L v L [2017] TOSC 36; Family Case 61 of 2017 (8 December 2017)

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

FD 61 of 2017

The publication of any identifying particulars of the parties or the children subject of this ruling is prohibited.

BEWEEN L

Petitioner

AND L

Respondent

BEFORE LORD CHIEF JUSTICE PAULSEN

Heard: 6 December 2017
Decision: 8 December 2017

Counsel: Mr S. Tu’utafaiva for the petitioner

Mrs. F. Fa’anunu for the respondent

RULING

Background

1. Mr. & Mrs L were married on 20 October 2005. There are three children of their marriage namely, C (aged 11 years), F (aged 9 years) and J (aged 7 years). F suffers from severe autism spectrum disorder and cannot communicate verbally.
2. A decree nisi dissolving the marriage was made on 13 July 2017 at which time Cato. J made consent orders granting custody of the children of the marriage to Mr. L and reserving reasonable access to Mrs. L. The order stated that ‘The children of the marriage shall visit and stay with the Respondent on mutually agreed dates and times.’
3. Mr & Mrs L have not been able to agree on matters affecting the children including dates and times that Mrs. L may exercise access. Mrs. L characterises Mr. L’s behaviour as unreasonable. One issue of significance is Mr. L’s disapproval of Mrs. L’s new partner. Mr. L insists that the children are not to visit or stay whilst Mrs. L is together with her partner. He also says that Mrs. L takes the children and refuses to return them out of self-interest.
4. In August 2017 Mrs. L applied to vary the terms of the Orders made by Cato. J to provide for shared custody of the children. The Court made temporary Orders on that application on 31 August 2017 in the absence of Mr. L. On 13 October 2017 Mrs. L withdrew the application. Consequently, the Orders of the Court made on 13 July 2017 remain in force.
5. A decree absolute dissolving the marriage of Mr. & Mrs L was made on 27 November 2017.
6. There are presently two applications before the Court with which this ruling is concerned. They are:
   1. An application by Mr. L for the return of F and J to his custody; and
   2. An application by Mrs. L for an Order allowing her to travel with the children to New Zealand on 11 December 2017 and returning to Tonga on 29 December 2017.
7. Mr. & Mr. L oppose each other’s applications.
8. The applications have been dealt with on an urgent basis. Mr. & Mr L have both filed affidavits. There was no cross-examination sought on the affidavits. Mr. & Mrs L were represented by Counsel who made submissions.
9. Mr. & Mrs L also agreed that I could speak with C and J so that I might have the benefit of their views on matters affecting them. I met with C and J in the presence of a member of the Court staff and an adult chosen by Mr. & Mrs. L with whom C and J were comfortable.
10. In this ruling I shall deal with the applications in the order that they are set out in paragraph 6 above.
11. I will add here that because of the need to issue a ruling quickly I have not set out in detail the factual matters that each party has relied upon. I have attempted to state succinctly reasons for my conclusions but I have fully considered all of the material that has been put before me.

