IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL APPEAL

CIVIL APPEAL NO. HBA 0022 OF 1998

BETWEEN:

ANITA DEVI
Appellant

AND:

ARMOGAM PADAYACHI
Respondent

Counsel: Mr A.K. Singh for the Appellant
Mr R. Chand for the Respondent

Hearing: 30th July 1999
Decision: 9th August 1999

JUDGMENT

This is an appeal from a decision of Nausori Magistrates Court of 29th April 1998 to grant custody of a child Parheen Pratishna Padayachi to his father Armogam Padayachi, with access given to his mother Anila Devi.

That decision, is as follows:

“Armogam Padayachi is hereby granted the custody of Parheen Pratishna Padayachi, as supported by the Report from the Department of Social Welfare herein filed. The mother is given access to the said child”.

The grounds of appeal against this decision, were amended on 15th June 1999, and are as follows:

“A.	That the Honourable Magistrate erred in law when he made the custody order without allowing or giving the Appellant the right to be heard.

B.	That the Honourable Magistrate erred in law when he failed to give reasons for his decision.

C.	That the Honourable Magistrate erred in law and fact when he failed to take into consideration the financial situation of the Appellant and her partner.

D.	That the Honourable Magistrate erred in law and fact when he awarded the custody of the child to the Respondent without taking into consideration the welfare of the child and the report of the Welfare Officer Sigatoka.”

The facts of the case are clearly set out in the welfare report of the Senior Welfare Officer, Central/Eastern. The Appellant and the Respondent are both primary school teachers and were married in 1976. They have four children, the youngest of whom was Parheen. In 1996 the Appellant developed a relationship with another school teacher, and left the Respondent with him, taking with her the youngest child. She and her new partner currently live at Sigatoka with two other children.

On 12th December 1997, a motion with the Affidavit of the Respondent, was filed in the Nausori Magistrates court requesting that custody of all four children be granted to the Respondent, with reasonable access given to the Appellant.

The matter was called in court on 23rd December 1997 and adjourned for service. On 7th January 1998, the Respondent appeared in court, but the Appellant (then the Respondent) sent a sick sheet. The matter was adjourned to 14th January 1998 for mention. On that day the Appellant again did not appear. It was adjourned again to 29th January 1998 for mention.

On the 29th of January, again there was no appearance by the Appellant. Mr R. Chand for the Respondent (then the Appellant) told the court that his client was being denied access to Parheen. The court said that welfare report would be called for, and the matter was adjourned for mention

The case was then adjourned for mention on two further occasions while the court awaited the report. The Respondent did not appear. There is no indication on the record that she was informed of the mention dates.

On 25th March 1998, the court adjourned to 29th April for mention only. On 29th March the Respondent appeared, in person, for the first time. The court then made its decision. The record does not indicate that she was asked to make submissions or call evidence. However, in a later affidavit filed by her, to stay the order pending appeal, the Appellant deposed that the child Parheen was in court when the order was made.

The case continued to be called after the order was made, presumably after the motion to stay was filed on 1st May 1998. It appears from the record that the child continued to remain with the mother throughout the proceedings. The order was stayed on 5th May 1998.

Counsel for the Appellant made both oral and written submissions. He submitted that the learned Magistrate’s failure to give reasons and to hear evidence before he made the order was fatal. He further submitted that the Welfare Officer at Sigatoka had recommended that the child remains with his mother, but that the learned Magistrate preferred to rely on the recommendation of the Welfare Officer Central, which decision was unreasonable given the child’s own wishes. He asked for the matter to be remitted to the Magistrates Court to be reheard before another Magistrate.

Mr Chand for the Respondent submitted that the learned Magistrate had a discretion to grant the order that he did, and that it was evident that he relied on the welfare reports submitted to the court, with the affidavit filed by the Respondent. He conceded that it might have been fairer to call for evidence and submissions on the 29th of April, but his failure to do so, did not nullify the order. He asked for the appeal to be dismissed.

