Sharma for the Applicant/Appellant
Dr M.S. Sahu Khan for the Respondent
DECISION
This is an application to stay, pending appeal, the following Orders made by Byrne J. in the High Court on 3rd August, 1993 -
"(1) The Respondent is to return the two children, namely, RAJIV KUNNAL SINGH and REETAL SHIVANGI SINGH also known as RANI to the custody of the Applicant by attending before the Deputy Registrar of the High Court at Lautoka on Wednesday 4th August, 1993
at 9.30 a.m. and then and there delivering the said children to the Applicant.
(2) The Respondent is to deliver to the Applicant at the place aforesaid two open-dated single economy class air tickets from Nadi/Fiji
to Wellington/New Zealand in the names of the two children and all other necessary travel documents including passports to enable
the said children to travel from Fiji to New Zealand.
(3) That the said children accompany the Applicant to New Zealand on the earliest possible date hereafter.
(4) That the Respondent pay the costs of these proceedings including the cost of a return economy class air ticket from Nadi/Fiji
to Wellington/New Zealand for the Applicant.
(5) That the Respondent reimburse the Applicant in the sum of $F90.00 being a taxi fare incurred by her in travelling to Suva on or
about 27th of December 1992."
The Applicant/Appellant before me is the father of the children involved and he was the Respondent in the Court below. The mother
of the children was the original Applicant, but she is now the Respondent in these proceedings.
Immediately after the above Orders were pronounced a verbal application was made on behalf of the Appellant to stay the whole of the
Order. The learned judge granted partial stay as follows -
"Stay granted on parts 3, 4 and 5 of the order until 3.00 p.m. on 6th August 1993 on the Respondent undertaking to file and serve
Notice of Appeal by 5th August 1993 and to apply to the Resident Justice of Appeal for a stay on all parts of the order no later
then 3.00 p.m. on 6th August 1993.
Liberty to apply to both parties reserved."
These latter Orders were complied with. A Notice of Appeal was filed on 5/8/93 the ground of appeal being as follows -
"1. THAT the learned judge erred in law in not setting aside the order granted ex-parte dated the 3rd day of November 1992 and 5th November
1992 in view of the uncontroverted evidence that the said orders were obtained by deliberate concealment of facts relating to a prior
application in the High Court at Lautoka.
2. THAT the learned judge erred in failing to call for a Welfarert on the the Children relating to their condition since arrival in Fiji and particularly in view of the passage of the
time fre hearing of the application and the delivery of the decision by the learned judge.
3. THAT the learned judge erred in failing to accede to Appellants request that the children's' views on the question of their return to
New Zealand should be heard by the learned judge .
4. THAT the learned judge erred in law in placing reliance on the order of the Nadi Magistrates Court dated 4th November 1991 when the said
order was invalid and the Learned Judge should have found it to be invalid.
5. THAT the learned judges decision is unreasonable and against the weight of the evidence."
A motion for stay of proceedings was filed the same day by the Appellant asking that Byrne J.'s Order of 3rd August, 1993 "be stayed and/or set aside pending the activation of this appeal or until the courts otherwise order". This motion together with the supporting affidavit was served on the Counsel for the Respondent Dr Sahu Khan. Because of the urgency,
the application was heard on 6 August, 1993.
After hearing the parties I then made the following Orders -
"1. THAT leave be granted to the Appellant to file and serve supplementary affidavit and written submissions on or before 11th
August, 1993;
2. THAT the Respondent is to file and serve an affidavit in reply together with written submissions on or before 16th August 1993;
3. THAT the Respondent do ensure that the two children continue attending the school;
4. THAT the Appellant do have access to the two children at Nadi Police Station every Saturday and Sunday between 10a.m. to 12.00
noon with effect from Saturday 7th August 1993;
5. THAT the Interim stay granted on 3rd day of August 1993 by Mr Justice Byrne BE EXTENDED until the delivery of the decision on this
application.
6. THAT liberty be granted to either party to apply.
7. THAT the decision will be given on notice unless this Court requires further oral arguments."
I now have had the benefit of reading the affidavits and written submissions filed by both sides. Furthermore I also have before me
a Report of the Welfare Officer Nadi, received on 27 August 1993. A copy of the Report has been supplied to both sides and opportunity
given to them to make submission or request evidence on oath.
