VB v JM [2015] FJMC 158; File No 07-SUV-0775 (12 November 2015)

IN THE FAMILY DIVISION OF THE MAGISTRATE’S COURT AT SUVA

FILE No: 07/SUV/0775

BETWEEN

VB
Applicant

AND:

JM
Respondent

______________________________________________________________________
APPEARANCES/REPRESENTATIONS

Ms Boseiwaqa R (Legal Aid Commission) for the Applicant
The Respondent was absent and unrepresented.

INTRODUCTION

1. The Applicant filed for leave to be granted to allow the Applicant to make an application for matrimonial property distribution.
   
2. In addition, she is also seeking interim orders for access/contacts to the child of the marriage namely JGM born on 18 January 2011 for every holidays and on alternative weekends.
   
3. The Applicant relies on the evidence contained in her Affidavit filed on 18^th February 2015 and her Supplementary Affidavit filed on 15^thJuly, 2015.
   
4. The court also noted that the Legal Aid Commission served the chief Registrar’s office; may be considering Nawakula’s Law as the counsellors of the respondent. The matter subsequently proceeded as formal proof as the respondent unrepresented and absent.

BACKGROUND FACTS:

5. The Applicant lady was married to the Respondent and they have 3 children of marriage namely JIM born on 20 January 1995, VVM born on 10 March 1993 and a female JGM born on 18 January 2001.
   
6. The parties' marriage was dissolved on 7th of November, 2007.
   
7. The applicant lady, in person, then initially filed her application for
   matrimonial distribution in 2012.
   
8. On 24th June, 2015 the Court granted the Applicant lady leave to file her Supplementary Affidavit in order to seek leave of the court pursuant to s.27 of the Family Law Act. Subsequently, the Applicant lady filed her Supplementary Affidavit on 15^thJuly, 2015.

THE LAW

Application for leave to apply for matrimonial distribution:

Institution of proceedings - Family Law Act 2003

9. Section 27.-(3) of the Family Law Act provides that:-
   

"Where a final order for dissolution of marriage or of nullity of marriage has been of the definition made, proceedings of a kind referred to in sub- paragraph (c) or (d) of the definition of "matrimonial cause" in section 2( I) (not being proceedings seeking the discharge, suspension, revival or variation of an order previously made in proceedings with respect to the maintenance of a party) cannot be instituted after the expiration of 2
years from the date of the making of the order or the date of commencement of this Act, whichever is the later, except by leave of the court in which the proceedings are to be instituted."

10. Section 27 (4) provides that "The court must not grant leave under subsection (3) unless it is satisfied that hardship would be caused to a party to a marriage or to a child of the marriage if leave were not granted."
    
11. Paragraphs (c) or (d) are noted under "matrimonial causes" in Section 2 of the Family Law Act as:-

"Matrimonial cause" means-

(a) .

(b) .

(c) proceedings between the parties to a marriage with respect to the maintenance of one of the parties to the marriage;

(d) proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings-

(i) arising out of the marital relationship;

(ii) in relation to concurrent, pending or complete proceedings between those parties for principal relief; or

(iii) in relation to the dissolution or annulment of that marriage or the legal
separation of the parties to that marriage, being a dissolution, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that dissolution, annulment or legal separation is recognized as valid in the Fiji Islands under Part XI; ... "

Contact orders.

12. The applicant relies on Section 65, 63 (2), 66(4) and 121(1) of the Family Law Act, which provides the Courts the power to make parenting orders either or both of the child's parents.

Applying for parenting orders

Section 65 provides;

“A parenting order in relation to a child, other than a child maintenance order, may be applied for by -

(a) either or both of the child's parents;

(b) a person representing the child under an order made under section 125; or

(c) any other person concerned with the care, welfare or development of the child.

Section 63 (2) provides:-

"(2) A parenting order may deal with one or more of the following-

(a) the person or persons with whom a child is to live;

(b) contact between a child and another person or other persons;

(c) maintenance of a child;

(d) any other aspect of parental responsibility for a child."

13. Further on, section 63 (7) states:-

"For the purposes of this Act -

(a) a residence order is made in favour of a person, or the person, with
whom the child concerned is supposed to live under the order;

(b) a contact order is made in favour of a person, or the person, with
whom the child concerned is supposed to have contact under the order:

(c) specific issues order is made in favour of a person, or the person, on
whom the order confers duties, powers, responsibilities or authority in
relation to the child concerned."

14. 17. S. 66 explains about the Courts power to make parenting order as follows;

(1) In proceedings for a parenting order the court may make any parenting order it thinks proper.

