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HK v MB [2015] FJMC 155; File 14-SUV-0340 (29 December 2015)

IN THE FAMILY DIVISION OF THE MAGISTRATE’S COURT AT SUVA


FILE No: 14/SUV/0340


BETWEEN:


HK

Applicant


AND:


MB

Respondent


____________________________________________________________________
APPEARANCES/REPRESENTATIONS

Applicant Lady Absent and Unrepresented
Ms. Vaniqi S. for the Respondent
Child Representative; Mr. Ali S. (Legal Aid Commission)

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RULING ON FORMAL PROOF


BACKGROUND FACTS


Introduction


  1. The Applicant/Lady, biological mother of the child, namely ASKB who was born on 11 April 2014 [hereinafter “the child”] initially filed applications for Residence of the child and Maintenance along with an application for interim residence and interim Maintenance. Further, The Respondent filed a Form 10 on 24th July, 2014 contesting custody, and seeking orders that baby ASKB remain in his custody instead, with reasonable access to the Applicant mother.
  2. On 01 September 2014, both parties entered into interim Residence and contact arrangement by consent. [“The Consent Order"] and subsequently the Applicant filed an application for child recovery.
  3. Subsequently, the matter was heard and on the 7th April, 2015 (in regards to a child recovery application) interim orders were made on.
  4. The interim order stated inter alia that until the completion of the case and the hearing of the Form 9 for final orders regarding child residence, baby ASKB was to stay 3.5 days with the Applicant mother, and 3.5 days with the Respondent father.
  5. As of 7th April, 2015 baby ASKB was moving between both parents.
  6. The case continued, however on two occasions, when the matter was marked for mention, neither the Applicant mother nor her counsel appeared.
  7. Then on 12th June, 2015, a Notice of Withdrawal was filed by the Applicant’s counsel.
  8. When the matter was again listed for mention and still there was no appearance by the Applicant mother, counsel for the Respondent sought a Formal Proof date in regards to his Form 10 where he sought full custody of his daughter.
  9. The Social Welfare Report has also been provided to the Court, as there was necessary interview done by the Social Welfare Officers.
  10. The Court also appointed a Child Representative pursuant to Sec. 125 of the Family Law Act. The child representative also filed a report and a supplementary letter to the Court.
  11. The Court noted all necessary procedures have been followed as required by the Respondent to obtain a formal proof date to consider his application (Form 10) for the residences of the child.
  12. The Respondent father seeks final orders should be made in favour of him for full time care and custody of the infant, ASKB.

The Evidence


The Applicant


  1. The Applicant failed to appear for the Hearing. The Child representative’s report states that the respondent failed to response for their attempts to schedule an appointment for an interview.

The Respondent


  1. The Respondent relied on his Form 10 Application for Final Orders and the court proceeded with the formal proof. The Respondent , with the leave of the court also filed affidavit evidence in chief in the court to reflect the below mentioned findings;
  2. The Respondent seeks residence of his child. I also perused the social home environment report and considered the same carefully.

The Law and the Determination


  1. 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:
(2) The principles underlying these objects are that, except when it is or would be contrary to a child’s best interests-
  1. 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 –
(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:-

(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]

