MIR v AA [2014] FJMC 188; File 13-SUV-0148 (30 June 2014)

IN THE FAMILY DIVISION OF THEMAGISTRATES’ COURT AT SUVA

FILE NO. : 13/SUV/0148

BETWEEN:

M IR
Applicant

A N D

AA
Respondent

APPEARANCES/REPRESENTATIONS

Mr. Alipate Qetaki (Legal Aid Commission) for the Applicant

The Respondent- Absent and unrepresented

RULING

Introduction

1. The Applicant who is the biological father of the child SIR born on 08^th December 1997 [hereinafter “the child”] filed a Form 9 Application together with Form 12 and 23 Applications on 19^th July 2013 seeking an order that the Applicant be granted final residence orders in respect of the child, born on the 08^th day of December 1997, aged 16 years with reasonable contact to the Respondent mother.
   
2. As per record, the Respondent was duly served by a way of substitute service. The Respondent failed to appear before court and unrepresented. Subsequently, the matter proceeded formal proof on 13^th June 2014 considering the nature of the applications.

The Evidence

The Applicant

3. The Applicant relied on his Form 9 and Form 12 Applications for Final Orders. He is 38 years of age and a Taxi driver.
   
4. The applicant MIR of 00 Howell Road, Samabula testified in court that both the parties were married in 1997 and had been living in Fiji.
5. Their only daughter is 17 years old at the time of hearing and she was living with the Applicant since birth.
   
6. The Applicant had filed an application for dissolution of marriage against the Respondent and was their marriage was dissolved by the court on the 07^th of October 2013.
   
7. They separated in year 2008 and since then the Respondent didn’t visit the child nor had any means of communication with the child. The Respondent even had not made any contact during special occasions.
   
8. He also stated that the Respondent has not made any contribution to the welfare of the child.
   

The Respondent

9. The Respondent failed to appear or represented on the date of Hearing.

The Law and the Determination

10. Part VI of the Family Law Act 2003 [hereinafter “the Act”] deals with Children wherein 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 responsibilities concerning the care, welfare and development of their children.
  

(2) The principles underlying these objects are that, except when it is or would be 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.
  

11. 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 the best interests of a child are the paramount consideration.

(2) This Subdivision also applies to proceedings, in relation to a child; to which 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 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;
  
• (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.
  

(3) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2).[Emphasis added]

Brief Analysis

12. The Applicant father seeks residence of the child.
    
13. The Applicant informed the court that the child was within his custody since birth.
    
14. The applicants also stated that since the child has been in their custody, the Respondents have rarely communicated with the child via telephone or visits her.
    
15. The Respondents had not made any contact during special occasions such as the child’s birthday.
    
16. The Applicant stated that the Respondent had not made any contribution whatsoever to the welfare and wellbeing of the child.
    
17. As discussed above Section 121 deals with the various considerations that the court must consider the “best interest of the child”. The evidence of the Applicant which tendered into evidence demonstrates the Applicant intentions of being the father who is concerned about the wholesome development of the child.
    
18. Due to the absence of the Respondents during the Hearing, the evidence of the Applicant has not been contested and is admitted without challenge. But the Court has a responsibility to consider the factors set out in s.121 of FLA.
    
19. 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.
    
20. The child in the present case has been living with the Applicant and not with her biological mother since 2008. It is noted that for the past 6 years, the child has only been surrounded by her biological father and his family members. Considering the evidence adduced in court it is suggest that the Respondents have failed to keep in contact with the child despite the development of technology.
    
21. Section 121(1) (b) of the Act also allows the court to consider the nature of the Child’s relationship with each of the parties to the current proceedings.
    
22. Section 121(1) (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. To this end, the Applicants have taken responsibility of the child.
    
    23. Accordingly, it appears for the reasons articulated above that the Applicant who has been the constant, consistent and primary care giver of the child.
        
    24. During the proceedings, I have obtained the view and wishes of the child. When I interviewed the child. She stated that she is comfortable with the Applicant father and the place of residence. Also stated that her biological mother called her on December 2012 and the last time she saw her mother was in 2011.
        
    25. I have considered the report submitted by the Social Welfare Officer dated 09/4/14. The contents of the report inter alia say that the Social Welfare Officer was unable to obtain information from the Respondent as per unavailability of an address or contact number. The Social Welfare Officer also observed the Applicant provides a stable home environment for the child and recommends that the residence to be granted to the father.
        
    26. When considering this application I bear in mind relevant provisions of section 41, 120,121 and 122 of the Act, it is concluded that it is in the best Interest of the child that residence of the child. In addition to that in reaching the decision reg ting to the residence of the child, , the court also consd, amongst others that;that;
        1. Social Welfare Officer's report
        2. '2' >Her physical, emotional and educational needs;
        100. The likely effect on hereof any change in her circumstances;
        4. Her age, sex, background and other characteristics of which the court considered relevant;
        5. How capable each of her parents, in particular he father and any other person in relation to whom the court considered the question to be relevant, is of meeting he needs;
        6. Wishes of the child.
    27. 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 I find the Applicant is capable and can provide for the needs of the child, including emotional and intellectual needs and therefore is the best person to have Residence and take care of the child.

ORDERS

28. Accordingly, the Applicant father shall have Residence of the child namely; SIR, born on the 08^th day of December 1997.
    
29. The Respondents shall have reasonable contact and both parties to mutually arrange the place and time of contact. The respondents are also allowed to have open contact via telephone or Skype or any other mode of communication or upon mutually agreed by both parties.
    
30. The respondent is at liberty to fill for variation of Residence and Contact of the child.
    
31. Right of Appeal – 30 days.
    

LAKSHIKA FERNANDO (MS)

RESIDENT MAGISTRATE

On this 30th day of June 2014.