The parties are Fiji citizens. They were married in Fiji in 1983. Rajni the daughter born on 1 July 1983 is now 10 years of age and
Rajiv the son born on 3 March 1986 is now 7 ½ years old. The parties voluntarily migrated to N.Z in 1986 with their 2 children.
Both children were enrolled in Ngaio Primary School in Wellington in 1991. Then later the same year the parties separated. On 13 August
1991 the Appellant brought the 2 children to Fiji without the knowledge, approval or consent of the Respondent.
On 21 August 1993 the Respondent obtained from the Family Law in Wellington an interim custody Order in respect of the children. The
Respondent travelled to Fiji and on 2 September 1991 obtained consent orders from the Nadi Magistrate's Court whereby, inter alia,
the Respondent was to have the custody of the children and be entitled to take them to N.Z with the Appellant following later on.
For various reasons the Nadi Magistrate's Court orders of 2/9/1991 were not complied with and the Respondent who had to go to N.Z
without the children, was obliged to return to Fiji again in October 1991. Following consultations the parties obtained a further
consent order from the Nadi Magistrate's Court on 4/11/91. Under this order the Respondent was given custody of the children. She
was entitled to take them to N.Z, the Appellant was to join them later and the she was to withdraw proceedings pending in N.Z. The
Respondent and the children returned to N.Z in November 1991 but the Appellant did not join them. On legal advice the Respondent
did not withdraw the proceedings in N.Z. In fact on 20/11/91 she obtained an order that the children be not removed from N.Z without
the leave of the Court. The children continued their studies in Ngaio Primary School.
The Appellant returned to N.Z. in March 1992 whereafter supervised access to the children took place. On 25 October 1992 the Appellant
picked up the children to take them, purportedly to an Indian festival but instead he flew them out to Fiji having previously obtained
their passports in Fiji. This action of the Appellant has been described by Dr Sahu Khan as "Kidnapping".
On 3 November 1992 the Respondent applied to and obtained from Byrne J, ex-parte, leave to make application to the High Court to issue
a Writ of Attainment or Committal Order against the Appellant for his contempt in not complying with the order of Nadi Magistrate's
Court of 4 November 1991. This was the genesis of the proceedings before Byrne J. There were other motions and counter motions in
the proceedings before him culminating in his Order of 3 August 1993 against which the appeal has been lodged. The facts of the case
and the sequence of events are fully set out in Justice Byrne's 30-page judgment.
The children were with the Appellant from 25/10/92 to 4/8/93 when they were placed in the Respondent's custody following the High
Court's Order of 3/8/93. They are attending Nadi Sangam School where they are doing well although the Respondent is still a Fiji
citizen she permanently resides in N.Z. where she has a permanent job as a Bank Clerk. According to the Welfare Officer's Report
the children wish to remain with their mother but they also want to have access to their father.
The Appellant has in his affidavit dated 5 April 1993 advanced the following arguments supporting his application for a stay:-
"5. THAT I am informed by my solicitors and verily believe that the appeal raises points of law of general public importance.
6. THAT the Respondent is not and is not likely to be prejudiced by the grant of a stay of proceedings until the determination of the Appeal,
should a stay be granted.
7. THAT on the other hand the Appellant stands to be greatly prejudiced if a stay is not granted, in that:
(a) The appeal, if successful, may be rendered nugatory;
(b) The Appellant will be greatly prejudiced in its appeal to the Court of Appeal if the application for a stay is refused in that
the Respondent would have obtained in effect permanent orders without my right of appeal being entertained.
(c) The Respondent is not likely to suffer any irreparable loss or harm if the application is granted.
(d) The points of law involved in the appeal are of great general public importance especially relating to custody issues. Furthermore
the appeal is clearly arguable and is neither wholly unmeritorious nor wholly unlikely to succeed.
(e) That welfare of two children of tender age is at stake and they have been in the continuous custody of the Appellant in Fiji for
approximately nine months whilst the Respondent had returned to live in New Zealand.
(f) That the said decision of the High Court also prejudicially affects the welfare of the two children in respect of whom no welfare
report has been obtained nor have their views been taken into account.
8. THAT the Appellant will abide by any order of the Court requiring the appeal to be prosecuted expeditiously and for it to be heard at
the first available date."
It is the Appellant's contention that the Fiji Courts are the appropriate forum to decide the contention between the parties. He points
out that there is an application for variation of order of 4 November 1991 still pending in the Nadi Magistrate's Court. On the other
hand Dr Sahu Khan has vigorously opposed the application in his extensive detailed written submissions. In her affidavit of 14 August
1993 the Respondent states, inter alia, that her children have been put in Fiji a grade lower than they have been in N.Z, and that
the children's roots are in N.Z where they were making good progress.
