Tavake v Tavake [1998] SBHC 118; HCSI-CC 280 of 1996 (19 August 1998)

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No.280 of 1996

ELIJAH TAVAKE

-v-

HILDA TAVAKE

High Court of Solomon Islands
(Kabui J.)
Civil Case No. 280 of 1996

Hearing: 13th August 1998
Judgment: 19th August 1998

Gabriel Suri for the Petitioner
Melanie Teff for the Respondent

KABUI J: A decree nisi was granted for the dissolution of the marriage between the Petitioner and the Respondent by Palmer J. in a judgment delivered at Honiara on 7th February, 1997. Other matters including custody of the child of the marriage were to be adjourned to chambers for hearing. There had been four chamber appearances each of which resulted in further adjournments. The main purpose of these adjournments was to enable the preparation of Social Welfare reports on the parties and the child of the marriage and the filing of affidavits regarding the dispute over custody and the matrimonial home of the parties. The matters of custody, access and property rights of the parties have now been argued before me.

Facts:

The Petitioner and the Respondent were married on 12th June, 1982 at Wahere village, Marau Sound. The only child of the marriage is David Rollance Tavake. He was born on 2nd November, 1983. He will be 15 years by November this year. He currently lives with the Petitioner in the matrimonial home at Baranamba east of Honiara. The matrimonial home was acquired in 1983 by the Petitioner by loan money initially from the then Solomon Islands Housing Authority. The parties together with their child had lived in the matrimonial home until the Respondent left in September, 1996 except for periods the matrimonial had been rented out for obvious reasons.

The Acquisition of Matrimonial Home:

In two affidavits sworn and filed on 5th May and 12th August, 1998, respectively the Respondent claims that she has a proprietary interest in the matrimonial home at Baranamba. She says she used to pay for food for the family, electricity and kitchen utensils out of her salary. She is a registered nurse employed by the Government and is earning a salary. She says in 1985 she gave $600 from her NPF entitlement to the Petitioner for an extension to the veranda of the house. In 1986, she says she paid $200 for the house insurance. She says she also paid for the services of the house girl at the rate of $50.00 per fortnight including clothes for the house girl. She also provided some bedding for the house. She says she performed all her duties as a wife and mother during the marriage including support for the family of the Petitioner as well as for her own family. She claims that the matrimonial home at Baranamba should be jointly owned by the Petitioner and herself. Miss Teff for the Petitioner argues that on the basis of her client’s evidence by affidavit, there is a case for constructive trust in favour of the Respondent. Mr. Suri on behalf of the Petitioner opposes the claim by the Respondent in its totality. In a lengthy affidavit sworn and filed on 28th July 1998 in response to the Respondent’s affidavit of 5th May, 1998, the Petitioner sets out the reasons for doing so. He says he acquired the house through his own initiative in 1983 after his marriage to the Respondent in 1982. But the first step in that direction was taken by him in 1980 when he filled up an application to the then Solomon Islands Housing Authority for a loan to purchase the house. That application was approved and an offer was made to the Petitioner by letter dated 20th December, 1983 (see Exhibit “ET 2”). That offer was accepted by the Petitioner on 30th December, 1983. The loan sum was $10,575. The deposit required was $793.00. The monthly repayment was $113.00. The deposit plus registration fee of $10.00 were paid on the same day the Petitioner accepted the offer from the Solomon Islands Housing Authority (see Exhibit “ET 2”). The title to that fixed-term estate was transferred to the Petitioner on 8th April, 1987 (see Exhibit “ET 3”). The Solomon Islands Housing Authority loan was liquidated in 1987 and was transferred to the Petitioner’s employer, the then Hong Kong Shanghai Banking Corporation by arrangement. A new loan of $28,000 was then put in place for the benefit of the Petitioner for a term of 15 years at 13.75% interest per year. The repayments were to be $166.19 per fortnight to be deducted from the Petitioner’s salary (see Exhibit “ET 4”).

In 1988, the ANZ; Banking Group Limited (the current Petitioner’s employer) took over the loan on the same terms as before. In 1991, the Solomon Islands National Provident Fund (the NPF) again liquidated the ANZ Bank loan under arrangement and granted a new loan of $40,000 to the Petitioner. The liquidated loan with the ANZ Bank was $24,763.42. The balance was for the repair of the house (see “Exhibit 5”). The Petitioner has obviously a very good credit rating with his employer and the NPF.

