Nakao v Afeaki [2003] TOSC 7; FD 086 2002 (4 March 2003)

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

NO. FD.86/2002

BETWEEN:

ROBINA ELINA EIKO NAKAO
Petitioner

AND:

TOUTAI TUKIO-A-TUNGI AFEAKI
Respondent

BEFORE THE HON CHIEF JUSTICE WARD

COUNSEL: Mr Niu for petitioner/applicant
Mr Garrett for respondent/cross-applicant

Chambers Hearing: 24 February 2003
Date of Ruling: 4 March 2003

RULING

A decree nisi was ordered in this case on 1 November 2002 on the wife’s petition. The dissolution was uncontested but custody of the child and the division of matrimonial property was disputed and was heard in chambers.

I ruled on those matters on 17 December 2002. Prior to the presentation of the petition, the parties had entered into a separation agreement which was produced in the chambers hearing and the terms of which were incorporated to some extent in the decision.

Both parties now seek variation of the terms of the custody order.

The child in the case is Mateki. When she was only a little over one year old she was diagnosed as having acute myeloid leukaemia. The court has already heard evidence of her struggle to achieve what can only be described as a remarkable response to very stressful treatment. Concern over her continuing medical condition was an important part of the decision in relation to custody.

I made the following orders with regard to custody:

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 than 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.
   

Application for variation was first filed by Robina on 6 February 2003 less than two months after my order. She has found the requirement that she should be out of her house during the visits extremely awkward and, on more than one occasion, it has even necessitated her leaving when she has been unwell. She asks that the visits should be allowed to take place at her brother’s house which is a few metres away from her home. Mateki is familiar with the house and the occupants and, prior to the divorce, visits by Tukio to his daughter had taken place there.

On 12 February 2003, Tukio responded by making his own application to vary on the basis that, if the venue of the visits was to be changed, it should be to his home.

Prior to ruling in the earlier hearing, I had spoken to Mateki’s primary oncologist, Dr Pitcher, at the Starship Hospital in Auckland. She had emphasised the fact that Mateki is still very vulnerable. The courses of chemotherapy at the Starship were completed in September 2001 but she will be at risk of relapse for 2 to 3 years. During that time she needs frequent and careful monitoring and follow-up treatment. That is, of course, beyond the court’s control.

More significant from the court’s point of view when considering visits by Tukio, is the fact that her immune system is severely impaired and will take a considerable period of time before it has recovered sufficiently to allow her to live a normal life for a child of that age.

When dealing with that problem last December, I pointed out:

“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 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 it 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.”

Tukio has suggested that, if the visits can take place in Robina’s brother’s house, they should be able to take place in his house. Further, he tells the court that he has found a qualified Tongan nurse whom he would be willing to pay to be present at all visits in his house.

The person who has filled that role hitherto is Robina’s housegirl. Her experience of looking after Mateki gives her, I accept, the ability to know whether the proper ‘rules’ are followed. That ability stems from her recognition of what has been acceptable before and, when I made my order, I and the parties were aware that the obvious shortcoming of that arrangement is that, should a novel situation arise, she will not have the necessary medical knowledge to be able to evaluate the situation and decide whether it is appropriate. I intend no criticism. She is not, and does not pretend to be, medically trained.

Clearly the visits have worked out up to now as far as Mateki’s welfare is concerned. The longer they continue, the greater the experience and confidence that will be gained by both parents.

I certainly anticipated in December that the strict limits placed on Tukio would be eased as time passed. It was reasonable to assume that, as Mateki’s health improved, Tukio would be able to see more of her both in terms of time and in the freedom of their relationship.

The strict conditions governing his access to his daughter were necessitated by Mateki’s condition. The court’s main interest was to try and ascertain the best interests. The details were largely the result of Robina’s concerns as the parent granted custody.

I have no doubt whatsoever that Robina’s concern for the child’s welfare is as deep and genuine as it has been throughout. It is unfortunate, therefore, that an application to vary has been made less that two months later on grounds which really appear to be based principally on the convenience of the mother.

I do not accept that the situation can have changed very much in terms of Mateki’s progress in such a short period. As has been said, the major concern of the court is Mateki’s welfare. The feelings and opinions of her parents are important only insofar as they have a direct bearing on that.

The offer of a nurse to be present each time is useful but I am also aware that, if the visits are to be at Tukio’s house – one which the court was told has only recently been completed and so is unfamiliar to Mateki – the presence of a new and unknown face could be stressful for the little girl.

In those circumstances, I am not willing at this stage to make any variation of the order of 17 December 2002 and the applications by both parties are refused.

Having said that, it is clear the court is going to have to consider an application to change the venue of Tukio’s visits in the relatively near future. I consider it may be appropriate to make some further orders to try and ensure the court will be fully equipped to deal with such an application if it is made.

Mateki has to visit Auckland for regular checks. I do not know when the next is due but, when I know the dates of such checks, I shall order that, following a particular check, Dr Pitcher (or her successor if she no longer directly involved), shall provide a report on Mateki’s condition. She should be asked to make that report in the form of answers to specific questions.

I shall ask counsel to suggest, and preferably agree, the form of such questions and to submit them to the court for final decision together with the proposed dates of her check-ups. The question should address the desirability of visits to Tukio’s house and whether the presence of a trained nurse is still considered necessary. If the doctor considers such an arrangement is necessary, she must also be asked to provide written instructions for the nurse in order properly to safeguard Mateki.

It would be preferable if both parents could speak to the doctor before she makes her report and in any event they should be free to make written representation to her.

If the report advocates an easing of the restrictions I have already ordered, I shall take steps to ensure the nurse chosen to supervise is familiar with the instructions from the doctor before I make any variation.

NUKU’ALOFA: 4^th March, 2003

CHIEF JUSTICE