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RR v KKS [2017] FJMC 124; File 16-SUV-0436 (6 October 2017)

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


FILE NO.: 16 SUV 0436


BETWEEN


RR

Applicant


A N D


KKS

Respondent


APPEARANCES/REPRESENTATIONS

Ms.Leweni T. for the Applicant


Ms. Tuiloma M. ( Legal Aid Commission) for the Respondent


JUDGEMENT


  1. The Applicant mother filed Forms 9, 12 and 23 on the 16th of August, 2016 seeking residence order in her favour for her child namely; KRS, a female child born DOB: 9th August 2013 [hereinafter referred as “the child”].
  2. The Respondent father also filed Forms 10, 13 and 23 on the 30th day of April, 2015 disagreeing with the orders sought by the Applicant Lady and Respondent Man; himself sought residence of the child.
  3. On the 14 September, 201 6 an Interim Order were made and subsequently it was varied by consent on the 25th of May, 2017.
  4. The Applicant mother also filed Form 15 filed on 28 September 2016 that her child complained of being sexually abused by her father’s cousin brother. Mother further elaborated if I quote in verbatim; “during the access period to the father, the child was left in the care of her grandmother and the abuser, when she came back she was eating sausages and described how she was shown the same by the abuser, asked to hold and she also was examined by the doctors (Sexual Abuse Unit) where she confirmed the allegations Report number 113/9/16.”
  5. The Respondent father also filed a Form 15 filed on 10th November 2016 stating that the child alleges that the Grandmother namely R hit her with a belt over her private are sometimes in September 2016,
  6. Father elaborated more on that if I quote in verbatim that “the child is in the care of the Grandmother and the mother. Grandmother is the one who abuses the child as indicated by the child. The alleged incident has been reported to the Police and she has been medically examined on the 28 October 2016. The child has also been interviewed by a social welfare officer Ms. Vandanna on the 09 November 2016 regarding the same.”
  7. The Social Welfare Reports has been provided to the Court. The Director Counsellor also furnished a report upon interviewing the child.
  8. The court then proceeded to hear the applications seeking orders for residence (Form 9 and Form 10) and allegations of child abuse (Form 15) on the 8th of August, 2017.

ISSUES

  1. Residence and Contact of the child.
  2. Child abuse allegations.

THE EVIDENCE

  1. I wish to emphasis some portion of evidence with intention of analyzing the same potions later without reproducing the same. I will also not reiterate the entire evidence on the court but reference would only be made to the relevance of evidence to the present application and for analysis purpose.
  2. I also perused the Social Home Environment report.

THE LAW AND THE DETERMINATION


  1. Part VI of the Family Law Act 2003 [hereinafter “the Act”] deals with Child wherein the object of the Part is stated at section 41 and provides as follows:
  2. 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 is 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 –
(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:-

(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]


