Teolanafo v Atanikakia [2024] SBMC 12; Family Case 25 of 2023 (14 August 2024)

IN THE CENTRAL MAGISTRATE COURT
OF SOLOMON ISLANDS
Civil Jurisdiction

Family – Affiliation, Separation and Maintenance Case 25/2023

Between:
NEIKAI TEOLANAFO

And:
PAUL ATANIKAKIA & MATIMA TEVAEA

Date of Hearing: 27 July 2024
Date of Ruling: 14 August 2024

Mr. Ma’ungatonu. O for the Claimant
No appearance for the Respondent

RULING ON THE APPLICATION FOR SUMMARY JUDGMENT

Introduction

1. This is an application for summary judgment filed by counsel for the claimant on 6 June 2024.

Background of the case

2. The claimant filed an ex-parte application for interim custody of Diego Teolanafo on 17 March 2023. The application come about when the respondents tried to have the child back from claimant. Interim custody was granted on 20 March 2023. Upon receiving the interim order, the respondents filed their defence on 7 October 2023. The claimant did not apply for summary judgment at that stage but decided to file her reply on 30 January 2024. The court then set the matter for hearing. Trial book, agreed issues and agreed facts was already settled and filed before the court. Unfortunately, there was no appearance from the respondents or their counsel for trial. As a result, the claimant’s counsel applies for summary judgment.
   

Issue

3. The issue before this court is whether or not summary judgment should be entered against the respondents?
   

Rule

4. The relevant rule that apply for such an application is Rule 9.57 of the Solomon Islands Courts (Civil Procedure) Rules 2007. It states;
   

“The claimant may apply to the court for a summary judgment where the defendant has filed a response or a defence but the claimant believes that the defendant does not have any real prospect of defending the claimant's claim”.

Discussion

5. In this case, I note the respondents or their lawyer did not oppose the application. There was no sworn statement filed by the respondents or their lawyer in response to the application. I must be mindful that application for summary judgment must be supported with a sworn statement. The sworn statement should verify the facts stated in the claim and stating what the claimant believes that there is no defence to the claim and also, stating the specific orders sought^[1]. A party wish to oppose the application may file a sworn statement stating why he/she thinks that he/she has an arguable defence. Once the court is satisfied that the defendant has no defence or prospect in succeeding, the court will grant summary judgment^[2]. If there is real dispute between the parties, the court must not grant summary judgment^[3].
   
6. The court had the opportunity to peruse through the application, sworn statement in support of the application and defence filed by the respondents. Having peruse through them, I see there is a real dispute between parties in this claim. The joint sworn statement of the respondents shows that the respondents are biological parent of Diego Teolanafo, and since they have come together again, the issue of custody is crucial for the court to determine. Not only that, but since the claimant did not give them access to the child, it also an issue for the court to deal with as well.
   
7. However, the problem in this case is Mr. Paul Atanikakia who is the biological father of the child already left to Naura. Ms. Matima Tevaea who is the mother of child now reconciled with the claimant and go back to reside with her again. The court did not have any evidence as to whether or not the biological father of child will come back to Solomon Islands and join the mother to defend the claim. There is no evidence too before the court whether or not the respondents are thinking of seriously coming back together to look after the child. I am assuming maybe the reason why this case ended up in court because the father came back to Solomon Islands and like to reunion again with his family. However, if he genuinely persists in pursuing the case then he should remain to defend the claim, but that is not the case here. Hence, by looking at the circumstances of the case, I do not think the respondents they genuinely wish to defend the claim and therefore, there is no prospect to succeed in their defence given both defendants are separated.
   
8. Furthermore, the court also take time to consider the social welfare report before me and by looking at the social welfare report, I could say that it was in support of the claimant. In other words, the child decides to leave with the claimant. Further to that, I also note in the social welfare report that both respondents they admit that they have failed their parental responsibilities in naturing the child. To me, it is clear that in the best interest of the child, the child himself decides to reside with the claimant. Therefore, even though if the respondents come together to defend the claim, I do not think they have a prospect to succeed in their defence. Base the reasons stated above, I am of the view that summary judgment should be entered against the respondents in this case. Parties to bear their own costs.
   

THE COURT

...................................................................
MR. MICHAEL FAGANI
Magistrate – First Class

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^[1] See Rule 9.58 & 9.59 of the Solomon Islands Courts (Civil Procedure) Rules 2007.
^[2] See Rule 9.62 of the Solomon Islands Courts (Civil Procedure) Rules 2007.
^[3] See Rule 9.66 of the Solomon Islands Courts (Civil Procedure) Rule 2007.