Raisamu v Pickering [2013] FJMC 285; Case 0014.2012 (1 August 2013)

IN THE MAGISTRATE COURT OF FIJI
AT RAKIRAKI

FAMILY JURISDICTION
Case No. 0014/12

Between:

HARRY CHARLES IGNITUS RAISAMU
APPLICANT

And:

REJINA LUISA ANA PICKERING
RESPONDENT

Applicant: In Person
Respondent: Ms Tarai (Legal Aid Office)

Hearing: 20th June 2013
Ruling: 1st August 2013

JUDGMENT

Background

1. This is an application form 9 filed by the applicant/man against the respondent/lady for custody of their four year old son namely Ratu Jese Raisamu (born on 16th February 2009) and currently under the immediate care of the respondent/lady.
   
2. The form 9 application was filed on 3rd February 2012 and response filed on 11th April 2012. The court had also ordered a social welfare report which was furnished to the court before the hearing date.
   

Evidence

3. The applicant/man testified and stated that he's 28yrs old and can provide better environment for the child's development. Can give child financial support. Child is only 4yrs old. He's recent wife can look after child. He has bonding with the child. The social welfare report supports his case and he'll do anything to give the child a bright and secure future.
   

In cross examination he stated that he only saw the child for 1 week and that was last year. He's currently paying maintenance and a full time worker. He confirmed to court that if he's at work, his mother and wife can look after the child. He has never been to Ba to see the child. He states that the child knows him. He's parents and respondent contact each other in relation to the child and he has never contacted the respondent in relation to child contact. He agrees that his child is more bonded to his parents than him. Also he agrees that the child is more bonded to the respondent than him. He disagrees with the child being affected should there be a change in environment. He agrees that the child is not familiar with him. The last time he had contact with the child was in January 2013.

In re-examination he stated that he's learnt his lesson and willing to do anything for the child.

4. The applicant/man's mother (Mary Raisamu) also testified and stated that the applicant sends them money to support the child. She noticed that when the child was with them for a brief period the applicant was there for the child and loved the child. This is their first grandchild and they would do anything to ensure that he adapts to their family situation.

In cross examination stated that the last time the child saw applicant/man was in December last year. They have a closer bond to the child than the applicant/man.

5. The applicant/man's wife (Tavenisa Waqavonovono) also gave evidence and stated that she will accept the child.

In cross examination she stated that she can look after the child.

6. The final witness for the applicant/man was one Banuve. He stated that last year he had a relationship with the respondent/lady.
   
7. The respondent also testified under oath and stated that she since the date they separated on 24/2/09 she had been looking after their child. She went to stay with her parents at Namosau Ba and the child was with her. She's currently in a de-facto relationship. The applicant/man had never contacted her regarding the child. Access to the child is made to applicants parents only. Before she requested for maintenance it was her parents and applicants parents who were supporting the child. She had been looking after the child all this while. She had breast fed the child from birth and they've very attached to each other. She's been with the child for 4 years and the applicant has only been with the child for 7 days. Don't know how applicant's wife is going to look after the child. Child is not even familiar with applicant. She's the one who has been with the child all these years.

In cross examination she stated she's able to support the child although she's not working. Her de-facto partner is working as a security officer.

Issue

8. The issue for the court to resolve is whether residence/custody should be given to the applicant/man or respondent/lady?
   

Law & Analysis of Evidence

9. I've carefully considered the evidence put before the court by both the applicant/man and the respondent/lady. I've also considered the two social welfare reports.
   
10. When considering this application I bear in mind relevant provisions of section 120, 121 and 122 of the Family Law Act 2003, which relates to what is in the best interest & welfare of a child.
    
11. From the evidence it is apparent that the applicant/man and respondent/lady separated on 24/2/09 a few days after the birth of the child. From then till the present, it was the respondent/lady who solely shouldered the responsibility to look after the welfare & interest of their child.
    
12. I've further noted from the evidence that the child also visited the applicant/man and his parents briefly last year but that was only for a brief period of 7 days. Apparently the evidence highly suggests that there's a stronger tie and bond between the respondent/lady and the child. There is no dispute that that applicant/man is employed whereas the lady is unemployed. No doubt the applicant/man is financially stable in comparison to the respondent/lady however it cannot be ignored in accordance with the evidence that she also has the necessary support of her parents, her de-facto partner and the current maintenance received from the applicant/man, for the child's financial support.
    
13. In addition the child and the respondent/lady had always been together since 2009 hence the physical, emotional and intellectual needs necessary for the child's development was always provided by the respondent/lady.
    
14. I've carefully considered the two social welfare reports and although I agree that the applicant/man is financially capable of supporting the child, I'm inclined in the best interest of the child to accept the recommendations in the report which suggest that residence be given to the respondent/lady and open contact to the applicant/man.
    
15. The applicant/man like any other caring and loving parent wishes to give his son all the necessary care and support which the court understands. However the court as custodian of the child feels that given the current situation in terms of the physical, emotional and intellectual environment and support necessary, the respondent/lady would be in a much better position to provide the same.
    
16. Moreover as I see it, there is a risk that the physical, emotional and Intellectual support currently enjoyed by the child would be interfered with if residence/custody is granted to the applicant/man.
    
17. As mentioned the court has to resolve the current issue based on what is in the best interest and welfare of the child.
    

Conclusion

18. On the basis of the discussions, I refuse to grant residence/custody to the applicant/man.
    
19. I order that full residence/custody of the child be granted to the respondent/lady. The applicant/man is to have reasonable contact/access only.
    
20. I order so accordingly.
    
21. Parties at liberty to appeal within 30 days.
    

Samuela Qica
Resident Magistrate

1st August 2013