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Kolora v Makereta [2012] FJMC 262; Family Case 478.09 (28 September 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Family Case No 478/09

BETWEEN

LENATU KOLORA

AND

MAJI MAKERETA

RULING

1. The Applicant filed a Form 9 Application on the 09th November 2009 seeking the custody of her child named; Robert Bera who was born on the 23rd October 2008. Further she filed a Form 12 Application seeking immediate release of her child with the assistance of the Police.
   
2. Later this application was struck out on the 01st July 2010 due to non availability of the Applicant and for non service. Further the child recovery application also did not eventuate due to the non appearance of the Applicant.
   
3. However on the 18th May 2011 the case was reinstated on the application of the Applicant and she was ordered to serve the Application on the Respondent.
   
4. The Respondent appeared in Court on the 23rd June 2011 and having considered the urgent nature of the application an urgent report was called from the Social Welfare in respect of the child and the parties. Subsequent to numerous reminders, eventually the Social Welfare report was received by the Court on the 13th March 2012.
   
5. It should be noted that the Respondent did not appear in Court after the 23rd June 2011 and the Court had to issue NOAH on her once the social Welfare Report was received, in order to fix this case for hearing. Finally the Respondent appeared in Court on the 07th June 2012 and the parties were referred before the Family counsel to explore any possibility of a settlement.
   
6. Since the parties could not reach an agreement the case was fixed for hearing. On the 12th July 2012 the case was taken up for hearing and the Applicant gave evidence.
   
7. The Applicant is 21 years and she said that she gave birth to the child named, Robert Bera on the 23rd October 2008. She said that she is unmarried and unemployed. The birth certificate of the child was tendered in evidence and it appears that no father's name is registered for the child. However she said that one Timoci yokiman was the father of the child. She further said that the respondent is a sister of Timoci Yokiman. As per the evidence given by the applicant it appears that the respondent has initially taken her child only for two weeks. The Applicant explained the tricks played by the Respondent on her by not returning the child. She further explained the efforts she has taken to retrieve the child ever since.
   
8. The Respondent cross examined the Applicant. However she did not dispute the evidence given by the Applicant. Instead The Respondent questioned the Applicant on her financial capability to support the child. At no point of time the respondent dispute the evidence on how she took the Applicant's child.
   
9. It appears that the Respondent has taken the advantage of the Applicant's vulnerable position to mislead her and to take the child. The evidence did not show at any time that the child has been given by the Applicant for the Respondent to keep permanently. How ever it was very clear that the respondent has misled and cheated the Applicant systematically to keep the Applicant's child. This was also confirmed by the sister of the Applicant and the Applicant's mother. They explained the efforts they have taken to get the child back and how the Respondent evaded those attempts.
   
10. I have even considered an affidavit filed by the Applicant along with her application for recovery of the child. In the affidavit she has stated that the Respondent has once used military officers to take the child from her. It appears form all these material placed before this Court that the Respondent has used unlawful methods to take away the child without the consent of the Applicant. It is very clear that the Applicant has been coerced and cajoled by the Respondent to keep the child with her.
    
11. According to the evidence given by the Applicant the child has been taken away from her when the child was 7 months. The child is born on the 23rd October 2008. The Applicant has filed this application for custody on the 09th November 2009. She said after exhausting all the avenues to get the child back she resorted to Courts. Further she said that she initially filed a child recovery application in Ba Magistrate's Court and later she was advised to institute the case in Lautoka.
    
12. This case has been dragging on since then mainly due to the lackadaisical approach of the Social Welfare officers. The Applicant has been deprived of her son for a long period due the delay in this case, which is a very unfortunate situation. The Court Record speaks for the attempts made by this Court to expedite the Social Welfare Report. Although the child has been with the Respondent on and off for nearly three years it does not appear that was due to a fault of the Applicant. Therefore it cannot be said that the Applicant slept over her rights without resorting to lawful remedies. The Court ordered the Applicant to have access to the child pending the determination of the custody issue to alleviate the disadvantaged position of the Applicant as the Social Welfare Officers delayed the report for 9 months.
    
13. At this juncture I am compelled to note the irresponsible conduct of the Respondent as well. The Respondent did not appear after the first date of the hearing. On the 15th August 2012 the hearing was adjourned after recording the evidence in chief of a witness for the Applicant as the Respondent did not appear to cross examine the witness. The Respondent did not appear on the 4th September 2012 as well. Thus the hearing was concluded as the Respondent failed to appear. The Applicant even told the Court that she did send a text message as well to the Respondent informing her about the further hearing. Although the Court is not obliged, the Respondent was issued with NOAH to appear when she did not show up after she appeared in Court on the 8th December 2011. It was very clear that the Respondent was willfully and purposely evaded the Court proceedings to obstruct the ends of justice. If the Respondent has a genuine intention to get the custody of the child in a lawful manner I cannot see any reason as to why she did not want to defend this case.
    
