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AV v SSCTL [2013] FJMC 429; File 10-SUV-018 (26 November 2013)

IN THE FAMILY DIVISION OF THEMAGISTRATES’ COURT AT SUVA

FILE NO. : 10/SUV/018

BETWEEN:

AV
Applicant

A N D

S S C T L
Respondent

APPEARANCES/REPRESENTATIONS

Ms. Leweni T. for the Applicants

The Respondent- Absent and unrepresented

JUDGMENT

Introduction

1. The Applicant who is the biological father of the child FAHCL [hereinafter “the child”] filed a Form 9 Application on 10^th of February 2010 seeking orders which I quote in verbatim as follows:-
   
   1. “An order that the Applicant be given full custody of the child FAHCL.
      
   2. An order that the child FAHCL is not removed from the jurisdiction of this court until the disposal of the custody and access arrangements.
      
   3. An order that both the Applicant and the Respondent attend to counselling with the Deputy Registrar of the Court as soon as possible so as to allow for the sealing of either a cross jurisdictional parenting plan or custody and access arrangements.”
      
2. In response the Respondent who is the biological mother of the child filed Form10 Response on the 15^th of February 2010, in answer to the said application wherein she sought the following orders which we quote in verbatim:-
   
   • (1) “Full custody of the child
   • (2) Child to be removed out of Jurisdiction
   • (3) Parenting plan for custody to be granted to the respondent with contact to applicant.”
     
3. Both parties filed their respective Form 23 Affidavits in support of the orders sought.
   
4. The Applicant also sought interim residence by filing Form 12 Application on the 10^th of February 2013. The Respondent filed Form 12 Application on the 11^th of February 2013 seeking Recovery Orders from the court. The issue of Interim Residence was heard by the court and a ruling on the same was delivered on the 12^th of February 2010.
   
5. In the said Ruling, the Magistrate’s Court ordered that the child remain with the Applicant until the full determination of the matter. The court allowed the Respondent to have open contacts with the child whenever she was in Fiji and contact via telephone or Skype. The child Recovery Application of the Respondent was also dismissed.
   
6. The Respondent being dissatisfied with the Interim Ruling appealed to the HighCourt of the Family Court Division seeking that the said order be struck out for lack of competent jurisdiction. The matter was heard before the High Court and the Judgement was delivered on the 25^th of January 2011 wherein the appeal was dismissed and the matter before the Magistrates’ Court was ordered to take its normal course.
   
7. Since the ruling of the High Court on the 25^th of January 2011, this matter hasbeen pending for determination until it was finally heard on the 07^th of October 2013 wherein the Respondent and / or her solicitors failed to appear.
   

The Evidence

8. The Applicant
   

The Applicant relied on his Form 9 Application for Final Orders, Form 12 Application and Form 23 Affidavit which is before the court.

The parties met while studding Law in Port Villa, Vanuatu in the year 2005 and a relationship continued until August 2009.The parties had the child born on the 17^th December 2008 from the relationship, who is subject of the current Form 9 application.

The Applicant is a citizen of Fiji and a Solicitor by profession and the Respondent is a citizen of Samoa.

The Applicant informed the court that there is no longer any existing relationship between himself and the Respondent. However, from their relationship they have a daughter namely FAHCL who is to turn 5 this year in December. He together with his child lives with his parents at their home in 00 xx Road, Delainavesi, Lami. He stated that both his parents work. His father work Textbook Wholesalers s for a renowned law firm in Fiji whilst his mother is a Director for a book company. He tendered letters from his parents’ employers verifying their employment and his future prospects in the S& L, Suva firm.

He has had custody of the child since December 2009 and the child has lived with him since then. He has caused for to attend the Little Ones which is an early childhood centre and the child has attended the said school since 2012. He tendered a letter from MW who is the Centre Director. He is the only person who provides for the fees of the child to attend this school. He also picks and drops the child at school. He stated that when he is not able to do so due to work commitments, his mother picks and drops the child.

He stated that the Respondent has not made any contribution to the educational needs of the child. In preparation for the next school year, he has filed an application with YS Primary School for the enrolment of the child for the 2014 school year at the Kindy Grade. He stated that this is the school he chose for the child as it is well known for its academic excellence and extra curriculum activities which creates a balanced atmosphere for his child to grow in.

He informed the court that the child is also a member of the MH Methodist Church in Delainavesi wherein she also attends Sunday school. He stated that the child’s participation in this group ensures her spiritual development. He tendered a letter from the said church which is authored by Reverend NB who at the time was the Circuit Minister.

