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Y.S. v J.S [2016] FJMC 183 (29 September 2016)

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


CASE NUMBER: 14/STK/0142


BETWEEN: Y. S.of Olosara,Sigatoka,Cashier

[APPLICANT]


AND: J. Sof Kulukulu,Sigatoka,Self Employed


[RESPONDENT]


Appearances


The Applicant/LADY- appearing in person.


The Respondent/MAN- appearing in person


Trial Details


Date and Place of Hearing: 26th May, 2016 at the Sigatoka Family Court.


Date and Place of Judgment: 29th September, 2016 at Sigatoka Family Court.


Judgment of: Resident Magistrate TomasiBainivalu.


Category: Not Reportable and parties names with child & d.o.b. suppressed.


______________________________________________________________________________


JUDGMENT OF THE COURT


Family Law Act No. 18 0f 2003


Dickey, A, “Family Law” 4th Edition (2002) Lawbook Co. Sydney.
_____________________________________________________________________________________________


The Application

  1. The Applicant/lady filed Form 9 application for final orders on the 30th November, 2015 whereby she sought the following:-

The Response

  1. The Respondent/man filed his Form 10/ response on the 04/02/2016 where he disagreed to the orders sought by the Applicant/lady and counter claim or sought orders (para 6-Form 10) that he be given full residence of the said daughter, as she was with him when Applicant left them 1 year and 4 months ago, and is fully attached to him.

The Background

  1. The parties were legally married on the 10th day of June, 2004 at Sigatoka Town and had one daughter (named above) of their marriage. They lived together for almost 10 years before they got separated.
  2. The parties have been separated since 24/10/2014 and never resume cohabitation until to date; and on 04/02/2016, the parties had been granted dissolution of marriage and the orders were made final on the 04th March 2016.In lay terms, they are now legally divorced.
  3. And since the separation, the Respondent/father has been looking after their daughter and on the conclusion of the hearing on the 26/05/16, the court granted that Applicant/mother to have reasonable contacts with the daughter every Saturdays between 2.30pm to 5.30pm with effect forthwith; and the point of contacts shall be the Sigatoka Police Station.
  4. The said interim orders were made pending the determination of this final orders application or this judgment.

The Issues -Parenting Orders (Form 9)


  1. The two determining issues this court would need to accomplish are:-

The Law
[Form 9-Residence & Contacts]

  1. I will first of all state the law in respect of the parenting orders. Section 66 (1) of the Family Law Act 2003, grants the court powers to make any parenting order it thinks proper.
  2. And section 66 (4) imposes on the court a mandatory obligation to regard the best interests of the child as the paramount consideration in deciding whether and what parenting orders should be made in relation to a child.
  3. The court looks at certain factors to decide what is in the best interest of a child. These factors are outlined in section 121 of the Family LawAct. The factors are:-

(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 andexpense 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.


  1. None of the factors listed above has priority over the other factors and given more weight than the other factors. Accordingly, no one consideration has any greater significance than any other. The court has to look at all the factors and then determine as to what is in the best interest of the child. Some considerations may overlap with others. The relevance of each consideration depends upon the particular issues involved in any case.
  2. “Interests” in relation to a child includes matters related to the care, welfare or development of the child. This is provided for in the interpretation, section 42 of the Family Law Act No. 18 of 2003.
  3. The term “welfare”in the context of the law of children and parental responsibility has been describedin the case ofHowe v. Howe [1961] VicRp 45; (1961) 2 F.L.R. 2 at 4as “a word of the widest meaning”. It includes not only economic and physical welfare but moral welfare and the happiness of the child as well. As Lindley L.J. put it over a century ago in the wardship case of Re McGrath (infants) [1892] UKLawRpCh 159; [1893] 1 Ch. 143 at 148:-

“The dominant matter for the consideration of the court is the welfare of the child. But the welfare of a child is not to be measured by money only, nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.”


