M v S [1982] SBHC 7; [1982] SILR 137 (17 December 1982)

[1982] SILR 137

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Appeal Case No. 13 of 1982

M

-v-

S

(Daly C.J)

For the Appellant: G. Strang
For the Respondent: K. Brown

Child - custody - appeal - principles on determination of appeal

Welfare Report- confidential document-not to be disclosed to third parties

Facts:

At a hearing before a magistrate, custody of B was awarded to a father, the Respondent. A social Development Report was before the Court. The report had been shown to a person not a party to the matter before the hearing. The mother appealed.

Held:

1. In custody cases the only person in a really satisfactory position to make the decision as to custody is the magistrate who sees and hears the witnesses. Only in an exceptional case will the High Court substitute its own decision on reading the record and that is where it is crystal clear that the decision to be made could only be one way. The inclination of the court is other cases where no reasonable tribunal could reach the conclusions reasoned would be to order a retrial.

2. Social Development Reports are prepared for the court. They may be shown to a legal adviser of a party or a party himself or herself. They should not be shown to other persons without the courts authority. On the facts appeal dismissed.

Daly CJ: This is an appeal by a mother (M) from an order of a magistrate sitting in Honiara on 26th October 1982 awarding custody of a child B to the father (S) (the Respondent).

Inevitably with a case such as this both the proceedings in this court and the court below make sad reading: The Appellant is from Kiribati; the Respondent is from the Reef Islands. They were married in March 1981 and the child B was born in December 1981. After the birth things went wrong with the marriage. It is unnecessary for the purposes of this appeal to consider the facts about that aspect of the case.

The magistrate made findings that S had constructively deserted his wife and neglected to maintain her.

The magistrate also found that the parties had not lived in a house of their own. Since the birth of the baby the parties; have lived with the wife's uncle or with the husbands cousin brother.

After the marriage broke down the husband has lived with his cousin/brother and on occasion at the single quarters provided by his employer and the wife with her uncle. The question which faced the magistrate was bearing in mind that the paramount consideration was the interest of the child, who should have custody?

The court heard evidence and submissions, both sides being represented by advocates. There was also before the court a Social Development Report. The magistrate reviewed the evidence and then said as follows:-

"In making an order regarding custody of the child the Court shall have regard primarily to the interests of the child. After consideration of the evidence in this case and the parties themselves the Court is satisfied that the present arrangements for the child's care are the best in all the circumstances and that the father S should continue to have custody of the child with arrangements for reasonable access to the child by the mother M."

It is apparent that a case such as this the only person who is in a really satisfactory position to make the most important decision which must be made is the trial magistrate. He sees and hears the witness; he can make some assessment of the parties from his observations and, if desirable, he can see the child. He can also hear and see the Social Development Officer who should, if possible, be in court to answer questions arising from, the report before the court. It is only in a very exceptional case that this court will substitute its own decision for that of the court having these distinct advantages.

It must be shown clearly that no reasonable court could reach the conclusion reached on the evidence in the court below before this court will interfere. Even then the inclination of this court would be to order a retrial rather than substitute its own decision for that of the trial magistrate unless it was crystal clear that the decision to be made could only be one way. In cases concerning custody of a child the human element is of such overwhelming importance that to make a decision after only reading a record and hearing submissions is a most unattractive way of proceeding only to be used in exceptional circumstances.

Is this then such an exceptional case? There are four grounds of appeal the last of which asks this court to make an order giving custody of the Appellant. The substance of the appeal is that the magistrate misread the Social Development Report (Ground 1); that he failed to appreciate the part-played by the cousin/brother of the husband in the events leading up to the case (Grounds 2 and 3a); and that he failed to give full consideration to the living conditions of the parties and the child and to appreciate the interests of a child of this age (Ground 3(b)(c) and (d) and Ground 4). There is also an allegation that the magistrate failed properly to record certain parts of the evidence. The latter allegation is not substantiated by affidavit or other evidence and in argument counsel completely failed to indicated [sic] any omission to record. This part of ground 4 is dismissed.

I turn to the remaining grounds of appeal. Each makes a point on the facts of the case. In relation to Ground 2 counsel in argument made allegations in strong terms concerning the conduct of the cousin/brother of the husband. Counsel was unable to point to evidence on the record in support of these allegations and in those circumstances he should have chosen his words with more care. Counsel are in a privileged position when they make comments upon the conduct of persons who are not parties to a case; that privilege should be exercised with responsibility. The ground itself alleges certain facts. Accepting those facts it is impossible to say in the first place that the magistrate failed to consider them and, in the second place, that such a failure would have had an effect on the result of this case. The prominent part played by the cousin/brother was before the court although not expressly mentioned in the judgment. I also comment that it does not seem to me to be wrong for a leader of a home or community to exercise his influence over the husband in the way of which counsel complains any more than one would criticise the appellant for seeking the guidance of her uncle.

There is however some evidence that the Social Development Report was shown by the Social Development officer to the cousin/brother before being presented to the court. This is a pity and it is a wrong way of proceeding. Social Development Reports are prepared on the instruction of the court and for the court. They should not be shown to anyone without the court's authority. There is a standing authority for a report to be shown prior to the trial to a legal adviser or, if a party is unrepresented, to the party himself or herself. I hope in future that Social Welfare Officers would be kind enough to regard these documents as confidential. Whether a legal representative shows a report to his client is a matter for him but it should be shown to no one else. But this is not a matter which assists the appellant in this appeal. Indeed the Report tended to favour the appellant.

The grounds which rely on failure to consider the part played by the cousin/brother are dismissed.

The grounds which refer in detail to the circumstances of the parties and the child all refer to matters which were before the court of first instance. The magistrate said he considered all the evidence. There is no reason whatsoever to doubt that statement. There is also no indication to support the assertion that the magistrate failed to give appropriate weight to such matters. These grounds must fail.

I turn to ground 1 which alleges failure to consider the Development Report adequately. This ground is based upon a statement in the judgment that "The child according to the Social Development Report is well and happy". Counsel relies upon the fact that the report does not use those words. That is correct. But the inference from the report as I read it is to that effect and the evidence in court supports that inference. Counsel made the point to the magistrate in his closing address and, although the words "according to the Social Welfare Report" may have put the matter a little stronger than was the case I, for my part, do not consider there is sufficient in this point to conclude that the findings of the magistrate were wrong.

The findings of the magistrate were, as counsel for the Respondent said, "a solid piece of work". He approached the question of custody on the right basis and there is every indication that he gave the evidence full and proper consideration. His order may, and everyone will understand how she feels, be disappointing to the Appellant. However it is not an order with which this court is prepared, nor indeed in a position, to interfere. This appeal is dismissed.

I must add something about correspondence which has taken place since the trial with the immigration department which indicates that the Respondent is seeking to have the Appellant removed from the Solomon Islands. To say nothing about the legal position as revealed by that correspondence. No doubt the Appellant is being advised on her rights and as to possible courses of action. But I will say that if the Respondent is under the misapprehension that if he succeeds he will cease to have any financial responsibility to the Appellant in respect of the court order for maintenance or for enabling her to have reasonable access to the child then the sooner he disabuses himself of that thought the better. The maintenance order will continue unless a court orders its discharge. No doubt if the appellant returns to Kiribati she will apply for a specific order as to access. A magistrate hearing such a case would, I expect, wish to consider who should be responsible for the air fares, arising from such an order. That, however, is a matter for future consideration.

The present order of this court is that this appeal is dismissed.

Daly C.J.