The learned Magistrate had powers to award custody of the child under Section 85 of the Matrimonial Cases Act Cap 51. That section provides:

“(1)	In proceedings in which application has been made with respect to the custody, guardianship, welfare, advancement or education of children of a marriage - 

(a)	the court shall regard the interest of the children as the paramount consideration; and

(b)	subject to paragraph (a) the court may make such order in respect of those matters as it thinks proper.”

The question is whether in this case, the learned Magistrate erred in the exercise of the discretion he had under Section 85(1) (b) of the Act.

Ground A

The Appellant submits that she was not given the right to be heard.

The procedure to be followed in custody matters, and the correct approach of the court are set out in the Court of Appeal decision of Rajendra Nath -v- Madhur Lata Civil Appeal No. 11 of 1984, a case in which a Magistrate’s order for custody of a child, was upheld on appeal by the High Court.

At page 10 of the judgment the Court of Appeal suggested as a guide to Magistrates in custody matters the following;

“(a)	The Magistrate should hear both parties to the dispute. Each party should outline his or her proposals for custody and access in some detail. In cases such as the present where each party is living in a de facto relationship (or whether either or both has remarried) the magistrate should hear evidence from the new spouse or the de facto spouse of each party. The reason behind this suggestion is that the partner of the custodial parent will inevitably have an effect on the child: particularly in cases such as the present where the parties live at opposite ends of Viti Levu and access to the non-custodial parent will be limited by reasons of distance and finance;

(b)	Reports from the Welfare Officer should be obtained as a matter of course in all cases. They should normally be made available to counsel for the parties (where counsel have been retained) before the hearing begins, if practicable. The reason for this suggestion is that Welfare Officers perform a very useful function in these cases. Their reports have a great sway with the Magistrate. However, even with the most conscientious officers there is a possibility of misinterpretation or incorrect information being present in a report: counsel should have the opportunity of correcting any information in the reports .. .. .. ..

(c)	The Magistrate should where practicable interview the child to ascertain his or her wishes in respect of custody, unless the child is of very tender years . . . . . we think that, particularly with older children, a magistrate will be assisted by an informal chat with the child. In our experience, such children are often quite perceptive in their understanding of the dispute and of the tactics employed by warning parents. The only other persons present should be the court clerk .. .. ..

(d)	For the reasons given earlier, we think that the magistrate should set out in reasonable detail his reasons for recommending an award of custody to one party or another;

(e)	The Welfare Officer should be asked to comment of access in the alternative situations of the mother or father having custody.”

It is clear that in the case before this court, these guidelines were not followed. Both sides to the dispute were not heard, although the Appellant was present in court when the order was made. No evidence was heard from the Appellant’s new partner. Although the welfare reports were available to the court, it is not clear whether the learned Magistrate decided to supply copies to counsel or the parties. The child who appears to have been present in court, was not interviewed by the learned Magistrate. The reasons given by the learned Magistrate are sparse and uninformative. In particular although one Report contained the wishes of the child, no reason is given for ignoring these wishes.

In the circumstances I am of the view that the learned Magistrate erred when he awarded custody of the child Parheen Pratishna to the Respondent without hearing evidence on the matter, and without hearing submissions from the Appellant and the Respondent. I am also of the view that he erred when he gave insufficient reasons for his decision. Simply accepting the welfare report of the Senior Welfare Officer Central/Eastern when a conflicting report from the officer who spoke to the child in Sigatoka, was before him, was not sufficient for “enabling a proper understanding of the basis upon which the verdict entered has been reached” (per Asprey J. A in Pettit -v- Dunkley (1971) 1 NSWLR 376, 382.

For these reasons I allow the appeal on both Grounds A and B. I order that this matter be remitted to the Nausori Magistrates Court to be heard by another Magistrate. Such a re-hearing should take place after a new, up-dated welfare report has been received by the court from Welfare Officers in Sigatoka and Nausori. The Magistrate handling the matter may consider whether he/she wishes the Reports to be given to the parties.

The appeal is allowed. Costs of the Appellant are to be paid by the Respondent to be taxed if not agreed. The child Parheen Patishna is to continue to remain in the custody of the Appellant with access to the Respondent every fourth weekend of the month until the re-hearing is concluded.

[Nazhat Shameem] Ms
JUDGE
At Suva
2nd August 1999