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Singh v Singh [1993] FJHC 63; Hbc0482j.92s (3 August 1993)

IN THE HIGH COURT OF FIJI
CENTRAL DIVISION
(AT SUVA)

ACTION NO. 482 OF 1992

IN THE MATTER of the High Court Rules
AND IN THE MATTER of the Nadi Magistrate's Court Maintenance Action No. 44 of 1991
AND IN THE MATTER of the Interim Custody Order in the District Court of Wellington AND the Matrimonial Causes Act.

AND

IN THE MATTER of an application
by TIRLOTMA ROSHNI SINGH
father's name Lingappa formerly of Nadi, Fiji, Bank Officer.
APPLICANT

RAHUL RAKASH SINGH
also known as RAHUL PRAKASH SINGH of Kennedy Avenue, Nadi.
RESPONDENT

Dr. M.S. Sahu Khan: For the Applicant
Mr. A. Narayan and Mr. S. Sharma: For the Respondent

Dates of Hearing: 14th, 15th, 16th, 18th December 1992,
25th, 28th, 29th, January, 8th, 9th,
22nd February, 4th, 17th and 31st March 1993.
Date of Judgment: 3rd August 1993

JUDGMENT

Introduction and Background to the present Proceedings

The Applicant and Respondent are husband and wife and Fijian Citizens who were married on 25th of January 1983 and separated in New Zealand in mid 1991.

There are two children of the marriage a girl Rani born on the 1st of July 1983 and a boy Rajiv born on 3rd of March 1986. The children have lived in Wellington, New Zealand for a good if not the most part of their lives since 1986 when the family voluntarily migrated to Wellington.

They were both enrolled at the Ngaio Primary School, Wellington in November 1991. The Applicant alleges, although it is disputed by the Respondent, that she has been the primary caregiver for the children throughout her marriage. She also alleges that she has been the one who had taken the children on outings and transported them to and from activities outside school, which again is not seriously disputed by the Respondent. The Applicant claims that the Respondent has not had a great deal of contact with the children throughout their marriage as he worked at nights and because he spent considerable time with his friends. The former allegation is not significantly denied by the Respondent but the latter is.

Following their separation the Applicant states that the Respondent initially would not accept their separation. She claims that he kept telephoning her and asking her to have him back and that if she did not have him back he would kill himself. The Respondent denies the last-mentioned allegation.

The Applicant also alleges that the Respondent showed various examples of bizarre behaviour as a result of which in November 1991 the Applicant obtained non-molestation and non-violence Orders from the Family Court, Wellington in November 1991. Prior to that, in early August 1991, the Respondent asked the Applicant whether he could take the children on holiday to Fiji. Given the difficulties which existed between them at the time, the Applicant stated that she did not consider the proposal a sensible one. She alleges that the Respondent then became angry and the Applicant agreed that they should try to sort things out between them. On the 13th of August 1991 the Respondent picked the children up from their school; he was supposed to leave them at a friend's house but did not. Shortly thereafter the Applicant was telephoned by the Respondent from Fiji, who told her that he had taken the children to Fiji. This was without the Applicant's consent or approval.

The Applicant immediately applied to the Family Court at Wellington and on 21st August 1991 an Interim Custody Order was made in her favour. The Order stated among other things that the Warrant to enforce custody was to continue to lie in Court only to be uplifted by counsel for the children and that there would be leave to bring the matter back to the Court on eight hours oral notice.

The Applicant says that when the Respondent telephoned her from Fiji to tell her that he had taken the children with him, he also said she would not see her children unless she agreed to go back to him.

The Applicant then returned to Fiji and after consulting her present solicitors appeared in the Magistrate's Court at Nadi with the Respondent on the 2nd of September 1991. Five Consent Orders were made by the Court, namely:

(1) That the Applicant was to have the custody of the children and was entitled to take them to New Zealand on the 14th of September 1991.

(2) That the Respondent was to join the Applicant and the children no later than the 21st day of October 1991 and that the family was to live in Auckland, New Zealand or any other place by agreement.

(3) The Respondent was to immediately hand over all travel documents, particularly the passports of the children.

(4) That on the Respondent joining the Applicant in New Zealand the Applicant was to withdraw the pending proceedings in the New Zealand Court.

(5) The matter was then adjourned to 21st of October 1991 for mention only.

The Order added that the parties had agreed that the matter was to be withdrawn.

For various reasons which are immaterial the Respondent failed to return to New Zealand as agreed. The children had not returned with the Applicant to New Zealand under the Order of the 2nd of September because they had flown with the Respondent to Fiji on special fares. When by some date in October 1991, unspecified, the children had still not returned to the Applicant she came again to Fiji and on the 29th of October 1991 obtained another Order from Nadi Magistrate's Court that the Respondent return the children to her immediately before the Court heard him further on an application he had made for a stay to prevent the children being removed from the Nadi Court's jurisdiction.

The parties and their solicitors then had discussions which culminated in the Nadi Magistrate's Court making a further Consent Order on 4th of November 1991 which is the genesis of the present proceedings before me.

Under that Order the Applicant was given custody of the children and was entitled to take them to New Zealand. The Court further ordered that the Respondent join the Applicant and the children in New Zealand and there live as a family. It was also ordered that the Applicant withdraw the proceedings then pending in the New Zealand Court immediately.

The Applicant and the children returned to New Zealand in early November 1991 but the Respondent did not join them. It appears that on the advice of her solicitors in Wellington the Applicant did not withdraw the pending proceedings in the New Zealand Court.

