Helu v Helu [2002] FJHC 14; Hbc0306j.2002 (26 July 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. 306 OF 2002

Between:

‘ILAISA FUTA HELU
Plaintiff

and

LU’ISA MANU LANGA ‘OI HELU
First Defendant

and

SIONE LOTO’ ANIU
Second Defendant

T. Fa for the Applicant
S. Matawalu for the Respondents
Mrs. Ana Delana Department of Social Welfare in attendance

JUDGMENT

The Applicant seeks orders in relation to 2 children. Their full names are set out in the supporting papers but for convenience I will refer to them as:

Samisoni aged 8 born on 5 May 1994; and

Joycelyn aged 2 years 9 months born on 17 September 1999.

The mother of both children is the First Respondent. Samisoni’s father is Fonomanu Tu’i’afitu who is not a party to these proceedings. Joycelyn’s father is the Second Respondent.

Samisoni is a Tongan citizen. He has lived with the applicant and the applicant’s wife, his grandparents since the First Respondents divorce from his father in about 1996. Samisoni has no right of abode either in Fiji or in Australia.

Joycelyn is an Australian citizen. She has lived with her maternal grandparents for about the last 15 months. The circumstances under which she went to Tonga are not clear. The Respondents say that the Applicant refused to return her to them after they had agreed to allow her to have a short holiday with them. The Applicant says that Joycelyn “was brought to Tonga to the Applicants” as she had been neglected by the Respondents. Joycelyn has not right of abode in Fiji. Whether she has a right of abode in Tonga is not clear.

The First Respondent has had a difficult past which she told me about. She is now 28 years old and describes herself as a student. She has altogether 5 children by 4 different fathers. She is either divorced or separated from her first and second husbands. She has been and is living with Joycelyn’s father who himself is married but separated from his wife and who has 4 children by his marriage. He works for Telstra as a claims officer. The First Respondent is a Tongan citizen. The Second Respondent is a Tongan citizen with an Australian permanent residency visa. He has a house in Sydney.

The First Respondent told me that in about September 2001 she married her second husband in the USA. In November 2001 she left her husband and returned to the Second Respondent who agreed to take her back. The Respondents decided that they would settle down permanently, that they would gather all the First Respondents children and bring them all up together as one family.

In about May 2002 the Respondents went to Tonga. In the absence of the Applicant and his wife Samisoni and Joycelyn were removed from their grandparents. What exactly happened next is not entirely clear but it appears that the Respondents brought the children to Suva as a first step towards taking them on to Australia. It will be remembered that Samisoni has no right of abode in Australia and it seems that owing to visa and other formal difficulties the Respondents and the 2 children then returned briefly to Tonga. The First Respondent told me that she needed to obtain a copy of the Decree Nisi which recorded that the custody of Samisoni had been awarded to her in 1996.

When the Respondents returned to Tonga the Applicant commenced proceedings in the Supreme Court of Tonga. A copy of the papers filed and orders made in those proceedings is annexed to the affidavit in support of this application.

The Applicants’ case in Tonga essentially was that the 2 children should be returned to them and the Respondents should be restrained from removing them from Tonga because the children were well and happy with their grandparents whereas the First Respondent:

“is irresponsible in respect of the care and safety of her children. Her conduct in general is not for the best interest of the children and is affecting their lives adversely in so many ways. She shows no regard to their stability and welfare, physically and emotionally, at present and for their future”.

On 28 June Mr. Justice Ford granted the orders sought. The Respondents were forbidden to remove the children from Tonga and were ordered to return them to their grandparents.

In paragraph 15 of the supporting affidavit in these proceeding the Applicant states that:

“the children .. were taken out of the jurisdiction of the Kingdom of Tonga without the leave of the Supreme Court in defiance of a lawful Court Order prohibiting the Respondents from taking the children our of Tonga”.

The Applicant now seeks an order of this Court returning the children to Tonga and their grandparents.

The Statement quoted from paragraph 15 of the Applicant’s affidavit is not correct. It is now clear that the Respondents and the children left Tonga on 26 June and that therefore they were already in Fiji and out of Tonga by the time the order of the Supreme Court of Tonga was made.

It is also clear that neither the Applicant nor his wife has any formal custody order in respect of either child in their favour. None of the parties or the children has any connection with Fiji other than as a place of transit. It would therefore be quite wrong for this Court to assume the jurisdiction to make any custody orders in respect of the children. What it is however entitled and right to do is to make such orders as will be in the best interests of the children for the time being. Such orders must necessarily be reflective or the hard facts of the case as they stand at present.

In my view the 2 children need to be considered individually. On the one hand Samisoni, now a schoolboy aged 8, is a Tongan citizen who has effectively lived all his life with his grandparents in Tonga. He has never lived with his mother. His father’s attitude to these proceedings (even if he is aware of them) is not known. He cannot stay permanently in Fiji and whether he could eventually go to Australia is uncertain.

Joycelyn on the other hand is still very young. She is an Australian citizen. Her parents want to take her to Australia. She has only lived with the grandparents (aged 57 and 68) for the last 15 months or so. She is much less attached to Tonga than Samisoni.

While the grandparents’ anxieties are understandable Australia is a modern welfare state and the First Respondent is already known to the Children’s Court. These proceedings will further alert them to the need to keep a watchful eye over the First Respondent and her children. I was impressed by the First Respondents desire finally to settle down and I was also impressed by the support which the Second Respondent (who has been with Telstra since 1995) was pledging to offer her.

As I have endeavoured to make clear it is not for me to decide the long term custody of these 2 children. After so many years in Tonga I do not think that it is right for Samisoni so precipitately to be removed from the only home he has known. By contrast the natural parents of a child who are both looking for the custody of that child should not be deprived without very good reason.

I was told that as a result of what has happened the First Respondents multiple entry visa for Australia was cancelled. I have little doubt that a fresh visa would be forthcoming if that was seen to be in the best interests of the First Respondent and her 2 Australian children.

I order Samisoni to be returned to the care of the Applicant forthwith with a view to his immediate return to Tonga.

As already noted the Order of the Supreme Court of Tonga was made ex parte and under a misapprehension as to a basic fact. In these circumstances and for the reasons already given I refuse the application in respect of Joycelyn. She is to remain with her parents for the time being with a view to their rapid return to Australia.

I only wish to add that I have also sought the opinion of Mrs. Ana Delana of the Department of Social Welfare for whose presence I am most grateful and whose views coincide with my own.

M.D. Scott
Judge

26 July 2002