  1. By virtue of section 63(2) a parenting order may deal with one or more of the following:-

The Evidence

  1. The evidence of the Applicant/mother was derived through her oral testimony under oath where she told the court that she relied on her Affidavit of Evidence filed in court on the 15/02/16 and 15/03/16, together with her Form 9 application.
  2. On the other hand the evidence of the Respondent/father was derived through his oral testimony under oath where he told the court that he relied on his Affidavit of Evidence filed in court on the 15/03/16, together with his Form 10 response.
  3. The Applicant/mother called two witnesses plus herself whilst the Respondent/father only gave his testimonies and did not call any witnesses.
    1. The court records detailed the oral testimonies of both parties and in this judgment, I don’t intend to reiterate all of them, but I will only refer to some of the evidence when making my final determination on the issues.
    2. The court also ordered for Social welfare officer, Sigatoka to prepare a Residence and Contact Report in pursuant to section 54(2) of the Family Law Act 2003, and the same was filed in court and also the court will rely on the same in making its final determination to the issues in question.

APPLICANTS/MOTHERS CASE

[The Applicant/mothers evidence]

  1. The Applicant/lady in her written evidence mostly discussed about their issues since their marriage commenced to the date of separation and her concern that now Respondent/man is living with a new partner/wife in the house, she is worried about her daughters welfare as she feels that the new partner/wife who is 22 years of age, now living with the respondent would not be in a best position to show the motherly love and affections she claimed she has and she is the better person therefore to have the full residence. She further stated that she is worried that when the Respondent and his new partner started to have children themselves, less attention will be given to their daughter in question T.T.S.

Also the new partner now is pregnant and she claimed that at times she made her daughter do house work, like raking the compound and watering the garden with buckets full of water and was not dressed up properly, but she heard this from friends which the court would not accept as they were all hearsay evidence, with no prove at all given in court. The Applicant/lady claimed further that because of the Respondent/man’s short comings in the pasts, it would affect his brining up on the daughter, but she failed to prove this in court as well.


And further said that she is now employed and have a new partner who is supporting her and before when the daughter was 3 months old, she had been working and the mother (maternal grandmother) used to look after her daughter and she stayed with them until she attained 6 years of age. She is worried that the step mother would abused her daughter and there is no guarantee that her welfare and safety is intact; again these are all mere allegations with no substantial grounds to uphold such piece of evidence and the court is reluctant to accept the same.

The Applicant/mother only asked for full residence of the daughter and she has no issues that the father/respondent to have open contacts at any time suitable to both of them.


[In cross examination]

The Applicant/mother said that she did not apply early because she was advised that she had no employment that time and would not be any position to be granted residence then, And the guarantee she said i court when the question was put to her by the respondent/man, that she is now gained employment and in a better position to take care of her daughter. And the 2 years separation would not affect the daughter in recognizing the mother. The mother further said that one time she went to school; she was told by the Head teacher that father stopped her from seeing the daughter. If given residence the mother [maternal grandmother] being her nanny when she was young will also look after the daughter.


[The Applicant Witness 2-S. S-father of the Appt. evidence]

  1. The father of the Applicant/lady [maternal grandfather] knew Applicant and Respondent as once married and had a child and knew that it’s after 2 years to date the Applicant never had the opportunity to see the daughter, T.T.S.And he only need the mother to meet her daughter, T.T.S and have contact with her again.

In cross examination, the father/response only clarified from the AW2 that he is willing to give contact to the mother via Police Station and only the mother to have it.


The courts assessment on this piece of evidenced in cross examination, really had reflected the type of animosity maybe, the man has towards his former in laws, the court consider this as something to be take on board in making full assessment later in the judgment.


[The Applicant Witness 3-U. D-mother of the Appt. evidence]

  1. The mother of the Applicant/lady [maternal grandmother] knew Applicant and Respondent [son in law] as once married and had a child, namely 0T.T.S and she is 9 years old now. When child was 3 months old, she was looking after her and when she attended kindergarten, she used to take her to school and this continued when child goes to class 1 then class 2 and class 3 in term 1 and term 2. Its 2 years to date they haven’t seen the child as father had stopped them.

In cross examination the maternal grandmother [AW3] said when respondent/father went to work, she looks after child and did not dispute that he was paying everything and was working that time and mother was at home too. And she confirmed that Applicant then had a job when child was 3 months old. Again the Respondent/father indicated that he will only give contacts to Applicant/mother and nobody else, but AW3 also wanted to have contacts with the grandchild.