In fact the Applicant resumed the proceedings in the Family Court in Wellington which on the 20th of November 1991 made an Order that the children be not removed from New Zealand without leave of the Court which also directed that a Warrant should issue to prevent the removal of the children from New Zealand, such Warrant to lie in Court until uplifted by counsel for the children. Following the making of this Order the Applicant surrendered the children's Certificates of Identity to the Court where they are still being held.

The children then resumed their usual routine and returned to Ngaio Primary School.

According to the Applicant the Respondent telephoned her from Fiji several times in mid November 1991 stating that he was going to come to New Zealand and kill her. She alleges that he also telephoned friends of her parents and made a similar threat. The Respondent denies these allegations but the Applicant says that because of them she applied to the New Zealand Court for the Non-molestation and Non-violence Orders I have previously mentioned.

The Respondent did not return until the first week of March 1992 following which, counselling was arranged for both parents through the Family Court. The Respondent denies telling the counsellor that he did not want custody or access but agrees that he told the counsel he did not want to contribute financially to the children, allegedly because he assumed he would have custody. He also alleges that the counsellor was totally biased against him and that he had merely "gone through the motions" of the proceedings in New Zealand reluctantly because of the Applicant's alleged failure to comply with the Order of 4th November 1991.

Subsequently supervised access occurred in mid March 1992 but it appears the Respondent had no further contact with his children from then until September 1992. In that month after discussions between the lawyer for the Applicant and the Respondent's lawyer and with the assistance of counsel for the children Mr. Bruce Corkill access was recommended on three occasions in September 1992.

On the 22nd of October 1992 counsel for the children informed the Applicant that the Respondent wished to have access to the children on Sunday, 25th October 1992 to take the children to an Indian festival. The Respondent picked the children up as arranged but later that day at 5.45 p.m. he telephoned the Applicant informing her that he had returned to Fiji with the children. He did this because the Respondent had previously obtained passports for the children in Fiji without the knowledge of the Applicant. It is this last action which has been the subject of much evidence before me during the hearing which followed.

Order of 3rd November 1992

On the 3rd of November 1992 the Applicant applied to me ex-parte for leave to make Application to this Court to issue a Writ of Attachment or a Committal Order against the Respondent for his contempt in not complying with the Order of Nadi Magistrate's Court of the 4th of October 1991. The relevant terms of that Order are as follows:

(a) That the Applicant be at liberty to make Application to this Honourable Court to issue a Writ of Attachment or a Committal order against the Respondent herein for his contempt in not complying with Order of the Nadi Magistrate's Court dated 4th day of November, 1991 by which order it was ordered that the Applicant to have the custody of the children of the marriage namely REETAL SHIVANGI SINGH also known as RANI SINGH and RAJIV KUNAAL SINGH also known as RAJIV SINGH and was entitled to take the children to New Zealand and that the Applicant be entitled to live in New Zealand.

(b) That the Respondent do immediately release the children in the care and control of LINGAPPA (father's name Viran) of Martintar, Nadi on his undertaking to escort the children back to Wellington, New Zealand and deliver them to the custody of the Applicant.

(c) That the Respondent do deliver the passports and other travel documents and tickets to Lingappa (father's name Viran) to enable the children to travel back to New Zealand and that the said children, namely, REETAL SHIVANGI SINGH also known as RANI SINGH and RAJIV KUNAAL SINGH also known as RAJIV SINGH be restrained from leaving Fiji unless accompanied by LINGAPPA.

(d) That the Respondent do pay all the costs of these proceedings and for the costs of taking the children to Wellington, New Zealand including the costs of travel of Lingappa and the said children namely REETAL SHIVANGI SINGH also known as RANI SINGH and RAJIV KUNAAL SINGH also known as RAJIV SINGH.

(e) For an Order that the service of the Notice of Motion and any Order of this Court on the Respondent be by way of substituted service by serving either of the parents of the Respondent and that such service be deemed to be sufficient service on the Respondent and that there be abridgment of time to one day between the service of the Notice of Motion and the day named for the hearing of the Motion.

Order of 25th November 1992

On the 25th of November 1992 again on the ex-parte application by the Applicant I made another Order as a result of the failure of the Respondent to comply with my Order of the 3rd of November 1992. The relevant terms of the Order of the 25th of November are:

(a) That the Applicant be at liberty to make application to this Honourable Court to issue a Writ of Attachment or a Committal order against the Respondent herein for his contempt in not complying with the Order of this Honourable Court dated 3rd day of November, 1992 by which order it was ordered that inter alia:-

(i) That the Respondent do immediately release the children in the care and control of LINGAPPA (father's name Viran) of Martintar, Nadi on his undertaking to escort the children back to Wellington, New Zealand and deliver them to the custody of the Applicant.

(ii) That the Respondent do deliver the passports and other travel documents and tickets to Lingappa (father's name Viran) to enable the children to travel back to New Zealand and that the said children, namely, REETAL SHIVANGI SINGH also known as RANI SINGH and RAJIV KUNAAL SINGH also known as RAJIV SINGH be restrained from leaving Fiji unless accompanied by LINGAPPA.

(b) That the Respondent do pay all the costs of these proceedings.

(c) FOR AN ORDER that the service of the Notice of Motion and any Order of this Court on the Respondent be by way of substituted service by serving either of the parents of the Respondent and that there be abridgment of time to one day between the service of the Notice of Motion and the day named for the hearing of the Motion.

