JBL v JJFL [2019] TOSC 37; FD 61 of 2017 (11 July 2019)

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

FD 61 of 2017

Publication by any person in news or social media of any details of this ruling which may lead to the identification of the subject child is prohibited

BETWEEN: J B L

Applicant

AND: J J F L

Respondent

BEFORE LORD CHIEF JUSTICE PAULSEN

Counsel: Mr. S Tu’utafaiva for the Applicant
No appearance for the Respondent

Date of Hearing: 10 July 2019
Date of Ruling: 11 July 2019

RULING

The application

[1] These parties were married in 2005 and divorced in 2017. Since their divorce, they have come to the Court on a number of occasions because of disputes in relation to the care arrangements for their three children. This ruling concerns an application by the applicant to set aside an Order made by Niu J on 17 May 2019 (“the Order”) that one child of the marriage, a 13 year old male (who I refer to as “CL”), shall:

...forthwith be placed in the custody of the respondent.....with reasonable access to the [applicant] and to the grandparents...

[2] When the application came on for hearing on 10 July 2019, Mr. Tu’utafaiva appeared for the applicant but there was no appearance from the respondent, either in person or by counsel. Attempts were made by the Court to contact the respondent, without success.

[3] Mr. Tu’utafaiva advised me that his instructions were that the respondent has removed CL from Tonga, that they are now in Samoa and, that CL had telephoned the applicant, who is presently living and working in Nauru, in a distressed state wanting to be returned to Tonga.

[4] Mr. Tu’utafaiva asked me to set aside the Order and grant custody of CL to the applicant. I consider it is in the best interests of CL to do so. What follows below are my reasons.

The background

[5] For present purposes, the relevant background begins with the granting of a decree nisi dissolving the marriage of the parties on 13 July 2017. Cato J made a consent order, at that time, granting custody of the three children to the applicant and reserving reasonable access to the respondent.

[6] In May 2018, the applicant accepted employment in Nauru. The parties agreed that their children would join him in Nauru, once he had made the necessary arrangements for them to live and attend school there. In the meantime, the children were to be placed in the custody of the applicant’s parents. The applicant applied to the Court to this effect. On 7 September 2018, a consent order was made in these terms:

The children of the marriage be placed in the case and custody of the Applicant's parents, Mr Colini Lutui and Mrs Vika Lutui, whilst the Applicant is abroad.

[7] The respondent decided that she might also move to Nauru to be close to her children. She travelled with the applicant to Nauru in September 2018. There was no intention to reconcile. The applicant provided support for the respondent in Nauru to help her settle there, but after a short time she returned to Tonga.

[8] The three children travelled to Nauru in December 2018 and the applicant’s mother went also, to assist in their care.

[9] In January 2019, CL expressed the desire to return to Tonga to be with his grandfather and attend Tonga High School. He travelled back to Tonga on 20 January 2019. The other two children remained in Nauru with the applicant.

[10] On 2 May 2019, the respondent made an urgent ex parte application for custody of CL. The application was premised on the assertion that the applicant had taken the other two children of the marriage to Nauru to deprive the respondent of access to them. The respondent also asserted that she had travelled to Nauru to reconcile with the applicant, that the arrangement for the applicant’s parents to have custody was a temporary one, that she was enjoying only limited access to CL, that the applicant had separated the children of the marriage and, that it was in CL’s interests to be with her.

[11] The application was assigned to Niu J. The application had not been served on the applicant or the applicant’s parents. The file reveals that on 9 May 2019 the Judge issued a direction that the application would be heard at 2 p.m. on 10 May 2019. A message that the applicant’s parents should come to Court was conveyed by telephone to the applicant’s sister. The applicant’s parents had no idea what this was about.

[12] The applicant’s mother enquired about the matter at the Court on 10 May 2019. She was told that it concerned the custody of CL and that there were no documentation in relation to it. In the afternoon of 10 May 2019, she appeared before Niu J and she was given a copy of the respondent’s application and told to return to Court the following Monday when a decision would be made.

[13] A copy of the application was forwarded to the applicant by his sister on 11 May 2019. The applicant prepared a notice of opposition, which was filed on 13 May 2019.

[14] On Monday, 13 May 2019, the applicant’s parents appeared before Niu J. After hearing from them, Niu J advised them that they would be informed of his decision.

[15] Later that day, Niu J issued a direction notice stating that, as he had overlooked a requirement in s. 15 of the Guardianship Act to ascertain the wishes of CL, CL was to be brought to him at 11 a.m. on 14 May 2019. This was conveyed to the applicant’s parents by telephone. They returned to the Court with CL on 14 May 2019. CL spent time with Niu J.

[16] On 17 May 2019, Niu J issued his ruling. I will summarise his findings later.

