LLJ v MLFT [2014] FJMC 190; File 13-SUV-0285 (11 August 2014)

IN THE FAMILY DIVISION OF THE MAGISTRATES’ COURT AT SUVA

FILE NO. : 13/SUV/0285

BETWEEN:

LLJ
Applicant

A N D

MLFT
Respondent

APPEARANCES/REPRESENTATIONS

Ms. Taina Leweni for the Applicant

The Respondent- Mr. Anil Chand (Legal Aid Commission)

RULING

Introduction

1. The Applicant who is the biological father of the children namely UTWJ and RMTJ [hereinafter “the children”] filed a Form 9 and Form 12 and 23 applications on 11^th of June 2013 seeking orders which I quote in verbatim as follows:-
   
   • (a) The Applicant to have residence of the two children of the marriage UTWJ a female born on 27^thAugust, 2008 and RMTJa male born on 19^th March 2012.
     
   • (b) The Respondent be granted reasonable access to the children.
     
2. In Form 12 Application the Applicant seeking orders which I quote in verbatim as follows:-
   
   • (a). “Recovery Orders concerning the children of the marriage.
   • (b). The Applicant be granted interim residence until such time the court makes final Orders.”
     
3. Subsequently, the Form 12 Ex-Parte Application was heard by my lerned sister Resident Magistrate Ms. Makareta Mua on the 17th of June 2013 wherein the Court made the following orders which I quote in verbatim as follows:-
   
   • (a). “that interim residence of UTWJ born on 27^th August 2008 and RMTJ born 19^th March 2012 is granted to the Applicant father.
     
   • (b). that Recovery Order for the children namely UTWJ born on 27^th August 2008 and RMTJ born 19^th March 2012 is granted to the Applicant father.
     
   • (c). that the Police may assist the Applicant father in recovering the children if necessary.
     
   • (d). that all documents to be served to the Respondent mother within five (5) days and Affidavit of Service to be filed.”
     
4. Accordingly, the recovery was done on the 19 June 2013.
   
5. Thereafter, in response the Respondent who is the biological mother of the children filed Forms 10, 13 and 23 response on the 09^th of July 2013, in answer to the said application wherein she sought the following orders which I quote in verbatim:-
   
   • (a). The Respondent be granted residence of both children of the marriage.
     
   • (b). The Applicant be granted reasonable access to the children of the marriage.
     
6. Both parties filed their respective Form 23 Affidavits in support of the orders sought.
   
7. The matter was called on 26^th September 2013 before the Deputy Registrar and the Court for preliminary issues before the matter was fixed for Hearing on the 27^th of November 2013. The matter proceeded to Hearing on the 27^th November 2013, 03^rd December 2013, 05^th December 2013, 11^th February 2014 and 10^th of March 2014.
   

The Evidence

The Applicant

8. The Applicant father relied on his Form 9, 12 and 23 Affidavit filed on the 11th June 2013.
   
9. The gist of the Applicant’s evidence was that he has been looking after the children since having recovery orders granted in his favour. He stated that since having interim custody he has made changes to his life wherein he no longer consumes alcohol or kava when he has the children and only sometimes does so during the weekend when the children are with the Respondent. He and the children live with his brother and his family in a 3 bedroom home wherein he and the children have a room for themselves. He stated that the title or ownership of the home is currently being transferred to his brother and his wife namely LJ by his brother’s parents-in-law.
   
10. He stated that he the older child attends school at Nasinu G Kindergarten whilst the younger child stays home. He stated that the current arrangements for the children are that he makes the older child’s lunch before going to work. He does not leave for work until his sister namely NL. NL takes the older child to school with the younger child. He stated that he pays her $50 per week for looking after the children and this includes the cost of her fuel for transporting the older child to and from school.
    
11. He stated that when the older child is in school, the younger child is looked after by NL who cooks and attends to his needs. He stated that they are used to their routine which has been in place since the children were recovered. He also stated that the younger child is taken for his baby clinics by NL in her vehicle and tendered the child’s relevant clinic card which was tendered and marked as Exhibit 1.
    