EVIDENCE AND ANALYSIS


  1. The couple had their ritual marriage on the 6th of March, 2011 and the legal marriage on the 29 October, 2011. After they married, they resided at the Respondent Man’s family home Lami. The Applicant Lady and the Respondent Man have the above named child.
  2. They were separated some times in 2016; the child resides with her mother since then at 00 Fletcher Road, Vatuwaqa.
  3. On the 1 4thday of September, 2016, Interim Orders were made before the Registrar as follows:
  4. The Respondent Man filed Form 7 alleging that the Applicant failed to bring the child for contact on the 16th of September, 2016. The Applicant Lady had pleaded guilty and filed her mitigation on the 27 October, 2017. Her sentence was delivered on the 16th of November, 2016 where the court ordered the Applicant Lady to enter into a bond for the sum of $200 to be bound over to this Court for the period of 6 months.
  5. On the 25 May, 201 7, the interim order was varied by consent of both parties. The varied interim order now states that:
  1. I review the Applicant’s evidence. She stated that “so far, this interim arrangement has been working out well for her.
  2. The Applicant is working as a Graphic Designer for almost 9 to 10 months for A.S Graphics. She earns $184 per week (net pay) from her job. She works from Monday to Saturday from 8am to 5pm. When she is at work her mother looks otter or takes care of the child.
  3. Before the child was born in 2013, the parties were living a normal life. They fought but their problems were always resolved. She was happy then.
  4. After the birth of the child, they had an argument and she moved to Navua to be with her parents. She had left the Respondent Man because he had punched her in the face and kicked her in the belly 3 months after she delivered the child via caesarean delivery.
  5. After this incident, he took my child and gave her to applicant’s in-laws. She called her mother and she had come to see her. They reported the matter to police but then reconciled shortly after.
  6. Reconciliation only lasted 2 weeks. After 2 weeks she was again assaulted by the Respondent Man and she filed a case against him in Navua Police Station.
  7. In this second case of assault, eventually, the Respondent Man did not visit them for 3 weeks. The parties then attended counselling and he had promised that he would not assault her again. But the situation did not improve.
  8. The applicant was always with the child because from 2011 to 2016 as the primary care giver. The child still breast feeds every night. She is also able to sleep without milk when the Respondent Man has overnight access.
  9. Currently, she and the child live with her mother, sister and cousin brother.
  10. There are two rooms in the flat, a toilet, kitchen and living room. One of the rooms is taken up by her cousin brother. She shares the other room with the child, her mother and her sister. There are two double beds in that room. One is shared by her and the child and the other is shared by her mother and her sister.
  11. Her mother earns $90-$100 per week from the neighbours’ baby. Her sister is a manager at M.D Her cousin brother is a USP student but gives $300 per month for the family.
  12. The Applicant Lady confirms that she is able to look after her child.
  13. In the long term, the Applicant Lady plans to send her child to the temple for her to go to school. That school is a feeder school to MGM.
  14. There have been no accidents at home concerning the child. Her mother suffers from no sickness that would prevent her from looking after the child.
  15. The Respondent Man is a good father but not a good husband. He would not spend quality time with the child because he drives a taxi at night and he would sleep during the day.
  16. The change in behaviour that she notices when her daughter returns from the Respondent Man is that their daughter is a bit rude, she starts swearing but she corrects her.
  17. The current arrangement is best. It gives stability to her child.”
  18. In Cross – Examination the applicant stated that her mother suffers for joint pain. At one point in time she was admitted in hospital as a result of these joint pains but her mother is still able to look after her daughter. In re-examination the applicant stated that her mother is healthy and able to look after her child.
  19. The aforementioned Social Welfare Report the child was interviewed and the home in which she lives was inspected. This report was challenged by both the parties. In these circumstances’, I wish to briefly review the evidence of the Social Welfare Officer Ms. Nileshwari Bandana.
  20. Examination-in-Chief of Ms. Nileshwari Bandana revealed that she is a senior social welfare officer that prepared the Residence and Contact Report for this matter. (First report prepared on the 8th of March, 2017)
  21. She admitted that there is a typing error in the “Introduction” paragraph where it is stated that significant others have been interviewed. She admitted that for this case, she interviewed only the Applicant Lady and the Respondent Man. She did not interview any “significant others”. She stated that sometimes the social welfare officers would interview significant others related to the case and sometimes they would not.
  22. The information in the report that has been included under the topic of “case background’ was obtained from both parties. That same information has not been verified. She did not cite the marriage certificate to confirm. The information is incorrect because she did not verify it.
  23. The first sentence to Paragraph 2 on page 2 of the social welfare report outlined the reason for the parties’ separation. This was information derived from both parties during their interview. She did not verify this with court records but this is something she should have looked into.
  24. With regards to the allegations that the Applicant’s mother was interfering with their relationship, she did not interview the applicant’s mother to verify that information.
  25. The applicant highlighted that the child details on page 3 of the report is wrong. The child date of birth should be 09 August 2013 and not 09 March 2013 as written in the report.
  26. The applicant also highlighted that the report shows that the Applicant Lady’s father is Mr RL even though it is false. She did not check the Applicant Lady’s birth certificate to verify this.
  27. Also on page 3, the report states that the Applicant’s mother was “struggling to maintain their family”. She stated that she should have interviewed the mother. The Applicant’s mother may have had a deferring opinion to the above statement.
  28. There was no home visit done for the Applicant Lady because the house was locked and there was no one at home. She had not called in advance to let the Applicant know that she was coming. There has been a directive by the Minister that a social welfare report is not to be submitted if no Home Environment Assessment has been done however she did one anyway.
  29. She admits that she should have done a thorough check and that the report is incomplete.
  30. The interview was conducted sometimes in November, 2016. This fact was not included in the report. The report does not include the Applicant Lady’s expenses, her sister’s pay and that her mother is a baby sitter.
  31. In Cross-Examination of Nileshwari Bandana Explained that she had also prepared the 2nd report on her investigation regarding the allegations of child abuse made by both parties, dated 8th August, 2017. The second allegation of abuse investigated was the claim that the Applicant’s mother is not a “suitable care giver”.
  32. In her investigation she called the police officer in Navua and he stated that there was no report lodged regarding the loss of the Applicant mother’s child.
  33. The Navua community and the priest confirmed that a child died of a natural death.
  34. She agreed that the people she consulted did not have the medical knowledge to determine the cause of death.
  35. She also agreed that the report was not done properly. She also agreed that the 4th point of her assessment and recommendation are incorrect. She also states that the court should not rely on the report.

