AM v RN [2013] FJMC 188; Family Court 0049.2012 (9 May 2013)

IN THE MAGISTRATES COURT AT NASINU

Family Court File No.0049/2012

BETWEEN:

A M
[Applicant]

AND:

R N
[Respondent]

Ms. Buksh (Samuel K. Ram) for the applicant
Ms. Mere Vasiti (Nands Law) for the respondent

Ruling

1] The Respondent in this case filed form 12 and form 23 for variation of interim custody.

2] The applicant-respondent lady opposed this application. She has filed response the parties sought urgent decision and matter is stood down till 2.30pm. I now consider the facts.

3] This case is tangled with DVRO case no: 157/2012 and in that matter on 16th April 2012 the court ordered interim custody to be with the respondent father with full time access to the mother. This was varied on 02nd August 2012, in that order, the applicant mother was given interim custody on the last week of every month.

4] The Respondent in this case filed form 12 and form 23 seeking variation of this interim custody order. The Respondent says since his child has started kindergarten, this order will break the education of the child and it has to be varied and cancelled forthwith.

5] I have carefully considered facts before me. The RN 7 document shows the child is schooling in Rishikul Nadera Primary School. If this interim order persists, it will disturb the education of the child as the order takes last week of every month.

6] Under section 26 of the Family Law Act, when court decides a family issue following Principles to be applied. I reproduce it for clarity;

"26. A court exercising jurisdiction under this Act must, in the exercise of that jurisdiction, have regard to-

(a) the need to preserve and protect the institution of marriage as the union of a man and a woman to the exclusion of all others voluntarily entered into for life;

(b) the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while the family is responsible for the care and education of dependent children;

(c) the need to protect the rights of children and to promote their welfare;

(d) the means available for assisting parties to a marriage to consider reconciliation or the improvement of their relationship to each other and to the children of the marriage;

(e) the Convention on the Rights of the Child (1989) and the Convention on the Elimination of all Forms of Discrimination against Women (1979)."

7] It is therefore clear this order should be varied in line with above principles. Original form 9, custody issue has been set for hearing on 08th August 2013. Parties can get ultimate solution after that hearing.

8] Given consideration of above principles and affidavit evidence of both parties, I make following interim orders;

1. The order dated on 02nd August 2012 that the applicant mother was given interim custody on the last week of every month is hereby cancelled.
   
2. The Applicant has reasonable access to the child at anytime with the supervision of the Respondent-father. In addition the respondent should give access to the mother last Saturday of the month between 11am to 4pm, cost and transport to be borne by the Respondent father.
   

100. During School holidays the applicant-mother has the full custody of the child with reasonable access to the Respondent father.
     

4. Other interim orders such as mode of exchange and point of exchange will remain unchanged.
   
5. Parties will bear the cost of this application
   

Orders accordingly,
On this day 09th May 2013, at Nasinu, Fiji Islands

Sumudu Premachandra {Mr.]
Resident Magistrate-Nasinu