12. He stated that he is currently employed by KPMG as an Assistant Accountant and is paid monthly by his employers. He stated that his monthly net salary is $1, 381.11 and tendered his salary slip which was marked as Exhibit 2.
    
13. He stated from his salary he is only required to contribute to the electricity bill of the home and the daily needs of the children. He further stated that before the children were recovered, he had caused for separate bank accounts to be opened for both the children. He stated that he directly deducts $50.00 per month to these accounts and tendered the respective statements of the said accounts which were marked as Exhibit 3 and Exhibit 4 respectively.
    
14. He also informed the Court that he is a member of the Fiji National Provident Fund and tendered his statement which showed that as of August 2013 he had $24, 607.56 standing to his credit. The said statement was marked as Exhibit 5.
    
15. He stated that he is in a better position to look after his children and tend to the needs of the children and asked the Court for orders in terms of his Form 9 application.
    
16. In cross-examination disagreed that he did not support the children when the children were with the Respondent at her village in Noco, Rewa. He disagreed that the home where he currently resides with the children is overcrowded and stated there are two houses. He stated that after the birth of the younger child the Respondent returned to work and would work shifts. He stated that during the times when the Respondent was on afternoon shifts he would look after the children with the assistance of NL.
    
17. In cross-examination he agreed that the family had moved to rent a flat for $150-$200 per month before the birth of the younger child. He agreed that he consumed alcohol but disagreed that he usually had grog sessions at their flat. He agreed that he drank at home sometimes and agreed that sometime in 2010 he had invited their then landlord’s father-in-law to join them in a drinking party. He agreed that the Respondent had complained to him that she was sexually assaulted by one of the persons at the drinking party whilst she was asleep. In respect of a separate incident in 2010 he agreed that he had been involved in an accident due to his drunkenness. He disagreed that the Respondent had to return to work due to his drinking habits. He stated that the Respondent was also part of the drinking party in 2010 when she was sexually assaulted. He said in the Court that his drinking habits have changed since having interim custody and assured the Court that the events of 2010 arising out of his drinking is not going to happen again.
    
18. He disagreed that NL’s attention was divided considered that she had a daughter in class 8.
    
19. He disagreed that their current place of residence is a habitual grog drinking place and stated that grog drinking only takes place when there is a function, death or marriage. He stated that when they lived with the Respondent at her home, he had to pay for a house girl as the Respondent’s mother could not look after the children.
    
20. He disagreed that he did not support the children when they were with the Respondent in Noco, Rewa. He stated that he had deposited money into the ANZ Account for which the Respondent had the ATM card.
    
21. He disagreed that the older child’s academic performance dropped since the recovery of the children by him as this was not what he was informed by the teacher.
    
22. He disagreed that the younger child was still being breast fed when the children were recovered on the 19th of June 2013. He confirmed that he does not call the children when they are with the Respondent as he does not want to disturb them when they were with the Respondent.
    
23. He disagreed that the older child was forced out of the vehicle on the 04th of August 2013 when the Respondent dropped the children at the Applicant’s place of residence. He agreed that the older child was crying but they had to abide by the Court order. He stated that the older child was not insisting that she stay with the Respondent but that it was a scene that was created by the Respondent and her mother who were insisting that the children stay with the Respondent.
    
24. He disagreed that whilst staying with the Respondent at her family home, the Respondent’s mother had to supplement their needs due to his drinking habits.
    
25. In re-examination he stated he no longer drinks alcohol or kava as he used to before and only drinks during functions and only in the weekends when the children are not with him. He stated that at his place of residence is not habitual grog drinking place and grog is only served during functions which does not happen very often.
    
26. He stated they were told to move out of Nadera by the Respondent’s mother. He stated that when they lived with the Respondent’s mother in Nadera, the Respondent’s mother could not look after the children as she had physical difficulties and could not move around which is why he had to pay for a house girl. He stated that his mother-in-law did not like him and the Respondent did not listen to him either. He stated that the Respondent’s parents did not want him to be in the house with the Respondent and the children.
    
27. He stated that if the children were sick when the Respondent had them for access, he did not know as there was no medicine given to him by the Respondent when the children were returned to him at the end of each period of access.
    