(d) That all Police Officers in Fiji and the Officer of the Sheriff of Fiji be ordered and authorised to enter and search any premises and to take the custody of the children namely REETAL SHIVANGI SINGH also known as RANI SINGH and RAJIV KUNAAL SINGH also known as RAJIV SINGH wherever they may be found and release and/or deliver them to Lingappa father's name Viran to enable him to comply with the Order of the Court made on the 3rd day of November, 1992.

(e) That the Notice of Motion listed for hearing on the 27th day of November, 1992 be adjourned to 26th day of January, 1993 at 9 a.m.

The First Notice of Motion

On the 27th of November 1992 the Respondent applied to me ex-parte by Notice of Motion seeking an order:

"That any orders granting custody of the children, namely, RAJIV KUNAAL SINGH and REETAL SHIVANGI SINGH also known as RANI to Lingappa or any third party or authorising any person to forcibly remove them from the Respondent be suspended/varied and/or discharged until further order."

Because I was informed the matter was urgent I heard the application soon after it had been issued when the Respondent was represented by its present counsel Mr. Narayan and Mr. Vijay Maharaj. At the request of counsel I read to them the previous orders I made, those of 3rd and 25th of November, and then made the following order after counsel for the Respondent had undertaken that the Respondent would not remove the children from the jurisdiction of this Court until further order. It is important to set out the terms of that order in full. It reads:

"BEFORE THE HONOURABLE MR. JUSTICE BYRNE
IN CHAMBERS ON FRIDAY THE 27TH DAY OF NOVEMBER, 1992

UPON READING the Ex-parte Motion dated the 11th day of November, 1992, and UPON READING the Affidavit of RAHUL RAKASH SINGH a.k.a. RAHUL PRAKASH SINGH sworn on the 26th day of November, 1992 and filed herein and UPON HEARING MR. ADISH K. NARAYAN and MR. VIJAY MAHARAJ of Counsel for the Respondent IT IS HEREBY ORDERED that no action is to be taken to enforce the order made on the 25th day of November, 1992 until further Order and that the application to set aside be heard at 11.00 a.m. on 2nd December, 1992.

BY THE COURT

CHIEF REGISTRAR

ENTERED and SEALED this 27th day of November, 1992."

Because of other commitments of myself and counsel and the intervention of Cyclone Joni the inter-partes hearing of the Respondent's motion of the 27th of November did not commence until the 14th of December 1992.

The Second Notice of Motion

Meanwhile on the 4th of December 1992 the Respondent issued a second Notice of Motion to be heard at the same time as the first Notice, this time seeking orders that the proceedings herein be transferred to the High Court at Lautoka and/or Nadi Magistrate's Court and seeking an Order:

"Further that this Honourable Court of its own motion make an order of committal for contempt against the Applicant, LINGAPPA and the Counsel for the Applicant Dr. M.S. Sahu Khan as disclosed in these proceedings and affidavits."

The person referred to as Lingappa in this Notice of Motion is the Applicant's father who has sworn various affidavits and been cross-examined on them.

After the hearing of evidence had progressed until the 18th of December 1992, because of the Christmas vacation I directed that the Applicant be given access to the children between the 24th of December 1992 and 3rd of January 1993 in Fiji. The other terms of my order were as follows:

"2. That the children, namely REETAL SHIVANI SINGH and RAJIV KUNAAL SINGH be delivered to LINGAPPA'S house on 24th December, 1992;

3. That the Respondent to pay one way single airfare for the Applicant;

4. That the said children be returned to the Respondent at Kennedy Avenue Nadi on 3rd January 1993;

5. That neither party to remove the said children from

Fiji and that the Department of Immigration to be so informed;

6. That the matter be adjourned for hearing on 25th and 26th January, 1993."

The hearing of the Motions then resumed on 25th of January 1993 when I was informed that the Applicant had not been given access to the children as directed in my order of 18th December 1992. I then heard evidence as to this from the parties but the same day ordered the Respondent to deliver the children to the Welfare Officer, Nadi at 10.00 a.m. on 26th of January 1993 to be taken into the custody of the Applicant from then until 3.00 p.m. the 27th of January 1993 when they were to be returned by the Applicant to the Welfare Officer and thence delivered to the Respondent.

Because of the illness of counsel for the Respondent the hearing did not resume until the 28th of January and then continued with necessary adjournments from then until 22nd of February 1993.

On that date I directed that written submissions be delivered on dates agreed after which I stated I would reserve my judgment.

The Respondent's submissions were received on the 4th of March 1993 followed by those of the Applicant on 17th of March 1993 and the Respondent's reply to the Applicant's submissions on the 6th of April 1993.

The Third Notice of Motion

On the 23rd of March 1993 the Respondent issued a third Notice of Motion returnable on the 31st of March seeking leave to amend the Respondent's Notice of Motion of the 27th of November 1992 by adding after the words "on the hearing of an application on behalf of the Respondent" the following words "that any orders granting custody, care control or possession of the children RAJIV KUNAAL SINGH and REETAL SHIVANGI SINGH also known as RANI to Lingappa or any third party or authorising any person to forcibly or otherwise remove the said children from the Respondent and in particular the orders dated 3rd November, 1992 and 25th November, 1992 be suspended/varied and/or discharged until further order."

The Respondent also sought an order extending the time for him to reply to the Applicant's submissions on the first two Motions which I granted immediately and after hearing argument I stated that I would give my ruling on the last Motion at the time of delivery of this judgment.