The Law:

At common law, the husband possessed the wife’s property at the time of marriage. Such property was land including all chattels belonging to the wife. Although the wife could recover the husband’s property by succession on the death of the husband, the wife’s proprietary rights remained subservient during marriage. The process of change in England began with the enactment of the Matrimonial Causes Act 1857 which, amongst other things, gave the wife who obtained a decree of judicial separation the right to acquire and dispose of property and the right to sue or be sued on contract as if she was a single woman. A divorced wife was still no better off for the doctrine of the husband and wife being one continued to be firmly entrenched in family law at that time. The Married Women’s Property Act 1870 however made the first inroad into the doctrine of unity in that it allowed married working wives to regard earnings during marriage as separate property. The final blow to the doctrine of unity was the Married Women’s Property Act, 1882 which abolished the doctrine of unity and gave complete independence to all married women regarding rights of ownership of all manner of property and the right to enter into contracts and to sue and be sued on the same footing as the husband. The final touches to married women’s ability to own property enter into contracts, being liable in torts, to sue and being sued and being subject to the law of bankruptcy were put in the Law Reform (Married Women and Tortfeasors) Act, 1935. However, the specific provision of the Married Women’s Property Act, 1882 which has relevance to this case is section 17 of that Act. By virtue of Schedule 3 to the Constitution, the Married Women’s Property Act, 1882 is an Act of the United Kingdom Parliament which is of general application and in force before 1st January, 1961. This Act is therefore part of the law of Solomon Islands. The effect of section 17 of the Married Women’s Property Act, 1882 is that either the husband or wife or an interested party may apply to the High Court in any question as to the title to or possession of property and the court may make such order with respect to such property in dispute as it thinks fit. This is the basis, I believe, upon which the Respondent has come to this court for relief regarding the matrimonial home at Baranamba. As a matter of fact, the interpretation of section 17 has been decided in numerous cases in England and Australia and I believe elsewhere within the Commonwealth. Such cases have not been consistent in terms of a conclusive approach to deciding cases under section 17 of the Married Women’s Property Act 1882. The power of the court under section 17 has been agreed as being discretionary depending upon the evidence before the court in each case. The extent of the discretionary power of the court has now been settled by the case of Pettit -v- Pettit [1969] UKHL 5; [1969] 2 W.L.R. 966. The position now is that whilst the court does have discretionary power to make orders under section 17, such discretionary power does not extend to making orders that vary agreed or established proprietary rights to property. In other words, the court does not have the discretion to vary proprietary rights under section 17 in the absence of agreed or implied proprietary rights. The proprietary rights of the parties must be picked up where they are and not to be picked up and shared between the parties simply because it proves difficult to work out the intention of the parties. This is also the position in Australia (see Calverley -v- Green [1984] 59 A.L.J.R at 119), New Zealand (see Hofman v. Hofman [1965] NZ L.R 795) and Canada (see Family Law by Anthony Dickie, 1985 at 489).

Analysis of the Evidence:

The Petitioner says that her name had been relied upon to obtain the loan from the then Solomon Islands Housing Authority for the matrimonial home in 1980. She says this information was given to the then Solomon Islands Housing Authority prior to their marriage in 1982. I find that her name was entered in the loan application simply to show whether or not she was to contribute towards the repayment of the loan and if so, how much (see Exhibit “ET 1”). The answer written in by the Petitioner was “NIL” and the mention of the fact that Respondent was a trainee nurse in the Ministry of Health and Medical Services. I do not think this entry of the Respondent’s particulars in the loan application contributed towards the acquisition of the matrimonial home. If anything, it was more of an assurance that the house to be acquired was to be a matrimonial home than anything else. I find that the matrimonial home was acquired by the effort and credit-worthiness of the Petitioner alone. The Respondent also says that she had paid $600 from her NPF to pay for the extension to the veranda of the matrimonial home including $200 for house insurance in 1986. Apart from those, she says she had paid for electricity, food and kitchen utensils. At one time she also provided bedding for the house. In my view, these monetary contributions are not substantial to confer proprietary rights to the Respondent. Also, the sources of such alleged contribution are suspect in that NPF contributions are not normally available unless the contributor turns 40 years or 50 years under the provisions of the NPF Act, 1973 and insurance element is normally included in the repayment instalments and the Respondent would not have needed to pay any insurance cover separately. Either the Respondent was lying or her memory had faded since she made those payments. The Respondent further says that she had performed all the duties of a wife in terms of looking after the Petitioner and David Tavake for the duration of the marriage. I do not dispute this as that is the expected obligation of every married woman who lives with her husband and children in the matrimonial home. The question is: do these sort of things give proprietary rights to the Respondent? I find that the Petitioner has borne all the costs of improvements to the matrimonial home since its acquisition in 1980 even up to now. He has been able to do this through arranged re-financing with the Banks and now with NPF. He has good credit standing with NPF. He has a good loan servicing record. I find that the Petitioner has not found it necessary to rely upon the salary of the Respondent in order to service the loan up until now.

