Prasad v Singh [2012] FJMC 258; Family Case 61.05 (4 September 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Family case No 61/05

BETWEEN

DEVENDRA PRASAD
Applicant

AND

SHIREEN LATA SINGH
Respondent

RULING

1. The case was taken up for hearing on the 08th August 2012 in respect of a form 9 application dated 29.06.09 filed by the Applicant seeking the following orders;
   
   1. Shared residency of the only child of the marriage
      
   2. Residency to the Applicant (father) from Friday 3.00 pm to Monday 8.00 am each week.
      
   3. That the applicant (father) to pick the child from school on Fridays and drop the child to school on Mondays.
      
   4. That child Divesh Prasad not to be removed from the jurisdiction of Fiji without leave of Court or by mutual agreement of the parties.
      
2. The Respondent filed the response on the 30th July 2009.
   
3. Before I consider the evidence adduced in this case it would be worthwhile to briefly examine the history of this case. Initially when the parties dissolved their marriage the Court has granted joint residence of the child named Divesh Prasad to the parties. However later, on the 30th January 2009 the Court has granted full residence to the Respondent with reasonable contact to the Applicant.
   
4. Thereafter the Applicant has filed the form 9 application on the 29th June 2009 for shared residence again which is the basis of this ruling.
   
5. However in the interest of justice the Court ordered the Senior Court Officer and the Assistant Registrar Family to go through all the Orders made in this case to see whether there is any other order with regard to residence has been made subsequent to the Order made on the 30th January 2009 and to verify whether the form 9 application filed by the Applicant on the 29th June 2009 has been dealt with. It was confirmed that the Form 9 application of the Applicant has not been dealt with and no other orders in respect of residence has been made.
   
6. Thus as at today the full residence lies with the Respondent with reasonable access to the Applicant.
   
7. In this backdrop the Form 9 application filed by the Applicant was taken up for hearing at the request of the parties. The Applicant and the Respondent gave evidence. Further the Court interviewed the child named Divesh Prasad.
   
8. It should be noted that the Applicant did not give evidence to support the Application filed by him. Instead totally irrelevant evidence was led through him. It appears that the action was misconceived by the Applicant.
   
9. The Respondent gave evidence in this case and said that the Applicant has neglected the child during the times that he had access. She said that the Applicant gets drunk and the child has been neglected during the weekends.
   
10. The Child was interviewed by the Court in camera. He said that he does not want to live with his father as he drinks alcohol. He said that some times the Applicant does not come home when he goes out to drink. He further said that he wants to stay with his mother and he can stay with the father if he stops drinking. The child told the Court that he will go only on Sundays to see his father.
    
11. I have considered the evidence given by both parties. It should be noted that it is the duty of the Applicant to establish as to why the residence order should be varied. However the Applicant failed to establish that point. Instead totally irrelevant evidence was led in respect of his application.
    
12. In any event it is the duty of the Court to see to the best interest of the child. I am satisfied that the child is being well looked after by his mother and there is no reason to change the order made with regard to full residence. In the circumstances I dismiss the from 9 application filed on the 29th June 2009 by the Applicant.
    

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

04.09.2012