Nai v Cava [2008] FJHC 274; HBC18.2008 (6 February 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL ACTION NO. 18 OF 2008

BETWEEN

SERA NAI, LEONE DRUMA AND MAKERETA
SOVASOVA DRUMA
Plaintiffs

AND

SELINA CAVA
Defendant

Appearances: Mr. K. Vuataki for the Plaintiffs
Mr. S. Sharma for the defendant

Date of Hearing: 6 February 2008, 9:15 am
Date of Decision: 6 February 2008, 2:15 pm

EX-TEMPORE JUDGMENT

[1] On 22 January 2008 the plaintiffs filed the originating summons herein for the following orders:

[i] that the child Adi Melaia Grace Druma (the infant) continue to reside in Fiji with the plaintiffs until she is eighteen years old with the defendant having visitation rights to the child within Fiji

[ii] that the defendant be restrained by herself, her servants, agents or howsoever from removing the infant out of jurisdiction until the said infant is eighteen years old

[iii] such other orders as the Honourable Court deems just.

[2] A motion was also filed by the plaintiffs, returnable on 25 January 2008 for an order to restrain the defendant from removing the infant out of jurisdiction.

[3] Justice Scutt commenced hearing the matter on 25 January 2008 and adjourned the proceedings to 29 January 2008. On 29 January 2008 the sitting of the court was disrupted due to Cyclone Gene. The court Registry’s functions were also hindered for over a week because the electricity supply to the courthouse had been disrupted as a result of damage sustained during the cyclone. Power was restored yesterday afternoon.

[4] Before a Notice of Adjourned Hearing could be served, the plaintiffs filed a Notice of Discontinuance. Nevertheless, because the proceedings involve a child I directed the Registry to inform the parties to appear before me this morning.

Notice of Discontinuance

[5] The notice of discontinuance (notice) dated 4 February 2008 was issued on the same day. Mr. Sharma informed me this morning that the notice was served on him earlier in the morning. Service of the notice has the effect of wholly discontinuing these proceedings. The plaintiffs have an unqualified right under Order 21 rule 2 (5) of the High Court Rules to discontinue the action without the leave of the court and have exercised that right. If it is shown that the plaintiffs have abused such right, the court has the power to set aside the notice of discontinuance. That would require a formal application which has not been filed.

[6] Mr. Vuataki has informed me that this action has been discontinued because the defendant has filed an application in the Family Division of the Magistrates Court at Lautoka for certain orders including the immediate release of her child from the respondents, plaintiffs herein.

[7] On 28 January 2008 the Learned Magistrate, Mr. Maika Nakora made the following orders in respect of the application filed by Ms. Cava, by consent:

[i] the interim residence of the child, Adi Melaia Grace Druma, a girl born on 1/8/02 to remain with the respondents

[ii] the applicant to have interim contact to the child everyday from 10 am till 1 pm at the Lautoka Hotel starting tomorrow Tuesday 29 January 2008

[iii] the respondents are to drop and pick the child

[iv] the Attorney-General is directed to be a party to this case under Section 177 of the Family Law Act for the child in question

[v] the Director of Social Welfare is also directed to be a party to this case under Section 178 of the Family Law Act

[vi] The matter is adjourned to 31/1/08 for mention only.

High Courts inherent jurisdiction in relation to infants

[8] This issue has been dealt with in at least two judgments in the High Court at Suva. In Lakhan –v- Lata[1], Justice Fatiaki, as he then was, cited with approval the dictum of Lord Denning in In re L (an infant)[2]

".... It derives from the right and duty of the Crown as parents patriae to take care of those who are not able to take care of themselves. The Crown delegated this power to the Lord Chancellor, who exercised it in his Court of Chancery ... The child was usually made a ward of court and thereafter no important step in the child’s life could be taken without the Court’s consent. But that was only machinery. Even if there was no property and the child was not a ward of Court nevertheless the Court of Chancery had power to interfere for the protection of the infant by making whatever order might be appropriate ... This wide jurisdiction of the old Court of Chancery is now vested in the High Court of Justice and can be exercised by any judge of the High Court. As a matter of convenience, the jurisdiction is exercised by making the child a ward of court and putting it under the care of a judge of the Chancery Division. But that is only machinery. If a question arises as to the welfare of a child before any judge of the High Court, he can make such order as may be appropriate in the circumstances." (my underlining)

[9] His Lordship held that by virtue Section 18 of the High Court Act, this court has power to exercise the prerogative of the Crown or State as ‘parens patriae’ in relation to minors or infants.

[10] In Sachin Deo –v- Brij Bhan Singh & Anr.[3], Justice Scott said:

"In exercising jurisdiction in this matter this Court does so by virtue of Sections 18 and 22 of the High Court Act (Cap. 13) ... It exercises the jurisdiction which has been exercised by the Court of Chancery from time immemorial. It is a paternal jurisdiction, a judicially administrative jurisdiction in virtue of which the High Court is put to act on behalf of the States as being the guardian of all infants in place of the parent and as if it were the parent of the child thus superseding the natural guardianship of the parent (See: The Queen v. Gyngall [1893] 2Q.B. 232, 239]."

[11] Any confusion by counsel regarding this court’s jurisdiction to hear matters concerning infants should be allayed. The High Court is vested with an inherent jurisdiction in relation to infants.

New information

[12] Justice Scutt was somewhat hampered during the 25 January 2008 hearing. The defendant did not have on her relevant documentation regarding her child. At that stage it was unclear, given the absence of documentation whether the child was a Fijian or Australian national. Subsequent enquiries by Scutt J have confirmed the following. Selina Cava, on 26 October 2006 filed a family law application in the local court at Bankstown, Sydney, Australia. The application related to the child, Adi Melaia Grace Druma born on 1 August 2002, infant herein. The application was given a Listing date of 9 November 2006. The information was supplied by Mr. Dirk Train, acting co-ordinating Registrar of the Family Court of Australia, Paramatta Registry. Further enquiries on the status of that application have been made. The likely pendancy of proceedings concerning the infant in Australia gives rise to jurisdictional issues in proceedings now pending in Fiji. More importantly, it is now clear from the application filed in the Lautoka Magistrate Court by Ms. Cava that the infant is an Australian National holding Australian passport No. M7728630. This not only raises jurisdictional issues but inter-country adoption issues as well.

[13] I alerted both counsel to this information when they appeared before me this morning. The fact that the infant is an Australian National and has been the subject of proceedings in the Family Court of Australia has serious implications on the two applications concerning the infant, now pending in the Family Division of the Lautoka Magistrates Court. Both counsel have a duty to alert the learned Magistrate presiding over the applications of the information which has now come to hand.

Gwen Phillips
JUDGE

At Lautoka
6 February 2008

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^[1] [1994] FJHC 26; HBC 0585J.93s (22 March 2994)
^[2] [1968] P.D. 119 at p. 156
^[3] Civil Appeal No. 13 of 1991 at p.4 cited also in the Lakhan case supra.2 [1968] P.D. 119 at p. 156