28. As for the incident on the 18th of August 2013 he stated that he had explained to the older child what the Court had ordered and she understood. He did not force her to get out of the vehicle but only had to explain what was happening.
    

NL (Applicant’s 2^nd Witness)

29. She informed the Court that she is the sister of the Applicant who is her younger brother. She has known the Respondent since her marriage to the Applicant. She stated that she has been looking after the younger child since birth till the child turned 5 months old. She stated that he bathes the children, cooks their food and then goes home in the afternoon.
    
30. She stated that since the children have been with the Applicant she comes from home before the Applicant leaves for work. She then takes the older child UTWJ to school and during these times the younger child RMTJ is usually with her. She stated that there was one time when she went to drop the older child UTWJ at school and had to leave the younger child RMTJ with her sister-in-law’s father as the younger child RMTJ was sleeping.
    
31. She stated that she is the one that looks after the children until the Applicant returns home from work. She uses her own vehicle to pick and drop the older child UTWJ to and from school. The Applicant usually gives her $50 for looking after the children whilst he is at work.
    
32. In cross-examination she was asked about various occasions when the kids were sick but disagreed or was not aware that the children were sick when the Respondent picked the children up for her weekly access.
    

LJ (Applicant’s 3rd Witness)

33. She stated that she is married to the brother of the Applicant and that currently the Applicant together with the children namely UTWJ and RMTJ live with her family at Laucala Beach Estate. She stated that the property is currently being transferred to her and her husband from her parents.
    
34. She stated that the Applicant and the children namely UTWJ and RMTJ have a room in the three bedrooms home. She explained that there is also a house at the back of the property which is sometimes used when other relatives come to live with them. She confirmed that apart from her family being her husband and children, an aunt also lives with them during the week and returns to her home for the weekend. She also explained that they have two school children who are presently living with them whilst they attend school.
    
35. She explained that the Applicant has changed since having custody of the children. She also stated that there is no kava drinking unless there is a function which she explained was rare and only occurs in the weekends when the children are with the Respondent. She also explained that the Applicant contributes by paying for the bills of the household and buys the groceries and household supplies for the children.
    

The Respondent

36. She was married to the Applicant and they have two children. They used to stay with her mother at Nadera. They then moved to Ratu Dovi Road to rent and after that they stayed at her in-laws place at Wainivula before they separated. They separated in July 2012 and she started living with her children at her mother’s house. They have another house in Noco village in Rewa. The Applicant used to come and visit the children occasionally and used to support the children. She informed that she was in another relationship. She took the children to Noco village and informed the teacher at kindergarten by text message. She did not inform the Applicant as he was not much bothered. She has had the custody and has been taking care of the children since July 2012 until 19^th June 2013. From the village she came with the children to her partner, IN’s flat at Dilkusha.
    
37. She was expecting the key of her house from a relative as her mother had gone to Wakaya Island. She was supposed to move into her house with the children. But before that could have happened the Applicant recovered the children.
    
38. She stated that the Applicant lacked maturity and was not a responsible husband and father. She was also working as the Applicant used to spend money on drinks. She used to work shifts and the Applicant and his sister used to look after the children when she was out to work. She stated that after RMTJ was born she spent her maternity leave at her village during which the Applicant did not visit them.
    
39. She stated that when her father-in-law told the Applicant to move out of the house the Applicant did not look for an alternative accommodation for his family. He stayed at his brother’s house and she stayed with the children at her mother’s house. She did not move to his brother’s place as it is crowded and they usually drink grog there.
    
40. Since December 2012 the Applicant has on several occasions returned the children to her when the children were sick. She stated that UTWJ’s performance at kindergarten had dropped and she thinks this is due to lack of supervision. She stated that when UTWJ was with her she used to supervise her studies at home. She has had the care and responsibility of the children and the children never used to get sick as they have been in the care and custody of the Applicant.
    
41. She stated that there was no risk to the children when they were recovered as the children had been in contact with IN. She stated that now she has a baby with IN and the children are fond of the baby. She is not working at the moment and is supported by IN, her parents and sisters.
    