Some Decided Cases:

In Appleton -v- Appleton [1965] 1 W.L.R. 25 the parties got married in 1931. The husband was a wood-carver working at home. In 1958, the wife bought a house out of her own money. The house was in her name intended to be her property. The husband did a lot of work on the house in terms of renovation work together with the wife and their son. The wife later sold the house and bought another one which was old and in bad condition. The husband also did a lot of work renovating it together with the wife and son. In 1961, the wife left the husband on the ground of cruelty. The wife made a claim under section 17 of the Married Women’s Property, 1882 that the house was her sole property. The district registrar held that the property was the sole property of the wife and ordered it for sale. The husband appealed to the Court of Appeal which upheld the husband’s appeal. In delivering the court’s judgment, Denning, M.R. said, at page 28,

“In those circumstances, it is not correct to look and see whether there was any bargain in the past, or any expressed intention. A judge can only do what is fair and reasonable in the circumstances. Sometimes this test has been put in the cases: what term is to be implied? What would the parties have stipulated had they thought about it? That is one way of putting it. But, as they never think about it at all, I prefer to take the simple test: What is reasonable and fair in the circumstances as they have developed, seeing that they are circumstances which no one contemplated before? I should have though that, inasmuch as the registrar found that the husband had done up to about one - half of the work of renovation, the husband should be entitled to something. He should get so much of the enhanced value of both of the properties as was due to his work and materials that he supplied. He should be given credit for a just proportion on any realization of the house. A percentage of the proceeds ought to go to him commensurate to the enhancement due to his work in improving the properties and getting a better price on that account. The husband is entitled to a percentage of the proceeds of sale if and when the house is sold”.

This ruling was subsequently applied by the registrar in Pettit -v- Pettit in 1967. In this case, the parties were married in 1952. There were two children of the marriage. The parties first occupied a house left to the wife by her grandmother’s will. The house was sold in 1960 and another house was bought out of the proceeds of the sale of the first house. In 1965, the wife left the husband on the ground of cruelty. The husband then claimed beneficial interest in the house on the ground that he had done a lot of work on the house in terms of redecorating and renovating it to the value of £1000. The registrar held that the husband did have a beneficial interest in the sum of £300. The wife appealed to the Court of Appeal and lost. The wife then appealed to the House of Lords. In the House of Lords, the approach favoured by the Court of Appeal in Appleton -v- Appleton was rejected as being the wrong approach under section 17 of the Married Women’s Property Act, 1882. That is to say, the court has no power under section 17 of the Married Women’s Property Act, 1882 to award property rights on the basis of equal entitlement or family asset principle in the absence of evidence pointing to either expressed or implied intention by the parties to the marriage.

The case of Pettit -v- Pettit was revisited in Burns -v- Bums [1983] EWCA Civ 4; [1984] 2 W.L.R. 582. In the Burns case, the parties were not legally married but had lived together as husband and wife for 17 years. They started living together in 1961. In 1963, the male partner decided to buy a house as they were expecting a second child. The house was brought with his own money and loan money. The house was in his sole name. The female partner did not contribute to the purchase - price nor to the repayment of the loan. She remained at home to look after the children and to perform domestic duties. In 1975, she started to work as a driving instructor. She used her earnings to pay the rates, telephone bills, and to buy fixtures fittings and certain items for the house. She also redecorated the inside of the house. She did this voluntarily. The parties broke up in 1970. She then brought proceedings claiming a beneficial interest in the house on the basis of her contributions to the household for 17 years. The court of first instance held that she had no beneficial interest in the house. She appealed to the Court of Appeal and lost. At page 590, Fox LJ said,

“The house with which we are concerned in this case was purchased in the name of the defendant and the freehold was conveyed to him absolutely. That was in 1963. If, therefore, the plaintiff is to establish she has a beneficial interest in the property she must establish that the defendant holds the legal estate upon trust to give effect to that interest. That follows from Gissing v. Gissing [1970] UKHL 3; [1971] A.C. 886. For present purposes I think that such a trust could only arise (a) by express declaration or agreement or (b) by way of a resulting trust where the claimant has directly provided part of the purchase price or (c) from the common intention of the parties.

