Nakao v Afeaki [2002] TOSC 37; FD 086 2002 (17 December 2002)

IN THE SUPREME COURT OF TONGA
FAMILY JURISDICTION
NUKU’ALOFA REGISTRY

FD.86/2002.

BETWEEN:

ROBINA ELINA EIKO NAKAO
Petitioner;

AND:

TOUTAI TUKIO-A-TUNGI AFEAKI
Respondent.

BEFORE THE HON. CHIEF JUSTICE WARD in chambers

Counsel: Mr Niu for petitioner
Mr Fakahua for respondent

Date of Hearing: 8 & 27 November 2002.
Date of Ruling: 17 December 2002.

RULING

The petitioner filed for divorce on 11 October 2002 on the ground of separation for two years. She also sought custody of the only child of the marriage with no access by the respondent, a non-molestation order in relation both to herself and the child and an order that she should have sole responsibility for the maintenance of the child.

Notice of opposition to everything but the dissolution was filed by the respondent and was followed, on 25 October 2002, by an application by him for division of the matrimonial property. This, in turn, was opposed by notice filed by the petitioner on 6 November 2002.

Prior to the last step, the undisputed portion of the petition had been heard on 1 November 2002 and a decree nisi granted to the petitioner. The other matters were adjourned to chambers and affidavits ordered. The same day, the petitioner filed application for an interim order restraining the respondent from any access to herself or the child.

I heard the applications for custody and division of matrimonial property in chambers on 8 November 2002. Both the petitioner and respondent gave oral evidence further to their affidavits and each was cross-examined at length. The evidence related both to custody and property.

At the conclusion of that hearing, I was concerned at the nature of the attack by each of the parties on the other in relation to custody of the child. I noted in my minute book:

“I feel I must decide the property matters on the basis of the evidence counsel have placed before me and nothing else. Both parties have had their opportunity to file anything they wished.

However, custody is a different matter. We have had a number of allegations and counter allegations all directed, effectively, at the suitability of the parties to have access to the child. I do not think the court is bound simply by such incomplete evidence as the parties seek to adduce. Its duty is to the child and I feel there could be evidence produced to help my decision and my appreciation of the case.”

Therefore on 12 November 2002, I saw counsel in chambers about the evidence they might produce and the hearing was continued on 27 November following filing of further affidavits. At that hearing, the petitioner was cross-examined on her further affidavit, the respondent gave further evidence and called four witnesses.

I now deal with the division of the matrimonial property and custody of the child. As was done at the hearing, I shall refer to the parties and the child by Christian names; Robina, Tukio and Mateki.

The couple were married on 6 May 1999. They had been living together as man and wife in Robina’s home since 1997 or 1998. Tukio told the court that they had no intention at that time of marrying and married only when Robina became pregnant. Mateki was born on 6 December 1999 and the couple parted effectively in September 2000. In April 2001, Mateki was diagnosed at the Starship Hospital in Auckland with acute myeloid leukaemia requiring intensive chemotherapy and very special treatment both in and out of hospital for a considerable period of time.

On 29 September 2000, shortly after the couple had separated and well before the diagnosis of Mateki’s illness, they signed a separation agreement. It was later amended on 9 October 2001.

When the original agreement was signed in September, the respondent was unhappy with the restrictions imposed and wrote, “I don’t agree” at the top and signed it. However, after further discussion, he agreed to sign and did so in the usual place. The words “I don’t agree” have been scribbled out. According to Robina, Tukio did that when he signed at the bottom of the agreement but Tukio, whilst agreeing with the rest, does not agree it was he who scribbled it out.

There has been considerable reference to that agreement and its amendment both in the affidavits and the oral evidence. The disagreements relate more to the custody aspect of the case and I shall refer to its value and significance when I deal with that.

Matrimonial property

Robina was living and still lives on land in Sopu, leased in her name and which had been partly developed as a motel. Before she and Tukio started to live together, she had embarked on extension and renovation of one of the buildings as a dwelling house for herself. In June 1998 she borrowed money in her name from the ANZ Bank to assist with the work and that loan was increased in March 1999.