RESPONDENTS/FATHER CASE

[The Respondent/fathers evidence]

  1. The Respondent/man under oath said that he relied on his written evidence, which mostly discussed about their issues since their marriage commenced to the date of separation, and he dwell mainly on the affairs between the Applicant/lady and her new partner, but nothing touches really as to why he wanted full residence. I find the man was not forthcoming on his current status to have residence but totally relying on the faults of one party.
  2. Having stated thus, the court do not really need to dwell on the same as parties now have new life partners and had moved on.

[In cross examination]


  1. The fathers only response to the question put to him that he now had settled with his new partner and his life and the child is currently doing well and if she is allowed to go to the mother, it might spoiled her education.

The Determination


  1. Firstly, I must express how sorry to see that the ill difference and childish animosities, between the two parents had caused the child in not having full contacts with the mother for the past two years accept the very hearing date, when the court made contact orders.
  2. The child’s off course current environment is conducive to her since their separation, she had been accustomed to it together with its upbringing, however that alone must not stop the mother from having contacts with her child and enjoy the freedom of raising her own flesh and blood and to be part of her upbringing as well.
  3. After all the Family Law Act clearly indicates that it’s both responsibilities of parents to see the betterment and future welfare of the child and her best interests.
  4. Having stated thus, I will fall back on the above issues as follows and make determination reflecting the latter:-

I have also relied on the Resident and Contact report prepared by the Social Welfare officers and I intent to reproduce the relevant contents the court had taken in into considerations in determining this first issue which are as follows:-


[Views and Outcomes of the Interviews]

Applicant confirms that she is in a relationship. She is capable of supporting herself.


[Welfare Officer's Assessments]

[Recommendation]

[UNDERLINED EMPHASIS MINE]


(ii) Is the Applicant or the Respondent, the best and capable parent to secure the bright and future development of the said child?

The court is satisfied to see that both parents now have secured job with financial inflows to meet the needs for their child, however, the question on the welfare of the said child is more to just financial contributions towards the said child, it includes moral, spiritual, physical and mental upbringing etc. In other words what is there, parents can offer to see that child has a bright and secure future, and bottom line that her interest is maintain/sustain and protected for the long run.


The court at this stage despite both the parties dramatic and if you like, ‘evil’ histories in terms of bitterness, animosities and broken relationships, all these had been quashed, when the lady filed the dissolution of marriage application i.e. unfortunately their marriage once lasted for 10 years no longer survive and had broken down irretrievably, as ordered by the court on the 04th February, 2016.


Despite this, it never clouded the judgment of this court to see at this stage from the hearing date that both parents have their passions and compassions to look after and secure their child’s future. They cannot save their marriage, but they can save their child’s future and it is both their responsibilities to see that this come to reality and to put away their differences and move on with life.


(iii) Any change of environment of the child would be in her best interests practically?

Despite such limited evidence given by the Respondent/father in court, the court noted that in the two years of separation, there is no evidence before this court to state that the Respondent/father had failed or neglected in his responsibilities and such had reflected on the child’s school report last year [2015] when she attended class 3, and her result with position had progressed from 10th position in Term 1 with 303 marks out of 350; Term 2,4th position with 330 marks out of 350 and 2nd position in Term 3 with 339 and ½ marks out of 350. Such result is in the best interest of the child in terms of her upbringing childhood education and the court will be more vigilant in assessing any change of study environment and learning support must not disrupt such progress.


The Final Orders

  1. For the above reasons I hereby make the following orders:-

[Form 9-Residence & Contacts]

  1. The Residence/Custody of the child, namelyT.T.S b/o XX/XX/2007; shall be granted to the RESPONDENT/FATHER with specific contacts to the APPLICANT/MOTHER.
  2. The Specific contacts are as follows:-
  3. Both Parents are hereby Warned and Reminded by this court to comply with the above orders for the best interest of their one and only daughter namely T.T.S.
  4. Orders accordingly and thirty (30) days to appeal.

TOMASI BAINIVALU (Mr)

Resident Magistrate

29/September/.2016


TO:

  1. Applicant/lady in person.
  2. Respondent/Man in person.
  3. File Number 14/STK/0142.

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