In the present case (a) and (b) can be ruled out. There was no express trust of an interest in the property for the benefit of the plaintiff; and there was no express agreement to create such an interest. And the plaintiff made no direct contribution to the purchase price. Her case, therefore, must depend upon showing a common intention that she should have a beneficial interest in the property. Whether the trust which would arise in such circumstances is described as implied, constructive or resulting does not greatly matter. If the intention is inferred from the fact that some indirect contribution is made to the purchase price, the term “resulting trust” is probably not inappropriate. Be that as it may, the basis of such a claim, in any case, is that it would be inequitable for the holder of the legal estate to deny the claimant’s right to a beneficial interest.”

Then at page 596, May L.J. said,

“For my part, I agree that the principles which the courts must apply are those laid down in Pettitt v. Pettitt [1969] UKHL 5; [1970] A.C. 777 and Gissing v. Gissing [1970] UKHL 3; [1971] A.C. 886. Those two cases concerned disputes between couples who had in fact been married, where the claims were made under section 17 of the Married Women’s Property Act 1882 and not under the matrimonial legislation. But it is quite clear that the House of Lords decided that section 17 is merely a procedural section giving the courts no overriding general discretion in such circumstances and that the principles to be applied are ill general the same whether the couple have been married or not.”

In concluding, May L.J at page 606-607 said,

In the light of all these cases, I think that the approach which the courts should follow, be the couples married or unmarried is now clear. What is difficult, however, is to apply it to the facts and circumstances of any given case. Where the family home is taken in the joint names, then unless the facts are very unusual I think that both the man and the woman are entitled to a share in the beneficial interest. Where the house is bought outright and not on mortgage, then the extent of their respective shares will depend upon a more or less precise arithmetical calculation of the extent of their contributions to the purchase price. Where, on the other hand, and as is more usual nowadays, the house is bought with the aid of a mortgage, then the court has to assess each of the parties’ respective contributions in a broad sense; nevertheless the court is only entitled. to look at the financial contributions or their real or substantial equivalent, to the acquisition of the house; that the husband may spend his weekends redecorating or laying a patio is neither here nor there, nor is the fact the woman has spent so much of her time looking after the house, doing the cooking and bringing up the family.

The inquiry becomes even more difficult when the home is taken in only one of the two names. For present purposes I will assume that it is the man, although the same approach will be followed if it is taken in the name of the woman. Where a matrimonial or family home is bought in the man’s name alone on mortgage by the mechanism of deposit and installments, then if the woman pays or contributes to the initial deposit this points to a common intention that she should have some beneficial interest in the house. If thereafter she makes direct contributions to the instalments, then the case is a fortiori and her rightful share is likely to be greater. If the woman, having contributed to the deposit, but although not making direct contributions to the instalments, nevertheless uses her own money for other joint household expenses so as to enable the man the more easily to pay the mortgage instalments out of his money, then her position is the same. Where a woman has made no contribution to the initial deposit, but makes regular and substantial contributions to the mortgage instalments, it may still be reasonable to infer a common intention that she should share the beneficial interest from the outset or a fresh agreement after the original conveyance that she should acquire such a share. It is only when there is no evidence upon which a court can reasonably draw an inference about the extent of the share of the contributing woman that it should fall back on the maximum “equality is equity.” Finally, when the house is taken in the man’s name alone, if the woman makes no “real” or “substantial” financial contribution towards either the purchase price, deposit or mortgage instalments by the means of which the family home was acquired, then she is not entitled to any share in the beneficial interest in that home even though over a very substantial number of years she may have worked just as hard as the man in maintaining the family in the sense of keeping the house, giving birth to and looking after and helping to bring up the children of the union.

On the facts of the instance case, which Waller L.J. has outlined, I think that it is clear that the plaintiff falls into the last of the categories to which I have just referred and accordingly I too would dismiss this appeal. When one compares this ultimate result with what it would have been had she been married to the defendant, and taken appropriate steps under the Matrimonial Causes Act 1973, I think that she can justifiably say that fate has not been kind to her. In my opinion, however, the remedy for any inequity she may have sustained is a matter for Parliament and not for this court”.

