Tupouniua v Tupouniua [2002] TOSC 28; F 824 1999 (4 October 2002)

IN THE SUPREME COURT OF TONGA
FAMILY JURISDICTION
TONGATAPU DISTRICT

NO.F.824/99

BETWEEN:

RUTH PUALANI ‘AHOKOVI TUPOUNIUA
Petitioner

AND:

MAHE ‘ULI’ULI SANDHURST TUPOUNIUA
Respondent

BEFORE THE HON. ACTING CHIEF JUSTICE FORD

Counsel: Mr Foliaki for the petitioner, Mr Tu'utafaiva the respondent
and Mr Kefu (as Guardianad Litem) for the children.

Dates of hearing: 3 and 4 October 2002.
Date of judgment: 4 Oct 2002.

ORAL JUDGMENT

Considering that at the start of the week, this case was not even listed in the court fixture list, we have been able to achieve a great deal. We have now completed a full custody hearing. The court is grateful to counsel and to the parties for their cooperation at such short notice. The respondent is presently in the Kingdom on 19 days special leave from his post as First Secretary at the Tongan High Commission office in London. Given the urgency of the matter, I am now delivering an oral judgment.

The immediate issue relates to the father's application to take the children back to London where they would remain with him until his term as First Secretary expires on 31 August 2003. Up until now the position regarding custody has been covered by an interim custody order made by Finnigan J. on 4 February 2000 in the mother's favour. That order was made on the papers. Various affidavits were filed by both parties but the matter has never proceeded to a hearing prior to now.

I have had the opportunity of considering all the evidence before the court, the earlier affidavit evidence, the lengthy and very helpful submissions filed by counsel recently in response to the equally helpful report from the Guardian ad Litem. Above all, I have had the opportunity to see and hear the parties give their evidence and I have also had the opportunity to interview, with the Guardian ad Litem, the children.

The children, ‘Elenoa (f) born 11/6/96, 'Iesina (f) born 7/4/98 and Mahe (m) born 5/5/99 are indeed fine young children. It is very easy to see why custody is such a live issue.

Since the interim custody order was made in February 2000, and indeed for some months prior to then, the children have lived here in Tongatapu and have been brought up by their mother, the petitioner, Pualani. Pualani is 30 years of age. She and the respondent, Mahe, were married in Redwood City, California, USA on 29 April 1995. The respondent was working for the Tongan government in America at the time. The parties are now divorced.

I do not propose to go over the events leading up to the breakdown in the marriage or the earlier custody disputes. They are historical and, in my perception, the approach of both parties to the question of custody has matured considerably since those days.

Pualani works full-time as personal assistant to the general manager of the ANZ bank in Nuku'alofa. She and the children live in a large home originally owned by her father who is now deceased. The residence is presently owned by her brother who resides in the USA.

Pualani has child minding help from her younger sister who returned from Hong Kong in October last year and from a neighbour who she pays $50 per week for the help. Up until April of this year, a Fijian woman had been employed to look after the children.

I am satisfied that the children are presently being well brought up and educated. Although still of tender years, they seem happy and contented in their circumstances and in their lifestyle. The mother would, naturally, like the present arrangements to continue. Somewhat ironically, when Pualani was young her father was First Secretary of the Tongan High Commission in London, which is the position presently held by the respondent, and she lived for a period of time with her family in London.

The respondent, Mahe, is 36 years of age. His mother is the Queen's younger sister and his father is a former Minister of Finance. Mahe is the only son. He has six sisters. It seems that his parents travelled a lot when he was young. They now live in New Zealand where they have three homes in the Auckland area. Mahe was brought up by 'Elenoa Cocker, who he refers to as his aunt. She is a cousin of both his parents. Ms Cocker cared for Mahe and looked after him from birth. She also lived with Mahe and Pualani and looked after the children during the time that Mahe was working in the States.

The court heard evidence from Ms Cocker. She is now 57 years of age and keeps in very good health. She was an impressive witness. Although she has other tasks, including work at the Palace, she seems to have devoted her life to looking after Mahe and his children. She literally worships them and she told the court that she will look after them until she dies.

Mahe is now approaching the end of his term as First Secretary in London. The school year in the UK begins again later this month and Mahe wants to take advantage of the opportunity he now has to allow the children to spend the remaining ten months of his appointment experiencing a different culture. He wants to take the children with him and also Ms Cocker to look after them. He sees it as a wonderful opportunity and he explained to the court the various English and European cultural activities he wishes to introduce the children to such as English museums and gardens and Euro Disneyland in Paris. He also wishes to introduce them to music and the piano which he plays. The children are keen to go with him.

As First Secretary, Mahe has a large house in London close to the High Commission office. There are a number of schools nearby. Mahe's married sister and her husband live with him and they have two young children, a boy aged 4 and a girl aged 2 ½ who would be company for the children. The 4-year-old nephew goes to a local school.

