BM v LG [2013] WSDC 7 (21 October 2013)

IN THE DISTRICT COURT OF SAMOA
B.M v L.G [2013] WSDC 7

Case name:	B.M v L.G
Citation:	[2013] WSDC 7
Decision date:	21 October 2013
Parties:	B.M (Applicant) v L.G (Respondent)
Hearing date(s):
File number(s):
Jurisdiction:	Family
Place of delivery:	The District Court of Samoa, Mulinuu.
Judge(s):	Judge Tafaoimalo Leilani Tuala-Warren
On appeal from:
Order:
Representation:	K.Kruse for the Applicant S. Wulf for the Respondent
Catchwords:	divorce – custody
Words and phrases:	child access arrangements – welfare of child
Legislation cited:	Infants Ordinance 1961 s 3; Care of Children Act 2004(NZ).s 5;
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER
of the Infants Ordinance 1961

Between
B.M of Vaoala, Medical Doctor
Applicant

AND

L.G of Lelata, Assistant Manager
Respondent

Counsel:
K.Kruse for the Applicant
S. Wulf for the Respondent

Hearing Date: 21 October 2013

Decision of DCJ Tuala-Warren

Introduction

1. On 21 October 2013 the Supreme Court dissolved the marriage between the parties and granted to the Respondent custody of the children reserving to the Applicant reasonable access. The children are:
   • T.S , born 22 June 1997;
   • M.L, born 28 February 2000;
   • S.D, born 6 July 2001; and
   • O.G, born 21 November 2008.
2. T.S is 16 years old and therefore is not subject to any orders given by this Court.
3. The Parties are before this Court because they cannot agree on the terms of such access. Father's application for definition was heard on 21 October 2013.
4. Reasonable access provides for the parents to agree on convenient, reasonable and appropriate times for a parent to share time with the child/children. It allows the parents to make their own flexible arrangements. This kind of arrangement works best when the parents have a positive relationship and can work out matters for the child/children together.
5. However in this case, the parties cannot agree on reasonable access. Therefore the Court will specify access in a Court Order. This Court Order will provide regular set times that the Applicant may have the children.

Background

6. Access has been regular since the parties separated in 2012. Access for the Applicant has been at least once a week. The uncertainty according to the Applicant is having to ask the Respondent for access and never being sure whether it will be granted or not. Access has usually been on a Friday afternoon from after school until whenever the Respondent gets back from work or back from her friend’s house where she will stay to allow the Applicant to spend time with the children.
7. The children have been on weekends away with the Applicant on the condition that the Applicant and the children stay at the Applicant’s brother’s home and not go to the Applicant’s current residence where he lives with his new partner. The Applicant’s weekends away with the children ceased some time ago.

Applicant’s Access

8. The Applicant believes that access should be;
   1. Picking the children up from school at least 3 times a week and spending the afternoon with them at the place of his choice;
   2. The children to spend every second weekend with the Applicant at a place of his choice; and
   100. The children to spend at least one week of the school holidays with him and longer during the Christmas holidays;
   4. To be able to take his children to visit his elderly mother in Savaii.
9. The Applicant would like some certainty around access to his children and believes that this can be achieved through the above conditions.

Respondent

10. The Respondent concedes that it is in the best interests of the children to see their father and have contact with him. She has no issue with weekend visits and holiday visits as long as they do not occur at the Applicant’s current residence where he lives with his new partner. The Court acknowledges that because of the circumstances of the breakdown of the marriage, the Respondent is having difficulty in accepting that the Applicant is in a new relationship. Sadly that is a reality that the Respondent must accept if the children are to have any hope of accepting that their family unit will never be the same. In time the Respondent herself may enter into a new relationship and that will be another period of transition for the children.
11. One of the concerns of the Respondent is the stability of the children especially with the exams approaching. Therefore she prefers for the weekend visits to be at home so that the children do not have to move. She has offered to move out of her home every second weekend to allow the Applicant to move in and have his weekend with the children.
12. The Respondent is also very supportive of the children visiting the Applicant’s mother in Savaii.

