Vakacegu v Lalakobau [1978] FJSC 103; Action 124 of 1975 (20 March 1978)

IN THE SUPREME COURT OF FIJI
IN DIVORCE

ACTION NO. 124 OF 1975

BETWEEN

ACA VAKACEGU
Petitioner

AND

ELA LALAKOBAU
Respondent

DECISION

The learned Magistrate has recommended that custody of the child of the marriage be now given to the petitioner on the grounds that he is now in a better position to maintain and educate the child than the respondent.

On the 19th October, 1975 this Court after reading and considering the welfare officer's reports dated 5th and 6th November, 1975, awarded custody of the child to the respondent.

The report dated 5th November, 1975 indicates that for the 8 years prior to the date of the report the petitioner "was not even interested to contribute to the child's maintenance." The Probation Officer stated "he was not interested in the child." The second report dated the 6th November, 1975, by a different probation officer was more concerned with the petitioner's ability to provide for the child. He did not interview the respondent and while this report indicates that the petitioner could provide a home and support for the child the probation officer stated "it is questionable whether Aca's (petitioner) home can also provide warmth and affection which a growing child needs."

The petitioner applied for variation of the Custody Order made on 19th October, 1975 and this Court ordered that evidence be taken. This was done. The Petitioner has married again and there is no child of this union and unlikely to be any. There is no doubt he is in a financial position to adequately maintain the child and can provide a decent home for him. Since he divorced the respondent he has not provided any maintenance for the child.

There is no evidence that the respondent is no longer a fit and proper person to have charge of the child. She also has married again. A report by a welfare officer dated the 4th October 1977 considered it was in the best interests of the child that custody be granted to the petitioner. This report indicates that at the time the report was made the child was well settled and "an intelligent and knowledgeable young lad".

The petitioner after 11 years of showing little interest in the child now professes a genuine albeit belated interest in the child's welfare and future. I am not convinced his interest is genuine but the main consideration in any event is the child's welfare. While the petitioner is in a better position to provide for the child if his concern for the child is genuine he can still provide for the child's welfare, which he has not done to date, without a change of custody.

The child, a boy, is 11 years of age. For a short period he was looked after by his aunt but is now with his mother and his stepfather.

I consider it would be a traumatic experience for this young lad to be now deprived of his mother's love and affection and this in my view far outweighs the material advantages of a better home that his father can now provide.

I do not consider it would be in the best interests of the child to vary the order made on 19th October, 1975 and grant custody to the father. I therefore reject the Magistrate's recommendation and dismiss the application.

(SGD) R. G. Kermode
JUDGE

Suva,
20th March, 1978.