SBM v VDS [2014] FJMC 191; File 13-SUV-0164 (14 August 2014)

IN THE FAMILY DIVISION OF THEMAGISTRATES’ COURT AT SUVA

FILE NO. : 13/SUV/0164

BETWEEN:

SBM
Applicant

A N D

VDS
Respondent

APPEARANCES/REPRESENTATIONS

The Applicant – Present in Person

The Respondent- Absent and unrepresented

RULING

Introduction

1. The Applicant who is the biological father of the children; DDFM a female born on 07^th March 1999 and EBM a female born on 18^th May 2001 [hereinafter “the children”] filed a Form 9 Application on 02 July 2013 seeking that the Applicant be granted final residence orders in respect of the children including “the Respondent mother to have reasonable contact either by telephone communication / Skype or to travel for holiday to America and continue to support (financially) upon request from the children in near future.” As quoted from Form 9.
   
2. As per record, the Respondent was duly served by a way of substitute service. The Respondent was absent and unrepresented. Subsequently, the matter proceeded on formal proof on 22^nd July 2014 considering the nature of the application.
   

The Evidence

The Applicant

3. Both of them were married in 1990 and have been living in Fiji and have two children of the marriage namely; DDFM a female born on 07^th March 1999 and EBM a female born on 18^th May 2001.
   
4. Both parties were separated in year 2011 and since then the Respondent could not care for the children properly due to her job commitment in the USA despite sending money to them. The Applicant had filed an application for dissolution of marriage against the Respondent and their marriage was dissolved in the 20^th of December 2013.
   
5. The Applicant relied on his Form 9 application, counselling Report and Social welfare Report for Final Orders.
   

The Respondent

6. The Respondent was absent and unrepresented on the date of Hearing.

The Law and the Determination

7. 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.
  

8. 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

9. The Applicant father seeks residence of the children. The Applicant in his application states that since the children had been in his custody, the Respondent had been away in the USA since separation.
   
10. Both parties were separated by consent.
    
11. 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 parent who is concerned about the wholesome development of the children.
    
12. Due to the absence of the Respondent during the Hearing, the evidence of the Applicant has not been contested and is admitted without challenge. 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.
    
13. The children in the present case have been living with the Applicant father and not with their biological mother since separation. Since then the children has only been surrounded by their 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 children despite the development of technology.
    
14. Section 121(1) (b) of the Act also allows the court to consider the nature of the Children’s relationship with each of the parties to the current proceedings.
    
15. Section 121(1) (g) of the Act allows the court to take into consideration the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents. To this end, the Applicants have taken responsibility of the child. Accordingly, it appears for the reasons articulated above that the Applicant has been the constant, consistent and primary care giver of the child.
    
16. During the proceedings, I have obtained the view and wishes of the children. When I interviewed the children they stated they are comfortable with the Applicant/father and the place of residence and willing to reside with him.
    
17. I have considered the report submitted by the Social Welfare Officer dated 25 March 2014. The contents of the report inter alia say, that the children’s preference to be under the Applicant’s care.
    
18. The Social Welfare Officer also observed that the Applicant has shown great care and guidance to the children and recommends that the Applicant is considered capable to continue the proper upbringing of the children concerned.
    
19. When considering this application I bear in mind the 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 relating to the residence of the children, the court also coned, amongst others that;that;
    1. Social WelOfficreport
    2. Their physical, emotional and educational needs;
    100. The likely effect on hereof any change in their circumstances;
    4. Their age, sex, background and other characteristics of which the court considered relevant;
    5. How capable each of their parents, in particular their father and any other person in relation to whom the court considered the question to be relevant, is of meeting their needs;
20. 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 find the Applicant is capable and can provide for the needs of the children, including emotional and intellectual needs and therefore is the best person to have Residence and take care of the children. The court also noted that the applicant seek financial assistance. There is no any pending application for maintenance and therefore the Court cannot consider maintenance of children in the absence of such an application.

ORDERS

21. Accordingly, the Applicant father shall have Residence of the children namely; DDFM a female born on 07^th March 1999 and EBM a female born on 18^th May 2001.
    
22. The Respondent shall have reasonable contact and both parties to mutually arrange the place and time of contact when the respondent is in Fiji. The respondent is also allowed to have reasonable contact via telephone or Skype or any other mode of communication upon mutually agreed by both parties.
    
23. The respondent may be take the said children together, out of the jurisdiction of this Court for vacations or any other traveling purposes by consent of both the parties. Should the children removed from the jurisdiction of this court for migration purposes it would be by consent of both the Applicants and the Respondents, or by a way of a Court order.
    
24. The respondent is at liberty to fill for variation of Residence and Contact of the children.
    
25. Right of Appeal – 30 days.
    

LAKSHIKA FERNANDO (MS)

RESIDENT MAGISTRATE

DATED AT SUVA on this 14^th day of August 2014.