

Date of Hearing: 10 and 11 September 2007
Date of decision: 12 September 2007

ORAL JUDGMENT OF WESTON J

1. In April of this year the Applicant, who I will refer to as Alain, made a custody application for the two children of the relationship. Tiphanie is 12 and Tereau is 5.
   
2. Alain and the Respondent, who I will call Lydia, had been in a relationship for 16 years when they separated in June 2005. Lydia is now settled in the Cook Islands. Alain is a temporary resident, intending to return to Tahiti.
   
3. The Welfare Officer, Mr Henry, has presented the Court with two reports, the second one shortly before the trial commenced on Monday. He has recommended that Alain have custody of the son, Tereau, and Lydia have custody of the daughter Tiphanie. Mr Henry was present during the hearing and was given the opportunity both to address and to ask questions He did address the Court. I am grateful for his assistance.
   
4. I have heard two full days of evidence and argument. I have reached a clear view of the matter and can deliver this oral judgment accordingly. I appreciate that the application is very important to the parties and rightly so. It is also important for them, and the children, that I get it right or as right as possible. That factor suggests, perhaps, that I should wait a longer time and think about the case some more. To be balanced against that is the fact that Alain will shortly be returning to Tahiti and my other commitments mean I am unlikely to return to this case before he does so. Taking all of the above factors into account, I have decided to deliver this judgment now.
   
5. At the outset of the hearing, I put it to the parties that I should determine not only custody but also access and maintenance issues. Counsel agreed.
   
6. An important dynamic in the case is that Tiphanie has clearly and consistently stated her wish to remain in the Cook Islands with her mother, at least until her studies have ended. Counsel agreed that is her wish and I have verified it by speaking to her in chambers myself. Although Alain seeks custody of both children, in closing Miss Vakalalabure accepted that, in reality, the application now concerns Tereau's custody arrangements only.
   
7. This dynamic immediately focuses attention on whether the children should be separated with custody of Tereau being awarded to Alain. There is, of course, no relevant rule or presumption to the effect that two siblings should not be separated. I believe I need to look at the interests of both children individually. However, the so called separation issue cannot be ignored and counsel did not suggest otherwise. Indeed, there was much evidence on the topic.
   

Some general observations

8. There were some particular aspects of the case that contributed to the difficulties facing the Court. I have already referred to the issue of whether the two children should be separated. In addition, the contest involved consideration of the children's interests in both Rarotonga and Tahiti. It is trite that these islands are in different countries. But they are also different cultures with different languages. The children are rooted in both cultures. Tiphanie lived in Tahiti for 9 years of her life before coming here. Tereau has lived equal periods in both countries. My decision needs to recognize these important cultural dimensions.
   
9. There was some debate over whether Alain can remain in the Cook Islands and work here. I do not need to resolve that. For reasons that seem to me entirely sensible Alain wishes to return to Tahiti and work there. He is entitled to bring this application on that basis. I do not believe his decision is a matter that should weigh against him in this case.
   
10. The family lived in Tahiti until 2004. They came to the Cook islands to make a new start. Within a year the couple had separated. I can understand Alain's concern that he is having to seek custody in the Cook Islands in those circumstances. But that is the reality with which I am faced. As I say shortly, unfairness to one or both parents is an insignificant concern in this case.
    
11. The final difficulty I wish to mention in this part of my judgment is that Alain gave his evidence through an interpreter. It can be difficult to observe and compare witnesses when one is under such a handicap. However, I believe that Alain was very well served by Mrs Vaikai. She was quick and precise and conveyed a clear understanding of Alain's evidence. I believe I am able to assess his evidence as against that of the other witnesses.
    

The Law

12. Counsel are agreed that s. 2 of the Guardianship of Infants Act 1926 is the starting point. This appears to have been incorporated as part of Cook Islands law within the Infants Act 1908. S. 2 provides:
    

"2. Where in any proceedings before the High Court or any other Court of competent jurisdiction the custody or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the Court, in deciding that question, shall regard the welfare of the infant as the first paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by the father, in respect of such custody, upbringing, administration, or application is superior to that of the mother, or the claim of the mother is superior to that of the father."