(2) Without limiting subsection (1), a court may make a parenting order that discharges, varies, suspends or revives part or all of an earlier parenting order.

(3) Where a court is considering whether or not to make one or more orders under this Act with respect to a child, it must not make the order or any of the orders unless it considers doing so would be better for the child than making no order at all.

(4) In deciding whether to make a parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”

15. While. Section 66(4) states that in deciding whether to make a parenting order in relation to a child. a court must regard the best interests of the child as the paramount consideration; Section 121(1) of the Family Law Act. provides guidance on how a court determines what is in a child's best interest. when deciding on what each parent must consider in ensuring the custodial rights to the child.

How a court determines what is in a child's best interests

S.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 contact 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;

(t) 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;

(h) the attitude to the child, and to the responsibilities of parenthood,
demonstrated by each of the child's parents;

(i) any family violence involving the child or a member of the child's
family;

(j) any family violence order that applies to a child or a member of the
child's family:

(k) 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).

16. The court also consider Article 9(3) of the Convention on the Rights of the Child, which was ratified in Fiji in 1993, follows that:
    
17. 9.(3) States Parties shall respect the right of the child who is separated from one or both parents to maintain personal relations and direct contact with both parents on a regular basis, except if it is contrary to the child's best interests.
    
18. This was echoed in Section 41 (2)(b) of the Family Law Act 2003 which follows:

41. (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:

Analysis;

19. The Applicant's sworn evidence for the Application for leave inter alia provides that: in May 2004, the parties had bought a freehold land located at Lot 00 Madhivan Place, Wainivula Road, as joint tenants.
    
20. The land was bare and there were no improvements on that lot.
    
21. The parties had the land excavated and the value shot up from $28,000.00 to $34,000.00.
    
22. The applicant, through her mother's Social Welfare donated funds and with her brother's assistance, had a house constructed on the land sometimes in 2006.
    
23. The parties were granted orders for Dissolution of Marriage on 7^th November, 2007.
    
24. The applicant's mother passed away in 2008 and the house was rented as a source of income for the applicant and the parties' children.
    
25. The Respondent man, after returning from peace-keeping duties, moved into the house on the matrimonial property in 2011 and has been residing on the matrimonial property ever since till date.
    
26. The applicant lady then made an application for distribution of the
    matrimonial property, in person, on 29^th June, 2012 and this application has yet to be determined by the Court.
    
27. While the matter was still pending before the Court, the applicant lady was advised that due to the fact that her application for matrimonial distribution was made after more than 2 years from her divorce date, she would need to obtain the Court's leave.
    
28. Since she had made the application in person initially, she was unaware of this procedure.
    
29. The parties have both re-married and have moved on with their respective lives.
    
    30. However, the applicant lady is praying for leave to be granted because
        without the Court's leave, she would find it difficult to receive her share of the freehold land together with the house on an agreeable term.

Interim contact orders:

31. Additionally, the Applicant lady has also deposed that she hasn't been able to spend a lot of quality time with her daughter namely JGM since the parties are now divorced.
    
32. The Applicant lady would like to share a bond with her daughter and she would like to get the subject child to know her as she is the biological mother.
    
33. Thus she has also sought for an order for interim contact whereby the subject child can spend time with her on every holidays and alternative weekends.
    

APPLICATION OF LAW TO FACTS

Application for leave of the Court:

34. Section 2 (1) of the Family Law Act 2003 defines property as ", in relation to the parties to a marriage or either of them, means property within or outside the to which those parties are, or that party is, entitled, whether in possession or reversion; Again, Section 2 (1) of the Family Law Act 2003 defines matrimonial cause as
    
35. (d) Proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them, being proceedings-

arising out of the marital relationship;

in relation to concurrent, pending or complete proceedings between those parties for principal relief; or

in relation to the dissolution or 'annulment of that marriage or the legal separation of the parties to that marriage, being a dissolution, annulment or legal separation effected in accordance with the law of an overseas jurisdiction, where that dissolution, annulment or legal separation is recognized as valid in the Fiji Islands under Part XI;

36. The applicant submits that the parties had bought the freehold land after
    their marriage. Also submits that though the freehold land is registered under both the parties' names as joint tenants, the parties have, over the years made various improvements and contributions, in different capacities, to the said property.
    
37. In property division (whether under the Family Law Act), as the authorities make clear, the role of the court is to determine:

a). What is matrimonial property;

b). What are the contributions of the parties;

What is a fair and equitable distribution of the matrimonial property at the of separation or disr dissolution of the marriage? Whatever the parties have received during the course of the marriage may assn determining the parties’ contributions to accumulation of assets; and

what ahat assets have been accumulated in the course of the marriage by monies received during the course of the marriage.