As will be evident from the dates of hearing the various applications in this case the Court heard a mass of evidence from witnesses for the Applicant and the Respondent and has received lengthy written submissions on all the issues apart from oral submissions on the last Motion. The written submissions for the Respondent run to 46 pages and those for the Applicant to 65 pages. In addition numerous authorities have been cited, all of which I have read but many of which I find it unnecessary to mention in this judgment for reasons which will appear. I shall now refer to these submissions.

It is important at the outset to note the terms of the first two Motions before the Court and especially of my Order of the 27th of November 1992. When this is done it will be seen that the Court made no orders at all on the 27th of November relating to the Order of the 3rd of November 1992. All the Order of the 27th of November directed was that no action to be taken to enforce the order made on the 25th day of November 1992 until further order. It is then necessary to refer to my Order of the 25th of November which consisted of five orders, namely:

"(a) That the Applicant was granted leave to apply for committal proceedings for contempt of Court order by the Respondent.

(b) That the Respondent do pay costs.

(c) Substituted service of motion was allowed and abridgment of time was made.

(d) That police officers and the Sheriff of Fiji were authorised to remove the children and hand them to Lingappa.

(e) The Notice of Motion listed for hearing on 27th November, was adjourned to 26th January, 1993."

From the above it will be seen that on the 27th of November there was no application or order made by and in favour of the Respondent to stay the 3rd of November order. On the 27th of November all the Court did was to order that the orders of 25th of November were not to be enforced for the time being. For this reason I conclude that after the 27th of November the Applicant filed no application or motion for contempt nor enforced the order for costs nor secured the services of the Police or the Sheriff to enforce the order.

As to this the Respondent submits that on the 27th of November neither he nor his advisers knew of the precise terms of the orders of the 3rd and 25th of November 1992.

The Evidence, Case-law and Submissions

Counsel for the Respondent submits that it is possible that I did not advert to the order of the 25th of November when making my order of the 27th of November. I cannot accept this submission for two principal reasons: first, for the information of counsel who appeared before me on the 27th of November I read my orders of the 3rd and 25th of November; furthermore under cross-examination the Respondent admitted that he knew of the terms of the earlier orders. He said: "On 27th November this Court ordered a stay order of 25th November. That order (i.e. that of the 27th November) did not stay the order of the 3rd of November 1992. It does not say that there. I read the Penal Notice also. I knew it referred to me."

Shortly afterwards he said this: "I was not at home on the 26th of November when the Police Officer Gyanendra Kumar called at the house", that is the house in which he and his parents live, to try to find the children to remove them in accordance of my orders. He said, at the time they were with him in Lautoka on the 25th and 26th of November when he had gone first to the house of his cousin in Lautoka and then to Suva with the express purpose of avoiding service of the order. He said he was afraid someone would take the children away from him. He knew the Police were searching for the children and that they had searched the premises of his parents. He was asked, "Were you aware of the order of the 25th of November when the Police came on the 26th of November?" He replied "I learned of it on the 27th of November". He then stated that he had been with his solicitors in Ba between approximately 2.00 and 5.30 p.m. on the 26th of November and that by that time he knew of the Court order of the 25th November. He then said this: "I did not comply with the Court order because the order was not served on me - it was not in my hands. I knew its contents - that the children were to be given to Lingappa and that if I did not give them the Police were authorised to remove the children from me and give them to Lingappa. I discovered this sometime after 2.00 p.m. on the 26th of November. I also knew I had to give their passports and travel documents to Lingappa. I did not comply because I felt it was wrong that my children should be given to a third party without the Court hearing me. I did not agree that the Court order was right. That's why I didn't want to comply with the order and why I wanted to keep the children from my parents' place unless someone tried to enforce the Court order. I wanted to keep the children away from my home so no one knew where they were until I had applied to have the order set aside. I wanted to prevent the Order being enforced by keeping the children out of Nadi. I felt it was not right for me not to comply with the Court Order but despite that I disobeyed it. I realised I was making it difficult to have the order enforced." Then he referred to the order of the Wellington Court and said this: "I knew of the Court order in Wellington when I brought the children to Fiji on 25th of October 1992 and similarly on the 26th of November I kept the children away from Nadi to avoid the Fiji High Court Order being enforced. I am now aware that the stay given by this Court only applies to the Order of the 25th of November and not the Order of the 3rd of November 1992 which was that I was to hand the children over to Lingappa. I was not prepared to do that." He was then asked this question: "Assuming the stay order of the 27th of November only stayed the order of the 25th November, are you prepared to give the children to Lingappa pursuant to the order of the 3rd of November?" The Respondent replied simply, "No".

In re-examination on this matter he attempted to modify the answers he had given in cross-examination and said, "If I had been served with an Order on the 20th of November I would have obeyed it." Later he said that after the order of the 27th of November he did not think that he was in breach of any orders of this Court and added "I did not wittingly commit any breach of the Order of the 3rd of November".

In the light of the evidence I have just quoted I do not believe the Respondent when he claims to have been unaware of the terms of the Orders I made on the 3rd and 25th of November. His evidence clearly indicates the contrary.

Basing himself on this evidence and other evidence the Respondent gave that he ignored the orders of the Wellington Court because he did not like them and did not consider they were in the best interest of his children, counsel for the Applicant invites me not even to hear the Respondent on his three motions.