Tukio told the court how, when he first started to live with Robina, Fijian workmen were doing the construction work but he arranged to take over the organisation of that work. The arrangement included agreement between them on some, at least, of the financial aspects of the work. The court has heard only incomplete evidence about the manner in which the work was arranged and financed and the extent to which it may have been the result of a formal agreement. There is little written evidence.

It appears the progress of the work was fitful and slow and some of it was undoubtedly not up to a reasonable standard. It was still not completed when the couple married.

There is no challenge to the fact that the house is, and always has been, Robina’s property. The original separation agreement acknowledged that and Tukio has not, in his evidence, sought to suggest otherwise. What he told the court was that he paid a substantial part of costs of the extension and renovation and of the living expenses of the couple and much of the wages of at least one of the workers he had brought in to do the renovation. He put in his labour also. His claim is based on the fact that those were contributions to the matrimonial home and he should be able to retrieve the money he put in.

The Divorce Act deals only very briefly with property rights upon divorce. It is contained entirely in section 15:

“Whenever a decree for divorce is pronounced, each of the parties to the marriage so dissolved shall retain his own property.”

Subsequent provisions allow the court considerable freedom to make orders with respect to the children but there is neither further power nor guidance given in relation to matrimonial property.

It has not been argued before me but it may be a reasonable interpretation of the provisions of section 15 to conclude that any joint matrimonial property should be divided in proportion to each party’s contribution.

However, in the present case, the evidence satisfies me that I do not need to resolve that issue because the matters raised by the parties in relation to the renovation of the house and their expenses whilst living together before they were married are irrelevant to a question of whether or not this Sopu house is matrimonial property. At the time it was agreed that Tukio should assist with the work on the house, there was no marriage or, as Tukio stated in evidence, no anticipation of marriage and so there was no matrimonial home. If the financial matters of which the court has been advised are to be determined, it will be probably have to be under the law of contract. Having said that, I make it clear I am not determining whether there is or is not a binding agreement between the parties or between either of the parties and the construction workers. Neither do I give any opinion as to the effect on any such action of Tukio’s evidence that his contribution was given as a gift to reflect his love of Robina.

What is perfectly clear to me is that the house and the new works on it were and are Robina’s own property. The work that had still not been completed when they were married formed part of the work agreed on before marriage was contemplated and does not, just because of the intervening marriage, become part of any contribution by Tukio to the matrimonial home.

I have no evidence upon which to conclude that Tukio has made any contribution to the house apart from the work agreed between the parties prior to their marriage. Neither do I have any evidence on which to find that Tukio, in the few months the marriage survived, made any other contribution to it sufficiently to have some right to the matrimonial home.

I refuse the application to divide the matrimonial home and order that it is part of Robina’s own property to be retained by her in accordance with section 15.

Custody

When the question of custody is not agreed between the parties to a divorce, it frequently becomes the most difficult decision for the court. In an ideal world, as the parents are likely to have the most knowledge, they are also, together, in the best position to determine custody in a manner which is best for the child. Unfortunately, where there has been bitterness or rancour in the breakdown of the marriage, the child can become a pawn in the continuing resentment of the parents one to the other. All too often the parents see the problem in terms of themselves, their personal feelings and their view of the other party’s suitability to have custody or his or her perceived responsibility for the marriage breakdown.

The courts have consistently used the best interests of the child as the principal yardstick. All aspects of the parent’s relationship will be relevant to that determination but the paramount concern will be the best interests of the child as the court determines it on the evidence before it. The conduct of each of the parties will be relevant and important in the determination of the child’s interests but the apportionment of blame or allocation of culpability is not part of the court’s duty.

