In the High Court of Kiribati
Civil Jurisdiction

High Court Civil Appeal 12 of 2010

Held at Betio
Republic of Kiribati

Between:

Katoauea Benikira
Appellant

And:

Bwenataake Euta
Respondent

For the Appellant:	Mr Michael Takabwebwe
For the Respondent:	Mr Banuera Berina

Dates of Hearing:	20 April 2010

JUDGMENT
(Ex Tempore)

Appeal against the decision of a Single Magistrate ordering that a two year old boy be transferred from the custody of his father, Katoauea Benikira, to that of his maternal aunt Nei Bwenataake Euta. [The child’s mother is dead.]

The appeal must succeed as the Order made by the Single Magistrate is directly contrary to orders of the High Court. On 18 January 2010 I made the following order:

Application for review dismissed: order that the father of the child, Euta Katoauea, have custody in accordance with the recommendation of the Acting Chief Registrar in his (sic) report.

Copy of the report to be given to counsel: Mr Takabwebwe applies for costs – question of costs reserved.

On 29 January 2010 I made the following order:

Mr Berina complains of the Report: I refuse to re-open the enquiry. Application can be made to vary the order if further facts are shewn.

The respondent to have costs fixed at $150.00.

But that must be an application to this Court, not the Magistrates’ Court.

Reading the minutes in the decision under appeal it may be that these orders were not brought to the Single Magistrate’s attention.

Whether they were or they were not the Single Magistrate had no jurisdiction to vary or quash them.

These regrettable long drawn out proceedings concern the fate of a young child. It is most undesirable that he should be used - as he has been – like a football tossed between one party and the other. Yet that is what has happened and it must happen once more. The appeal having succeeded the Single Magistrate’s order is quashed. The child must be returned forthwith to the custody of his father, Katoauea as ordered by this Court. Any application to vary this order must be made to this Court.

THE HON ROBIN MILLHOUSE QC
Chief Justice