He cites the well-known case of Hadkinson v. Hadkinson (1952) 2 ALL E.R. 568 the Headnote of which reads in part:

"It was the plain and unqualified obligation of every person against, or in respect of, whom an order was made by a court of competent jurisdiction to obey it unless and until it was discharged, and disobedience of such an order would, as a general rule, result in the person disobeying it being in contempt and punishable by committal or attachment and in an application to the court by him not being entertained until he had purged on its due observance, for such an order was made in the interests of the welfare of the child, and the court would not tolerate any interference with or disregard of its decisions on those matters, and least of all would permit disobedience of an order that a child should not be removed outside its jurisdiction; in the present case the mother was not entitled to prosecute or be heard in support of her appeal until she had taken the first and essential step towards purging her contempt of returning the child within the jurisdiction."

This was the view expressed by two of the judges Somerwell, L.J. and Romer, L.J. but Denning, L.J. took a more flexible approach when he said that the court would only refuse to hear a party to a cause when the contempt impeded the course of justice by making it more difficult for the court to ascertain the truth or to enforce its orders and there was no other effective means of securing his compliance. This view of Lord Denning was recently approved in the House of Lords in X Ltd and another v. Morgan-Grampian (Publishers) Ltd and others (1990) 2 All E.R. 1 where Lords Bridge and Oliver approved the remarks of Denning, L.J. and said that the principle stated by Lord Denning better accords with contemporary judicial attitudes to the importance of ensuring procedural justice than confining its exercise within the limits of a strict rule subject to defined exceptions, although they thought in practice in most cases the two different approaches were likely to lead to the same conclusion.

The Applicant argues that on the evidence of the Respondent he was clearly in contempt of the Orders of this Court and therefore should not be heard until he has purged his contempt.

I think this submission comes a little late in view of the fact that the Respondent was cross-examined at length as to his knowledge of the Orders and attempted to give his explanation. It seems to me however that counsel for the Applicant is really submitting that because of that evidence and other evidence to which I shall refer this Court should attach no credibility to any evidence or explanations the Respondent has given.

It will be remembered that in Hadkinson the Court declined to hear the wife who had disobeyed a Court order that she should not remove her child out of the jurisdiction, and taken him to Australia. An Order was made on application by the father that the mother return the child to England and the mother appealed this decision of the Court of Appeal. That Court held that it could not entertain her appeal until she brought the child back to England, which she subsequently did and succeeded in her appeal.

One thing however is clear from Hadkinson v. Hadkinson and numerous other cases which have followed it, that no person of his own volition can disobey an order of a Court until such time as that order is discharged by the Court making it or an Appellate Court. I am satisfied in the present case that the Respondent deliberately disobeyed my first orders and the later order I made giving the Applicant access to the children between Christmas and New Year last.

The Respondent admitted in evidence that he misled the Applicant and the Court in Wellington when he took the children from New Zealand to Fiji on the 25th of October 1992. Again the only explanation he could give was that he knew better than the court. I am satisfied that this was also his reason for disobeying the Order of the Nadi Court to take the children to New Zealand. This refusal caused the Applicant to return to Fiji and obtain the 4th of November 1992 Order.

Evidence was given of the circumstances in which the Respondent failed to hand over the children to the Applicant for the ten days of Christmas and New Year. My order stated that he was to leave the children at Lingappa's house on the 24th of December 1992 but the Respondent did not do so. He stated that he thought it better that the children should be given to the Applicant after she arrived from New Zealand sometime after 8.00 p.m. on the 24th of December.

The evidence satisfies me that the Respondent deliberately refused to comply with my order on 24th December and again on Christmas day when the Applicant attempted to obtain the children from him. I do not intend to repeat the evidence of the events of the 25th of December beyond saying that I believe that the Respondent deliberately made it difficult for the children to be handed over to his wife. Once he knew that the Applicant had arrived he was bound by my order to take the children to her as quickly as possible. Even when the Applicant in frustration had not been able to locate the Respondent and arrived at his house on the 25th of December at 5.15 p.m. the children were still not given to her. Instead, in what I find to be a clear attempt to keep the children from the Applicant, he took them with his brother and two security officers to Lingappa's house and despite attempts by the Applicant to take custody of them there the Respondent chose instead to return with them to his parents' house. I am not persuaded by the over-dramatisation of the events of Christmas afternoon by the Respondent and his brother which I regard only as an attempt to deny the Applicant the rights she had been given by my order.

I have no doubt that the two children sitting in the Respondent's car were afraid to go to their mother in the afternoon just as they were in the morning of the 24th of December when the Respondent did not deliver them to Lingappa as had been ordered.

As a result of what I find to be a paltry charade by the Respondent, the Applicant who, I have no doubt was almost desperate, came to Suva in a vain attempt to speak to me and Mr. Vijay Maharaj the solicitor. This caused her to incur a taxi fare of $90.00 and one of the orders I intend to make at the end of this judgment is that the Respondent reimburse the Applicant that fare.

For these reasons I consider there is much force in Dr. Sahu Khan's submission that the Respondent deserves not to be heard on his motion but, as I have said it seems to me this submission comes too late. I content myself by repeating that I do not accept any of the explanations given by the Respondent or the submissions made by his counsel as to his knowledge of the contents and purpose of my order of the 27th of November 1992.

The Respondent makes much in his submission of the fact that when I made my order of the 3rd of November I was not informed by the Applicant through her counsel that on the previous day my former brother Saunders, J. declined to make the order which I subsequently made on the 3rd of November ex-parte and stated that he was prepared to list the matter for hearing inter-partes.