38. In light of above paragraphs, it is clear that there are many factors to be take in to account prior to determining any matrimonial property relief.
    
39. In the current matter, the parties marriage was dissolved in 2007 and this means that any matrimonial property application has expired by 2009. So any application relating to maintenance and property has expired unless leave is.
    
40. It is noted that because the applicant lady had made the application for matrimonial distribution 5 years after their divorce, the law as per section 27 (3) together with paragraph (c) and (d) of the definition for the term "matrimonial causes" from the Family Law Act dictates that she would need to apply for the Court's leave in order to proceed to making the application for the distribution of their matrimonial property.
    
41. Section 27(4) of the Family Law Act provides the threshold the Court would need to reflect on when considering this issue.
    
42. It states that in order to grant leave to a party, the Court is to be satisfied that hardship would be caused to a party to a marriage or to a child of the marriage if leave were not granted.
    
43. Considering the above, the applicant has deposed in paragraphs 12, 13 and 15 of her Supplementary Affidavit filed on 14th July, 2015 of the hardships and difficulties she will face should leave not be granted to her.
    
44. The applicant has made it known to the Court via her Affidavits that the parties are both re-married and they now have their own lives.
    
45. In addition to that, the Respondent man is residing on the property and as such, the parties are not receiving equal benefits from the property.
    
46. It is deposed by the applicant that because they have both remarried, she finds it difficult to obtain her share from the property in an amicable term because the Respondent man and his family are residing on the property and they are both leading their own lives now.
    
47. Further, the Applicant lady had filed the application for matrimonial distribution in person. She was unaware of the procedures that she needed to seek leave.
    
48. Thus, the applicant submits that if leave is not granted by the Court, then the applicant lady would face hardships in receiving her fair entitlement accorded to her under the Family Law Act.

Application for Interim Contact Orders:

49. In considering any type of parenting orders, the Family Law Act dictates that the Court would need to consider the best interests of the child.
    
50. The factors for the best interests of a child are laid out in section 121 of the Family law Act.
    
51. As stated in the Article 9(3) of the Convention on the Rights of the Child as well as section 41 (2) (a) and (b) of the Family Law Act, that when parents are separated, the children have the right to know and be in contact with both their parents.
    
52. Considering that the subject child namely JGM (according to the applicant) has not been spending a lot of quality time with the Applicant lady since the parties' marriage was dissolved, we submit that her best interests are not being taken care of in this way.
    
    53. Section 67 explains about the General requirements for counselling before parenting order made. I wish to quote;

67. - (1) In proceedings for a parenting order in relation to a child, the court may order the parties to the proceedings to attend a conference with a family and child counsellor or a welfare officer to discuss the matter to which the proceedings relate.

(2) Subject to subsection (3), a court must not make a parenting order in relation to a child unless-

(a) the parties to the proceedings have attended a conference with a family and child counsellor or a welfare officer to discuss the matter to which the proceedings relate;

(b) the court is satisfied that there is an urgent need for the parenting order, or there is some other special circumstance (such as family violence) that makes it appropriate to make the order even though the parties to the proceedings have not attended a conference as mentioned in paragraph (a); or

(c) the court is satisfied that it is not practicable to require the parties to the proceedings to attend a conference as mentioned in paragraph (a).

(3) Subsection (3) does not apply to the making of a parenting order if-

(a) it is made with the consent of all the parties to the proceedings; or

(b) it is an interim order until further order.

54. The Court also considers the above section together with s.121.As noted the requirements under s.121 (2) are mandatory. Currently, I do not have evidence before me to explain about 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; or the nature of the relationship of the child with each of the child's parents and with other persons; or the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;

(t) 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; including other requirements under s. 121of the FLA.

55. Given the mandatory nature of the s.121 (2) I am of the view that it is prudent in all the circumstances to follow the General requirements for counselling before parenting order made pursuant to s. 67 of the FLA.
    
56. The Court also notes s. 54 of the FLA. (Reports by family and child counsellors and welfare officers)
    

54.-(1) This section applies if, in proceedings under this Act, the care, welfare and development of a child is relevant. (2) The court may direct a family and child counsellor or welfare officer to give the court a report on such matters relevant to the proceedings as the court thinks desirable. (3) If the court gives a direction under subsection (2) it may, if it thinks it necessary, adjourn the proceedings until the report has been given to the court. (4) A family and child counsellor or welfare officer may include in a report prepared pursuant to a direction under subsection (2), in addition to the matters required to be included in it, any other matters that relate to the care, welfare or development of the child. (5) For the purpose of the preparation of a report pursuant to a direction under subsection (2), the court may make such orders, or give such further directions, as it considers appropriate, including orders or directions for the attendance on the counsellor or welfare officer of a party to the proceedings or of the child. (6) If a person fails to comply with an order or direction under subsection (5), the counsellor or welfare officer must report the failure to the court. (7) On receiving a report under subsection (6), the court may give such further directions in relation to the preparation of the report as it considers appropriate. (8) A report given to the court pursuant to a direction under subsection (2) may be received in evidence in any proceedings under this Act.