[17] On 18 May 2019, the applicant made his ex parte application to set aside the Order. He complained that he was not served with the respondent’s application, that the respondent’s application was effectively dealt with as an ex parte application to which he had no opportunity to respond, that the factual findings of Niu J were made on false and incomplete evidence which led to “unnecessary and unfair criticism” of him and, that the Judge was wrong to find that CL wanted to live with the respondent.

[18] I issued a minute requiring service of the application on the respondent and on the applicant’s parents. I also required any opposition to the application to be filed by 29 May 2019. I set the application down to be called before me on 6 June 2019.

[19] At the hearing on 6 June 2019, Mr Tu’utafaiva appeared for the applicant. The respondent appeared in person. The respondent had not filed any opposition to the application. I decided to give her more time to oppose the application, as I understood she would. I issued a further minute that day, timetabling the filing of her opposition and any further evidence from either party concerning the appropriate care arrangements for CL. I set the application down to be heard on 10 July 2019. I also directed that CL was to be available so that I could speak to him and ascertain his views. As the respondent had custody of CL, that necessarily meant that she was obliged to bring CL to Court.

[20] Further affidavits of the applicant and his parents were filed. The respondent filed neither an opposition to the application nor any affidavit/s. It now appears that the reason for that was that she was removing CL from the jurisdiction.

The ruling

[21] In his ruling, Niu J has accepted the evidence of the respondent in its material respects, specifically, that the applicant had promised to return the children to Tonga but was, in breach of his promise, refusing to let them come back and, that the arrangement to grant custody of the children to the applicant’s parents was temporary so that the parties could attempt reconciliation. He then set out his understanding of the respondent’s circumstances, and specifically that she was employed, had a home and a vehicle and that the “temporary arrangement” made for the children’s care was no longer necessary. The Judge noted the applicant’s opposition and the circumstances of his parents.

[22] The Judge then referred to the Convention of the Rights of the Child and to the rights of children to be cared for by their parents and not to be separated from their parents against their will. He referred also to the requirement in s. 15 of the Guardianship Act, requiring the Court in custody and access proceedings to ascertain the wishes of the child. He concluded that CL’s preference was to live with the respondent. He then went on to state:

In accordance with his rights, this child has the right to be with his mother and he wants that right, but it is being impeded by the parents themselves. Both parents are bound by law to give the child that right and to maintain it by refraining from infringing that right.

[23] The Judge concluded:

I am required to take account of the wish of the child, as I see fit. It is obvious that he loves and misses his mother when he is not with her and it is in his best interest and in his welfare that he be with her.

Discussion

The power to review the Order

[24] The applicant says that he was not served with the respondent’s application. In seeking to set aside the Order he relies upon O. 13 Rule 7 Supreme Court Rules which provides:

(1) A person who was not served with a copy of an application notice before an order was made under this Order, but claims to have been adversely affected thereby, may apply to have the order set aside or varied.

(2) An application under this rule must be made by application notice within seven days after the date on which the order came to the applicant’s attention.

(3) The Court may set aside or vary any order on such terms as it thinks just.

[25] The respondent made her application on an ex parte basis but there were no grounds to do so (se O. 13 Rule 4 Supreme Court Rules). Assuming the Judge intended to deal with the matter on-notice (as I think he did), the applicant was entitled to be served with the application, as he is both CL’s father and a named party.

[26] The process to be followed on such applications is set out in O. 13 Rule 5 of the Supreme Court Rules. It was not followed. The respondent did not serve the applicant with her application nor did the Judge convene a conference after service “to determine the future conduct of the application” as required by O. 13 Rule 5(2). Prior to service, the Judge jumped directly to the stage of setting the case down for hearing on its merits.

[27] An argument could be mounted that in filing his notice of opposition the applicant waived any objection concerning the lack of service. That is not the case as the applicant expressly took this objection in his notice of opposition, as well as highlighting the impossibility of him appearing or being represented at the hearing, when he stated:

The Respondent, is unable to make an appearance, as he is abroad and is unable to make other arrangements in relation to appearance, given that the application was not served to him, he only became aware of the application and contents on Saturday, 11 May 2019, and the matter has been set down to be heard today.

[28] The waiver point is moot in any event. Under s.13 of the Guardianship Act, the Court has the power to vary or discharge a custody order at any time on the application of any person affected, which clearly includes the applicant. I have the power to review the Order under O. 13 Rule 7 and under s. 13.

The reasons to review

[29] The applicant’s primary objection is that he was deprived of his right to a fair hearing. It is fundamental that persons coming before the Courts are entitled to a fair hearing. Before the rights (or legitimate expectations) of any person are adversely affected by a decision of the Court, they are generally entitled to demand three things. First, an opportunity to show why some action that is adverse to their interests should not be taken against them: second, a proper opportunity to put before the Court everything that can reasonably be said in their favour: third, an unbiased decision maker.