When he was cross-examined on this Lingappa admitted that he feared that if I had known of the action of Saunders, J. I would not have made my order of the 3rd of November. The Respondent complains justifiably that this was a serious omission by the Applicant's counsel and I agree. As a general rule, any person seeking interim relief against any person must make full and frank disclosure of all material known to him and this was not done in the present case. In my view however this general rule should not be applied rigidly in proceedings where the welfare of children is the principal issue as here. I have no doubt that Lingappa who accompanied counsel to the Court at Lautoka on the 2nd of November was most concerned for the welfare of the children after hearing of the refusal of Saunders, J. to deal with the matter ex-parte. In any event I am not satisfied the judge made any order in the matter. He said he was not making any ex-parte order whereupon Dr. Sahu Khan sought leave to withdraw the proceedings and this was granted by the judge. In that respect the position is different from that in Billiards and Snooker Association of Fiji v. Som Padayachi Suva HCCA No. 1988 of 1989 when I dissolved an order I had made after learning that a judge in Lautoka had made a totally different order on the same material earlier in the day. In that case there were two conflicting orders so that only one could stand. In the present case I am not satisfied that Saunders, J. made any order.

I turn now to the second Notice of Motion filed by the Respondent. The Respondent's submissions on this are to the effect that the order made by the Magistrate's Court Nadi on the 4th of November 1992 is invalid in that it does not make any finding of fault against the Respondent as it should have done. It is submitted that the order does not find that the Applicant had proved her case. I find these submissions strange and I do not accept them. The order of the 4th of November was made by consent and thus there was no reason why it should have made any finding as to fault. The Court simply was not obliged to. Similarly the Court was not obliged to find that the Applicant had proved her case. I have no doubt that the order was made purely to give effect to the expressed intention of the Applicant and the Respondent to make an attempt to reconcile their differences. The last thing the Court should have found in those circumstances was fault by either of the parties. The submission is without merit and I reject it.

For reasons which I shall give shortly I consider that the proceedings involving the custody of the children should be resumed in the Wellington Court in New Zealand and that neither this Court nor the Magistrate's Court in Nadi should assume or resume jurisdiction in the matter. I shall give these reasons when discussing the so-called "Kidnapping Cases" many of which have been cited to me by the Applicant.

The Respondent by his motion of the 4th of December 1992 invites this Court of its own motion to "make an Order of Committal for Contempt against the Applicant, hereafter Lingappa and her counsel Dr. M.S. Sahu Khan." With all respect to the Respondent's advisers I regard the second part of this motion as an obvious and very clumsy attempt to intimidate the Applicant and her counsel from proceeding any further in this matter. There is ample authority to support my refusal to make Orders of Committal as requested. First however there is the fact that under Order 52 of the Rules of this Court there are specific procedures laid down before committal proceedings may be commenced. To begin with, any Applicant seeking committal must first obtain leave of the Court to commence committal proceedings. The Applicant has failed to satisfy this first condition. Then the precise nature of the contempt must be specified and again the Applicant has failed to do this. The simple allegation that the contempt is "disclosed in these proceedings and affidavits" is simply not enough. In Atkins Court Forms (Vol 12) 2nd Edition at page 109 it is clearly stated:

"In the case of applications affecting the liberty of the subject strict compliance with the rules is necessary and the respondent is entitled to take any technical objection in regard to the procedure, and where service of the notice of motion has not been proved the court may refuse to make the order at the hearing of the motion notwithstanding that the respondent is present in court."

There is another important consideration affecting this question. It is this: It is vital in any legal proceeding that counsel or the solicitor appearing for any parties to litigation should never be pressured by the party or parties against whom they are appearing into not doing all they possibly and legally can in protecting or advancing the interests of their client. Threats direct or implied as to the possible adverse consequences which might follow if the legal representative of a party continued to pursue a certain course of action have always been condemned by the courts. As Sir John Donaldson M.R. stated in Orchard v. South Eastern Electricity Board (1987) 1 All E.R. 95 at p.104:

"Objectivity is a vital requirement of professional advisers. Hence, for example, the rejection of contingency fees and the impropriety of a solicitor acting for co-defendants. Threats to apply on the basis that the proceedings must fail not only make the solicitor something in the nature of a co-defendant, but they may well, and rightly, make him all the more determined not to abandon his client, thereby losing a measure of objectivity."

In similar vein Pennycuick J. said in Carl-Zeiss Stiftung v. Herbert Smith & Co (a firm) (No. 2) (1968) 2 All E.R. 1233 at 1236 that in relation to an attempt by a plaintiff to harass the solicitors for the defendant (by a claim that all funds in the solicitors' hands were subject to a constructive trust):

"The prospect of this personal liability would be a grave deterrent to a responsible solicitor undertaking the conduct of such an action at all, for...the conduct of the action would represent a gamble on his client's success a highly undesirable state of affairs. If he did undertake the defence, the fact that he was at risk in regard to this liability might, and in many circumstances almost inevitably would, tend to influence and hamper him at various stages in the action...He might even find that his interest was in conflict with his duty to his client, for example, in connection with some suggested compromise. There can I think be no doubt that such a claim would represent a very serious obstruction in the course of justice."

I accept without hesitation that counsel for the Respondent must do all he can within the limits I have mentioned to advance his client's case but I strongly suspect from the opinion I have formed of the Respondent that the threat of possible contempt proceedings against the Applicant and her legal adviser was a brain-child of the Respondent and was motivated by what I would call the "tit-for-tat" principle.

For these reasons I am not prepared of my own motion to make an Order for Committal for Contempt as sought in the Notice of Motion of the 4th of December 1992.

The "Kidnapping" Cases

The Applicant in her submission comments on the failure by the Respondent in his first submission to mention the position regarding the "Kidnapping" cases. The Respondent replied that this was not done because these cases raise questions of actual merit which are irrelevant to the dissolution of the orders sought by the Respondent.

