Chow v Chow [1992] SBHC 26; CC 248 of 1989 (30 September 1992)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 248 of 1989

CHOW

-v-

CHOW

High Court of Solomon Islands
(Muria ACJ)

Hearing: 24 August 1992
Judgment: 30 September 1992

D. Campbell for the Petitioner
J. C. Corrin for the Respondent

MURIA ACJ: The Petitioner obtained a decree nisi of divorce on 25th May 1990 although the Order was signed on 8 June 1990 and was made absolute on 3rd November 1990. There are two children to the marriage, namely Jared now aged 15 and Jason now aged 12 years and 8 months. A joint custody order was made by the Court on 11 December 1990 whereby the two children are to remain in the joint custody of the parties. The care and control of Jason to remain with the Petitioner and the care and control of Jared to remain with the Respondent. It is also part of the order that the parties are entitled to remove the children from the jurisdiction for the purposes of attending schools in Australia.

On the question of property settlement, this Court had already dealt with that on 6 May 1991.

This application is brought by the Respondent seeking a number of orders, one of which is to have Jason enrolled at the Marist College Ashgrove, Brisbane and to commence boarding at that school at the beginning of 1993. Naturally the Petitioner objected to that proposal. Jason has been attending Our Lady of Sacred Heart School in Randwick, Sydney since January 1991 and he is currently in Grade 6. No oral evidence had been called but both parties, by their Counsel, agreed that the matter can be sufficiently dealt with on the Affidavit evidence filed by both parties in the matter.

The Respondent deposed that he and the Petitioner had always agreed that the two children should attend Marist School at Ashgrove, Brisbane. However, the Petitioner proceeded to enrol Jason at a school in Sydney. The Respondent further stated that Jason has now reached a suitable age which would make it desirable that both children should go to the same school. That same school according to the Respondent should be Marist School, Ashgrove, Brisbane. This he said would make it easier for him to visit the children from Honiara.

The Petitioner on the other hand had deposed in her affidavit that having enrolled Jason at Our Lady of the Sacred Heart School in Randwick, Sydney, Jason had been doing exceptionally well at school. He is now in Grade 6 and bas been obtaining consistent high grades in his class. She deposed that it would not be in the best interest of Jason to be uprooted from his present school and be placed in the Marist Brothers School in Brisbane.

I have seen the Progress Report on Jason’s school work and I must say that the Report clearly shows that Jason is an exceptionally bright boy. He has an excellent school record. In educational term, Jason must surely be among the top pupils in his class. It would be a pity if the boy be made subject to any order of this Court which would have an adverse effect on his educational achievement attained so far.

The evidence as disclosed shows that Jason has coped very well in adjusting to his new school and environment. He has established close friends both at school and at home. It is also clear that Jason has been very close to his mother, his maternal grandparents and his maternal uncles, who are all living in and around Randwick, Sydney. Further, his paternal grandparents are also living close by in Sydney and Jason has been visiting his paternal grandparents occasionally. The school which Jason attends is close by. The shopping centres and other amenities are also in close proximity.

Undoubtedly because of his high standard of achievement at school, Jason has already been allocated a place for 1993 at Marcellin College which is one of the pre-eminent Catholic Secondary Schools in Sydney. Again, this Court would be the last to make an order which would ruin the boy’s chances of advancement higher in his educational pursuit.

The Respondent, like any other normal father, is also concerned about the children and is prepared to do what is best for them, including making amicable arrangement regarding custody and education of the children.

The Respondent stated that it was always understood that Jason would also go to boarding school with his brother in Brisbane "when he was old enough". It would appear that the Consent Order made on 11 December 1990, does not support such an assertion. The Order clearly states that the Petitioner has care and control over Jason and that she is entitled to remove Jason from the jurisdiction for the purpose of attending schools in Australia and that the Respondent has care and control over Jared and he is entitled to remove Jared out of the jurisdiction for the purpose of attending schools in Australia.

It is worth noting that there is no evidence deposed by the Respondent to show why it would be in the best interest of the children to have Jason transferred from his present school in Sydney and joined his brother Jared in the Marist Brothers School in Brisbane. The only evidence from the Respondent on this, is that they (he and the Petitioner) had always intended for the children to attend the same school and that it would make it easier for the Respondent to visit both children if they are together in Brisbane.

On the other hand the Petitioner in her 12 page Affidavit had demonstrated the reasons for maintaining the present position in so far as Jason is concerned. To remove Jason out from his present school to join Jared in Brisbane would be detrimental to Jason. It would be wrong to sacrifice the interest of one child for the sake of the other. Where possible the Court must strive to preserve the interests of both children. Most certainly the children’s interest cannot be overridden by the wishes of either the father or mother.

It has not been suggested in this case that attempts have been made restricting access to the children by either the Petitioner or Respondent. Indeed it would be sad if that were so. It is not unheard of to find the parties to a broken marriage venting out the rancour which each felt towards the other using the children as a tool. Fortunately, the parties in this case have been very sensible in their attempts to give to the child in their respective custody, the best of education they each can afford. I hope that the parties will take time as a healing factor in order that they can jointly ensure that their two children receive the best that they can give.

I feel on the evidence, the interest and welfare of Jason in this case would best be promoted by not ordering his removal from his present school and I decline to do so.

The other order sought is that the Petitioner return to the Respondent the pump and filter for the swimming pool from Parcel No. 191-024-100. The Respondent argued that the items were included in the valuation of the property done by Mr Gorapava on 28 June 1990. In any case when he offered to pay her half share in the said property after the Court had dealt with the Ancillary matters his offer was based on the higher valuation which I take it to be $170,000.00. That was the value of the property made by Mr Gorapava on 28 June 1990.

The evidence shows that the pool pump and filter were purchased by the Petitioner in January 1990 from ITA Hardware for about $2,200.00. The construction of the pool began in March 1990 at the cost to the Petitioner of about $12,000.00. The construction of the pool was not completed until September 1990 by which time they were already divorced. The Petitioner and Respondent separated about the end of August 1989 with the Petitioner continuing to reside in the said property. It was after their separation that the Petitioner considered the construction of the swimming pool and bought the pump and filter in January 1990. She said that the pump and filter were never intended to be part of the property.

It is clear that at the time of the valuation of the property the pump and filter were already bought but were not yet fitted into the pool as the pool had not yet been completed on 28 June 1990. No account had been taken of the pool pump and filter in the valuation report. Why that was not done, I do not know. In the absence of any explanation as to why no account had been, mentioned in the Valuation Report of the pump and filter, the Court is left with the Petitioner’s evidence on the two items. This means the items were never included in the valuation. The items therefore remain the property of the Petitioner. Thus I cannot make the order sought by the Respondent in respect of the two items.

The Court had been told that the remaining matters sought in the summons had been agreed to. I therefore need not deal with them save that I feel the Respondent is entitled to a formal order in respect of those matters sought in the summons and agreed to by the Petitioner. I therefore order that the Petitioner reimburse the Respondent in the sum of $317.65 being for water electricity and telephone charges incurred when the Petitioner occupied the former matrimonial home in Parcel no. 191-024-100. I further order that the Petitioner reimburse the Respondent in the sum of $115.32 for half the land rent incurred in respect of Parcel Nos. 191-024-100 and 191-029-106.

Each party to bear his or her own costs.

(G.J.B. Muria)
ACTING CHIEF JUSTICE