IN THE HIGH COURT OF TUVALU

FAMILY JURISDICTION

CASE NO: 39/03

FAALO LIAI
Appellant

v

PUATALO PASAMA
Respondent

James Duckworth for appellant

Hearing: 25 September 2003
Judgment: 25 September 2003
Reasons: 30 September 2003

Judgment

This is an appeal against the refusal by the Resident Magistrate to grant an interim order for the custody of a child the appellant claims is his illegitimate daughter.

I allowed the appeal and said I would give brief reasons later. I now do so.

The appellant had a relationship with the second respondent, Mutie Pasama, in about 2000 and she had a daughter, Ivy, in July 2001. The appellant claims to be the father and tells the Court that Mutie acknowledged that fact. Both he and Mutie are Tuvaluan. They met and lived together in New Zealand and Ivy was born there. The appellant is a seaman and he returned to sea to earn money for the two of them. Mutie is still abroad.

However, after some time, he realised their relationship had changed and then discovered that she was pregnant by another man. When the appellant asked, she assured him that this second child was not his but that of her new partner.

The appellant returned to Funafuti in early 2003 and has been here since. He deposes that Mutie had agreed to send the girl to him but she did not do so and eventually he heard Ivy was here with Mutie's sister, the first respondent and arrangements were being made for her to be adopted. The appellant was not willing to allow this and intervened.

He then made an application for custody to the court having heard that the sister was planning to remove the child from the jurisdiction. It appears that, on the day the child was to leave Tuvalu, 9 June 2003, the Resident Magistrate heard the application.

He made the following order:

"Having interrogated the applicant, I find out that he had failed to comply with the following conditions of the Native Lands:-

1. Applicant did fail to acknowledge paternity of the child which contrary to section 20(2) (ii) Cap 22

2. The child is still under the age of 2 years in which she should be under the care of the mother section 20(2) (1) Cap 22

3. The child is holding a foreign passport.

The application for the child, Ivy, not to leave Tuvalu is now declined. The father may apply for custody of his child once the child has reached the age of two years."

The application had been made under the Custody of Children Act, Cap 20. Section 3(1) of that Act allows a court to make any order regarding the custody of any child as it thinks fit "having regard to the welfare of the child and to the conduct and wishes of the mother and father". Subsections (2) and (3) then provide:

"(2) Before making a custody order the court shall make a full enquiry into all the circumstances and shall call for any evidence or report it may in the interests of justice consider necessary.

(3) In exercising jurisdiction under this section the court shall regard the welfare of the child as the first and paramount consideration and shall not take into consideration whether from any other point of view the claim of the father is superior to that of the mother or the claim of the mother is superior to that of the father."

This proceeding was unfortunate in many aspects. An application such as this should normally only be heard with both parties present. If the court is not able hear from both sides as was the case here, it is even more important to obtain reports as provided for in section 3(2). The court must never lose sight of the fact that the welfare of the child is the paramount consideration. In order to ascertain that the magistrate should have sought further independent information.

The court is also directed by section 3(3) not to decide it on the basis of the relative strengths of the parents' claims. It is clear from the reference in the magistrate's order to the importance of the child attaining 2 years old, that he allowed that to be a major part of his determination.

His decision that the applicant had failed to acknowledge paternity is not accepted by the appellant. Whether or not that was a correct statement of the facts as he found them, it is a fact that should have been checked by asking the mother before reaching a conclusion. His decision on this is flawed by the final sentence that the father may apply for custody when the child is 2 years old. If his paternity is in doubt, no such issue can arise.

Finally, he knew the aim was to remove the child from the jurisdiction of the court. Once that is allowed, the appellant would have little chance of taking up any of his rights. That, in itself, should have alerted the magistrate to the dangers of deciding too quickly. No court should be cajoled into a quick decision because of an impending departure and this is all too clearly what happened here.

The result is that the child has been allowed to leave. Unless she returns to the country, the appellant is unlikely to be able to claim any right in relation to her custody. He was interested enough to bring this application but the child is now with the parent whose interest was such that she apparently offered the child for adoption. What is more, even though the magistrate referred to the father's right to the child when it reached two, he failed to allow for the fact the date was only a month away. That again would have been a good reason for delaying the matter until he could obtain sufficient information to be able to ascertain what would be the child's best interests.

As I have stated, the appeal is allowed. The magistrate's order is set aside even though it is likely, as a result of the magistrate's errors, to be an exercise in futility.

Dated this 30th day of September, 2003

THE COURT.