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BC v MC [2014] FJMC 189; File 14-SUV-0268 (8 August 2014)

IN THE FAMILY DIVISION OF THEMAGISTRATES’ COURT AT SUVA

FILE NO. : Case No. 14/Suv/0268

BETWEEN:

BC

Applicant

A N D

MC
Respondent

APPEARANCES/REPRESENTATIONS

Form 12 and 23 Applications on 30 July 2014 and Form 1 3 & 23 Application on 07 August 2014

The Applicant- Shekinah Law

The Respondent- Salele Law

RULING

Introduction

1. The Applicant who is the biological father of the children JR on 07 January 2011; and BT born on 02 September 2012 [“the children]” filed a Form 9 and form 12 and 23 Applications seeking orders which I quote in verbatim as follows:-
   1. “An Order that the interim orders granted by the Registrar/Conciliator of the Family Court dated 4^th day of July 2014, be varied, for the duration of the time that the Respondent mother will be away overseas (1^stAugust 2014 until the 31^st of August 2014), so as to allow to Applicant father residence of the children.
      
   2. An Order that reasonable access to the children be granted to the Respondent mother for the duration of the time that she will be overseas.
      
   100. An Order that upon the return of the Respondent mother to Fiji, the interim orders of the Court on the 4^th of July 2014 will resume.”
2. In response the Respondent who is the biological mother of the child filed Forms 13 and 23 Response, in answer to the said applications on seeking the following Orders –
   1. “That the Respondent man’s Application to be dismissed.
      
   2. The Respondent man to pay for costs of this application.
      
   100. Any other Orders this Court deems just and necessary.
        
   4. To vary the interim orders of the 4^th of July 2014 to allow the man more access to time to the children.”
      

Background;

The Applicant man and Respondent mother have two children. Currently there is an interim order in place in regards to access to children. The Order was facilitated via way of an Agreement between the Applicant man and Respondent lady before the Registrar/Conciliator and the Counselor of the Court on the 4^th day of July 2014. The interim order of the 4^th of July 2014 was via agreement of the party, which grants interim residence of the children to the Respondent lady and access to the Applicant man. The Respondent mother will be leaving Fiji for a work trip overseas on the 11^thof August 2014 until about the 30^th of August 2014.The respondent mother also filed form 23 inter alia which reads that she was a victim of Domestic violence and an Interim DVRO was made by the Court.

3. On 08 august 2014, the matter was fixed for the hearing of form 12 and 23 and adjourned for the decision on the same date given the circumstances.

ISSUES TO BE DETERMINED

The issue for determination by the Court is, whether the interim Orders of Friday, 4^th of July 2014 be varied to allow the Applicant man residence of the children of the marriage for the duration of time that the Respondent lady is away overseas.

The Evidence

4. Form 12 and 23 Applications on 30 July 2014 and Form 1 3 & 23 Application on 07 August 2014. The Court considered the written and verbal submission by the parties in Court on 08 August 2014.
   

The Law and the Determination

5. Part VI of the Family Law Act 2003 [hereinafter “the Act”] deals with Childrenwherein 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.
       
6. At Section 120 and 121 of Division 10, part VI of the Act, provision is made for how 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 the best interests of a child are the paramount consideration.

(2) This Subdivision also applies to proceedings, in relation to a child, to which 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 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;
  
• (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. ((Emphasis added)
  

7. According to the above paragraph that the Section 121 deals with the various considerations that the court must consider when determining the “best interest of the child”. Section 121(2) (a) allows the court to consider 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; In this matter the children were of very tender age and the children did not interview by the Court.
   
8. Section 121(2) (b) allows the court to consider the nature of the relationship of the child with each of the child’s parents and with other persons while Section 121(2) (g) provides that the need to protect the child from physical or psychological harm caused, or that may be caused by including that the court to consider any family violence order that applies to a child or a member of the child’s family. In this token, the court is mindful about Interim DVRO. The court also note that there is a pending Domestic Violence matter (D.V 114/ 14) and an Interim DVRO for the wellbeing of the mother and the children. The court also noted the matter yet to hear inter parte and determine and also note that the alleged domestic violence is on the wife not on the children. The respondent deny allegation of domestic violence on the wife.

9. Section 121(2)(c) allows the court to consider the effect of any changes in the Child’s circumstances including any separation from either of the parents and Section 121(2)(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. Moreover, Section 121(2) (f) provides that the court also must consider the child’s maturity. And also, pursuant to section 121(2) (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.
   
10. I refer to the Respondent’s Form 23 (6/8/14) paragraph 8 but there is no evidence before the Court to support her allegations.
    
11. Section 45 of the Family Law Act states that –

“45 – In this part, parental responsibility, in relation to a child, means all the duties, powers and responsibilities and authority, which by law, parents have in relation to the children”.

Section 46 of the Family Law Act states that –

“46. (1) each of the parents of a child who is under 18 years has parental responsibility for the child.

(2)Subsection (1) has effect despite any changes in the nature of the relationships of the child’s parents such as becoming separated or either or both of them marrying or re-marrying.

(3)...............................”

S.41 (1) reads; that 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 responsibilities concerning the care, welfare and development of their children.

12. The children in the present case has been living with their parents until their separation in May 2014.The Applicant man wishes to look after the children of the marriage for the duration of time that the Applicant lady is away overseas. The solicitor for the applicant submitted that father willing to take leave from his employer and also stated his university break also commence from today. The children of the marriage have always lived with both parents, until most recently when the parties went their separate ways.
    
13. The nanny of the children has only been with the children for a period of about one year, six months and is a relative of the Respondent mother. The Applicant man has always been with the children since birth of the eldest child, JR in 2011. The applicant is their father. Father submits that this will be an opportunity of more bonding time for the Applicant man and the children.
    
14. When considering this application I bear in mind above discussed relevant provisions f the Act, In addition to that in reaching the decision relating to the issue of variation of interim contact of the child.
    
15. I have also considered the Applicant man is the biological father of the children of the marriage and should have first right to residence of the children in the absence of the Respondent mother and provide for their welfare and needs during the absence of the Respondent mother. The maternal grandmother or the nanny of the children is not parties of this matter and the court is unaware about their ability to cater for the needs of the children.
    
16. The court also wishes to highlight S.42(2) The principles underlying these objects are that, except when it is or would be 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.

17. 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.
    

ORDERS

• The Applicant/ father shall have the extended contact of the children of the marriage for the duration of the time that the Respondent mother will be away overseas (11 August 2014 until the 30^{th t} of August 2014) or until mother return back to Fiji.
• The court wish to fix an early hearing date to determine pending Form 12 and 23, 5 and 9.
• The court hereby appoints the Director Social welfare Department, Suva as the child representative pursuant to sec.125 of the Act. The child representative to visit the children on 13^th - 15^th August 2014 at the applicant’s and report back to the court (if necessary) actions if children has any difficulties to stay with their father.
• The senor Court officer, Family Division to serve a copy of this Ruling to the Social welfare Department, Suva on or before 11^th August 2014.
  
• The Respondents shall have reasonable contact during her absence. The respondents are also allowed to have contact via telephone or Skype or any other mode of communication or upon mutually agreed by both parties.
  
• The applicant to provide the address of his residence and contact details today itself to the solicitor of the respondent and to the Senior Court Officer.
  
• The applicants shall not take the children out of the jurisdiction of this Court.
  
• The matter adjourned to fix a hearing date for pending applications.
  

18. Right of Appeal – 30 days from the date of this ruling.
    

LAKSHIKA FERNANDO (MS)

RESIDENT MAGISTRATE

On this 08^thday of August 2014.