42. In cross-examination she stated that she has equal responsibility towards the children. She agreed that the Applicant is working and in a better financial position than her to look after the children. However, she has been taking care of the children on her own prior to the recovery of the children. She had taken the children to the doctor when they returned sick from the Applicant’s place and had a letter from the doctor. She admitted that the Applicant’s sister was looking after the children for some time while she and the Applicant were working. She stated that the Respondent used to look after the children when she was out to work.
    
43. She stated that she was in a better position to look after the children as they were young and she was not working. She will have full time supervision of the children. She stated that she wants her children to know their father and have contact with them.
    

Ms. Litiana R Tabucala-

44. She is the Welfare Officer who interviewed the people listed on the report and the children. She also made her observations on the home environment of the parties. She has been doing this for some time. Her report was based on her observations and the interviews. She stated that the Applicant’s home environment was not conducive to the children as it was congested.
    
45. Under cross-examination she admitted that the report was unfair in that she had not interviewed the Applicant’s sister but had obtained the information from the Applicant about her. She also admitted that the observations of the children would be unfair as they were there with their mother and not with their father. However, in re-examination she stated that that the home environment report was based on her observations.

The Law and the Determination

46. 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 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.
        
47. At Section 120 and 121 of Division 10, part VI of the Act, provision is made forhow 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; 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)
  

48. 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 children and any factors (such as the children’s maturity or level of understanding) the court should give relevant weight to the children’s wishes; In this matter the younger child is of very tender age and elder child is five years.Therefore, the court obtained her wishes two times given the circumstances of the case.
    
49. 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.
    
50. I have also considered the report dated 26^th September 2013, which was submitted by the Social Welfare Officer. The contents of the said report inter alia states that the child (UTWJ) voiced out her opinion and “clearly stated that she did not want to return to the Applicant’s residence.”The Welfare Officer also observed the children had strong attachment with the mother and mother’s partner IN also was close with the children.
    
51. 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
    
52. The matter was adjoined to 08. August 2014 to obtain children’s views again given the dramatically changing in the circumstances of the father after the hearing concluded. In particular, he has already gone to Nauru for three years contract. His counsellor submitted that he still willing to have the residence of the children in Nauru and he could arrange the same baby sitter to lookafter them who used to babysit the children in Fiji.
    
53. 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.
    
54. When considering this application I bear in mind relevant provisions of the Act, In addition to that in reaching the decision relating to the issue of interim contact of the child, the court also consd, amongst others the Sthe Social Welfare Officer's report, Director Counsellor’s report and mainly the ascertainable wishes and feelings of the elder child including all the evidence before this court.
    
55. In light of the above discussed and considering the entire evidence, the relevant law and the and most importantly the best interest of the children, I am of the view that the children of this matter who are very tender in age should not subjected to dramatic changes of circumstances including separation from their mother. Moreover, in this matter father of the children are working and mother is a house wife. Generally speaking, she has more time to lookafter the children. And also a mother cannot be compared to a baby sitter. The court note not only the mother but also father have equal right to bond with his children and also the children have the right to know and be cared for by both their parents
    
56. The court also notes S.42(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.
      

ORDERS

57. Accordingly, the Respondent mother shall have Residence of the children namely; UTWJ a female born on 27^th August, 2008 and RMTJ a male born on 19^th March 2012.
    
58. The Applicant father shall have reasonable contact via telephone or Skype or any other mode of communication or upon mutually agreed by both parties.
    
59. The applicant may be take the children together, out of the jurisdiction of this Court for vacations and during school vacations or upon mutually agreed by both parties. But should the children removed from the jurisdiction of this court for migration purposes it would be by consent of both the Applicant and the Respondent, or by a way of a Court order. The mother also may travel with children as the father offered to cater for her traveling expenses and accommodation.
    
60. The father shall have reasonable contact with the children every time he visits Fiji and both parties to mutually arrange the place and time of contact including overnight contact.
    
61. Right of Appeal – 30 days.
    

LAKSHIKA FERNANDO (MS)

RESIDENT MAGISTRATE

On this 11^th day of August 2014.