I do not agree. Because of the actions of the Respondent, which are so similar to those in some of the cases cited under this heading, in my judgment this Court should consider the "Kidnapping" cases which I consider assist in deciding whether or not these proceedings should be transferred to the Lautoka High Court or the Nadi Magistrate's Court or whether the best forum for them is the Wellington New Zealand Court.

In this context the word "kidnapping" is not used in the sense it has in the criminal law but in the sense of removing a child or children who have a settled home in one jurisdiction - anyhow any foreign jurisdiction - and one of the parents by fraud or stealth removes them from that jurisdiction and takes them to another.

There are numerous cases on the subject in the last forty years, particularly in England in the mid 1960s and the early 1970s. The first of these was McKee v. McKee (1951) 1 All E.R. 942, a decision of the Privy Council. In that case a custody order had been made to the father of the child by the Superior Court of the State of California but subsequently the order as to custody was varied by the same court, and it was ordered that the custody of the infant was to be given to the mother. The father then took the child in to Ontario, Canada, where a judge at first instance gave the sole custody of the child to the father. The Supreme Court of Canada over-ruled this decision whereupon the father appealed to the Privy Council which held that in proceedings relating to custody the welfare and happiness of a child was the paramount consideration. The Privy Council held, contrary to the opinion of the Supreme Court of Canada that only the Californian Court had jurisdiction in the matter, that the court in Canada had properly assumed jurisdiction.

In Re G (1969) 2 All E.R. 1135 the father had commenced matrimonial proceedings in Scotland claiming, inter alia, custody of the child. The father was given interim custody of the child. Then further application for care and control was made in England. The father asked that he be allowed to take the child to Scotland where the matter could be fully heard on the merits. It was held, granting the father's application, that as between the two courts (England and Scotland), prima facie the Scotland Court in which the order for interim custody was made and which was seised of the matter do hear the matter on merits.

At p.1138 Buckley J. stated:

"It seems to me - forgetting for the moment the paramount consideration - and looking at the matter from the point of view of the convenient forum where the merits of the case should be investigated, that everything is in favour of their being investigated in Scotland where an order has already been made. True, it was an unopposed order, but an order has been made; not a consent order but an order which was the result of judicial consideration of such evidence as was available before the court in proceedings in which eventually the character and behaviour of both parties in the course of their matrimonial difficulties will be bound to be examined by the court and where the proper provision to be made for the future of the infant can be best assessed in the light of all circumstances then known to that court."

Further at letter "E":

"Similarly, I think, as between two courts of co-ordinate jurisdiction, one in this country and the other in Scotland, prima facie the right course is for the matter to be investigated in the Scottish court which had seisin of the matter before these proceedings began and which has made the order I have mentioned. But I am pressed, and very properly pressed, by counsel for the mother, with the argument that the infant is of a very young age whose place prima facie should be with the mother and that to allow him to remain in the care of the father until such time as the merits of the case can be investigated will be to do the infant grave harm.

It is said that for the past 18 months or two years the infant has been living in what counsel for the mother describes as an integrated home with the mother. What counsel means by "integrated home" is that it is a home where the infant is with the mother and with somebody whom the infant believes is his father, who is not his father at all but the man with whom the mother is living. It is true that at this present stage I do not think that state of affairs exposes the infant to moral danger but I do think it is a matter to be taken into consideration that the infant is emotionally involved with somebody who is not his father on the footing that the infant thinks that he is his father. That is a matter which may be much more important when the final determination takes place than it is of importance in considering only the short-term as I am at the moment."

I do not propose to mention any of the other cases to which I have been referred but they are set out in the submissions of counsel. I have read them and I consider that in all the circumstances of this case the Wellington Court is the proper court to decide the question of custody of these children.

Reasons why the Fiji Courts should not assume Jurisdiction

My principal reasons for holding that the courts in this country should not assume jurisdiction in this matter are these:

(1) That the children have lived in Wellington for a good part of their lives as their parents had voluntarily migrated to Wellington in 1986.

(2) The Interim Custody Order was made by the Wellington Court in August 1991.

(3) The children have attended all schooling in Wellington. There are affidavits filed by the Principal of the primary school they were attending there and by their independent counsel Mr. Bruce Andrew Corkill as to their apparent happiness at the school and as to where their best interests lie at the moment. I consider that they have established their `roots' in Wellington.

(4) All the witnesses relating to the welfare of the children are in Wellington. The Respondent admitted that he has at least five witnesses whom he desires to call on the question of custody and he intended to pay air fares, accommodation and other expenses for them to come to Fiji to give evidence in the Nadi Magistrate's Court.

He also agreed that the Applicant also has some five persons who have filed affidavits in Wellington Court and who are potential witnesses.

I consider that the Respondent is financially in a better position than the Applicant to go to Wellington but the Applicant would not be able to afford to get her witnesses to Fiji. If it is desired by the Respondent to bring other witnesses from Fiji to New Zealand in my opinion he is financially capable of doing so.

The Respondent averred that the court in New Zealand was biased against him and that it did not understand the questions of Indian custom and religion as well as a court in Fiji would. In my opinion there is no justification for this claim. The courts of New Zealand for long have had a high reputation in Fiji, Australia, New Zealand and England and possibly elsewhere; I can see no reason why the court in Wellington is incapable of dealing with the questions here.