13. In addition Mrs Vakalalabure drew my attention to s. 6 of the Act which is in the following terms:
    

"6. Court may make orders as to custody – The Court may, on the application of the [father or] mother of any infant (who may apply without next friend), make such order as it thinks fit regarding the custody of such infant and the right of access thereto of either parent, having regard to the welfare of the infant, and to the conduct of the parents, and to the wishes as well of the mother as of the father; and may alter, vary, or discharge such order on the application of either parent, or after the death of either parent, of any guardian under this Act; and in every case may make such order respecting the costs of the mother and the liability of the father for the same or otherwise as to costs as it thinks just."

14. Section 6 refers to the conduct of the parties and the wishes of the parties as well. Mrs Vakalalabure argued that although these were secondary considerations to the paramountcy principle, they were nevertheless relevant.
    
15. I am troubled by that submission. In assessing the best interests of the children, I will automatically assess the conduct of the parties and, perhaps, to a lesser extent, their wishes. So it would seem artificial to undertake a separate exercise whereby I then discount the paramountcy assessment by reference to such conduct, including conduct that may have happened some time ago.
    
16. I illustrate the point. Both sides pointed to evidence of conduct immediately following the separation as if it was disentitling conduct. But I am not inclined to give it much weight. This happened two years ago and in circumstances of emotional uncertainty and, unless I believe that conduct is a pointer to future conduct, I think it unprofitable to get into it.
    
17. The overarching principle is the interests of the children. Counsel referred me to Fisher J's 1995 decision of the High Court of New Zealand in D v W referred in the 1995 edition of Family Law in New Zealand. Fisher J listed a dozen factors to be considered. As I will demonstrate below, a number (although not all) of these factors are closely balanced in this case. This is not a case where I think that one parent would be clearly a better parent than the other, nor one where I believe that the bond with the children with their parents is stronger in our case than the other.
    
18. I raised with counsel whether they had given consideration to the recent New Zealand legislation: . They had not. I suggest that in future custody cases in the Cook Islands, counsel may wish to give some attention to the factors listed in that legislation. The Act reflects a modern and more structured assessment of the children's best interests than may be possible by reference to existing Cook Islands legislation.
    

Factors that are closely balanced

19. A number of important factors in this case are closely balanced. I do not set out the evidence in any detail but record each of the three topics with a brief summary.
    
20. The first is the quality of parenting. The evidence shows that both parents could be described as capable and committed parents. I think that Lydia, who has had a more extensive role than Alain, may in some respects be a better parent but that may simply reflect present circumstances. Notwithstanding some lapses on either side, I am not prepared to conclude that either of the parents is materially better than the other. Certainly I cannot reach such a conclusion to a level that I would regard as material.
    
21. The second is the quality of the bond between each parent and the children. The existence of that was common ground and I do not say any more about it.
    
22. The third factor that is closely balanced is by reference to the relevant home environments. I was shown photographs of the relevant houses both in the Cook Islands and Tahiti. The Tahitian house is perhaps larger and more luxurious but on the other hand has less extensive grounds outside. In both cases the parents have rent free access to these houses. I do not see the difference between them as being significant for my purposes
    

My assessment

23. That leaves a number of matters to be addressed and I do by reference to the following eight topics:
    
    • (a) the closeness of the relationship between the children;
    • (b) the extent to which they are settled in their current environment;
    • (c) financial constraints and issues;
    • (d) communication difficulties;
    • (e) support from wider family
    • (f) better health and education opportunities;
    • (g) providing a father figure for Tereau;
    • (h) cultural and language dimensions.
      
24. I have not separately listed the wishes of the children in the above list. I have already mentioned Tiphanie's wish to remain the Cook Islands with her mother at least until her studies are ended. Tereau has not expressed any wish and is probably too young to do so in any event. Tiphanie's wishes are an important aspect of my decision.
    
25. Having given consideration to all of the topics listed above, I conclude that Lydia should have custody of both children but subject to granting extensive rights of access to Alain. I will endeavour to explain my conclusion by addressing each of these topics. No one factor has persuaded me alone, although some are more important than others. Ultimately my conclusion lies in the totality of the evidence and my assessment of it.
    