The facts of the Burns case are similar to the facts of this case. The contributions alleged by the Respondent are but minimal if indeed they were contributions. I therefore find that the Respondent has no beneficial interest in the matrimonial home at Baranamba. The Respondent’s application is refused. I need not now exercise my discretionary power under section 17 of the Married Women’s Property Act, 1882.

Custody Question:

Interim custody by court order is that David Rollance Tavake shall remain with the Petitioner, with reasonable access to the Respondent until further court order. The Respondent has filed two affidavits in which she states that she wants custody of her son but due to lack of suitable accommodation at YWCA, this would not be possible. She says if possible she would like to move back into the matrimonial home at Baranamba and live there with her son until he turns 18 years when the matrimonial home should be transferred to her son. If, however, this is not possible she would like to have joint custody of her son.

The Petitioner opposes joint custody on the ground that the Respondent’s accommodation at YWCA is not suitable accommodation for his son who is turning 15 soon this year. He says custody of David Tavake should remain with him with access to the Respondent.

The Law:

At common law, the father had almost exclusive rights to custody of his children. The rights to custody could only be taken away by the court if the father was shown to be guilty of conduct unfitting for the exercise of his rights to custody. The welfare of the child was not a matter of paramount importance. The Chancery courts however took a different approach. Their position was that the Crown being the wise parent would subordinate the interest of the father to the welfare of the child. This meant that custody would be refused to the father in equity more easily than at common law if the welfare of the child so demanded. By virtue of the Judicature Acts of 1886, 1891 and l925, the Courts in England now administer the common law and equity together. Specifically, the Guardianship of Infants Act, 1886 gave the mother equal rights to custody on the death of the father. The welfare of the child was a matter to be considered by the court. By virtue of the Custody of Children Act 1891, the court was empowered to interfere with the rights of, parents in the interest of the child. By virtue of the Guardianship of Infants Act, 1925, the court was required to regard the welfare of the child as the first and paramount consideration. The history of the beginning of child custody both at common law and in equity can be found in the judgments of the Law Lords in JV.C [1969] 2. W.L.R.540. In Solomon Islands, the right to apply to the court for custody of children by parents is conferred by section 21 of the Islanders Divorce Act (Cap.48). Most of the provisions of the Islanders Divorce Act above are based upon the provisions of the Judicature Act, 1925 of England. The courts in Solomon Islands would still, as has been the practice, rely upon Acts of general application of the Parliament of the United Kingdom as regards the criteria for deciding custody disputes. Section 21 of the Islanders Divorce Act is silent on this. How the courts in England have interpreted the Acts of general application in this area of the law is useful as a guide. This is however not to say that cases in Papua New Guinea, Australia, New Zealand and within the region are less relevant.

The Social Welfare Reports:

The Petitioner is 40 years old. He is employed by the ANZ Bank in Honiara. In May 1998, he was posted at Gizo as a Branch Manager there. He was occupying a three-bedroom house there. He is now transferred back to Honiara and is residing with his son in the matrimonial home at Baranamba. He is healthy and has a good job with the Bank. He obviously loves his son. He has already opened a Bank Account for him on 6th May, 1998. There is already $1,300 in that account. Whilst at Gizo, he often sent money and fish to his son living with Mr. & Mrs. Daiwo in Honiara. This has now stopped as he and his son are now together in the matrimonial home at Baranamba. Although the Petitioner was living with a woman at Gizo when he was there, he did say that that relationship was not permanent. His son was aware of this whilst he was attending school at Gizo. He has no problems with making ends meet. The Petitioner does not oppose joint custody of David Tavake except that the Respondent does not have suitable accommodation for David Tavake.

The Respondent is also 40 years. She is an employee of the Government in the Ministry of Health and Medical Services. She earns more than $13,000 a year as a registered nurse. She is healthy and has a good job at the moment. She is occupying a room at YWCA due to lack of accommodation by the Government: She gives pocket money of $50.00 per fortnight to David Tavake. Although she had used bad language at David Tavake and the Petitioner sometime ago it was an isolated incident. She once slapped David Tavake but it was not ill-treatment of him. She does not seek total custody of her son but seeks freedom to contact him so that he would grow up knowing the Respondent as his mother

David Tavake will be 15 years in November this year. He is a Form 1 student at St. Nicholas School in Honiara. He agrees the Respondent had slapped him once and used bad language against him and the Petitioner but apart from those incidents, the Respondent does not ill-treat him. He says he loves his mother. He says he loves his father and would like to continue to stay with him. He is no longer staying with Mr. & Mrs. Daiwo.