Furthermore she gives the following undertaking:
"15. THAT I give this undertaking to this Honourable Court if the Appeal of the Appellant is successful and any court Orders that the children
be returned to Fiji I do solemnly undertake to abide and comply with any such orders.
(a) That I will submit to the jurisdiction of any court in Fiji.
(b) I undertake to deposit $1000.00 [ONE THOUSAND DOLLARS] as probable expenses for the Appellant to travel to New Zealand and should he have the fear that I will not comply with my undertaking
and he may institute any necessary proceedings in New Zealand and this undertaking of mine can be produced as evidence that I will
submit to the Jurisdiction of the Fiji Court if such Order will be made.
(c) That I will unconditionally submit to the jurisdiction of the New Zealand Courts to make any orders to enforce the Orders of the
Courts of Fiji."
Dr Sahu Khan has also stressed that the Respondent's conduct throughout has been one of open and flagrant disregard of court orders
and undertakings. He has with justification quoted from Hadkinson vs Hadkinson [1952] 2 ALL ER 568 the following words of Romer L.J (at p.569) -
"It is plain and unqualified obligation of every person against or in respect of, whom an order is made by a Court of competent
jurisdiction to obey it unless and until that order is discharged. The uncompromising nature of this obligation is shown by the fact
that it extends even to cases where the person affected by an order believes it to be irregular or even void."
Dr Sahu Khan has also advanced a number of reasons why courts in Fiji should not assume jurisdiction. I feel this is a matter on which
the parties are at liberty to make submissions in the Court of Appeal.
I am mindful of the fact that my role in dealing with a stay application is not to decide on the merits or demerits of the appeal
although any obvious likelihood of success or failure can in appropriate circumstances be taken into account. The real test here
is which of the two parties will suffer the greater harm or prejudice from the granting or refusal of an interim stay pending determination
of the appeal. A balancing of competing considerations is required, between the underlying principle that a litigant is entitled
to the fruits of the judgment in his favour and the obvious injustice in refusing a stay where such a refusal will render the appeal
nugatory or substantially nugatory. Even this test in this particular case is subject to the overriding consideration that the welfare
of the children should remain paramount.
The Appellant's main concern is that a refusal to grant a stay will render nugatory his success (if any) on appeal because the children
will be out of jurisdiction and any custody order obtained by him in Fiji cannot be enforced in N.Z. Mr. Sharma Counsel for the Appellant
has submitted that reciprocal arrangements between Fiji and N.Z under Maintenance Order (Reciprocal Enforcement) Act Cap. 55 only
deals with maintenance matters. In the light of the Respondent's undertaking on oath which undertaking I am inclined to accept as
genuine, it is my view that this fear is not well-grounded. In any case the Respondent can have two bites at the cherry so to speak
because there is nothing to stop him from contesting the custody proceedings in N.Z. Dr Sahu Khan says Courts in N.Z will recognise
custody orders made in Fiji. I do not think it is necessary for me to give a definitive ruling in these proceedings as to whether
custody orders made in Fiji can be enforced in N.Z.
As far as the children's schooling is concerned I am of the view that the children will be better off in N.Z. pending the outcome
of the appeal. The Respondent is running a real risk of losing her permanent job in N.Z. if there is any further delay. The next
session of the Fiji Court of Appeal will be in November this year. The prospect of this appeal being listed for hearing in that session
is very remote indeed, firstly because the November calendar is already heavily loaded, and secondly it is unlikely that the bulky
record in this case can be prepared in time for the Court of Appeal. Bearing in mind the ages of the children and their desire to
remain with their mother I will be failing in my duty if I were to make any order, albeit an interim one, that will effectively cause
the children to be separated from their mother.
I have no hesitation holding that the Respondent and the children will suffer the greater harm if I were to grant the application.
It will clearly be inimical to the children's welfare.
The Appellant has failed to satisfy me that the substantive orders made by Byrne J on 3/8/93 should be stayed pending appeal. My order
of 6/8/93 extending the partial and conditional order of Byrne J is discharged and the Chief Registrar is to advise the Immigration
Authorities accordingly. This application is refused with costs to the Respondent.
Sir Moti Tikaram
Resident Justice of Appeal
Suva, 7/9/93
Abu0027d.93s
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