EVIDENCE AND ANALYSIS

  1. I will not reiterate the entire evidence on the court but reference would only be made to the relevance of evidence to the present application and for analysis purpose.
  2. As discussed above Section 121 deals with the various considerations that the court must consider the “best interest of the child”. The evidence of the Respondent which tendered into evidence demonstrates the Respondent’s’ intentions of being the father who is concerned about the development of the child.
  3. Due to the absence of the Applicant during the Hearing, the evidence of the Respondent has not been contested and is admitted without challenge. The Social Welfare report which was done during the course of proceedings in this case. It was noted at page 3 under the heading
    Home Situation that the Respondent lives in a 4 bedroom house, with one of the rooms on the top floor being occupied by baby ASKB and her nanny VK. The report also noted that the house has a large child friendly compound with a mini children's play area just beside the house.
  4. It is also noted that the Welfare report also confirmed that the Respondent’s home is secured with two security officers to ensure the safety of baby ASKB. Aside from this, the Respondent in his Evidence in Chief confirmed he earns $800 per fortnight and so is able to financially provide for his young daughter. It is noted that towards this end, the Respondent currently pays for a full time nanny, as well as buys all her diapers, wipes, clothes, provide nutritious food, formula and other necessities that a 1.5yr old baby has.
  5. It is noted that the Respondent has ensured his daughter is taken care of by the same nanny who has taken care of ASKB since her birth and is also her maternal aunt, namely VK. As such, Nanny VK provides the consistent care and attention to the child.
  6. 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.
  7. The child in the present case has been living with the respondent. It is noted that for the past few months, the child has only been surrounded by her father and paternal relatives. Considering the evidence adduced in court it is suggest that the Applicant has failed to keep in contact with the child despite the interim Residence and Contact order and despite of the development of the technology.
  8. Section 121(1) (b) of the Act also allows the court to consider the nature of the Child’s relationship with each of the parties to the current proceedings.
  9. The Social Welfare report also observed that baby ASKB is being raised in a close knit family as 4 of the Respondents 5 sisters have children of their own and as his family usually gathers for Sunday lunch at his parents’ home, this means baby ASKB is growing up surrounded by her cousins. Aside from this, it is noted that the Respondent also ensures his daughter is in regular contact with her maternal relatives through family visits with the nanny VK.
  10. Regarding access, the court has heard from the Respondent, in that he is willing to give the Applicant weekend access provided she gives a stable home address and confirms that she will be looking after ASKB at that address only, as the Respondent stated that he continues to worry over how the Applicant mother takes baby ASKB to a variety of different homes which is feel is not a safe for a 1.5yr old baby girl.
  11. Given the above, the Respondent father seeks order in terms of his Form 10 granting him full Residence of the child.
  12. Currently, mother has virtually no relationship with the child and that nanny VK is the primary care giver with the father. Thus there are no changes in the child's circumstances, including the likely effect on the child of any separation from her mother as presently; both the child and the Respondent have been living separately from the Applicant; however the Respondent is aware of the right of the Applicant to maintain personal relations and direct contact with the child.
  13. It was submitted by the Respondent that there is no risk to the Applicant mother, as Nanny VK will be relied on to take baby to the permanent address of the Applicant, and will also ensure she is returned to her father when the access visit is over.
  14. It is also requested by the Respondent that if reasonable access be granted on alternative weekends to the Applicant, only on the condition that she give court her permanent address and notifies the Registry and the child representative, Legal Aid in the event that she changes that address.
  15. 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. In this matter it is extended to the mother as well. To this end, the Respondent has taken responsibility of the child. The Respondent himself said during the hearing that he does not doubt the Applicant loves their daughter, but as he testified, loving her and being capable of caring for her are two different things.
  16. The Respondent in his evidence in chief stated that the Applicant very rarely utilised the contact granted to her by the court by virtue of the Interim Order which suggest the attitude that the Applicant has towards her duties as a parents to the child. Accordingly, it appears for the reasons articulated above that the Respondent has been the constant, consistent and primary care giver of the child in the near past.
  17. In comparison, the Respondent says he spends time with his daughter when he is at home, they play in the park located at his parents’ home, or he takes her for rides in his car, or they just stay home and play with her toys.
    1. The Respondent is employed and have been contributed to look after the child since birth, taking care of needs of the child, including emotional and intellectual needs;
    2. There is no evidence as to the child is not being directly or indirectly exposed to abuse, ill- treatment, violence or other behaviour that is directed towards, or may affect, another person and or any family violence involving the child or a member of the child's family; There is no evidence as to any proceedings and/or a family violence order which applies to the child.
    3. I have also considered the report submitted by the Social Welfare Officer. The contents of the report inter alia confirm the evidence given by the Respondent. The Social Welfare Officer also observed a close bond the child shares with the Respondent. Given the child's maturity and her level of understanding; this Court has better informed itself of wishes expressed by the child by ascertaining a Social Welfare Report and Child representatives Report.
  18. 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. To be determined In addition to that in reaching the decision rng ting to the residence of the child, , the court also coned, amongst others that;that;
    1. Social Welfare Officer's report
    2. Child Representative’s report
    1. Interim orders which was delivered on 7th April 2015.
    1. Child’s physical, emotional and educational needs;
    2. The likely effect on hereof any change in her circumstances;
    3. Child’s age, sex, background and other characteristics of which the court considered relevant;
    4. How capable each of her parents, in particular he father and any other persons in relation to whom the court considered the question to be relevant, is of meeting the child needs;
  19. The Respondent urges court to give limited access to the Applicant mother. His only condition is that she informs court of her permanent address so he can be assured the baby is in a safe home environment.
  20. It is submitted by the Respondent that in fact, the Applicant lady is already not complying with Order III(h) where court had said;

"(h) That the child will reside with the mother at a current residence and in the event Applicant/Lady should move from her current residence the father, child representative and the court shall be given prior notice of the same. The mother shall also give her
current residential address today to the court and to the father”


