M. M v L. K [2016] WSFC 3 (2 September 2016)

FAMILY COURT OF SAMOA
M.M v L.K [2016] WSFC 3

Case name:	M.M v L.K
Citation:	[2016] WSFC 3
Decision date:	02 September 2016
Parties:	MAINTENANCE OFFICER acting on behalf of M.M, man of Fasitoo-Uta (Applicant) and L.K, Woman of Leauva’a (Respondent)
Hearing date(s):	20 July 2016
File number(s):
Jurisdiction:	Maintenance
Place of delivery:	Family Court of Samoa, Mulinuu
Judge(s):	Judge Leiataualesa D M Clarke
On appeal from:
Order:	The application is dismissed.
Representation:	Maintenance Officer for Applicant Respondent Self-represented
Catchwords:	Custody orders – application for variation of maintenance – welfare of children
Words and phrases:
Legislation cited:	Maintenance and Affiliation Act 1967 s.12A Infants Ordinance 1960 s.3
Cases cited:	Wagner v Radke [1997] WSSC 6
Summary of decision:

IN THE FAMILY COURT OF SAMOA

HELD AT MULINUU

BETWEEN:

MAINTENANCE OFFICER acting on behalf of M.M, man of
Fasitoo-Uta
Applicant

A N D:

L.K, Woman of Leauva’a
Respondent

Representation:
Maintenance Officer for Applicant
Respondent Self-represented.

Hearing: 20 July 2016
Decision: 02 September 2016

RESERVED DECISION OF JUDGE CLARKE

The Application:

1. By an undated Application for Variation of Maintenance Order first mentioned on 14 April 2016 supported by the Applicant’s affidavit dated 13 April 2016, the Applicant seeks a variation of Custody Orders dated 16 July 2015 (“the Custody Orders”) in respect of the children named in paragraph 2 made by consent of the parties.
2. The Applicant is the natural father of three (3) children, T.T, a female born on the 13^th March 2001, E.T a female born on the 17^th July 2003 and T.T, a male born on 11 June 2006 (collectively referred hereafter as ‘the children’). The Respondent is the sister of the mother of the children, or their maternal aunty. The natural mother of the children died in 2010.

The Consent Orders:

3. The Consent Order terms can be summarised as follows:
   1. The custody of the children granted to the Respondent with reasonable access to the Applicant;
   2. The Applicant allowed to visit the children at anytime he wishes at Leauva’a or wherever they may be staying and that the Respondent, her husband, children, relatives and agents would permit the Applicant full access to the children without hinderance; and
   100. The children are free to visit the Applicant at anytime as they wish.

The Law:

4. The application for the variation of Custody Orders is brought under the provisions of the Maintenance and Affiliation Act 1967 (“the Act”). The power to make custody orders are set out in section 12A which provides as follows:

“12A. Power of the Court to make custody order – (1) The Court may make such orders as it considers appropriate in relation to the custody of a child.

(2)An order under subsection (1) may be made even if a maintenance order has not been made for the child who is the subject of the order.”

5. In determining issues of custody, section 3 of the Infants Ordinance 1960 provides:

“3. Principle on which questions relating to custody, etc., of infant to be decided – Where in any proceeding in any Court the custody or upbringing of a child is in question the Court in deciding that question shall regard the welfare of the child as the first and paramount importance.”

6. In Wagner v Radke [1997] WSSC 6; Misc 20701 (19 February 1997), His Honour Chief Justice Sapolu dealt with the welfare of a child as the first and paramount interest and said:

“Section 3 of our own Infants Ordinance 1961 provides that in custody proceedings, the Court shall regard the welfare of thld as of the firs first and paramount importance. What is in the welfare interest of the child is a question of fact to be decided in the light of all the ant cstances: J v C [1969] UKHL 4; [1970] AC 668, per Lord MacDermott at pp 710-711; Re L (minors) [1974] 1 All ER 913, per Buckley LJ at pp 925 - 926.”

The Evidence:

7. The Applicant was the sole witness in support of his application. His evidence was that he and his late wife had resided in American Samoa and returned to Samoa in 2004. They moved and lived with her family at Leauva’a. Two of their children were born in American Samoa and the third was born in Samoa. When the children’s mother passed away in 2010, they continued to live at Leauva’a. In 2014 however, the Applicant’s mother in law passed away. After her death, the Applicant moved to Savaii, according to him, in December 2015. The children remained with the Respondent. A dispute arose over the children and their custody and the Applicant then filed for custody in about March or April 2015. Those proceedings resulted in the making of the Consent Orders by the Family Court.
8. It seems that the Applicant may be mistaken about the year he moved to Savaii. This is because it is unlikely that he would have filed for custody of the children while he was still living with the Respondent at Leauva’a. It may be that he moved to Savaii in December 2014. In any event, this discrepancy is not critical to the outcome of the Applicant’s application.
9. The Applicant says that circumstances have so changed that the Custody Order should be varied. Having heard his evidence, the changed circumstances alleged relates to the safety of the children. He said that he was told that some kids at the Respondents home became drunk and went into his children’s room while they were asleep. He confirmed this as the sole basis for his application and that no Police complaint was lodged about the alleged incident.
10. He said that there is a death benefit payable for the children. As best as the Court could understand, the payment is a death benefit to the surviving children of his deceased wife connected to her former employment in American Samoa. He claimed the benefit amounts to USD$700 per child, USD$2,100 in total per month and payments started in July 2010. The payments were first paid to him but are now paid to the Respondent. While he was receiving the death benefits, he confirmed that he ran up some debts at local shops, purportedly to feed the children. Other sums of the death benefit he said were used to pay electricity, water, school fees, food for the children and small payments to the Respondent and her mother.
11. The Applicant confirmed that death benefits were suspended from approximately March to November 2015, he said, by the Respondent. In Christmas 2015, he arranged payment to himself of the suspended payments amounting to approximately ST$8,000.00. He said he paid $1,700 to the Respondent, bought a $200 television and $100 to the Respondent’s husband. He said the balance of the money (approximately $6,000.00) was used to pay for Christmas presents for the children, clothes and used in Savaii. He confirmed in evidence having had care of the children during Christmas and New Year last year and confirmed that when he had the children during this time, he had left them for a period with his brother and his family.
12. The Applicant shares a small one bedroom fale apa at Savaii. The property includes a faleo’o. He lives there with his father, uncle, new de-facto wife and their 2 children. He and the de-facto live in the faleo’o. He has no car. He said in evidence he earns $200 - $500 per week from his plantation. He said the children would reside at the fale apa which has the one bedroom. The children would go to school across the road at the Sapapali’i school.
13. The Applicant acknowledged the good care of the children by the Respondent at Leauva’a.
14. The Respondent gave evidence as did her younger sister I.A. The evidence of T.P was not relevant.
15. The evidence on behalf of the Respondent’s is that the Respondent has genuine love and affection for the children. The children have been living with her family at Leauva’a since the Applicant and his late wife returned from American Samoa in 2004. The children currently attend St Mary’s College Apia and St Joseph’s, Leauva’a. The children have been attending these schools for a long period of time and their school reports are very good.
16. The Respondent resides at Leauva’a with her husband, her 5 children and the Applicant’s 3 children. The property has 3 buildings. One has 2 bedrooms, the second has one bedroom and the third is a fale palagi with 4 bedrooms.
17. The death benefit for the children was arranged by I.A. Payments made to the Applicant were stopped by I.A as she was concerned with the payments paid to the Applicant and where the funds were used, allegedly on expenses unrelated to the children. Her evidence, which I found credible and clear is that the death benefit amounts to USD$355 for each of the two older children. Presumably, this is due to the fact these two children were born in American Samoa. This amounts to USD$710 per month.
18. The evidence on behalf of the Respondent was that in December 2015, it was agreed that the children would go to Savaii to spend Christmas with the Applicant and return to the Respondent for New Year. Contrary to this arrangement, the Applicant retained the children until after New Year period without communicating with the Respondent.

Discussion

19. The evidence clearly establishes that the Respondent has a deep and unreserved love for the children. The Applicant himself acknowledges that the children are well cared for by the Respondent. This love is also reflected by the fact that the Respondent and her sister obtained the death benefit for the children to secure financial support for them for their upbringing and welfare following their mother’s passing and had arranged for these to be paid to the Applicant over a number of years.
20. The homes at Leauva’a are substantially superior to that at Sapapali’i. Leauva’a has been the two older children’s home for most of the lives and for the youngest, for all of his life. I accept their school reports are good and the children are settled both at home and at their schools.
21. The Applicant claimed an income of between $200 - $500 per week. The income was however more “anticipated income” as opposed to firm income that he has been receiving on a regular basis.
22. I accept the evidence of I.A that the amount of the death benefit is USD$710 per month for both children to that of the Applicant. I also accept the evidence on behalf of the Respondent, in part supported by the Applicant himself, that when he received the death benefit, he had nevertheless had numerous debts with shops and difficulties meeting the children’s expenses. Given the amount of the benefit paid, this understandably raised concerns with the Respondent over the Applicant’s use of that money.
23. The Applicant asserts as his sole ground for variation of the Consent Orders that the variation should be made due to a change in the circumstances. The Applicant has categorically failed to demonstrate that circumstances have changed at all to warrant a variation to the Consent Orders. The only change in circumstances asserted by the Applicant was that drunk kids went into the children’s room while they slept. There was no evidence at all to support this allegation.
24. In custody proceedings, this Court must have regard to the welfare of the children as of the first and paramount importance. Having heard the evidence, I am satisfied that the children live in a very loving and caring family environment. I am satisfied that the home in which they live for the two older children, known to them for most of their lives and for the youngest, the only home he has known, is of a much higher standard and more suitable for their upbringing. They are all also doing very well at school and are happy both at home and at school. The uprooting of the children from Leauva’a in the circumstances is not in their best interests and their welfare is best served by remaining at Leauva’a. Furthermore, circumstances have not changed so as to warrant a variation to the Consent Orders agreed to by consent of the parties on the 17 July 2016.
25. At the conclusion of the hearing, I met with each child individually. Those meetings confirmed the conclusions that I have reached.

Result:

26. For the reasons aforementioned, the application by the Applicant to vary the Consent Orders dated 16 July 2015 is dismissed.

JUDGE LEIATAUALESA D M CLARKE