The Case with Boys:
Whilst it is accepted that in custody cases, the welfare of the child stands out as the matter of paramount importance, it does not exclude the consideration of other relevant matters which may influence the decision of the Court. Each case depends upon its own facts. In W -v- W C. [1968] 1 W.L.R. 1310, a boy of 8 years was living with his mother and her new family when he was taken away by his father when the boy was coming out of school. The father and mother of this boy had separated and formed new families separately. At page 1312, Denning, M.R. said,

“I feel it is right to be guided by the general principle that a boy of this age, some eight years of age, is, on the whole, other things being equal, better to be with his father”.

At page 1313, Sachs L.J. said,

“I would echo what has been said by Lord Denning, M.R. as to the nagging anxiety that exists in all custody cases. To my mind, they are far most difficult of all classes of cases that a judge has to deal with and those difficulties are particularly apparent when one has to deal with the question of a son who in his early years has naturally been in his mother’s care, but has reached the age when it is normally best for him to have his father to turn to all possible times”.

In re C. (A) (An Infant) (1970) 1 W.L.R. 288, the father decided to take away his son from his grandmother and aunt because of constant quarrelling. The aunt applied for wardship of the boy who was 81/2 years old and lost. The aunt appealed to the Court of Appeal and also lost. At page 291, Harman, L.J. said,

“I can see nothing wrong in the consideration of the law which the judge applied. He did not, I think, give too much weight to the father’s position. He looked, as he should, at the whole background and considered where was the better place for the boy to be - and that is really the only question that the court has to ask. I do not at all agree with expressions of opinion which have fallen, perhaps per incurium, from judges that a boy should, as a matter of “principle”, be with his father - just as much as I disagree with the other “principle”, which has altogether been abandoned, that a girl of under three should, as a matter of principle, be with her mother. Other things being equal, these things may be so, but there is no principle involved in either. They are merely considerations which may weigh with the judge’s view of the law”

At page 293, Edmund Davies, L.J. expressed the same view by saying,

“If W v. Wand C. [1968] 1. W.L.R. 1310 is to be regarded as authority for the proposition that there is a “principle” that a boy of eight should, all other things being equal, always be left in the custody of his father, then that is a view with which, with profound respect, I cannot agree. The decision most depend upon who the father is, who the mother is, what they are prepared to do, and all the circumstances of the case. In my judgment, there is no such “principle”, the age and sex of the child being but part of the considerations to be borne in mind”.

Again, there is no hard and fast rule to be applied in all custody cases. The judge’s decision would largely depend upon the assessment of all the evidence before it. The assessment is a bundle of considerations based upon the admitted evidence bearing in mind all the time that whatever decision made, is done so, to promote the welfare and interests of the child. Applying this to the present case, I am of the view that the Petitioner should have custody of David Tavake. There is reasonable accommodation for the Petitioner and his son. There is willingness on the part of the son to continue living with his father. There is already stability in the relationship with the father in terms of a home, schooling and support for the daily needs of David Tavake. The Petitioner and David Tavake have been together since the Respondent left, that is, two years ago. There is no evidence to suggest that the welfare and interests of David Tavake would suffer by living with the Petitioner. Taking into account all the circumstances of this case, custody must remain with the Petitioner. The Respondent’s application for joint custody is refused. This brings me to the question of access. The Respondent has asked for joint custody. This is not resisted by the Petitioner in principle. His only concern is that YWCA is not a suitable place for David Tavake. This is understandably conceded by the Respondent. In my view there is a case for granting access to the Respondent. I would think a consent order for access is a better option.

THE ORDER OF THE COURT IS THAT:-

1. The application by the Respondent for a declaration of her proprietary rights in the Matrimonial home at Baranamba is refused;

2. The application by the Respondent for the joint custody of the child of the marriage David Roliance Tavake is also refused;

3. The Respondent shall have access to the David Rollance Tavake on terms to be agreed by the parties. If the terms of such access cannot be agreed by the parties, further application may be made to the court for an appropriate order.

4. No order as to costs.

F.O. KABUI
JUDGE