It was alleged by the Respondent that Dr. Sahu Khan, counsel for the Applicant had informed the Respondent on a flight to New Zealand in March 1992 that the reconciliation between the Applicant and the Respondent in November 1991 was a mere charade designed only to permit the Applicant to remove the children from Fiji.

I cannot accept this submission. I find it impossible to believe that a lawyer of Dr. Sahu Khan's experience would be so rash as to make such a statement to the opposing party in any litigation in which he was involved. In my view if there have been any charades in this matter they have been by the Respondent and his family and not by the Applicant.

Before passing to the final Notice of Motion I wish to comment on an interview which the Respondent authorised his two children to give to the Daily Post newspaper in Fiji in December 1992. This appeared under a banner headline on the front page of the Daily Post newspaper of the 2nd December 1992 and contains statements attributed to the children most detrimental of the Applicant.

When cross-examined about this article the Respondent said that he allowed his children to be interviewed because he knew that they would tell the reporter bad things about their mother. He thought it was right to allow a six-year old and nine-year old child to give a newspaper interview and that he had enjoyed reading the derogatory remarks the children had allegedly made about their mother. He said he had an idea of how the article with its headline might affect his wife and that he thought she might feel hurt and would probably come to her senses and, presumably return to the Respondent.

In my opinion the Respondent's action in allowing the newspaper to interview his children was petty, spiteful and vindictive and must cast grave doubts on his maturity and suitability as a parent.

The Applicant also gave evidence that when she tried to take the children on Christmas day 1992 her son accused her of having a boyfriend. Understandably she was shocked at this remark and I have no doubt that it was made on prompting by the Respondent. It is consistent with the pettiness he displayed in allowing an interview by the newspaper. I have also no doubt that a child six years old would not use the term "boyfriend" but would most probably refer to any male friend of his mother as "a man friend". These two incidents serve only to confirm the view I have formed about the Respondent's credibility on the matters the subject of these proceedings.

I pass now to the third motion before the Court. In support of this Notice of Motion the Respondent has filed an affidavit dated 22nd March 1993 by Mohammed Kazim Yasin a law clerk employed by the solicitors for the Respondent.

Mr. Yasin states one of his duties is to take instructions from clients in litigation matters and that on the 26th of November 1992 he recorded a statement from the Respondent to prepare his affidavit in support of his application dated 27th November 1992. He states that until about the 4th of December 1992 the Respondent's solicitor's office was not given a copy of the order dated 3rd of November 1992 by the Applicant's solicitors and that when making the application on the 27th of November 1992 neither Mr. Yasin's office nor the Respondent was aware of the number of orders made by this court or of their exact nature or dates and that the Respondent's main objective was to seek a stay of whatever the orders were.

The Applicant has not filed any affidavit in reply to that of the Respondent's but I have heard submissions from counsel on the matter.

Counsel for the Respondent relies on numerous well-known cases on the question of when leave to amend pleadings should be given. One of the cases frequently quoted is G.L. Baker Ltd. v. Medway Building & Supplies Ltd. (1958) 1 W.L.R. 1216 at p.1231 where Jenkins L.J. said:

"It is a guiding principle of cardinal importance on the question of amendment that, generally speaking, all such amendments ought to be made for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings."

In Tildesley v. Harper, 10 Ch.D. p.396 at 397 Bramwell, L.J. said:

"My practice has always been to give leave to amend unless I have been satisfied that the party applying was acting mala fide, or that, by his blunder, he had done some injury to his opponent which could not be compensated for by costs or otherwise."

Counsel submits that the real question for determination by this Court is whether any orders obtained ex-parte by the Applicant up to 27th November 1992 should be discharged or dissolved.

In reply counsel for the Applicant argues that the proposed amendment is not made in good faith as the application has been made only after receipt of the submissions of the Applicant and particularly those dealing with the matters I have discussed at the beginning of this judgment namely whether the Court order of the 27th of November 1992 could in any way be interpreted to refer to the order of the 3rd of November 1992.

Counsel points out that during the hearing the various orders were subjected to repeated reference in cross-examination, and as I have stated earlier, the Respondent did not deny their contents. Counsel states that the orders of the 3rd and 25th of November 1992 were served on the Respondent's solicitors on the 5th of December 1992 yet no application to amend was made by the Respondent at the hearing when it could have and should have been made.

In this respect I cannot agree with the statement in paragraph 6 of the affidavit of Mohammed Kazim Yasin that when making the application on 27th November 1992 neither the Respondent nor his solicitors were aware of the number of orders made by this Court or of their exact nature or dates.

The Respondent's solicitors were told by me on the 27th of November of the orders that had previously been made, if they had any doubt about this they could either have come back to me or even better, obtained photocopies from the Court Registry; they failed to do so.

I also do not accept the submission of the Respondent that the order of 25th of November 1992 subsumes the order of the 3rd of November. In my judgment the two orders must be read together and no injustice will be suffered by the Respondent by so doing.

Although therefore, I have the gravest reservations about the good faith of the Respondent in seeking this amendment, following Lord Justice Jenkins' remarks in G.L. Baker Ltd. v. Medway Building & Supplies Ltd. (1958) 1 W.L.R. 1216 at p.1231 I am nevertheless prepared to allow the amendment.

Having done so however for the reasons which I have stated earlier I am of the opinion that no good reason has been shown by the Respondent as to why the orders of this Court dated the 3rd of November 1992 and 25th of November 1992 should be suspended, varied or discharged. I therefore reject all three motions by the Respondent.

Orders

To give effect to what I have just said I now make the following orders:

(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.

JOHN E. BYRNE
J U D G E

HBC0482J.92S