Relevant Law

13. The welfare of the child must be the first and paramount consideration when considering the custody, guardianship, contact with and upbringing of a child. This is stated in section 3 of the Infants Ordinance 1961. Guidance on what is the ‘welfare of the child’ can be garnered from the Care of Children Act 2004(NZ). Section 5 of the NZ Act states the principles that are relevant to the child’s welfare and best interests;

(A) the child’s parents and guardians should have the primary responsibility, and should be encouraged to agree to their own arrangements, for the child’s care, development, and upbringing:

(B) there should be continuity in arrangements for the child’s care, development, and upbringing, and the child’s relationships with his or her family, family group, whānau, hapu, or iwi, should be stable and ongoing (in particular, the child should have continuing relationships with both of his or her parents):

(C) the child’s care, development, and upbringing should be facilitated by ongoing consultation and co-operation among and between the child’s parents and guardians and all persons exercising the role of providing day- to-day care for, or entitled to have contact with, the child:

(D) relationships between the child and members of his or her family, family group, whānau, hapu, or iwi should be preserved and strengthened, and those members should be encouraged to participate in the child’s care, development, and upbringing:

(E) the child’s safety must be protected and, in particular, he or she must be protected from all forms of violence ...:

(F) the child’s identity (including, without limitation, his or her culture, language, and religious denomination and practice) should be preserved and strengthened.

Application of the Principles

14. When applying these principles to the case before the Court, it is important to note the following;
    • This Court Order should not discourage the parties from agreeing to their own arrangements in due course, for the children’s care, development, and upbringing;
    • The children must have continuing relationships with both parents and family, including grandparents;
    • There should be ongoing consultation and co-operation between the parties. This is particularly important here so that the eldest child who is not subject to these Orders is included in any access arrangements and can voluntarily attend with her younger siblings;
    • The relationships between the children and members of their family should be preserved and strengthened; and
    • The children should not be exposed to any form of violence, verbal or physical as has been the case in the past with verbal abuse between the parties.

Result

15. Both parties acknowledge that it is in the welfare of the children to spend time with their father. The Applicant should not have to stay at the Respondent’s home to enjoy his weekend access. It is not necessary for the Respondent to have to move out of her home every second weekend. This is impractical and cannot be sustained. The Applicant can have the children with him at a place of his choice. At some point, the children will need to face the fact that their father has a life apart from their mother. The Applicant can ensure that there is a stable study environment for the children to study for the upcoming exams. It is also open to the Applicant to postpone his weekends away with the children until the exams are over.
16. It is important that the children are encouraged to see their father at the same time. Even though the eldest child is not subject to these Orders, she should be encouraged to accompany her younger siblings when they see their father. The children should not be separated.
17. Relationships between the children and other family members should be preserved and strengthened and therefore visits to see their grandmother are encouraged when the Applicant has the children for the weekend.
18. The Court has no doubt that both parties love and want what is best for the children. In this case, personal issues may have caused the consideration of what is in the welfare of the children to take a back seat to what the parties want. It is important to always be guided by the welfare of the children when making decisions which touch upon their upbringing, care and development. In moving forward, the Court encourages the parties to consult and co-operate for the sake of the children.
19. With due regard to the welfare and best interests of the children and the findings of this Court, the following orders are now made:
    • During school term: the Applicant can pick the children up from school as follows;
      • During the weeks when the Applicant is not with the children for the weekend, the Applicant can pick up the children at least three times a week and spend the afternoon with them at a place of his choice, making sure they are home for dinner at approximately 7pm, or as otherwise agreed by the parties. The Court orders that these days be Monday, Wednesday and Friday; and
      • During the weeks when the Applicant has the children for the weekend, he can pick them up from school on Monday and Wednesday and spend the afternoon with them, making sure they are home by 7pm or as otherwise agreed by the parties;
      • The children are to spend every second weekend with the Applicant at a place of his choice. During the Applicant’s weekends with the children, the Applicant will pick up the children on Friday at 5pm and the Respondent will pick up the children on Sunday at 5pm. The parties will inform each other as to where the children will be at these times;
      • The children are to spend at least half of all school holidays (including Christmas holidays) with the Applicant. The Applicant will spend the first half of the school holidays with the children commencing on Saturday at 10am and ending on Saturday at 5pm. The children will then spend the second half of the school holidays with the Respondent so that they can settle back in time for school. The weekend access of the Applicant during the school term will then commence on the first weekend of the school term. The same pick up arrangements apply- the Applicant will pick them up at 10am on Saturday to commence their holiday with him and the Respondent will pick them up at the end of their holiday with their father at 5pm Saturday;
      • The Applicant is able to take his children to visit his elderly mother in Savaii during his weekends with the children; and
      • The parties are free to make their own arrangements which differ from these Orders provided both parties agree.
20. The Court thanks Counsel involved in this matter for bringing to the fore the most pertinent issues for consideration by the Court.
    

______________________________________
Judge Tuala-Warren