The overwhelming central core of this case is the dreadful illness and debilitating treatment that this little girl has had to endure and her remarkable improvement since. Throughout, there can be no doubt, Robina has shown an outstanding commitment to the child’s recovery. Through the long, dark days of the early treatment and the inevitable peaks and troughs of hope and despair, she has consistently and devotedly attended to her daughter. No other conclusion could be reached on the evidence the court has heard.

Equally certainly, Tukio has not been involved to anything approaching the same extent. That has been used by Robina as a spear in her attack on his suitability. However, I must bear in mind the situation at the time this diagnosis was made. By then Tukio had signed an agreement that limited his access to and support for his daughter with the result that, by the time it was discovered that Mateki had leukaemia, Robina already had virtually total control over the amount he contributed to or had contact with his daughter.

Robina further points out that, prior to the diagnosis, Tukio had behaved irresponsibly when he did have access. When the access arrangements were subsequently varied in October 2001 to allow a visit every other Saturday, he would arrive, she said, still affected by or smelling of drink from the previous night. More than once he used the visit as an opportunity to speak to Robina and there were frequent rows as a result. Tukio strongly denies any such conduct.

I do not think it is necessary or desirable to recite all the evidence the court has heard. It has ranged over the whole time of the marriage, the period before and, to a much greater extent, the time from the break-up to the present.

It is clear sure Robina is a strong minded and powerful woman. It was those qualities that enabled her to survive the period of Mateki’s treatment and to give some of her strength to her sick child. I am satisfied, Mateki’s remarkable progress to date owes much to that. I have no doubt her concern to keep the child to herself and to exclude Tukio from Mateki’s life is based on a genuine fear that contact with him may be detrimental to her continued recovery.

On the other hand, I am equally satisfied that the vehemence with which she pursues her criticism of him is, to a substantial degree, fuelled by blaming him for the failure of their relationship and possibly still for the sickness of Mateki and by the (possibly strengthening) belief that his real interest in the child is to use her as a means of getting to and at Robina personally.

I am not so sure of Tukio’s feelings. I accept he has a genuine love for his daughter. I believe he feels strongly that he needs to see her and that she should know him as her father. Inevitably, the restricted access he has had to her for a long time now means that his direct contact will not be as close and will not bind him as closely to her as to her mother. I accept his evidence and that of his witnesses that, to some extent, this has been the result of having to deal with a very determined woman willing, when angered or displeased, to forget her own opinion that there should not be conflict and discord in front of their daughter. However, on the evidence I have heard as a whole, I am satisfied his manner of taking his present rights of access has not always been as good as it should.

It is against those conclusions I must decide what is in the best interests of Mateki now.

The separation agreement was signed by the parties on 29 September 2000. It does not bind the court’s decision but may be important evidence of the attitudes of the parties at the time. It was an agreement to live apart because of differences which had “become irreconcilable and unbearable”. It confirmed Robina’s right to the home and included, in effect, a non-molestation clause against Tukio.

The custody provisions were:

“2. Robina shall have the custody, care and control and the liability for the maintenance of the child, but that Tukio shall have the right to visit and maintain contact with the child at any lunch time during the week, provided he shall give notice by telephone beforehand, unless otherwise agreed. Provided that Robina shall not remove the child out of Tonga except with the written consent of Tukio or by order of the Supreme Court, which order may only be obtained by her upon inter-parte application”

That agreement was, of course, signed seven months before the diagnosis of Mateki’s illness and the amendment on 9 October 2002, more than five months after it. The sole purpose was to change the custody arrangements and the new provision stated:

“2 (a) Robina shall have the custody, care and control of the child. She shall also have the responsibility and liability for the maintenance, health, education and overall wellbeing of the child. However, Tukio shall have the right to visit and see the child between 9:00 a.m. and 12:00 noon on each alternate Saturday commencing on Saturday 13th October 2001. Provided that Tukio shall not during such visit, take or have the child removed from the hospital she presently is in in Auckland, New Zealand, or the home she will be in in Auckland after she is discharged from hospital or from the home in Tonga in which she will be living thereafter. And further provided that Tukio’s right to visit shall be suspended for any period during which Robina, or any person she may authorise, may temporarily take the child for the purpose of holiday, treatment or any other purpose.