57. I also notes s.53.-(1) “This section applies if, in proceedings under this Act, the care, welfare and development of a child is relevant. (2) The court may, at any stage of the proceedings, make an order directing the parties to the proceedings to attend a conference with a family and child counsellor or welfare officer-

(a) to discuss the care, welfare and development of the child; and

(b) if there are differences between the parties in relation to matters affecting the care, welfare and development of the child-to try to resolve those differences.

(3) The court may make an order under subsection (2)-

(a) on its own initiative; or

(b) on the application of-

(i) a party to the proceedings; or

(ii) a person representing the child under an order made under section 125.

(4) The court may, in an order under subsection (2)-

(a) fix a place and time for the conference to take place; or

(b) direct that the conference is to take place at a place and time to be fixed by a family and child counselor or welfare officer.

(5) If a person fails to attend a conference in respect of which the court has made an order under subsection (2), the counselor or welfare officer must report the failure to the court. (6) On receiving a report under subsection (5), the court may give such further directions in relation to the conference or otherwise as it considers appropriate. (7) The court may make further directions under subsection (6)-

(a) on its own initiative; or

(b) on the application of-

(i) a party to the proceedings; or

(ii) a person representing the child under an order made under section 125.

(8) Evidence of anything said, or of any admission made, at a conference that takes place pursuant to an order under subsection (2) is not admissible-

(a) in any court; or

(b) in any proceedings before a person authorised by law or by consent of the parties, to hear evidence.

58. The Court also wish to draw the attention for the below quoted definitions under s.2 of the FLA for clarity.
    

"child counseling" means counseling to-

(a) discuss the care, welfare or development of a child; or

(b) discuss, and try to resolve, differences between persons that affect the care, welfare or development of a child;

"court counsellor " means a Director of counseling and any other court counselor appointed under section 23;

"Director of counseling " means a person appointed as such under section 23;

"family and child counseling" means any of the following kinds of counseling -

(a) marriage counseling;

(b) child counseling;

(c) counseling about any matter that arises out of proceedings under this Act and that involves-

(i) a parent of a child;

(ii) a child; or

(iii) a party to a marriage;

"family and child counsellor " means-

(a) a court counselor;

(b) a person authorised by an approved counseling organisation to offer family and child counseling on behalf of the organisation; or

(c) a person authorised under the regulations to offer family and child counseling;

(ii) a person representing the child under an order made under section 125.

(8) Evidence of anything said, or of any admission made, at a conference that takes place pursuant to an order under subsection (2) is not admissible-

(a) in any court; or

(b) in any proceedings before a person authorised by law or by consent of the parties, to hear evidence.

CONCLUSION

59. In light of the above discussed paragraphs, I am of the view that the Applicant would face hardship if leave is not granted as it would be very difficult for her to receive her entitlement share from the matrimonial property (if she is entitle).
    
60. The court also of the view that as per the law, the subject child namely JGM has the right to maintain constant contact with the Applicant but yet the court has a responsibility to determine that if it is in her best interests to has an interim contact order. And also place of contact and other related arrangements’ yet to define by the court after considering the factors in s.121 FLA including the wishes of the teenage child.

NOW THEREFORE BE IT ORDERED BY THE COURT THAT:

1. That the Applicant lady is at liberty to file an application for matrimonial property distribution. The Applicant also must serve the Respondent with the application (Form 9) personally rather than serving the same on Nawakula’s Law or the Chief Registrar’s office for proper administration of justice.
   
2. I also order the parties to the proceedings to attend a conference with a Family and Child counsellor to discuss the matter to which the proceedings relate.
   
3. On the same token; I direct that the senior court officer to serve a copy of this Ruling to the Director Counsellor and the applicant also to serve on the respondent in order to facilitate the parties with the child to schedule a counselling session with a counsellor. I therefore wish to adjourn this matter to consider the application of the contact orders to consider the confidential report from the counsellor.
   
4. Parties to bear their own costs.

30 days to appeal.

LAKSHIKA FERNANDO

RESIDENT MAGISTRATE

On this 12^th day of November 2015