The application for the return of the children

12. Mr. L says that on 17 November 2017 Mrs. L took F and J from his residence without his consent and she has refused to return them despite many demands to do so. He argues that this is not in the best interests of the children. He says that F and J are being deprived of contact and activities (such as attendance at Church) with him, their brother C and his parents (who he lives with) who have been closely involved in the raising of the children as part of the extended family in the Tongan manner.
13. For her part Mrs. L says that the reason why custody of the children was granted to Mr. L was because they both agreed that it would be best if the children remained in the home where they grew up while she settled herself and found a place to live. She now has a place to live and says that she is capable of raising her children and she did not abandon them.
14. Mrs. L admits that she has not returned the children but says that this is because they simply refuse to go back to Mr. L (Mrs L’s affidavit at para 27) and she is ‘accommodating her children’s wishes to remain with her as any caring and loving mother would do for her children of tender age and especially her child with special needs’ (Counsel’s submissions at para 8). In her affidavits Mrs. L has referred to a number of instances where she says that F and J have refused to return to Mr. L
15. In resolving this (and the other application before me) the paramount consideration is the welfare of the children of the marriage (section 15(1) of the Guardianship Act).
16. I am to have regard to the conduct of any parent to the extent only that it is relevant to the welfare of the children (section 15(2) of the Guardianship Act).
17. Mrs. Fa’anunu stressed that I must also have regard to the wishes of the children themselves and submitted that it is the right of a child to live with whichever parent it wishes. That puts the matter too strongly. The Court is obliged to ascertain the wishes of a child if the child is able to express them and take account of those wishes ‘to such extent as the Court thinks fit having regard to the age and maturity of the child’ (section 15(3)). It is for this reason that I spoke to C and J (there being insufficient time to obtain a Guardian ad Litem’s report).
18. What I learned from C and J that has a bearing on this application was that:
    1. They are both unsettled and insecure. They are unhappy with the relations between their parents and see them argue. Both were emotional and cried when talking about their parents’ problems. I was concerned that they feel that they must take sides.
    2. They love both of their parents. They wish that their lives could return to what they had been before their parents separated.
    100. They both have a bond with their grandparents (Mr. L’s parents), with each other and with F.
    4. In so far as there was a preference to be with one or other parent C preferred to remain with Mr. L in the home where he had grown up. J appeared to prefer to be in Mrs. L’s care.
    5. They both felt that F preferred to be with Mrs. L and whilst he did get upset when he was returned to Mr. L’s care he would settle down.
19. In relation to F I did have an opportunity on a prior occasion to observe him in my Chambers and note that he clearly had a close bond with Mrs. L and he got distressed at the prospect of being parted from her. I have not seen him with Mr. L.
20. The wishes of the children are one consideration but cannot be determinative. If I was to take into account those wishes to the exclusion of other factors I would be required to separate the children and I do not believe that would promote their best interests.
21. In my view the best interests of the children at the present time are served by making the order returning them to Mr. L’s custody (bearing in mind that Mrs. L is to exercise reasonable access about which I shall say more). My reasons are as follows.
22. I do not think Mrs. L can shy away from the fact that when the divorce was obtained she and Mr. L decided it was in the best interests of the children to be in the custody of Mr. L and agreed to an Order to that effect. Although she applied to vary the terms of the Order Mrs. L subsequently withdrew that application. She has suggested that she may once again seek to vary the Order. On what I have before me I can make no judgment that alternative custody arrangements will offer better outcomes for the children.
23. Both Mr. & Mrs L are quite capable of looking after the children. However both of them work. Mr. L has the support of his parents to assist him when he is at work. The children are used to his grandparents and C and J both appear to have a bond with them.
24. C and J are unsettled. It appears to me that this is primarily because of the ongoing conflict between their parents and a lack of certainty and stability as to the arrangements for their day to day care. In the case of F I expect he too is unsettled and I note that the Specialist’s report attached to Mr. L’s affidavit notes that he dislikes changes of routine and is in need of constant attention.
25. In my view the children are in need of a stable and familiar environment, a known routine and consistent and dependable behaviour from the adults who care for them. They are most likely at the present time to get that in Mr. L’s custody because of the familiarity of the home and its routines and the presence of other family members present to provide support.
26. I cannot accept Mrs. L’s principal reason for not returning the children that they refuse to return to Mr. L. In J’s case he did not say anything to me that would suggest that he would outright refuse to return to his father’s care. I accept that F becomes distressed upon separation from Mrs. L but since separation he has gone with Mrs. L in the exercise of access and then been returned to Mr. L. Mrs. L cannot have expected that the children will never be returned to Mr. L.
27. It is up to Mr. & Mrs L to develop strategies so that the children are comfortable moving between both parents. That will necessarily include a commitment from them both to isolate the children from the effects of their conflicts. In this regard I note that it has been recognised that the single most critical factor influencing the good adjustment of children to the separation of their parents is:

..a stable, loving relationship with both parents, between whom friction had largely dissipated, leaving regular, dependable visiting patterns that the parent with day-to-day care encouraged. ^[1]

