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/Respondent
Vuataki Qoro for the Applicant
Mr. R. Green (Attorney General's Chambers)

Date of Hearing: 21 February 2008
Date of Ruling: 21 February 2008

EX-TEMPORE JUDGMENT

[1]	Before me is an application by motion for an order to stay the orders I made on 19 February 2008 wherein I ordered that the child at the centre of these proceedings (the child) is at liberty to return to Australia as soon as suitable travel arrangements are made. The present application seeks a stay of my orders and that the child not leave the jurisdiction of this court until a decision is made on the issue of her "habitual residence". The grounds in support of the application are contained in the affidavits in support by Adi Makereta Roko Druma nee Sovasova. The principal ground is that the child is habitually resident in Fiji.

[2]	The application was heard before me this morning. I also heard from Mr. Ropate Green of the Attorney-Generals Chambers who supports the application on the basis that the child do remain in Fiji until a Psychologist has completed a report concerning various issues raised in pending proceedings in the Lautoka Magistrate’s Court. It should be of serious concern to all parties involved in the dispute concerning this child that there have been at least five separate proceedings filed in the courts at Lautoka. Two actions were filed in the Magistrate’s Court. Three separate proceedings were filed in the High Court. This is the third ruling that I have had to make in a period of less than two weeks concerning the dispute regarding custody of the child.

[3]	Mr. Shah, who appears for the child’s mother and appellant herein, strongly opposed the application. He submitted that the pending adoption application in the Lautoka Magistrate’s Court is beset with problems given that the biological mother of the child, does not consent to the adoption, and the Lautoka Magistrate’s Court cannot confer upon itself jurisdiction where there is no consent by the biological mother. His client, the biological mother returned to Fiji yesterday and is presently trying to obtain a flight to take her child back to Australia. Although I need not deal with the grounds of Mr. Shah's objections in this application, I think that it is important that I mention the law in Fiji as applies to an adoption application where the consent of one or both of the biological parents is not forthcoming. In Mala –v- Chand the Fiji Court of Appeal held in regard to the requirement of consent in adoption applications that:

"In addition we hold that the learned judge had no jurisdiction to entertain the application without the consent of both the mother and the father of the child".

[4]	The parties agree that the central issue in this application is the forum issue. Mr. Vuataki in helpful written submissions submitted that issues of custody and access have to be decided in the country of habitual residence of the child. I agree. He submitted that if the child is habitually resident in Fiji then the issue of residence and contact has to be in Fiji. Again I agree. He submitted that the issue of residence and contact still has to be decided by the Family Division of the Family Court of Lautoka. He submitted that custody rights should be decided first before the child is allowed to be removed from the jurisdiction of the courts in Fiji. I do not agree and will explain why in the course of this decision. He maintains that until a decision is made on the issue of habitual residence which is a question of fact, the child should not be permitted to leave Fiji. Whilst he does not dispute that between October 2006 and December 2007 the child was resident in Australia, he submitted that such residence was not habitual. He submitted that the child assumed habitual residence when she returned to Fiji on the 11 December 2007. He informed me that there is a Psychologist who is enquiring into the emotional attachments of the child to determine "habitual residence". He maintains that the issue of whether the child is "habitually resident" in Fiji or Australia is an issue of fact which must be determined first and until that determination there ought to be a stay of my earlier orders directing that the child be permitted to leave Fiji.

Consideration of application

[5]	Having considered the competing arguments heard this morning and the affidavits before this court in this matter and in related proceedings in HBM 8/08 and CA 18/08, I have declined the application for reasons which follow.

[6]	Neither Mr. Vuataki nor Mr. Green raised any objection in regard to my reference and application of the Hague Convention on the Civil Aspects of International Child Abduction (the Convention) in my earlier judgment which is sought to be stayed. 

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." (emphasis added)

[7]	In this case there is no dispute that the child was resident in Australia for 14 months prior to traveling to Fiji for a holiday with her mother in December 2007. There is no dispute that on 17 November 2006 the Local Court at Fairfield in the state of New South Wales made the following final order in respect of the child, "that the child Adi Melaia Grace Druma born on 1 August 2002 live with the applicant mother and she have the sole parental and residential responsibility for the said child" (the order in Australia). There is no dispute that since the order of the Fairfield Court, the child has been resident in Australia. There is no dispute that her mother, the appellant herein, has since the said custody order in her favor, had the sole parental and residential responsibility of her child in Australia. There is no dispute that the rights accorded to the mother by the Fairfield Court were being exercised by her, prior to their arrival in Fiji in December 2007. There is no dispute that this was the status quo until the child was retained in Fiji after December 2007. The only dispute, it seems to me is whether the child’s residency over the 14 month period between the making of the order in Australia and her arrival and retention in Fiji, was habitual. Mr. Vuataki submitted that the requirement of "habitual residency" prescribed by Article 3 of the Convention be ascertained before any orders are made which will have the effect of removing the child from this jurisdiction. He maintains that the period in which the child was cared for by the respondents in Fiji prior to the order of the Local Court at Fairfield supports his interpretation that for the purposes of Article 3 "habitual residency" is Fiji. With respect I am unable to agree.