In terms of custody generally, I was very impressed with both parents and I do not see it as being in the best interests of the children for a court to be making an order giving sole custody to either party. Having given careful consideration to all aspects of the case, I am firmly of the view that this is a proper case for a shared custody order notwithstanding that the parents presently live in different countries. The court is satisfied that both parents have an enormous amount to contribute to the children's upbringing. They are both obviously intelligent and talented. The court was impressed with their mature ethical approach to the custody issue. I am satisfied that each parent is anxious to ensure that the children grow up to love and respect the other and, although there may have been some hiccups in the past, I am satisfied that there is no intention for one party to try and deprive the other of proper access and recognition rights.

The same goes for Ms Cocker. She worships the children and will look after them well but I am satisfied that she knows her place and she will never try and usurp Pualani's role as mother. I accept that she teaches them to love and respect both their father and mother.

I, therefore, propose to make an order awarding joint custody of the children to both parents. If the parents lived in the same country then it would be a relatively easy matter to provide for the administration of a joint custody order. The reality, however, is that they do not. The mother and the children live in Tonga - the father lives in London. What will happen after Mahe's present term of appointment expires is still uncertain. Mahe told the court that he may not obtain another overseas posting. In all events, he undertakes to return the children to Tonga at the expiration of the 10 month period.

Turning then to Mahe's application to take the children to London, the situation is a complicated one. On the one hand, as the mother's says, the children are still very young and the value of being exposed at that age to a different culture may be problematical. Pualani also makes the point, and this is probably her strongest objection, that she wants to look after her own children and she does not want them taken away from her for such a lengthy period of time.

I can understand these concerns but, at the end of the day, I have to determine what is in the best interests of the children. Because of the joint custody order I have made, it will simply not be possible in the future for one parent to have sole access to the children for any lengthy period of time to the exclusion of the other. The mother has effectively had custody for some three years now to the exclusion of the father. That is not of her making. Pualani explained to the court that she considers it important that the children should be able to spend as much time as possible with their father but because of his overseas posting that has simply not been possible up until now.

It is not an easy task for the court to have to decide what is in the best interests of the children. I am keenly aware that the parties know the children intimately and I do not but, rightly or wrongly, that is the task which the law has entrusted to me. It is, nevertheless, a daunting undertaking.

During the children's tender years, I consider it paramount that they be exposed to and brought up in the Tongan culture. They will not be deprived altogether of that opportunity in London, however. Mahe's household speaks in the Tongan language and he explained that there is a small Tongan community which they all associate with. Most important of all, the children would have 'Elenoa Cocker, who they call "Na", living with them.

I am concerned about the time the children would be away from the mother. Ten months is a long time and I do not consider, at this stage of their lives, that it is in their best interests, after spending the last 3 years in their mothers custody, for them to be suddenly removed altogether from her presence for the next 10 months. I accept what Mahe says that he will ensure that the children have regular contact with the mother by telephone, correspondence and videos but that is not the same thing as "being there".

In summary, therefore, I believe that it would be in the best interests of the children to take advantage of the opportunity now offered through Mahe's employment. Conceivably, it may well be a once-in-a-lifetime opportunity. On the other hand, I do not consider that it is in the children's best interests for them to be away from the mother for such a lengthy period as 10 months on end.

I believe that there could be an acceptable compromise. Whether it is a realistic option would be up to Mahe. The alternative proposal the court puts forward which it would be prepared to endorse, is that the respondent pay all expenses for the mother to travel to London anytime that suits her after the children have been in residence for 2 months and she would then be entitled to spend up to three weeks having sole custody of the children. Mahe would need to meet the travel and accommodation expenses Pualani would incur. She would need to have suitable hotel or equivalent accommodation during the period of her stay in London. In addition, Mahe would need to pay an appropriate amount to enable Pualani to entertain the children during the three-week period. Failing agreement, the figure for such expenses could be determined by the court. Part of the costs Mahe would incur in this regard would be met by savings he should have through not having to make maintenance payments on account of the children while they are in his custody in London.

If the respondent is prepared to undertake those commitments to the court then appropriate orders will be made. If not, the application will be declined. If the proposal is acceptable, the court would hope that Pualani would see fit to co-operate and travel to London to spend the three weeks with the children but the court accepts that it cannot force her to make the trip.

Either way, if the children go to London it would be on the strict condition that at the end of August 2003 they must be returned to Tonga at Mahe's expense where they will continue with their education.

I now invite counsel and the Guardian ad Litem to confer and if the proposal is acceptable then they should produce a draft order for completion by the court. The draft order should include the various suggestions made this morning by the Guardian ad Litem to ensure continuing contact between the mother and the children during their stay in London.

At this stage, I make no order as to costs.

NUKU'ALOFA: 4 OCTOBER 2002.

ACTING CHIEF JUSTICE