14. Be that as it may, the Court has to determine the issue of custody based on the evidence to assure the best interest of the child. However it should be noted that this case is different to a typical custody issue between a biological mother and a biological father. In such a typical scenario the court has to bear in mind that the both parties have an equal right over the child. Therefore the Court has to mainly consider the best interest of the child rather than the right to have custody.
    
15. However since this case is different to a typical case of custody the Court is saddled with both the issues of right to have custody and the best interest of the child.
    
16. As it was earlier noted, this case came to an end on an undefended basis as the Respondent failed to appear during the hearing despite the attempts made by the Court to secure her attendance. In this case there was no evidence to suggest that the child was given to the Respondent to have permanent custody. Further it was clear that the Applicant did not have an intention to give custody of the child to the Respondent. It is very clear that the Respondent has taken the advantage of the Applicant's position as unmarried, young mother with financial difficulties.
    
17. The Respondent's only contention was that the Applicant does not have a financial stability to look after the child. That issue would have been pertinent if the custody was to be decided between the mother and the father of a child. As it was earlier stated this is a custody issue between a biological mother and a third party who does not have a tangible right over the child. The child has no father as per the birth certificate and even if it is believed that the Respondent's brother is the biological father of the child, the Respondent still does not accrue any lawful right to have the child. This is not a case where the custody of a child has been given to a third party with the full blessings and consent of a biological mother. This is a case where the Respondent has taken away the child in a very elusive, dishonest and a misleading manner. To make this position more clear at no point did the Respondent adduce any evidence to the contrary.
    
18. It should be noted that financial capability is not the criteria to decide the right of a biological parent as opposed to an outsider to have custody of a child. Merely because a mother is poor or does not have financial capability does not take away her right to have the custody of her child. If that is the case the children of poor parents will have to be given away to financially sound families to look after for the best interest of the child. Best interest of the child does not mean that a child should be given to an affluent. Specially in a case like this the right of the biological parent supersedes other concerns unlike in a case where the contest is between the biological parents who have an equal right over the child. Therefore I am not inclined to accept the contention that the custody of the child should be given to the party with sound financial back ground.
    
19. I have considered the report submitted by the Social Welfare officer. The report recommends that the child should continue to remain with the Respondent. However it is clearly evident that the Social Welfare report is solely based on the financial aspect of the parties, which is in my opinion plays only a limited role.
    
20. In any event I have considered the financial capability of the Applicant as well. It is true that she is not as stable as the Respondent when it comes to financial capability. However the mother and the sister of the Applicant gave evidence that they are willing to support the Applicant to raise her child. It appears that still the Applicant is dependent upon the sister and her mother. But she said that she wants to pursue some education and she wants to find an employment to raise the child. It does not appear that it would be an impossible thing to raise a child with her family background and with the support from her family. It should be noted that being unemployed is not a disqualification to have the custody of her own child. I am satisfied that with the support of her family and with her future plans that the Applicant would be in a position to take care of her child.
    
21. The best environment for a child to grow up would be with his or her parents. In this case the child has only a mother and I did not see any special disability or disqualification of the Applicant to have her child. As far as the best interest of the child is concerned the most salubrious environment can be provided specially at the young age by the biological mother however much she may be financially weak. The Court has to be very cautious in cases where children are being deprived of love and care from their own biological parents. I have also considered the fact that the child as been living with the Respondent on and off for a considerable period of time. The change of custody could definitely have an impact on the child's mind. However it was revealed that the child knows the Applicant as the mother. Further the child has been seen by the Applicant on and off and therefore it cannot be said that the Respondent had exclusive custody of the child where the Applicant is a total alien to the child. Therefore I am satisfied that the change of custody will not have a considerable impact on the child.
    
22. It was also clear that the Respondent and her husband are emotionally attached to the child as they do not have children. I have considered the fact that if custody is granted to the Applicant the Respondent and her husband could be emotionally disturbed by loosing the child whom they were raising almost for three years. However the Court has to attach more weight to the right of the biological mother who was deprived of her son than to the emotional attachment of the respondent.
    
23. It appears that if the Respondent had a genuine intention to formalize the issue regarding the child she could have applied for an adoption order which she has not done. Secondly the Respondent informed Court on the 23rd June 2011 that she took the child as the Applicant could not look after and that she is willing to give the child back if the Applicant can look after the child. However later she changed her word and refused to give the child back to the Applicant. The Court cannot determine the issue of custody merely on the fact that one party is able to financially support the child.
    
24. I have considered the evidence adduced in this case. I am convinced that an utter injustice is occurred to the Applicant in this case due to her status, both financially and socially. Further I have given regard to the best interest of the child. I am satisfied that the Applicant has the potential and the ability to provide a reasonable environment for her child with the support of her family. I have no reason to think that the Respondent should have the custody of the child either based on the best interest principle or on any other ground.
    
25. In view of the foregoing reasons I decide to grant full custody of the child Robert Bera DOB 23.10.08 to the Applicant, Kolora Lewatu. Further I issue a child recovery order to retrieve the child immediately with Police assistance.
    

Rangajeeva Wimalasena
Resident Magistrate
Lautoka.
28.09.12