SG v VJ [2014] FJMC 186; File 165-SUV-2012 (22 January 2014)

IN THE FAMILY DIVISION OF THEMAGISTRATES’ COURT AT SUVA

FILE NO. : 165 SUV 2012

BETWEEN:

SG

Applicant

A N D

VJ

Respondent

APPEARANCES/REPRESENTATIONS

Form 9 and form 12 and 23 Applications on 20^th of March 2012

The Applicant- Ms.Naidu R (Sherani & Co.)

The Respondent-Present in Person

Form 12 and 23 Applications on 26^th of June 2012
The Applicant- Present in Person

The Respondent- Ms. Naidu R and Ms. Rakai M ( Sherani & Co.)

RULING

Introduction

1. The Applicant who is the biological mother of the child VD [hereinafter “the child”] filed a Form 9 and form 12 and 23 Applications on 20^th of March 2012 seeking orders which I quote in verbatim as follows:-
   
   • (a) “The Applicant to have residence of the child of the marriage VD born on 14^th March, 1996.
   • (b) The Respondent to have reasonable day contact with the child in Suva.
   • (c) An Injunction restraining the Respondent and/or through his servants and/or through his agents:
     • from entering the residence of the Applicant without her permission or in her absence.
     • from going to the work place of the Applicant and making inquiries about her.
     • from threatening, hassling, intimidating or harassing the Applicant at her residence and her work place.
     • by keeping 100 meters away from the Applicant at all times.
   • (d) Any other Orders that this Court deems just.”
2. In response the Respondent who is the biological father of the child filed Forms 10, 13 and 23 Response, in answer to the said applications on 28^th May 2012.
   
3. The Applicantmother also filed form 11 on 14^th May 2012 inter alia which reads that she was an victim of Domestic violence and the respondent had been intimidating and threatening to kill her and the child and enclosed a copy of the DVRO made final on 2^nd May 2012.
   

Form 12 and 23 Applications on 26^th of June 2012

4. The Applicant who is the biological father of the child .VD [hereinafter “the child”] filed a Form 12 and 23 Applications on 26^th of June 2012 seeking an order which I quote in verbatim as follows:-
   
   1. Interim access to the child.
      
5. I would like to quote above mentioned Form 23 of the Applicant father which I quote in verbatim:-
   

; “I married the Respondent in India on 3^rd May 1995.

• We have a son VD born on 14^th March 1996
• I have never slapped my son once who is 16 years old now.
• I have no problem with the Respondent. I love my wife and son. I want to bring my family together and carry on with our family life.
• After I had a Kidney Operation few years back. I know my life is at risk. I decided to send the Respondent for further studies to FNU (FIT/TPAF). So she can survive on her own if something happens to me.
• The Respondent made a mistake by going to a Lawyer who is just using tactics to make money from my wife. The case should have been filed in Family Court first instead of Magistrate Court. My wife would have saved money which she spent for Magistrate Court Case for our son’s education.
• The DVRO is to protect a family but in this case it has been used to break a family. We could have saved our family from breaking up by going for family counselling but this was also blocked by the Respondent’s Lawyer.
• The Ex-Parte DVRO No: 77/11 is wrong under the Domestic Violence Decree 2009. That means all Judgment made under the Ex-parte DVRO No. 77/11 is wrong. Attached as “VJ 5” is a copy of DVRO No. 77/11. Also I was unlawfully detained in Samabula Police Station custody from 10/01/12 to 12/01/12.
  • I am looking forward to get a solution which can save my family from breaking up.”

6. In response the Respondent who is the biological mother of the child filed Form13 and 23 Responses, in answer to the said application wherein she sought the following orders which I quote in verbatim:-
   
   • (i). “The Court interviews the child and hears his views before making any orders.
   • (ii). The application by the respondent filed herein be dismissed with costs.”
     
7. The respondent mother filed their respective Form 23 Affidavits in support of the orders sought in form 13. which I quote in verbatim:-
   • “That I admit paragraphs 1 to 3, of the said Affidavit.
   • In response to paragraph 4 of the said Affidavit I deny the statement. I further say that the Applicant did hit my son once, and was very strict with my son, and did not allow him to have any friends or go anywhere. The Applicant never raised my son as a son, but was mainly dictating and controlling our lives.
   • In response to paragraph 5 of the said Affidavit I say that our marriage is over. I further say that the Applicant went to Nadi in December 2008.
   • In response to paragraph 6 of the said Affidavit, I say that the Applicant only had a gall bladder stone operation, wherein he was in Suva Private Hospital for one night only and was discharged the next day.
   • In response to paragraphs 7, 8 and 10 of the said Affidavit, I say that I decided to commence court proceedings against the Applicant because of his constant threats and verbal abuse. I am further legally advised that the DVRO is granted by the Magistrates Court.
   • In response to paragraph 9 of the said Affidavit, I am legally advised that it is a matter of law which will be dealt with in Court.
   • That under such circumstances I pray to this Court for the orders prayed for in the Form 13 file herein.”