[30] In this case, there is no allegation of bias. I am concerned with the first two demands which together are referred to as the “hearing rule” or audi alteram partem. Recently, in R v Heimuli (Unreported, Supreme Court, AM 8 of 2019, 28 June 2019) Cato J said (in a criminal context):

This appeal raises a breach of the audi alterem partem rule, a limb of natural justice, that requires courts and administrative tribunals to afford an affected or interested party an opportunity to disabuse the trier of fact of some adverse or injurious matter that has been raised by the other party to a dispute. It is a very important rule and aspect of procedural justice intended or aimed at ensuring a decision maker is properly informed of relevant material and requires a decision maker to hear both sides of any dispute and not act on a material which is damaging to the other party without that party being first given the opportunity to make representations about it Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) and re Erebus Commission [1983] NZLR 662.

[31] The applicant became aware of the application on the weekend of 11-12 May 2019 and Niu J conducted the hearing on 13 May 2019. The applicant made it clear he could not present his case in the time available. He had no opportunity to appear at the hearing, no reasonable opportunity to instruct Counsel and no reasonable opportunity to file evidence in opposition to the application. The hearing should not have proceeded in those circumstances.

[32] There is nothing on the file to explain why the application was disposed of with such unusual haste. CL was receiving proper care in the custody of his grandparents and the respondent had delayed in making her application. Despite knowing of CL’s return to Tonga in January 2019, the respondent had waited until May 2019 to file her application; a plain indication of a lack of urgency. It is also not clear why the Judge did not take the usual course of calling for a Guardian ad Litem report (or, consider whether he should do so) before making a decision.

[33] The applicant is not required to show that had he been provided with a fair hearing the result would have been different but, I am satisfied that it would. The Judge made findings critical of the applicant, but he heard just one party’s point of view. He was not referred to the documents filed to obtain the consent order of 7 September 2018, from which it would have been plain that the respondent’s evidence, that the applicant had taken the children to deprive her of access to them, was not correct. Specifically, the notice of application stated that the applicant was commencing employment in Nauru and the children would join him there “after the necessary arrangements for visas, accommodation and education have been finalised.” It goes on to state that the respondent was also leaving Tonga and that she “agrees with the terms of the order sought” and did not seek a hearing.

[34] The applicant and his parents have now filed affidavits. They provide detailed evidence concerning CL’s nature and upbringing, as well as the personal circumstances of the applicant, the respondent and the applicant’s parents. From what is before me (the respondent having chosen not to be heard), I am satisfied that CL has been raised in the home of his grandparents, that the applicant’s family have been prominent in raising him, that he has a particularly close relationship with his grandfather, that his grandparents provide him with a safe and secure home and that the applicant provides for his financial needs. I am also satisfied that CL returned to Tonga to be with his grandfather and attend the school of his choice.

[35] The respondent’s circumstances are not as were presented to Niu J. In particular she is not employed in the Attorney General’s office and is not financially secure. I am also satisfied that the respondent’s application contained incorrect assertions and, in particular, the children were not taken to Nauru to deprive her of access and she did not travel to Nauru with a view to reconciling with the applicant.

[36] Of concern is that, on the information that is before me (that I have no reason to doubt), the respondent has now left the jurisdiction, taking CL with her. If this is so, then she has removed CL from the country of his birth, his family, his friends and his school. I can see no justification for her having done so and such drastic action was not in CL’s best interests.

[37] I am satisfied the Order should be set aside with the custody of CL being returned to the applicant. There is utility in doing so (despite the removal of CL), in the expectation that the applicant will be able to take action through the Courts of Samoa to return CL to Tonga.

Result

[38] The Orders that I make are as follows:

(a) The Order of Niu J of 19 May 2019 granting custody of CL to the respondent is discharged.

(b) Custody of CL is granted to the applicant.

(c) Upon the return of CL to the applicant’s custody, the respondent is to receive reasonable access to him.

(d) The applicant is entitled to his costs to be fixed by the Registrar.

[39] I prohibit the publication by any person in news or social media of any details of this ruling which may lead to the identification of CL

[40] Finally, the respondent is a Law Practitioner and Officer of the Court. One can infer that she removed CL from Tonga intending to render nugatory any ruling of the Court. If that is the case, she has undermined the processes and dignity of the Court. I refer this ruling to the Tonga Law Society for investigation under s. 20(1) of the Law Practitioners Act.

O.G. Paulsen

NUKU’ALOFA: 11 July 2019 LORD CHIEF JUSTICE