He informed the court that he had opened a bank account with Australia and New Zealand Bank (ANZ) which he plans to give to the child when she is of age. He does not spend the said money which is in the child’s account. However, the money is what he is saving to give her when she becomes of age. He tendered a copy of the child’s bank statement with ANZ.

The Applicant informed the court that the child has medical cover with Fiji Care which is an insurance policy that is taken out by his employers. This is a benefit which now extends to the child. He tendered a copy of the letter from Fiji Care verifying the same.

He stated that since the child has been in his custody, the Respondent has rarely called to speak to the child via telephone or skype. He said in the past two years the Respondent has made no contact with the child. He stated that he has never stopped the Respondent from having contact with the child. He has been emailing the Respondent pictures of the child and updating her on the daily progresses of the child but the Respondent has only responded once in the past. He has since stopped updating the Respondent as it has become clear that she is not interested in the child since she has married and has children from her husband.

The Respondent had not made any contact during special occasions such as the child’s birthdays and Easter or Christmas holidays.

He stated that the Respondent has not willing made any contribution whatsoever to the welfare and wellbeing of the child. He stated that he earns a little over $55,000 per annum and is more than capable of raising the child on his own.

He stated that he fears that should the child be taken to the Respondent’s home in Samoa, the child would be fearful since she has had no contact with the Respondent and her family for the past years. He further stated that she would suffer culture shocks as she is unfamiliar with the Respondent’s culture and way of doing things. He stated that he has never been against the Respondent having contact with the child. However, he states with the current political relationship of Fiji and Samoa, he fears that should the Respondent be allowed to take the child, the Respondent would not honour the court order.

He stated that he has now bought a home which he plans to move into once the tenants have moved out. The home is situated at Namadi Heights. The new home has ample space in the front and back for the child to play and is completely fenced which makes it safe for the child. The child will have her own room and space.

He stated that in preparation of the Hearing for this matter he caused for the child to be examined and assessed by a Psychotherapist who then articulated her finding in a report. This report was tendered as part of his evidence.The assessment makes the following conclusion at page 3 and 4:-

“It is my professional opinion that removing the child FAHCL her primary caregiver and consistent parent figure would possiblybe detrimental, dangerous, abusive and not in the best interests of thechild.

FAHCL has demonstrated that she currently feels safe, loved,cared and secure and has a role model that she can depend on at all times.

At this age and for the next ten (10) years at least, a child of her age, needs and demands a consistent care and love, that which she is currently receiving from her biological father and primary caregiver, to give or suggest an alternative living arrangement would put undue stress and cause unnecessary emotional agony for the child Amelia, it would be irresponsible and detrimental for the child.”

The Applicant father also stated that he seeks residence of the child and the Respondent is to have contact with the child in Fiji until such time the child is old enough to travel on her own to Samoa for contact.

9. The Respondent
   

The Respondent failed to appear for the Hearing.

The Law and the Determination

10. Part VI of the Family Law Act 2003 [hereinafter “the Act”] deals with Children wherein the object of the Part is stated at section 41 and provides as follows:
    
    • (1) The objects of this Part are:-
      
      • (a) to ensure that children receive adequate and proper parenting to help them achieve their full potential: and
        
      • (b) to ensure that parents fulfil their duties and meet their responsibilitiesconcerning the care, welfare and development of their children.
        
    • (2) The principles underlying these objects are that, except when it is or wouldbe contrary to a child’s best interests-
      
      • (a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
        
      • (b) Children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development;
        
      • (c) Parents share duties and responsibilities concerning the care, welfare and development of their children; and
        
      • (d) Parents should agree about the future parenting of their children.
        
11. At Section 120 and 121 of Division 10, part VI of the Act, provision is made forhow the court is to determine the best interest of a child as follows:-
    

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

(2) This Subdivision also applies to proceedings, in relation to a child, towhich section 60(6) applies.

How a court determines what is in a child’s best interests.

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 contract 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 protectthe 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;
  
• (iii) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
  
• (iv) any family violence involving the child or a member of the child’s family;
  
• (v) any family violence order that applies to a child or a member of the child’s family;
  
• (vi) any other fact or circumstances that the court thinks is relevant.
  

(3) If the court is considering whether to make an order with the consent of all the parties to the proceedings, the court may, but is not required to, have regard to all or any of the matters set out in subsection (2).[Emphasis added]

1. The Applicant submits that Section 121 deals with the various considerations that the court must consider when determining the “best interest of the child”. The evidence of the Applicant and all the documents tendered into evidence demonstrates the Applicant’s intentions of being a parent who is concerned about the wholesome development of the child. Due to the absence of the Respondent during the Hearing, the evidence of the Applicant has not been contested and is admitted without challenge.
   
