IN THE HIGH COURT OF FIJI
AT LAUTOKA

CIVIL ACTION NO. HBM 012 OF 2008

BETWEEN

SELINA BAINIVALU CAVA
Appellant

AND

ADI MAKERETA R. SOVASOVA
1st Respondent

SERA NAI TORA
2nd Respondent

SAMISONI TORA
3rd Respondent

LEONE DRUMA
4th Respondent

Appearances: Haroon Ali Shah Esquire for the Appellant 
(Ex-parte application)

Date of Hearing: 19 February 2008, 4:25 pm
Date of Ruling: 19 February 2008, 4:55 pm

EX-TEMPORE RULING

[1]	Time constraints do not permit a full judgment outlining the history of this appalling matter. I agreed to deal with the application ex-parte given the urgency and being satisfied of the impossibility of giving Notice of Motion.

What has become apparent from earlier proceedings in HBM 8/08 and CA 18/08 is that the state authorities have shown scant regard to international law and obligations and I am constrained to say have not acted in the best interests of the child – Adi Melaia Grace Druma, who is only 5 years old. In my earlier judgment in HBM 8/08, I alerted counsel who appeared of the need to inform the learned Magistrate of jurisdictional issues. That appears not to have been done. The state (Attorney General’s Chambers) subsequently obtained an order ex-parte from the same Magistrate, preventing the plaintiff from removing her child from jurisdiction! This is an application to stay those orders.

[2]	Having considered this matter in the limited time I have, and being cognizant of the fact of its urgency, I have granted an interim stay which is to have immediate effect on the orders of Magistrate Nakora of 28 January 2008 and 7 February 2008, for the following reasons:

i)	the child is an Australian citizen and so is her mother. In proceedings in the Local Court at Fairfield, New South Wales, (File No. FL 078/060168), the plaintiff, Selina Cava was granted "sole parental and residential responsibility for the said child". The order is annexed to the affidavit in support herein. The Magistrates’ Courts’ in Fiji do not have jurisdiction to entertain adoption applications in respect of an Australian child in the manner it purports to be doing

ii)	Section 43 (2) of the Constitution of Fiji mandates and requires the Court’s of this country to have regard to public international law, if relevant. The right the plaintiff seeks to enforce on her behalf and her child is her freedom of movement. In this case the Hague Convention on the Civil Aspects of International Child Abduction is relevant and I am bound to have regard to the Convention’s provisions, where relevant. 

Article 3 provides: 

"The removal or the retention of a child is to be considered wrongful where –

a)	it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and

b)	at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State." 

[3]	The retention of the child in Fiji by the state or any other person is wrongful in that it is a breach of rights of custody attributed to her mother in Australia where they were and are habitually resident. There has been a breach of Article 3 by the Magistrate’s Court and state officers, who have continued to act without any regard to the Articles in the Convention despite my caution to state counsel when I dealt with HBM 8/08.

[4]	The child needs to be returned to Australia as a matter of urgency. The processes of this Appeal are able to continue without her being here. The child is to remain with her mother’s family in Suva until her mother returns to take her back to Australia or makes other suitable arrangements to have an adult family member travel to Australia with the child. For the avoidance of doubt the interim stay of the Magistrate’s Court orders means that the child may leave this jurisdiction as soon as suitable arrangements concerning her passage to Australia are made. The orders made herein supercede any orders made by the Magistrates Court.

Orders

i)	Adjourned before Scutt J 26 February 2008 at 10.30 am

ii)	All documents to be served on Respondents and Attorney Generals Office Lautoka, by 4.00 pm tomorrow

iii)	Leave granted to serve copy of this Judgment on the Australian High Commission.

Gwen Phillips
JUDGE

At Lautoka
19 February 2008