Closeness of the relationship between the children

26. It is common ground that the relationship between the children is very close. Miss Vakalalabure submitted that her client's position was that, notwithstanding that closeness, they would get over the proposed separation of the two children. That was also the evidence of her client.
    
27. I do not accept that. All the evidence supports a conclusion that the children are unusually close, and that there would be considerable upset to them if separated. I am conscious that the bond between the two may be stronger at the moment because of the existence of the custody dispute. Even allowing for that, I believe there would need to be significant countervailing benefits to each of the children before I considered separating them. I do not think there are such benefits.
    
28. The detailed evidence of the interrelationship of the children while Tereau was hospitalized for appendicitis is important evidence supporting my conclusion.
    
29. If I did separate the children, by ordering that Alain should have custody of Tereau, I believe there would be considerable logistical difficulties in getting the children together in any one place for any length of time. If each parent had access to the other child at holiday times, then they are likely to pass each other in mid air between Tahiti and Rarotonga. Alain, when I questioned him on this topic, thought that it would not be a problem but he did not offer a clear solution other than to state that the school holidays might be at different times.
    
30. Under cross examination, Lydia was asked how strongly she felt about the separation issue, that is, what would she think if I ordered that both children stay together but in the custody of Alain. She answered slowly and in obvious pain that her belief in the importance of them staying together meant she would have to accept such a decision. A cynic could say she was schooled in that answer or that it was an easy thing to say bearing in mind Tiphanie's expressed wishes. I do not regard her evidence in that way. I watched her closely as she gave that answer and I believe it was genuine. In giving it, she put her own interests to one side and provided me with an important insight into her understanding of the children's relationship.
    

Are the children settled?

31. There was some debate about this but Alain did not seriously dispute that the children were settled and happy in the home and school environments. Two negative factors were raised against Lydia which were a relationship that she had had with another man subsequent to the separation and her drinking. Both of these were explored in evidence. The relationship has now ended although Lydia and her former partner remain friends. Lydia gave evidence that she only drinks when the children are not around. Simply putting it in that way makes her sound like a hardened drinker. I do not think she is, but Lydia needs to remember that new relationships with any other male and socializing could adversely impact on the children. Her attitude thus far has been responsible and I believe she is aware of her duties to the children in these two regards.
    
32. In terms of school, there are reports of the odd behavioural issues for both children but they seem to me reasonably insignificant and not out of the ordinary. Again, they may simply reflect the current custody dispute.
    
33. I heard important evidence from Mrs Kiraly, Tereau's teacher at St Josephs. She was an impressive witness who gave her evidence carefully and with no intention to embroider it for the benefit of either parent. She said Tereau had become preoccupied in recent times but was otherwise happy and doing well. She said there was a danger at his young age of shifting him into another school in another country. She explained that, at his age, he was undergoing rapid development and that stability was important.
    
34. In answer to that Mrs Vakalalabure submitted that school in Tahiti started at age 6 and that, because Tereau was 5, there would be no real disruption if he moved to Tahiti and started school aged 6.
    
35. This is a partial answer but it is not a complete answer. I think I need to give considerable weight to Mrs Kiraly's opinion.
    
36. I heard evidence of the daily routines of the children when living with Lydia. They do have access to a wider family and they spend their time between the unit where they live and the main family home referred as the beach house. The children appear to be settled and happy in that environment.
    
37. I find that the children are generally settled at home with the mother and at school. That point is in favour of Tereau remaining in the Cook Islands in his mother's custody.
    

Financial considerations and constraints

38. Neither Lydia nor Alain is in a strong financial position but it seems to me that Alain's earning ability is probably greater than Lydia's in the long term.
    
39. However, I do not believe this is a critical factor in determining custody because, all things being equal, it can be adjusted by way of maintenance payments.
    
40. Lydia told the Court she has borrowed money to buy a car to transport the children and to pay some airfares. She pays $165.00 per week by way of repayments; that is a large proportion of her earnings. I would be concerned if she were to borrow more money because that may impact on her ability to provide for her children. The repayments seem manageable as they are at the moment but should not in my opinion be increased.
    