  1. These whole proceedings in the family court began on documents and papers filed by the Applicant mother. However, as the matter has taken its normal course, the Applicant has no longer shown any interest in the proceedings, and it is noted that it can be implied by her actions that she is no longer interested in pursuing legal custody of her infant daughter. The Respondent submits that “if she was sincere, she would have stayed the course and continued to fight to keep her daughter. She has not, only the Respondent father has.” At Formal Proof stage, his is the only voice the court heard. When the Applicant lady failed to appear in court on several occasions, she lost her voice in court.
  2. Respondent seeks access to the Applicant mother on alternative weekends, provided she gives a permanent address to court. He is willing to take and pick up the child, using Nanny VK as an intermediate agent.
  3. The object of ‘Resident and Contact’ is to enable the parent and child to keep in touch with each other by allowing periodically visits as specified times to avoid potential conflicts.
  4. It is important that I address rights of a child according to Law. It is principal right of a child to know and be cared for by both their parents.
  5. PART VI of the FLA extensively sets out the principals that the court to consider when granting orders in respect to CHILDREN.
  6. A further important point to be noted about the sec 41(2) (b) of Family Law Act inter alia that) “children have a right of contact, on a regular basis, with both their parents”.
  7. Sec 41.-(1) of FLA reads the objects of this Part are-

(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.
  1. It is immediately apparent that, in the light of child’s right, no longer to speak of only parents’ rights, either father or mother not has an absolute right to have the sole residence of the child. Because, whatever his or her wishes may be, children have the right to know and be cared for by both their parents. As it is normally the basic right of both Parent and Child to have each other’s Companionship, it is only in the most exceptional circumstances that the court will sever the link between them by denying the parent Residence or Contact altogether.
  2. The Court also, wishes to highlight, that the child should be bonded with her biological mother as it is a right of the child as well. The child’s interests are the most significant consideration and that they would best met by facilitating the establishment of a relationship with both her parents.
  3. In light of the above discussed and considering the entire evidence, the relevant law and most importantly the best interest of the child I find the Respondent 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


  1. Accordingly, the Respondent Father shall have Residence of the child namely; ASKB who was born on 11 April 2014.
  2. That the Applicant mother shall have contact with the child on every alternative Saturdays and on every alternative Sundays from 10.00am to 5.00pm (1st week –Saturday, 2nd week Sunday, 3rd week Saturday, 4th week Sunday, 5th week (if any) Saturday) to commence on the first Saturday following the making of these orders at her current residence or both the parties to mutually arrange the place of contact.
  3. That unless the parents otherwise agree in writing, the location nominated by the child representative in accordance with the above order (if there is any disputes as to the location father wish to nominate) shall thereafter be the place of exchange for the purpose of these orders or if any dispute with the Child Representative regarding the place of exchange, parties are to follow the interim order.
  4. That if the child will contact the mother at her current residence and in the event Applicant should move from the current residence, the father and the registry shall be given prior notice of the same.
  5. That unless the parents otherwise agree in writing, both parents shall cause the child to be delivered to each parent or a nominee by the independent child representative at the place of exchange at commandment and of conclusion of time of the both parents time or Subjected to the Applicant’s consent, the Respondent drop and pick the child with Nanny VK as he has offered.
  6. Applicant mother is also allowed to have contact via telephone or Skype or any other mode of communication during reasonable hours of the day or upon mutually agreed by both parties.
  7. Medical
    1. That each party shall advice the other at the first available opportunity in the event that the child requires medical attention or hospitalisation while the child is in that party’s care.
    2. That, in any event parties are not willing to communicate with each other regarding the place of exchange, they shall advice the other through the independent child representative for a period of two months from the date of serving this Ruling on the Applicant.
    1. That the father shall arrange, and ensure that the child attends to the Health Ministry Children Clinical and for the immunization clinics.
  8. The Respondent father may be taken the said child, out of the jurisdiction of this Court for vacations and other travelling purposes. But should the child removed from the jurisdiction of this court for migration purposes it would be by consent of both the Applicant and the Respondent, or by a way of a Court order.
  9. Biological mother of the child are at liberty to file for variation of Residence and Contact of the child.
  10. The order to be served on the Applicant by the Respondent within 28 days and the Affidavit of Service to be filed in the Registry.
  11. Right of Appeal – 30 days.

LAKSHIKA FERNANDO

RESIDENT MAGISTRATE

On this 29th day of December, 20152015_15501.png


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