The Evidence

8. The Applicant

Both The Applicant and the Respondent filed supporting affidavits to Form 12 application form 12 and 23 Applications on 20^th of March 2012 and both parties opted to give sworn evidence and filed supporting affidavits for Form 12 and 23 Applications on 26^th of June 2012.

The Law and the Determination

9. Part VI of the Family Law Act 2003 [hereinafter “the Act”] deals with Childrenwherein the object of the Part is stated at section 41 and provides as follows:
   
   • (1) The objects of this Part are:-
     
     • (a) to ensure that children receive adequate and proper parenting to help them achieve their full potential: and
       
     • (b) to ensure that parents fulfil their duties and meet their responsibilitiesconcerning the care, welfare and development of their children.
       
   • (2) The principles underlying these objects are that, except when it is or wouldbe contrary to a child’s best interests-
     
     • (a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
       
     • (b) Children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development;
       
     • (c) Parents share duties and responsibilities concerning the care, welfare and development of their children; and
       
     • (d) Parents should agree about the future parenting of their children.
       
10. At Section 120 and 121 of Division 10, part VI of the Act, provision is made for how the court is to determine the best interest of a child as follows:-
    

120.-(1) This subdivision applies to any proceedings under this Part in which thebest interests of a child are the paramount consideration.

(2) This Subdivision also applies to proceedings, in relation to a child; towhich section 60(6) applies.

How a court determines what is in a child’s best interests.

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 contract 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 protectthe 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;
  
• (iii) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
  
• (iv) any family violence involving the child or a member of the child’s family;
  
• (v) any family violence order that applies to a child or a member of the child’s family;
  
• (vi) any other fact or circumstances that the court thinks is relevant. ((Emphasis added)
  

11. According to the above paragraph that the Section 121 deals with the various considerations that the court must consider when determining the “best interest of the child”. Section 121(2) (a) allows the court to consider 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; In this matter the child is at the verge of age of majority and he is mature enough to express his wishes. Therefore, the court has decided that it is paramount important to give a weight to the wishes expressed by the child in court on 20th January 2014.
    
12. Section 121(2)(b) allows the court to consider the nature of the relationship of the child with each of the child’s parents and with other persons while Section 121(2)(g ) provides that the need to protect the child from physical or psychological harm caused, or that may be caused by including that the court to consider any family violence order that applies to a child or a member of the child’s family .In this token, the court is mindful about the Final Domestic Violence Restraining Order against the father on standard non molestation condition and on non contactable conditions pursuant to section 27, 28 and 29 of the Domestic Violence Decree.
    
13. Section 121(2)(c) allows the court to consider the effect of any changes in the Child’s circumstances including any separation from either of the parents and Section 121(2)(b) of the Act also allows the court to consider the nature of the Child’s relationship with each of the parents who are the parties to the current proceedings. Moreover, Section 121(2) (f) provides that the court also must consider the child’s maturity. And also, pursuant to section 121(2) (g) of the Act allows the court to take into consideration the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents. The child in the present case has been living with his mother. The evidence of the Applicant and all the documents tendered into evidence including the social welfare home environment report demonstrates the child does not wish to have any sort of contact with his father.
    
14. I have also considered the report dated 11^th October 2012, which was submitted by the Social Welfare Officer. The contents of the said report inter alia states that the infant that the child voiced out his opinion and “stated that he prefers to stay with his mother and his father has been rude to him at many occasions and feels emotionally stressed and unsecured when his father is around him.” (Emphasis added)The court also mindful that the child still maintains the above statement and does not wish to contact his father even in a police station under the supervision of a Social Welfare Officer.
    
