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RD v SN [2013] FJMC 343; Family Court Case 47.NAS.2011 (18 July 2013)

IN THE MAGISTRATES COURT AT NASINU

Family Court Case No. 47/NAS/2011

R D
[Applicant]

VS

S N
[Respondent]

Parties appeared in person

RULING ON CUSTODY

1] The Applicant filed form 9 seeking full custody of her daughter R R D. The Respondent has filed from 10 the response to the application seeking full custody of both children.

2] The case heard on 04th April 2013. The applicant R D gave sworn evidence first. She said before her daughter used to reside with the respondent. Whilst she was residing with her father, daughter called her once and informed that she doesn't want to stay with her father anymore. The reason why she doesn't want to stay with him is that her dad always asks her to cook for him since she is 14 years of age .she needs more time to study. Last year she came back and staying with me. Later he daughter went back to her father again because he has given promise that he will buy mobile phone, computer the daughter. He has given some cash to her. The Applicant said that after 6 months, she received complaint from the daughter her uncle touching her breast. She told grandparents regarding this but they kept silence. When she informed the farther He growled at her stating false allegation on my brother. She reported matter to Nakasi police, when the matter was inquired the daughter replied that she wanted to stay with her. From that day till today her daughter is staying with the applicant. The applicant said the police did not file case against the respondent's brother stating there's no witnesses who saw the uncle touching the daughter. So she file filed this Form 9 application so that she can have a full custody of my daughter. She said "I feel that my daughter is unsafe with her dad Sir since there's no lady in that house." The occupants are his elder brother, grandfather, my daughter's grandfather, Only 3 of them residing in that property. The applicant claimed full custody of the court. She said "I am asking the Court if the Court could grant the full custody of my daughter. Sir I believe that a mother can look after her daughter well". The applicant said the daughter has reached puberty.

3] In cross examination the applicant said the grand mother is not staying with the respondent and she stays with her daughter (the Respondent's sister).

4] Then, the applicant closed her case.

5] Thereafter, the respondent, S N gave sworn evidence. He said "Regarding about my daughter, I was looking after my daughter very well. I got no problem with my daughter. Police has taken my daughter for investigation to Nakasi Police Station. And from there they have given my daughter to my wife. Where my daughter I feel is very unsafe house with the de facto father. And I got no problem with my daughter. I was looking after her well, providing all facilities, house, water, light, food and transporting her. And Police has given my daughter to my wife on 26/11/12. I was really looking after my daughter for quite long but where my daughter is staying now staying with de facto father there. I feel my daughter is very unsafe place. That's what I have to say. And I want my daughter".

6] There were no cross examination. The respondent then closed the case.

7] The both parties have concerned about safety of the daughter. The applicant says that there is no lady in the respondent's house and the brother of the respondent touched the breast and harassed her. The Respondent said that the applicant is staying with de facto, he might seduced or molested the daughter.

8] The issue here is that the applicant asked full custody of the children. When court makes parenting order the court must look at best interest of the children. In Family Law Act section 120 says;

"120.-(1) This subdivision applies to any proceedings under this Part in which the best interests of a child are the paramount consideration. (Underlining is mine).

9] Matters are to be considered in section 121 when parenting order made as follows;

Section "(121)- (1) Subject to subsection (3), in determining what is in the child's best interests, the court may consider the matters set out in subsection (2)

(2) The court must consider-

(a) any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

(b) the nature of the relationship of the child with each of the child's parents and with other persons;

(c) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from-

(i) either of his or her parents; or

(ii) any other child, or other person, with whom the child has been living;

(d) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(e) the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;

(f)the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of the child) and any other characteristics of the child that the court thinks are relevant;

(g) the need to protect the child from physical or psychological harm caused, or that may be caused, by-

(i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or

(ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;

(h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(i) any family violence involving the child or a member of the child's family;

(j) any family violence order that applies to a child or a member of the child's family;

(k) any other fact or circumstances that the court thinks is relevant."

10] In view of the above governing law the best interest of the child should be the paramount consideration. After the incident the child was handed over to the applicant mother. The applicant mother then asked full custody of the child. Till that the respondent did not file form 9 as his child was taken by the applicant. When the applicant applied to get the full custody that the respondent resisted the form 9 by filing form 10.

11] The court called Social welfare Officer's (SWO) report. Parties' information was gathered by the SWO. Interview was conducted with the applicant, the respondent and their children who are living with their mother.

12] The SWO has done the assessment. It was assessed that:

• The parties in this matter have their own matrimonial issues which affects the children's upbringing.
  
• The children are comfortable living with the Applicant and enjoyed living together as siblings.
  
• The children are closely attached as siblings and that they would not want to be separated.
  
• Both parties home situation are well maintained and safe and secured for the children.
  
• Financially both parties are earning a sufficient income from their employment which is affordable for their living.
  
• The youngest child of the parties – Radhika Ronita Devi is easily influenced and given promises by the Respondent causing her to move to him but she continues to contact her mother secretly.
  

13] Recommendation of the Social welfare Officer is as follows;

"Due to the above and as per the children's wishes, it is in their best interest that the Applicant be granted full custody of their children particularly their youngest daughter and the Respondent to contribute financially for her welfare. It is also advisable that the Respondent be given reasonable contact with conditions to allow fair contribution of love and care for the child from both parties."

14] The Welfare Officer did not notice that the Applicant s living with a de facto. But officer mentioned that the respondent's allegation was denied by the applicant lady. The children expressed that they are willing to stay with the mother. The youngest daughter is grown up girl who is in teen age. The safety of this girl cannot be ensued if the custody granted to the respondent father. There are no ladies in the respondent's house as the SWO noted. The youngest child had been counseled and she has expressed her wishes to be with the applicant mother with weekend access to the father. If there is a lady is in the respondent's house, the weekend access can be considered to the respondent father. But for the time being, I make no orders for week end access.

15] Considering all these facts, on balance, I make following orders;

1. The full custody of the children (including youngest child R R D) to be with the applicant mother.
   
2. The respondent to have reasonable access, with prior arrangement and notification by both parties. The respondent must not contact without children's wish and the supervision of the applicant mother.
   
3. Parties to bear their own costs.
   
4. 30 days to appeal.
   

Orders Accordingly.

SUMUDU PREMACHANDRA
RESIDENT MAGISTRATE-NASINU
11-07-2013

Copies 1- The Applicant
2. The Respondent
3. File 11/NAS/ 0047.