(b) Robina may temporarily leave the child in the care of any person whom she may consider fit whilst she travels and attends to her work or for any other reason.

(c) Tukio shall have no financial liability whatsoever towards the child except as he shall agree.”

As I have already stated, the separation agreement does not bind this court but it is some evidence of the attitudes and intentions of the parties at the time it was signed. It shows clearly that Tukio was willing after he and Robina had separated, to accept a very reduced role in relation to Mateki. When he signed the first agreement, he was clearly accepting terms that restricted his access to the little girl drastically. He has explained to the court how he was unhappy with the terms and wrote “I don’t agree” but he was then willing to sign. I must attach considerable weight to that. Over a year later, when he signed the amendment against the background of their daughter’s illness, I accept he did not want to cause trouble and, by it, possibly distress Mateki. However, he did sign and he allowed his rights to be still further curtailed.

By both agreements, he was also willing to leave the financial provision for the child to Robina. Paragraph 2(c) absolves him from any financial liability whatsoever except as he shall agree. He has explained that he wants to contribute financially towards the maintenance of their child but Robina will not accept it. There has been no evidence of any other financial arrangements he has made even though there would, of course, be nothing to stop him, for example, contributing regularly to some form of savings scheme in her name.

As I have stated already, I am satisfied he loves his daughter and genuinely wishes to maintain a relationship as father to her. However, the evidence suggests that the strength of that desire is not matched by actions. I accept the evidence I have heard that he is fond of children and totally responsible when looking after children in a normal environment but I also accept the evidence I have heard that he has not always conducted himself properly when visiting Mateki.

As I have said, the central core of this case is the terrible sickness of Mateki and her recovery. During the period of the chemotherapy and for a considerable time afterwards, she will be very vulnerable to infection. The treatment for the cancer destroys much of the immune system a little girl would normally have. As a result, minor infections or even careless or unsuitable treatment are far more serious than they would be to any normally healthy child and may become life threatening. The treatment itself has, as was expected, thrown up its own additional afflictions that she will have to conquer. Already there has been some damage to her heart muscle and her hearing has been affected.

Robina’s answer to these problems would be to remove Tukio totally from Mateki’s life. She has already achieved that to the extent that his contact is extremely restricted – a restriction in which he has acquiesced. On the other hand, much of her criticism of the inadequacy of his conduct with Mateki and lack of understanding of her medical needs is the inevitable result of the very restriction she sought. The court has the power to take that total step but would only exercise it in the most extreme case. This is not such a case and I accept Tukio’s right, as Mateki’s father, to see his daughter. However, whilst I accept Tukio’s need to see his child, I do not consider it is appropriate, in the present circumstances of this case, to increase the amount he does so.

He complained to the court that he is not allowed to see her other than at Robina’s home despite the fact that Mateki visits, for example, Robina’s brother’s house. He also objects to Robina’s insistence that there is a maid or someone else with knowledge of Mateki’s needs present all the time. On the evidence I have heard, I am satisfied that the presence during his visits of someone who is regularly involved in the care of Mateki is a necessary safeguard. However, any such person should be conscious of the fact that his or her presence is to advise and assist Tukio with any matters relating to Mateki’s needs. They are there for his assistance and they must understand it is no part of their duty to act as a reporter to Robina.

I believe that unnecessary stress cannot be good for Mateki whilst she is recovering from her affliction. I have been concerned to hear that arguments have arisen between Robina and Tukio on occasions when he has visited Mateki. Robina told the court that she does not stay there while he is visiting but she clearly does so long enough on some occasions to meet Tukio. The history of this relationship suggests that such meetings are very likely to result in discord, tension or even open argument. That must stop and I intend, by my order, to try and ensure it does.

Finally, before passing to the actual terms of my custody order, I should mention one further and highly unusual feature of this case.