RESPONDENT’S CASE

  1. In Examination-in-chief of KKS testified inter alia that he resides at Delainavesi, Lami with his mother who is 50 years old.
  2. They live in a flat that has 3 bedrooms. They own three other flats, two have been rented out and the third is currently vacant. The third flat should be rented out soon.
  3. Currently, he is a freelance worker with the LTA as a freelance worker he determines his our work hours. He is given a job probably once a month and receives $900 per week.
  4. He does not have a payslip being a freelance worker but the income derived from these jobs were deposited into his account.(Original copy of his ANZ bank statement tended in as evidence)
  5. The Respondent also works as a Sales Executive, earning $200 per week.
  6. He also manages the income received from the three flats that the family rent out. Right now only two flats have been rented out so he receives around $700 per month in rent.
  7. With regards to the assault been said by the Applicant Lady, it only happened because she would assault him first.
  8. He also stated that he would never keep their child away from the Applicant Lady. Whenever they argued, he would remove their child from that environment because he did not want her to see them argue. He never once kept his child away from the Applicant Lady.
  9. He used to work as a taxi driver when he was still with the Applicant Lady. He would work night shifts and sleep during the day but always made time for his daughter. After having had some sleep, he would spend time playing with his daughter or he would take his family for a ride in the taxi. He would always make time for his child.
  10. I cross Examination the respondent stated that he has assaulted the Applicant but it was not as bad as she makes it out to be. Both of them involved in the assault.
  11. In the three weeks that the Applicant Lady had left him and taken the child, he did not give them money for food or buy them food. He also did not visit them during this time.

Analysis;


  1. Moving on to the object of ‘Resident and Contact Orders’ to enable the parent and child to keep in touch with each other by allowing periodically visits as specified times to avoid potential conflicts.
  2. 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 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; In this matter the child is not matured enough to express her wishes.
  3. Section 121(2) allows the court to consider the effect of any changes in the child’s circumstances including any separation from either of the parents and The nature of the relationship of the child with each of the child’s parents and with other persons:
  4. Applicant and Respondent got married and then separated twice and reconciled and again separated. According to the Applicant she was a victim domestic violence. The applicant mother was the primary care giver of the child since her birth and after separation while the father contacted the child regularly and concerned about the welfare of the child.
  5. The child resides with her mother since separation surrounded by maternal relatives excluding father’s weekend contact.
  6. Pursuant to sec 41.- (1) of FLA reads the objects of this Part are-
(3) The principles underlying these objects are that, except when it is or would be contrary to a child's best interests-
(4)
  1. It is immediately apparent that, in the light of child’s right, no longer to speak of only parents’ rights. Neither the father nor the mother has an absolute right to have the residence of the child. Because, whatever his or her wishes may be, child has the right to know and be cared for by both their parents.
  2. It will be seen that this provision is very much wider than the above mentioned Sections about parents’ rights to be bonded with their child, because it applies not merely to parents, but also to “the child”.
  3. According to the initial Interim order father spends weekend with the child from the date of the said Order.
  4. The Court cannot justify change the orders dramatically granting the residence of the child to the father.
  5. The Court also considered the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs in the light of the above mentioned evidence.
  6. Both the parents have ability to cater for financial needs for the child.
  7. There is a necessity also to consider the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from –either of his or her parents: or any other child, or other person, with whom the child has been living:
  8. The Court must consider all the factors in s.121 of FLA. The Court also considered the child’s right to maintain personal relations and direct contract with both parents on a regular basis; the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs; the child’s maturity, sex and background. The child is a girl child and 4 years of age. Lived her life mostly with her mother and maternal relatives. She has been living with them and the mother’s residence is her usual place of abode.
  9. There is also a 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 is relevant; There is a need to protect the child from physical or psychological harm caused, or that may be caused by:-being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect another person. Although there were allegations’ of child abuse both the applicants failed to adduce evidence to establish the allegations’. Moreover, the alleged perpetrators are neither the mother nor the father. Both the alleged perpetrators were not served with subpoenas by either party. Simply both alleged perpetrators were not examined or cross examined. I wish to more elaborate on the Investigation Report submitted by the Social Welfare Department later in this Judgement.
  10. The Court also should mindful about the sec 41(2)(b) of Family Law Act which reads inter alia that “child have a right of contact, on a regular basis, with both their parents”. The child’s daily routings should not be interrupted. It is not for the best interest of the child to separate the child from her mother and her usual place of abode. This Court needs to consider practical solution considering all the circumstances of the case not forgetting that the child is just 4 years of old.
  11. Apparently, due to child’s tender age, any drastic change in the status quo may be detrimental therefore any change must be gradual to allow her to adapt at her age.
  12. There is no any alleged abuse by the Applicant or the Respondent against the child. The applicant alleged domestic violence before separation. I wish to quote from the Investigation Report.