Communication difficulties

41. Both Alain and Lydia candidly admitted that they do not communicate very well with each other. Alain in particular alleged that Lydia did not communicate with him in relation to the children and prevented him having access to the children by way of telephone or otherwise. He used the hospitalization of Tereau as an example. He also referred to the absence of school reports and the sudden imposition of childcare fees as instances where Lydia did not properly communicate with him.
    
42. Having heard the evidence I am satisfied that Lydia did not purposefully exclude Alain from the news of Tereau's hospitalization. It was a stressful and difficult time for her and her ability to contact Alain in Tahiti was limited. I also note, as it happened, Alain did contact Tiphanie a day or two after the operation and so he was aware, perhaps slightly late, of what was happening.
    
43. There was some disputed claims by Alain that Lydia had hung up on him on other occasions. Lydia addressed one such example by providing a lengthy hand written note she had made shortly after the conversation which she was said to have terminated by hanging up the phone. That seems to suggest there is another side to the story. I am not able to get to the bottom of all of this. There may be some truth in Alain's allegations, but to an extent, I believe they are exaggerated. At this stage, I do no more than mention them and suggest that such behaviour, if it has existed, should not continue in the future.
    
44. On the other side of the ledger, and in Lydia's favour, I note that it was she who organized the family arrangements when the children have travelled to Tahiti since the separation. She communicated arrangements with both sets of grandparents in order that the visit run smoothly.
    
45. Whatever the case previously, I am satisfied that Lydia does not now prevent Alain contacting the children by telephone and the children also contacting him. I need to emphasize the importance of this occurring. If Lydia in the future actively prevents such communication, it may provide grounds for the Court to re-visit these orders. Lydia, equally, should provide to Alain copies of school reports and any other materials relevant to the children including health concerns as she obtains them.
    
46. Both parents remain legal guardians of the children and Alain needs full information if he is able to undertake that role properly. Lydia needs to ensure that he receives the important information so that he can fulfill that role. I am confident that Lydia understands this and will ensure that it happens in the future.
    

Support from the wider family

47. It is clear there is family support available to both of Lydia and Alain at their respective houses. While it is difficult to measure these things in fine scales, I am left with the impression that Lydia may have greater assistance and companionship available to her and the children than Alain would in Tahiti.
    
48. But the extra component that may be available to Lydia is not so large that it materially advances her case and I do not rely on it in reaching my conclusion.
    

Better health, education and other opportunities

49. There was no direct evidence as to the health and education standards between the Cook Islands and French Polynesia other than some observations of Alain. My own experience of the Cook Islands, both judicially and personally, suggests there may be some truth in his belief that the standards in French Polynesia are higher but the evidence is not really enough to take the matter very far.
    
50. To be balanced against Alain's concerns are at least two points. First, having spoken to Tiphanie I am certain that her grasp English and fluency in it is high. Yet she first spoke English only in 2004. Obviously, her education here has provided her with that much assistance. Secondly, I have seen Mrs Kiraly, Tereau's teacher, and she appeared to be a committed and talented professional. She thought the teaching standards at St Josephs were high.
    
51. Viewed in the round, I do not believe that this issue supports Alain having custody of Tereau in French Polynesia.
    

Father figure for Tereau

52. Alain gave evidence that Tereau needs a father to teach him the manly arts and skills. In large measure, I agree. I believe it is important that Tereau maintain a close relationship with his father and his father's culture.
    
53. To a considerable extent, then, this factor supports Alain's claim for custody of Tereau. But in my view, it is not enough to carry the day for Alain when balanced against the other factors, particularly bearing in mind the extensive access provisions discussed shortly.
    
54. I recognize that as Tereau grows older he may express a desire to live with his father. If he does, that it may well provide a solid basis for these orders being re-visited at that time.
    

Cultural and language dimensions

55. The first language of the children is French. Alain is concerned they may lose that language. That is a proper concern and it needs to be addressed.
    