2. Section 121(2) (c) allows the court to consider the effect of any changes in theChild’s circumstances including any separation from either of the parents.
   

The child in the present case has been living with the Applicant and his family since she came to Fiji in 2009. It is submitted that for the past four years, the child has only been surrounded by her father and her paternal relatives. Considering the evidence adduced in court it is suggest that the Respondent has failed to keep in contact with the child despite the development of technology.

100. It is noted that in view of the above assessment by the psychotherapist any Separation of the child from the Applicant would be “detrimental, dangerous and abusive and not in the best interest of the child”. It is further submitted that the lack of continued and constant contact with the mother has left the child to displace the mother-daughter bonding and attachment. It is therefore submitted that residence of the child should be granted to the Applicant who has been the constant, consistent and primary caregiver of the child.
     

12. Section 121(1)(b) of the Act also allows the court to consider the nature of the Child’s relationship with each of the parents who are the parties to the current proceedings.
    
13. The Applicant in his evidence in chief informed the court of the attempts he has made to update the Respondent of the various progresses of the child. He stated that he was also emailing photos of the child to the Respondent but there has be little response which we submit demonstrates the lack of interest of the Respondent in the life of the child.
    
14. Section 121(1)(g) of the Act allows the court to take into consideration the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.To this end, the Applicant has taken responsibility of the child’s education with the assistance of his parents when it comes to the picking and dropping of the child to and from school. The Applicant further stated to the court in his evidence in chief that he has opened a bank account in the name of the child wherein he puts money which he plans to give the child when she becomes of age. Furthermore, the child is also covered medically under the Applicant’s insurance cover which is a benefit he receives as part of his employment which demonstrates the commitment that the Applicant has to the wholesome welfare and wellbeing of the child.
    

Conclusion

15. The Applicant in his evidence in chief stated that the Respondent has never utilised the contact granted to her by the court by virtue of the Interim Order dated 12^th February 2010 which allows for her to have contact via telephone or Skype. Furthermore, the Applicant stated on oath that the Respondent has never willingly contributed to the welfare and wellbeing of the child which suggest the attitude that the Respondent has towards her duties as a parent to the child. Accordingly, it is appears for the reasons articulated above that the Applicant who has been the constant, consistent and primary care giver of the child.
    
16. The Applicant also stated in Court that in relation to an order sought that he and the Respondent attend to counselling with the Deputy Registrar of the Court as soon as possible so as to allow for the sealing of either a cross jurisdictional parenting plan or custody and access arrangements is not necessary given the current circumstances. And consented that should the child removed from the jurisdiction of this court it has to be by consent of both the Applicant and the Respondent.
    
17. At the end of the hearing I have interviewed the child. She said that her name is “FAHCL” and she is 5 years old. She further expressed her wiliness that she wants to lives with her father.
    
18. I have considered the report submitted by the Social Welfare Officer. The contents of the report When considering this application I bear in mind relevant provisions of section 41, 120 ,121 and 122 of the Act, it is concluded that it is in the best Interest of the child that residence of the child. In addition to that in reaching the den relating ting to the residence of the child, , the court also&considered, amon amongst others that;
    1. the ascertainable wishes and feelif the child;
    2. Social Welfare Officer's report
    100. Interim orders which was delivered on the 12^th of February 2010.
    4. her physical, emotional and educational needs;
    5. the likely effect on herof any change in her circumstances;
    6. her age, sex, background and other characteristics of which the court considered relevant;
    7. how capable each of her parents, in particular he father and any other person in relation to whom the court considered the question to be relevant, is of meeting he needs;
    8. Orders which was delivered on the 12^th of February 2010.
19. In light of the above discussed and considering the entire evidence, the relevant law and the and most importantly the best interest of the child I find the Applicant/Father is capable and can provide for the needs of the child, including emotional and intellectual needs and therefore is the best person to have Residence and take care of the child.
    

ORDERS;

20. Accordingly, the Applicant/Father shall have Residence of the child namely FAHCL born on the 17^th December 2008.
    
21. The Respondent/ mother shall have open contacts with the child every time she visits Fiji and both parties to mutually arrange the place and time of contact. The mother is also allowed to have open contact via telephone or Skype every week between the hours of 09am to 8pm or upon mutually agreed by both parties whilst she is in Samoa.
    
22. The Respondent/ mother may be taken the said child, namely FAHCL out of the jurisdiction of this Court upon mutually agreed by both parties, in particular by consent of the Applicant/father.
    
23. Right of Appeal – 30 days from the date of this oral ruling.
    

LAKSHIKA FERNANDO MS)

RESIDENT MAGISTRATE

DATED AT SUVA this 26^thday of November 2013.