“Allegation 1 – the Applicant is claiming that her child was indecent exposure (paternal uncle have shown Sausage to the child). The child is of tender age, and our department does not have any child specialist thus requesting empower Pacific’s involvement to sought out on the allegation as they would have use of the relevant therapeutic skills.


Allegation 2 – The Respondent is claiming that the maternal grandmother is not a suitable care giver. He is alleging that under maternal grandmother’s care her own child has passed away at a tender age. He is not in favor to place her daughter under her care.

As case officer I have investigation on both parties allegation with sexual offence unit and also with Navua Police thus there was no report lodge by the parties on child’s sexual abuse case and neither on cause of the death of maternal grandmother’s child. The Navua Police confirmed that there was no reported case of maternal grandmother’s child’s death. Even the Navua community has confirmed that it was a natural death.”

  1. The above report is inconclusive and incompetent. Also as observed above both the applicants failed to adduce any evidence against the alleged child abuse claims.
  2. I do not consider the recommendation of the Social Welfare Department in the light of Ms. Bandana’s evidence. This particular report is a typical example for the services provides by some of the Social Welfare Department Officers to the Family Court.
  3. As already discussed the Court considered that the child has been residing with the mother and it is for the best interest of the child should the court allow the child to continue her residence with her with reasonable contact to the biological father.
  4. It is no doubt that the father must be allowed the opportunity to bond with his child with better contact that will not hinder her from performing his role imposed by law must be put in place. This will also be in child’s best interest. Therefore, I confirm the interim Order as a final Order with some amendments.I invite both parents to put their child’s best interest first and focus on their future wellbeing rather than lingering in the past conflicts and continue their lives without disputes.

ORDERS


  1. The Applicant Mother shall have residence of the child namely KRS, a female child born DOB: 9th August 2013.
  2. The Respondent Father shall have contact to the child from 4 pm on Friday till 6 pm on Sunday.
  1. That the point of exchange is at the Applicant Lady’s residence in Vatuwaqa
  1. The parties’ whist the child is with either party, the other parent is may telephone contact with the child between 7 am and 8pm except that there is an emergency.
  2. That for preschool/ school holidays; the child will spend alternative weeks with each parent starting from the first week with the Applicant mother.
  3. The Respondent father shall take the child to his residence for the weekend/ holiday contacts.
  4. The medical issues, each party shall advice the other at the first available opportunity in the event that the child requires medical attention or hospitalization while the child is in that parties care and if the child is sick both parties are to communicate with each other and attend to the child’s needs mutually.
  5. Each party shall keep the co-parent, advised of a current home address, telephone numbers (including cellular phone numbers), email addresses, and other addresses at which electronic contact may be made, and advice the other party within 7 days whenever a change is made or may occur.
  6. Applications for Child Abuse (Form15) filed by both the parties dismissed.

30 days to appeal.


LAKSHIKA FERNANDO


RESIDENT MAGISTRATE

On this 06th day of October 2017

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