15. I also consider the recommendations of the said report inter alia which states that the residence should be granted to the mother with reasonable contact to the father. And also court notes that father raised concern during the interview for reconciliation, but mother did not wish to reconcile with the Respondent referring to the violent behaviour of him. On the same token, I also note that a conditional order for dissolution of marriage had been granted on 18^th Sep.2013 by learned Resident Magistrate Mr.V.D Sharma and noted that the respondent has filed an appeal before the High court for the said Dissolution of Marriage Order.
    
16. On 9^th October 2013, the matter was fixed for the hearing of form 12 and 23 and the father gave evidence on oath and stated that he “never assaulted his son for last 17 years. Moreover, he consented that the residence to be granted to the mother and he needs contact of the child during the school holidays. Mother also opted to give sworn evidence and explained as to why she does not wish the father to has contact with the child because of the violent behaviour of the father and also referred to the Domestic violence Restarting Order which was granted by the Hon. Chief magistrate for the wellbeing of the mother and the child. I also draw my attention to the court proceedings on 9^th October 2013.While the counsellor for the mother raised concern about Domestic Violence Restarting order and submitted that the child is veryreluctant to go his father.
    
17. The matter was adjoined to 9^th December 2013 at 2.30 p.m. to obtain child’s view. I also note that upon my instructions the court clerk scheduled time and had informed both parties to appear before the court on the same date at 10.30 am instead of 2.30pm.But, on 9^th December 2013 the father was appeared before court at 10.30am but the child was absent. Then the court directed that, the child to be interviewed by the Director counsellor in order to obtain his views.Subsequently, the matter was adjourned to 12^th December 2013.On the said date both parties were present before the court and Ms. Rakai who represented the mother submitted that the child has given a letter to the Director Counsellor regarding his wishes in relation to the matter.Moreover, stated that child is not comfortable coming to court and he had already been interviewed by 03 Resident magistrates.Then the court highlighted section 121of the Family Court Act and directed alternatively the letter to be submitted alone with an affidavit in order to consider as part of the evidence as there wasno evidence before this court to verify the signature of the author of the letter. Moreover, (without going to the extent of analysing law of evidence) it is indeed a healthy practice to submit an affidavit to the court for consideration rather than submitting a letter where the writer is unavailable before the court. The learned counsellor stated that she could file an affidavit within 2 hours on the same date but failed to comply with. In this scenario, I wish to highlight the form Forms 9, 12 and 23 dated 20^th March 2012 by mother of the child by inter alia sought the following order which we quote in verbatim:-
    

“...The Court interviews the child and hears his views before making any orders.”(Emphasis added) But it is noted that, contrary to her own application, when it come to the court to obtain child’s view,

Pursuant to sec.121of FLA, mother come up with applications stating that the child is already intervened by other Resident Magistrates and also the child is not comfortable to appear before the court. I also wish to highlight that as the presiding Resident Magistrate of the matters at hand I am obliged to obtain the view of the child. The child is at the verge of age of majority. However, the child’s view’s obtained on 20^th January 2014.

18. When considering this application I bear in mind relevant provisions of sections 41, 120 ,121 and 122 of the Act, In addition to that in reaching the don relating ting to the issue of interim contact of the child, , the court also considered, amonthers the Sthe Social Welfare Officer's report, Director Counsellors report, Domestic nce case no. 77 of 2011 and1 and the final orders by the hon. Chief Magistrate on 2^nd May 2002 and mainly the ascertainable wishes and feelings of the child including all the evidence before this court.
    
19. In light of the above discussed and considering the entire evidence, the relevant law and the and most importantly the best interest of the child.
    

ORDERS

20. Form 9 and form 12 and 23 Applications on 20^th of March 2012 by the applicant mother;
    
    • The Applicant/ mother shall have the interim residence of the child of the marriage VD born on 14^th March, 1996.
    • Considering the final orders for the Domestic Violence restraining for the wellbeing of the mother and the child pursuant to section 27(2 protecting the mother and the child in Domestic Violence case 77 of 2011 granting the same orders would not serve any purpose. Therefore, I dismiss the application for an Injunction restraining order by the mother.
    • The court wish to fix an early hearing date to determine Form 9 filed by the applicant mother with the child representative pursuant to sec.125 of the Act.
      
21. Form 12 and 23 Applications on 26^th of June 2012
    
    • The Applicant/Father shall not have interim contact of the child of the marriage VD born on 14^th March, 1996.
      
22. Right of Appeal – 30 days from the date of this ruling.
    

LAKSHIKA FERNANDO (MS)

RESIDENT MAGISTRATE

On this 22^ndday of January 2014.