Waqa v Waqa [1991] SBHC 10; HC-CC 073 of 1985 (1 February 1991)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 73 of 1985

WAQA

-v-

WAQA

High Court of Solomon Islands
(Ward C.J.)

Hearing: 1 February 1991
Judgment: 1 February 1991

A. Radclyffe for the Petitioner
Mrs Samuel for the Respondent

WARD CJ: This is an application for custody of all the children.

I do not need to recite the history of this case. It is well described in the court papers and in excellent reports prepared for the earlier proceedings by Mrs Jio and for these proceedings by Mr Tuaveku. Such reports assist the court very much.

At the hearing Mr Radclyffe, for the petitioner, explained that she was so concerned about the case that she felt she would be too upset and so she considered it better she did not attend. I have a very full report stating her views and I have considered them in reaching my conclusion. I have also had the advantage of speaking to each of the four children separately. Each of them in relation to his or her age is articulate and self possessed. They all have clearly developed personalities and are able not only to hold well defined views but to explain, and if necessary, defend them. It is rare in proceedings of this nature to be able to say that I enjoyed speaking to each child but that is the position and illustrates the type of children they are. I do not deal with the topics discussed save to say that there is absolutely no doubt in my mind that I should confirm the father's custody. Each child wished to remain with the father.

Mesake (Junior) the oldest child will only be subject to the jurisdiction of the Court for a short time. Although he left home because of a difference with his father, he wishes to stay with his father. He is aware that his mother will want to see him and is keen to see her also.

Ruth is a more complex character and has expressed a very strong preference to stay with the father. Her attitude to her mother is such that I feel the decision for her to go to school in Fiji is a wise one and will solve a potential problem of that relationship.

The two younger children, llisoni and Asinate, both wish to remain with the father. They have lived with him for a substantial portion of their lives and regard his home as their home and his wife Nancy effectively as their mother. Their attitude to and, indeed, contact with the petitioner is such that any contact by her with them is likely to be entirely disruptive.

I, therefore, make no alteration to the order that custody of Mesake (Junior) and Ruth be with the father with reasonable access to the mother. As far as Mesake is concerned, I am sure his attitude is such that he will ensure the petitioner has reasonable access. I would not feel so confident in relation to Ruth but, as I have said, I feel the matter will be resolved in a practical way when she leaves for Fiji.

In the case of Ilisoni and Asinate I quash the order of custody with the mother and order custody to the father. I make no separate order for access. I appreciate it is a hard decision for the mother but I feel I must express the view that the time has come when she must consider most carefully whether it is right for her to try and establish any relationship with the two younger children. The mother made a decision some years ago not to utilise the court order to have these two children. I do not try to examine the motive or reasons for that but the effect of that decision has been to allow those two children to grow up effectively as members of a different family. That is a situation that she must recognise and be most cautious about the potential harm of any assertion by her now of rights she has not hitherto exercised.

I also order that the father have leave to send Ruth out of the jurisdiction of this court.

(F.G.R. Ward)
CHIEF JUSTICE