Eneri v Robwati [2023] KIHC 59; Civil Appeal 4 of 2023 (6 September 2023)

IN THE HIGH COURT OF KIRIBATI TE KABOWI AE RIETATA I KIRIBATI

High Court Civil Appeal 4 of 2023

BETWEEN	EMIMWA ENERI Appellant
AND	TAUIA ROBWATI Respondent

Hearing:	20 June 2023
Appearances:	Ms Taoing Taoba, for the Appellant Ms Henty Pine, for the Respondent
Judgment:	6 September 2023

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JUDGMENT
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1. This is an appeal from the decision of the Arorae Magistrates Court in case Arociv 01/23 in which the decision was given on 2 May 2023.
   
2. The case in the court below was a custody application brought by the Appellant, the mother of the child, Neemia Robwati (the child). The Respondent is the paternal grandfather of the child.
   
3. The biological parents of the children separated and have new partners. The Appellant and her new partner, Taabaua Rotitaake live in Arorae as well as the parents of the child’s biological parents including the Respondent.
   
4. The court below after considering evidence from the Appellant and Respondent who were legally represented by the Office of the Public Legal Services paralegal and lawyer, decided to grant the custody order applied for by the Appellant. The order given set out that the custody of the child, Neemia Robwati, will be with his mother, the Appellant from Monday to Friday. In the afternoon on Friday until Sunday, the custody will be with his grandparents including the Respondent.
   
5. The order further states that if the child is in the custody of the Appellant or the Respondent but wants to live with the other (Appellant or Respondent), the will of the child should be respected and the child should be dropped with the Appellant or Respondent.
   
6. The Magistrates concluded that the decision was made to ensure that the mother have more time to take care, nurse and nurture her child and the grandparents some days.
   
7. The Appellant appealed against the decision with the following sole ground:

“The lay Magistrates erred in law for failure to consider the best interest of the child.”

8. The Appellant filed her affidavit in support of her appeal. The crust of her appeal is the fact that she claimed in her affidavit that she advised her paralegal to ask for full custody but during her discussion with her lawyer, their application was for weekdays’ custody.
   
9. The Appellant further states in her affidavit that she favors full custody as the Respondent is old and his wife had passed away. The Respondent’s daughter, Aneti, who also played an important role in taking care of the child have two children of her own and it will be an extra burden on her.
   
10. The Respondent’s lawyer strongly opposed the appeal. She submitted that the reason why the child was with his grandfather, the Respondent and his family is because of the treatment he received from his stepfather. In the records of the proceedings in the court below, there were incidents that the stepfather in disciplining the child smacked him. The Respondent’s counsel also submitted that the Appellant is always at work and it means that the child will be at home with his stepfather.
    
11. The Appellant in her evidence in the court below said that her child often visited his paternal grandparents and family but now the Respondent is old. In cross examination, the Appellant agreed that there are others who discipline her child and this court interpret that to include the stepfather who at one time discussed with the Appellant about disciplining the child according to the evidence of the Appellant.
    
12. The evidence of the stepfather, Taabaua Rotitaake, clarifies that the Appellant’s child used to live with the Respondent and his family when he first settled with the Appellant. In cross examination, Taabaua, said the most of the times, the child lives with his grandparents including the Respondent and that at times, Taabaua, disciplined the child without the knowledge of the Appellant.
    
13. The evidence from the Respondent and his daughter, Aneti Tauia, set out that the child has no problem in living with them and the child’s father who is in New Zealand agreed for the child to live with them. There was evidence that the child told the Respondent at one time that the stepfather hit him on the head. The stepfather in his evidence denied but continued saying that it comes with your good temper or sometimes with bad temper. This court interprets this to mean that Taabaua, the stepfather could discipline the child during his good or bad temper.
    
14. Another important submission raised by Ms Pine, is the fact that the Appellant had been found guilty of a criminal offence the decision she is appealing (decided already by this court) and this paints a bad picture for her to have full custody.
    
15. Section 3 of the Custody of Children Ordinance (Cap 21) set out that,
    

“3. (1) A court may on application by or on behalf of any person make such order regarding - (a) the custody of any child; and

(b) the right of access to the child of his mother or father,

as the court thinks fit having regard to the welfare of the child and to the conduct and wishes of the mother and father.

(2) Before making a custody order the court shall make a full enquiry into all the circumstances and shall call for any evidence or report it may in the interests of justice consider necessary.

(3) In exercising jurisdiction under this section the court shall regard the welfare of the child as the first and paramount consideration and shall not take into consideration whether from any other point of view the claim of the father is superior to that of the mother or the claim of the mother is superior to that of the father.

(4) A court may at any time on application by or on behalf of any person make an order discharging or varying a custody order.”

16. The above is the relevant provision that the Magistrates in the court below should abide by. The priority issue in considering a custody case is the welfare of the child to be paramount in addition to the evidence adduced. Section 3(2) states that a full inquiry should be made by the court before making a custody order. The court below complied with that in presiding over the trial and hearing evidence from the Appellant and Respondent and their witnesses.
17. The only issue with respect to the appeal is whether the court below erred in law for failing to consider the best interest of the child. The Appellant wants full custody as that reflects the best interest of the child as Ms Taoaba submitted. The Respondent on the other hand strongly submit that the court below was correct in also giving time to the child to be with his grandfather and family in light of the issues raised in the court below.
18. After considering the evidence in the court below, the appeal ground, the submissions of both counsels and the relevant law, this court agrees with the Respondent that the Arorae Magistrates Court was right in their decision to issue a custody order to both parties. The Appellant have more time with her child than the Respondent. The best interest of the child and welfare of the child is safeguarded by the custody order issued by the court below. This court do not find any error of law applied by the Arorae Magistrates court. Therefore, the appeal is dismissed.
    

Orders of this court:

1. The appeal is dismissed;
2. No order is made for cost;
3. The custody order issued by the Arorae Magistrates Court in case Arociv 01/23 is upheld.
   

Mr Abuera Uruaaba,
Commissioner of the High Court