KA v MIK [2015] FJMC 154; File 06-SUV-387 (10 December 2015)

IN THE FAMILY DIVISION OF THEMAGISTRATES’ COURT AT SUVA

FILE NO. : 06/SUV/387

BETWEEN:

KA

Applicant

A N D

MIK

Respondents

APPEARANCES/REPRESENTATIONS

Ms. Mishra Namrata L (Legal Aid Commission) for the Applicant

The Respondent- Absent and unrepresented

JUDGMENT

Introduction

1. The Applicants who are the maternal grandmother of the child; MFIK born on 14^th April, 2004 [hereinafter “the child”] filed a Form 9 application on 07^th February 2013 seeking orders, which I quote in verbatim as follows:-
   
   1. “Seeking full custody of Grandson namely MFIK without any access to the respondent (father). Reason being the father has not contacts with the child and the child has been complaining that the stepmother is been assaulting him.
      
   2. At her time of passing my daughter and my grandson resided with me and my family for 9 years – she passed away on 6/01/2013.”
2. The court record shows that the respondent was duly served. I note that on the 08^th March 2013, 01^st August 2013, and on the 11^th September 2013 the respondent was present and the court granted an order by consent inter alia that the status quo to remain, in particular the interim residence of the child to be remain with the grandmother with contact to the father only during school holidays on mutual understanding. I also note that the court granted time to the Respondent to file their Form 10 and the respondent filed form 10 seeking residence of the child. But later he failed to appear before the court to pursue with his matter.
   

The Evidence

The Applicants

3. The Applicant relied on her Form 9 Application for Final Orders and the court proceeded with Formal Proof.
   
4. the applicant, testified in court to reflect the below mentioned findings;
   
5. The applicant seeks residence of her grandson, who is the issue of her daughter GN and the respondent. The father abandoned the child under the care of the applicant after the death of the mother on 6^th January 2013. The mother was contesting for the residence of the child after her separation with the respondent, however unfortunately she passed away and now her mother, child’s grandmother is seeking the residence of the child.
   
6. The applicant is a widow and at present living under the care of her son. And also she has a taxi business that earns weekly income of $500.00, which is adequate for them to live upon and raise the child.
   

The Respondent

7. The Respondent failed to appear for the Hearing. The Social Welfare report states that the respondent is married now and is maintaining his own family. He also agreed with the welfare officer that since the death of his ex-wife GN he has not visit the child neither provided any support to the child.

The Law and the Determination

8. 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.
  

9. 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

10. The Applicant seeks residence of the child with the Respondent is not to have contact with the child.
    
11. The applicants also stated that since the child has been in her custody, the Respondent not even spoken to the child via telephone or visit him, despite of the interim Residence and Contact order granted by the Court.
    
12. The Respondents had not made any contact during special occasions such as the child’s birthdays and holidays.
    
13. They stated that the Respondent has not willing made any contribution whatsoever to the welfare and wellbeing of the child.
    
14. 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 Applicants which tendered into evidence demonstrates the Applicants’ intentions of being the grandmother who is concerned about the wholesome development of the child.
    
15. Due to the absence of the Respondent 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 mandatory requirements under s.121 of the FLA.
    
16. 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.
    
17. The child in the present case has been living with the Applicant and not with his biological father since the death of the biological mother. It is noted that for the past few years, the child has only been surrounded by his maternal grandmother and mother’s relatives. 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.
    
18. 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.
    
19. 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. In this matter it is extended to the grandmother as well. To this end, the Applicants have taken responsibility of the child.
    
    20. The Applicant in her evidence in chief stated that the Respondents very rarely utilised the contact granted to him by the court by virtue of the Interim Order. Furthermore, the Applicant stated that the Respondent has never willingly contributed to the welfare and wellbeing of the child which suggest the attitude that the Respondent has towards their duties as a parents to 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.
        
    21. During the hearing, I have observed the child and noted he shares a close bond with his grandmother and obtained the wishes of the child and the child expressed his willingness to live with his grandmother and not in the boarding school.
        
    22. I have considered the report submitted by the Social Welfare Officer. The contents of the report inter alia confirm the evidence given by the applicant. The Social Welfare Officer also observed a close bond the child has with the Applicants.
        
    23. 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 relating to the residence of the child, , the court also consideamon st others that;that;
        1. Social Welfare Officer's report
        2. Interim orders which was delivered
        100. Child’s physical, emotional and educational needs;
        4. The likely effect on hereof any change in her circumstances;
        5. Child’s age, sex, background and other characteristics of which the court considered relevant;
        6. 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;
    24. 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.
        
    41. The Court also, wishes to highlight, that the child should be bonded with her biological father as it is a right of the child as well.

ORDERS

25. Accordingly, the Applicants shall have Residence of the child namely; MFIK born on 14^th April, 2004.
    
26. The Respondents shall have reasonable contact and both parties to mutually arrange the place and time of contact as per the interim order. The respondents are also allowed to have contact via telephone or Skype or any other mode of communication during reasonable hours of the day or upon mutually agreed by both parties.
    
27. The applicants may be taken the said child, out of the jurisdiction of this Court for vacations and other travelling purposes. But should the child 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.
    
28. Biological father of the child are at liberty to file for variation of Residence and Contact of the child.
    
29. The order to be served on the Respondents by the Applicant within 28 days and the Affidavit of Service to be filed in the Registry.
    
30. Right of Appeal – 30 days.
    

LAKSHIKA FERNANDO (MS)

RESIDENT MAGISTRATE

DATED AT SUVA on this 10^th day of December, 2015.