56. Lydia advised the Court that she and the two children speak French at home. That, coupled with the access provisions discussed below, means that the children should maintain a close connection to their Tahitian language and culture.
    
57. Lydia needs to ensure she does nothing that will damage the children's cultural roots in both the Cook Islands and in French Polynesia.
    

Access

58. I now address access. Alain should have generous access rights and Lydia has not suggested otherwise. There are approximately 9 weeks of school holidays a year. The hearing proceeded on the basis that both children should travel to Tahiti during each of the two school holidays with the parties sharing the costs of that. Three further matters need to be addressed.
    
59. First, Tiphanie should be consulted in relation to each holiday. If she decides she does not want to go on a particular holiday – for instance because of a netball tournament or the like – that should be respected.
    
60. Secondly, I am concerned about the cost of the exercise, particularly on Lydia. I understand she has already borrowed money to fund one such trip and I have already mentioned that. I do not want her going deeper into debt to fund these trips. That may mean that Alain has to shoulder a greater level of costs. It may mean that the 1 week school holiday (I understand the others are at least 2 weeks long or longer) may need to be funded by Alain if Lydia cannot afford to do so.
    
61. I cannot devise an accurate formula to deal with all of these possibilities because the circumstances of the parties may change in the future. Equally I do not want the parties to have to resort to lawyers in the Court every time there is a school holiday. The parties need to approach the shared cost of airfares on the basis that the regime is both fair and affordable for both of them. If that means that one will have to pay more than the other, then so be it.
    
62. Thirdly, there will need to be good communication between the parents about these holidays with arrangements made well in advance. The parties should endeavour to agree a protocol with established timelines and responsibilities for this.
    
63. In addition to this offer of access I add two other matters. First, the parties need to ensure that each parent has telephone access to the children when they are with the other parent. That is, when the children are with Lydia, Alain should be able to call them, and they should be able to call him. This is not an unlimited right because obviously there are cost issues associated with it and these need to be balanced with the importance of the children to talk with their father or to their mother when the children are in Tahiti.
    
64. Secondly, if Alain comes to Rarotonga for a visit, then, within reasonable limits, he should be able to have access to the children at that time. Any such visits will need to be organized in advance and not suddenly sprung upon Lydia.
    
65. I have sketched out the broad bones of the access arrangements that I propose. I invite the parties, with the assistance of their lawyers, to fill in the gaps and submit, if necessary, any detailed order to me for resolution or consideration.
    
66. Before access rights are exercised by Alain in Tahiti, it will be necessary to ensure that Alain respects these orders and does not use the presence of the children in Tahiti as a basis to seek custody in French Polynesia. I stress there is no evidence or suggestion that he will do so. However, I believe it would be severely detrimental to the children if such a course was adopted by him.
    

Maintenance

67. Alain should continue paying $50.00 per child per week. These payments will cease for such periods as he exercises access to either one or both of the children but only during the school holidays. If he travels to Rarotonga for a short visit, then subject to further orders of the Court, I anticipate that maintenance payments will continue during that time.
    

Orders

68. Lydia shall have custody of the two children Tiphanie and Tereau.
    
69. Alain shall have generous access rights to the children which have been detailed in bare-bones form above. The parties should endeavour to agree more detailed terms with leave reserved to apply to the Court for clarification or resolution.
    
70. Alain is to pay maintenance of $50.00 per child per week as also described above.
    
71. Prima facie Lydia is entitled to costs but these are unlikely to be extravagant. This judgment has had the result for Alain of establishing his rights and he has raised a number of important matters going to the interests of the children which I have addressed. I will shortly ask counsel to address me on the question of costs.
    

Final observations

72. I urge the parents now to get on and make these orders work in the best interest of the children. They are lovely children and that is a credit to both of you. But it is obvious that this custody dispute is affecting and upsetting the children. If the parties can now move on, that should allow the children to reach their full potential.
    
73. I think it will be useful if Tiphanie could see a copy of my written decision when it becomes available. However, I have no fixed view on this and I leave it as a matter to be discussed by the parties and their lawyers and referred to me if necessary for a final resolution.
    

Judge

Editorial Note: Derived from the Court's electronic records and believed to be correct and final.