28. I therefore consider it is in the best interests of J and F to be returned to the custody of Mr. L.

The application to travel

29. Mrs. L has recently graduated with a Masters Degree from Victoria University and has applied to take the children with her to New Zealand between 11 December 2017 and 29 December 2017 to attend her graduation ceremony.
30. Mr. L opposes the application on grounds:
    1. That he has planned to spend Christmas in New Zealand with his children following a year of turmoil for the children.
    2. That the children require stability at this time.
    100. C does not want to go to New Zealand and it is not in the interests of the children to be separated.
    4. That Mrs. L might not return the children.
31. Once again the central enquiry is to determine whether it is in the best interests of the children to allow them to travel with Mrs. L. In this regard relevant considerations include:
    1. The reasons for the proposed travel and how that will advance the interests of the children.
    2. The length of the proposed stay out of Tonga.
    100. The bona fides of the application.
    4. The effect on the children of spending time away from Mr. L.
    5. Any risk that the children might not be returned.
32. Whilst the occasion of her graduation is significant to Mrs. L that is not relevant to the interests of the children. J was eager to go to New Zealand but had no real appreciation of the reason he was going. He thought he was going to New Zealand for his birthday. Given his condition F also would have no understanding of the reason for the travel.
33. Ms. Fa’anunu advised me from the Bar that Mrs. L also wishes to visit with family in New Zealand over Christmas. Whilst in the usual case I could see some benefit in the children visiting family overseas, in this particular case what the children urgently require is the cessation of hostilities between their parents and to be restored to a stable living environment with regular routines. None of that will be promoted by allowing the children to travel to New Zealand at this particular time.
34. Mrs. L proposes to take the children away from Tonga for almost three weeks. That is a significant period of time in circumstances where Mr. L has not had F and J in his care since 17 November 2017. The sooner orderly parenting arrangements are restored the better that will be for the children.
35. C does not want to travel to New Zealand and given the present state of affairs it would not benefit him to be forced to go against his wishes. If J and F were to travel to New Zealand C, who has already been separated from his brothers, would be without them over the Christmas period also. That is not desirable.
36. I cannot dismiss entirely Mr. L’s concern that the children may not be returned to Tonga but given Mrs. L’s connections to Tonga (both employment and personal) I think that the risk is low and could be managed by the imposition of conditions had I been minded to allow the children to travel.
37. I have given thought to whether I might allow the children to attend Mrs. L’s graduation ceremony and return to Tonga before the Christmas holidays begin. I have decided against that course because of the children’s lack of appreciation of the reasons for the travel and because any benefit they might receive in terms of spending time with Mrs. L and her family will be outweighed by the continuing lack of certainty and stability over their living arrangements here in Tonga.
38. A further matter which has concerned me is that J is clearly very excited about going to New Zealand. It was wrong for an expectation to have been created in J in circumstances where Mr. L did not support the proposed travel. J will be disappointed and Mr. & Mrs L should consider carefully how the news that he will not be going to New Zealand is broken to him to minimise the effect of that upon him.
39. I consider that the best interests of the children will be served by them remaining in Tonga and spending time here with their family over Christmas. Mrs. L’s application to travel with the children to New Zealand is therefore dismissed.

The way forward

40. The present arrangement for Mrs. L to exercise access when it is mutually agreed is unsatisfactory given the inability of Mr. & Mrs L to communicate effectively and the hostility that this generates.
41. To the extent that conflict is caused by Mr. L not accepting Mrs. L’s present living arrangements, he may well need to shift his perspective for the benefit of the children. Mrs. L is entitled to a new life and the children are entitled to be part of that life and have her share fully in their parenting.
42. Mr. & Mrs. L must now communicate to attempt to reach agreement immediately on the days and times that she will exercise access including any special arrangements over the Christmas period.
43. I am going to list this matter to be called again before me on Friday, 15 December 2017 at 10am for mention in case the parties need further assistance from the Court in relation to defining suitable access arrangements.

Result

44. I direct that the children J and F are to be returned to the custody of Mr L.
45. I dismiss Mrs. L’s application to allow the children of the marriage to travel to New Zealand.
46. This case shall be called again for mention at 10am on Friday, 15 December 2017 to review access arrangements for the children should either Mr. L or Mrs. L require that.
    

O.G. Paulsen
NUKU’ALOFA: 8 December 2017 LORD CHIEF JUSTICE

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^[1] Family Law in New Zealand, 17^th Ed at 6.114.