Sharma v Talib [2012] FJMC 267; Family Case 178.2010 (9 October 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Family Case No 178/10

BETWEEN

RAJNISH SHARMA
Applicant

AND

MOHAMMED TALIB
Respondent

RULING

1. The Applicant filed a Form 9 Application on the 21st April 2010 seeking the full custody of the following children;
   
   1. Shanaya Saleena Khan - date of birth 05.12.06
   2. Mohammed Tafrael - date of birth 04.12.09
      
2. The Respondent filed his Response on the 02nd May 2010 seeking the following orders;
   
   1. I seek full custody of my daughter namely Shanaya Saleena Khan born on 05.12.06 with reasonable amount of access to the Applicant(wife)
      
   2. I also seek weekend access to my son namely Mohammed Tafrael born on 04.12.09
      
3. It appears that the Respondent has not asked for custody of his son when he filed the Response.
   
4. In any event before determining the custody issue it would be relevant to analyse the turn of events in this case. The Respondent is the father of the two children in issue. The Applicant and the Respondent were married on the 18th August 2006. Apparently they have separated on the 11th April 2004. The Applicant had taken the two children when she left the Respondent. Further there is a domestic violence restraining order in place between the parties.
   
5. On the 04th June 2010 the Court issued a contact order with consent of both parties for the Respondent to see the children on Sundays. On the 31st March 2011 the Court granted interim custody of Shanaya Saleena Khan to the Respondent as a result of an allegation of sexual abuse of the said child at the Applicant's house. Further the contact orders were suspended temporally as the tension between the parties was so high. Later on the 09th June 2011 the Court issued a contact order for the two parties to see the children in their respective custody.
   
6. In the mean time the marriage between the parties was dissolved on the 15th September 2011 following an application filed by the Applicant lady.
   
7. This case was taken up for hearing in respect of the custody application on the 26th April 2011. Before I proceed to analyse the evidence adduced by both parties I should make a note on the demeanour of the Applicant and the Respondent. Both the parties are still at very young age. They allege each other for having extra marital relationships which seems to be the reason for the break down of the marriage. Further the Applicant alleges that she was physically abused by the Respondent. Both parties have worked for the same company and the Applicant's new husband too have worked together with them. Apparently the parties maintained a very much tensed ties with each other and the Court did not observe them acting as responsible parents over the issues relating to their children. Both parties were emotionally very much agitated and they seemed as if they were more engaged in a prestige battle. Sometimes it appeared that the issues relating to their children were used by them to attack each other and they were not amenable to peacefully work together for the betterment of their children in the back drop of their failed marriage.
   
8. It should be noted how ever much the parents would fight over their children due to any reason whatsoever the Court has to necessarily give regard to the best interest of the children in question. Section 120 of the Family Law Act buttresses this notion that the primary consideration of the Court is the best interest of the children and nothing else.
   
9. Section 121 of the Family Court Act stipulates the matters that the Court has to take into account in deciding the best interest of the child as follows:
   

Section (121) –

(1) Subject to subsection (3), in determining what is in the child's best interests, the court may consider the matters set out in subsection(2).

(2) The court must consider-

(a) any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

(b) the nature of the relationship of the child with each of the child's parents and with other persons;

(c) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from-

(i) either of his or her parents; or

(ii) any other child, or other person, with whom the child has been living;

(d) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(e) the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;

(f) the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of the child) and any other characteristics of the child that the court thinks are relevant;

(g) the need to protect the child from physical or psychological harm caused, or that may be caused, by-

(i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or

(ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;

(h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(i) any family violence involving the child or a member of the child's family;

(j) any family violence order that applies to a child or a member of the child's family;

(k) any other fact or circumstances that the court thinks is relevant."

10. Having borne the above principles in mind I have considered the evidence adduced by both parties.
    
11. The Applicant said that she is remarried and living in her new husband's house. She said that she is not employed presently and she looks after the son who is with her. She said that her mother who is in Australia supports her financially. She said that she will not do a job as she wants to look after the children. She asked for the custody of both children.
    
12. The respondent said that he earns 221.18 dollars weekly after deductions. Further he said that he earns about 1300 dollars monthly from a private business he does. He said that he is renting a house with his de facto wife. Further he said that the same baby sitter who was looking after the children when he was married to the Applicant, baby sits his daughter now. The Respondent said that his daughter is happy with him and his de facto wife. He asked for custody of both children despite what he asked for in the Response filed by him.
    
13. It should be noted that both parties were accusing each other during the hearing. The Applicant alleged that the Respondent has an abusive behaviour. The Respondent alleged that the Applicant used to neglect the children from the time they were born. Further he alleged that the Applicant and her new husband consume alcohol and they smoke at home.
    
14. At the end of the hearing I have interviewed Shanaya Saleena Khan. She said that she is 5 years old. She looked like an average child. She said that her mother smacks her and the father does not. She said her father's new partner is her "new mommy" and that she loves her. She further said that she wants to live with her father.
    
15. I have considered the report submitted by the Social Welfare Officer. The contents of the report corroborate the fact that the children have been neglected by the Applicant at times and they were looked after by a baby sitter. As per the report the Social Welfare Officer states that even the neighbours confirmed that.
    
16. In view of the whole evidence placed before this Court I should state that the Court is not satisfied that either of the parent is ready to look after the children properly. If the full custody is to be granted once and for all, the Court has to be satisfied that either of the party will be in a position to carry out the responsibilities of a parent. But I could not see any satisfactory commitment from any of the parties to take up the responsibility. As it was earlier stated that it is the paramount duty of the Court to see the best interest of the children. The Court is the upper guardian of the children and the Court has the right to decide what is best for the children. Although the Applicant sought the custody of both the children what the Court could fathom from the evidence was that she was more interested in getting the full custody of the son. On the other hand the Respondent seems to be more interested in getting the custody of the daughter. Yet both could not establish that they are ready as parents to provide enough love, care, education, and protection to their children. Both the Respondent and the Applicant more or less signified that they fight for the children as an indirect mode of hurting each other.
    
17. On the other hand I am not satisfied that the Respondent has an entirely suitable atmosphere to take the full custody of his daughter. He is still not married and it was stated that he is living with a de facto partner. She was not called to give evidence. It was not established before Court how suitable the environment at home to the daughter of the Respondent. The Child Shanaya Saleena Khan is a female child and with the time her needs and other requirements will have to be specially catered. However the Respondent did not elaborate what plans he has to cater to those special needs of his daughter. At least he did not sufficiently elaborate how strong the relationship he has with his partner in order to provide a salubrious atmosphere for Shanaya Saleena Khan.
    
18. It should be noted that having the custody of a child is not a souvenir of victory in a battle between separated parents. Parents should keep their children away from their differences and should not make them the hostages to enhance their bargaining powers. Even if the parents are not yet ready to play the role of real parents the Court has a duty to see to the best interest of the children.
    
19. In view of the forgoing reasons, I am not satisfied that either of the parent is yet suitable to have the full custody of their children as far as the best interest of the children are concerned. I am of the view that they should be given some more time to rethink and settle down with their lives before they make crucial decisions regarding their children. Thus I decide to grant only interim custody of the children in the following manner;
    
    1. The Applicant will have interim custody of Mohammed Tafrael - date of birth 04.12.09
       
    2. The Respondent will have interim custody of Shanaya Saleena Khan - date of birth 05.12.06
       
20. The contact orders made on the 09th June 2011 will remain in force until the Court make variations as and when it is necessary. The parties are at liberty to make a fresh custody application when they can sufficiently satisfy the Court that they are ready to have full custody of their children.
    

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

09.10.2012