During the hearing, I was conscious of the fact that this was a case where the court would have benefited from medical evidence. Robina filed reports from the Starship Hospital but there was no medical witness who could be asked about two, in my opinion, critical aspects of the decision on custody, namely, the need for and degree of hygiene and special treatment of a child in this situation and the time it is likely to continue to be needed and, second, the possible effect of stress resulting from tension and arguments between the parents in Mateki’s presence.

The absence of such evidence is no fault of the parties. The extremely specialised nature of this illness and its treatment means that there are no doctors here sufficiently experienced in such treatment to be able to assist the court. Equally, no doctor involved in such work at the Starship would be able to spare the time to travel here.

The day the hearing was concluded, 27 November 2002, I was due to go to Auckland and I asked counsel if they considered it would be appropriate for me to speak to Mateki’s primary oncologist, Dr Lydia Pitcher. Clearly it would not be possible for them to be present or to question her, neither would I be able to make a note of the answers I received. The parties and counsel consented to me seeing the doctor and confining my questions to the two topics I have mentioned above.

In view of such an unusual procedure, I decided I should first consider the evidence given in court and reach my conclusions on that before I spoke to the doctor. If, having done so, her answers suggested I had come to a wrong conclusion or made a decision on an incorrect basis from a medical point of view, I decided I would need to give counsel a chance to address me on that point.

I was able to meet with Dr Pitcher and the ward nurse who had dealt with Mateki and I am extremely grateful to them for taking the time and trouble in what was only too obviously a very busy ward. I saw them on 3 December 2002, at the Starship in the presence of the hospital lawyer and our meeting lasted approximately half an hour.

I need only say that the answers I received confirmed the opinion I had already formed. Only one point differed from the conclusion I had reached. Dr Pitcher strongly supported the need for the presence of a person familiar with the particular needs of Mateki when Tukio visited her. However, she suggested that it would be most suitable if that person could be medically experienced so he or she would be able to keep a very strict view on the things Mateki was able to do. Had this been New Zealand, I would have incorporated that in my decision but it is not. I do not believe it would be practical to find a nurse here with the necessary knowledge or experience of the highly technical and specialised matters involved. As a result, I consider the best that can be done is to include a requirement that the person present will be someone who has looked after Mateki and so, to that extent, knows the details of what is and is not acceptable.

I order that:

1. Robina shall have the custody of Mateki.
   
2. Tukio shall have access to her at the times and place set out in the amended agreement signed on 9 October 2001.
   
3. Such visits shall, as long as Mateki is in Tonga, be in Robina’s house and Robina shall ensure that there is always some person, other that herself, who has looked after Mateki and understands the restrictions and requirements of her current medical condition present throughout the visit.
   
4. Any visits while Mateki is abroad shall be at the times specified in the amended agreement but shall take place wherever Mateki is staying at that time. This term may be altered by mutual consent of both parties where the conditions abroad necessitate.
   
5. Robina shall not remain in the house for any of the time such visits are taking place and shall ensure she leaves at such a time and in such a manner that there is no possibility she will meet or speak to Tukio in the presence, sight or hearing of Mateki.
   
6. Subject to paragraph 4, these terms shall only be varied by order of this court on inter partes application.
   

The period over which these restrictions will apply will depend on Mateki’s recovery. Dr Pitcher explained that attempts to restore Mateki’s immune systems could start after two years had elapsed from her chemotherapy but it would take a considerable time before her overall immunity would be adequate enough to allow her to resume a normal life. Similarly, whilst the doctor pointed out that three years clear of any symptoms could be grounds for hope that Mateki is cured of leukaemia there may still be further side effects or complications requiring treatment. Clearly Mateki’s battles with illness may not be over but whether any future problems will necessitate the continuation of there restrictions will depend on their nature and the attitude of the parties. Any difficulties may require further reference to this court.

NUKU’ALOFA: 17 DECEMBER 2002.

CHIEF JUSTICE