In Re D [1982] SBHC 5; [1982] SILR 85 (30 June 1982)

[1982] SILR 85

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 43 of 1982

IN RE D

(Daly C.J.)

30th June 1982

For Plaintiff: K. Brown
For Defendant: A. Nori

Custody of child - proper form - decision of foreign court - weight to be given to - hearing in relation to interim orders.

Facts:

In June 1982 the Plaintiff brought the 2½ year old son (D) of herself and the Defendant to Solomon Islands. The Defendant applied ex parte to the Family Court in Australia and on 16th June 1982 that court granted custody of D to the Defendant.

The Defendant having arrived in the jurisdiction the Plaintiff applied for orders preventing the Defendant from removing the child.

Held:

1. The paramount consideration was the welfare of the child. So far as possible, having regard to that paramount consideration, the court would endeavour to ensure that there was no divergence between the line taken by the court and a foreign court.

2. The court should consider the case on its merits before deciding whether or not to follow the decision of the foreign court. In Re A (1966) W.L.R. considered.

3. Interim order for custody to Plaintiff and order restraining Defendant from removing the child from the jurisdiction. Case set down for hearing on merits.

Daly C.J.: This case commenced by writ of summon in the Central Magistrates' Court. The writ claimed custody of a child D and sought an order under s. 22(1)(c) of the Magistrates Courts Act. An injunction was also sought to restrain the removal of the child D. from the Solomon Islands. The learned magistrate before whom the matter came on for hearing reported the matter to this court under section 40 of that Act.

The Plaintiff is the mother of D. The father is the defendant. The parties were married in 1979. The child D, a boy, was born on 2^nd September 1979. On 6^th April, 1982 the Family Court of Australia pronounced degree nisi in relation to the marriage. No order was made at that stage in relation to custody of D. Both parties were living in Sydney and questions of access were settled between them.

At or about the beginning of June 1982 the Plaintiff came to Solomon Islands bringing D. with her. It is suggested by the Defendant that this was done in an underhand way but as I have not heard the Plaintiff's account I form no view about that at this stage. It is, however, quite clear that the Defendant was considerably upset by this action.

An immediate application by the Defendant was made to the Family Court of Australia. On 16^th June 1982 that Court heard the application ex parte and made orders granting custody of D. to the Defendant, requiring the Plaintiff to return the child to Australia and permitting the Plaintiff liberty within 28 days of service upon her apply to have the order set aside. The order was served upon the Plaintiff on the 22^nd June 1982.

These proceedings were commenced because the Defendant arrived in Solomon Islands with a view to taking D. back to Australia.

At the preliminary hearing yesterday the sole issue before me was as to form. Before I deal with the issue let me stress two matters. The first, is that in proceedings such as these the paramount consideration is the welfare of the infant. The second is that this court will always endeavour so far as it is possible to do so having regard to that paramount considering, to ensure that there should be no divergence between the line taken by this court and that taken by a court dealing with the same matter in another country.

There can, I think, be no dispute that this court has jurisdiction, the question is as to how this jurisdiction should be exercised. The Defendant submits that this court should simply enforce the order of the Family Court of 16^th June, 1982 and permit him to return with the child to Australia; the Plaintiff submits that there should be a consideration of the merits by this Court on a limited basis.

I say a limited basis as the Plaintiff concedes that the proper forum to decide the substantive matters of custody is the Family Court of Australia. She has commenced proceedings to set aside the 16^th June 1982 order in accordance with the opportunity given to her. So what I am asked to consider on the merits is what should happen to the child until such time as the full hearing of the Family Court proceedings can take place.

I am told that the earliest the matter can come on in that court is four months and an estimate has been made that it will in fact be about nine months. A number of matters have been urged upon the court as grounds for saying that D. would be better off in Australia within that period. If I might say so, these are matters going to the merits and reveal that on the face of it there is a contentious issue for someone to decide as to that period. I am grateful to counsel for referring me to In Re A. (1966) 1 WLR 381. That case seems to me to say nothing more than that when a matter such as this is before a court it is entirely a matter for the trial judge to decide as to whether he should follow the decision of a court elsewhere and decline to rehear the matter on its merits or whether he should reopen the whole matter and reach his own decision. But it does not appear to be authority for the proposition that a court should decline to exercise jurisdiction at all right from the outset and merely say, without more, I enforce the order of the first court. It maybe that enforcement of the foreign order would be the end result which, as was observed in that case, might be highly desirable in certain circumstances. But every case must be decided on its own facts, bearing in mind the paramount consideration of the welfare of the child, and it would be an abrogation of responsibility if this court declined to consider the facts at all.

I am therefore prepared to hear the limited issue as to custody of the child until such tine as the Family Court of Australia has an opportunity to decide the matter on its merits. I should say that it is in everyone's interests that this period should be kept as short as possible and that, should the Family Court make an interim order on the merits, that is, after hearing both sides, this court will be prepared to reconsider any order it may make. I also observe that if there is any suggestion, supported by evidence, that proceedings in any suggestion, supported by evidence, that proceedings in Australia are not being pursed with due diligence then, again, this court will reconsider any order it may make.

I therefore direct pursuant to section 40 of the Magistrates Court Act that the limited issue to which I have already referred be heard in Chambers in this Court upon affidavit.

I shall make interim orders granting custody of D to the Plaintiff and restraining the Defendant from removing the child D. from Solomon Islands. Costs in the cause. I propose to set the matter down for mention and hearing if possible at 9.00 am on Friday 16 July 1982 subject to the views of counsel as to that time and date.

Daly C.J.