[8]	In re J. (A Minor) (Abduction: Custody Rights) ]1990] 2 A. C. 562 at p. 578 Lord Brandon gave guidance as to a number of preliminary points relevant to the application of Article 3.

"The first point is that the expression ‘habitually resident’, as used in article 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B. The fourth point is that, where a child of J.’s age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers."

[9]	The ordinary natural meaning of the two words "habitually resident" is the regular or usual place where a person resides. Immediately before the child was retained in Fiji, her usual place of residence was with her mother in Australia. That had been the case for at least 14 months before she travelled with her mother to Fiji for a holiday. Those 14 months constitute an appreciable period of time and signifies a settled intention to enable her to become habitually resident in Australia. The same cannot be said in regard to the very short period of time between the child’s arrival in Fiji in December 2007 and 22 January 2008 when the first set of proceedings concerning the child was filed in this court. One month is not an appreciable period of time and there is no evidence of there being any settled intention to become a habitual resident. Of critical importance in this case is the fourth point of Lord Brandon’s guidelines, namely "where a child of J.’s age is in the sole lawful custody of the mother his situation with regard to habitual residence will necessarily be the same as hers". J was 3 years old. The child in this case is 5 years old. There is no dispute that her mother is habitually resident in Australia. There is no dispute that prior to traveling to Fiji in December 2007, the child was in the sole lawful custody of her mother. I apply the same principle as Lord Brandon and hold that in this case, given the child’s age, her situation with regard to habitual residence is necessarily the same as her mother’s, that is, Australia.

[10]	I cannot see the point in any further adjournments or deferment of my orders for the purpose of enabling an investigation or assessment to take place in regard to where the child was habitually resident immediately before her retention in Fiji. The facts in this case are clear. There is no dispute about the essential facts relevant to an assessment of this factor. I reiterate my conclusions in my judgment of 19 February 2008 that the retention of the child in Fiji is wrongful. It breaches Article 3 of the Convention. I am not prepared to perpetuate a state of unlawfulness in regard to the child’s continuing wrongful retention in Fiji.

[11]	In the course of argument Mr. Vuataki referred me to the judgment of the High Court of Australia in DP –v- Cth Central Authority. That authority does not support his argument. In his discussion of the objective of the Convention, Justice Kirby said at paragraph 127 of the judgment and I quote:

"Consistent with this general approach and consonant with the language of the Regulations (and of the Convention), it is proper to regard their objective as including that of normally restoring the child, and the other parties concerned, to the status quo that existed before the international removal or retention in question. Specifically, it is ordinarily to require that the authorities (courts or tribunals as the case may be) in the country of the child’s habitual residence should resolve the merits of disputes over custody and, in that context, decide the best interests of the child.

It is in this sense that provisions such as those in the Regulations are properly to be classified not, as such, as laws searching for the best interests of the child but rather as laws for selecting the forum where that search is to be undertaken and concluded. It is easy enough to slip back into a factual inquiry into the child’s best interests, that having for centuries been the duty of common law courts in disposing of analogous cases. But such a tendency must be resisted for otherwise the attainment of the main point of the Regulations and the Convention will be frustrated. 

[12]	In terms of the Convention, what is important is restoring the child to the status quo which existed before the retention in question. Specifically, it is ordinary to require that the courts in the country of the child’s habitual residence should resolve the merits of disputes over custody. The Convention provides the law for selecting the forum where the search as to what is in the best interest of the child is to be undertaken and concluded. To commence an investigation or assessment as to the best interest of the child at this stage, in Fiji, would be to entirely defeat and frustrate the objects of the Convention. I note that there has been no suggestion that returning the child to Australia would expose the child to a grave risk of physical or psychological harm, or an intolerable situation. It is for the courts in Fiji to decide whether return would expose the child to that risk. Given the complete absence of any credible evidence, (and there is a high threshold in this regard), the obligation which I have is to uphold the objectives of the Convention and to ensure that the country of the child’s habitual residence should resolve the merits of disputes over custody and, in that context, decide the best interest of the child. The forum where that search has to be undertaken and concluded is Australia and not Fiji. 

[13]	I have had no difficulties whatsoever determining that the child is habitually resident in Australia given the uncontested facts relevant to an assessment in this regard. The court in Australia and not Fiji is the proper forum to resolve the custody dispute concerning this child and to determine the best interests of the child. I reiterate that the child needs to be returned to Australia as a matter of urgency. The spirit and objects of the Convention safeguards and promotes the best interests of the child. There should be no further delays in giving effect to the main objective that the Convention was designed to promote. 

[14]	The application before me is dismissed. The pending appeal against the learned Magistrate’s orders will be next dealt with by Justice Scutt on Tuesday 26 February 2008 at 10.30 am. 

Gwen Phillips
JUDGE

At Lautoka
21 February 2008