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LM v CC [2016] FJMC 252; File 15-SUV-0079 (13 July 2016)

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

FILE No: 15 SUV 0079

BETWEEN:

LM

Applicant

AND:

CC

Respondent

______________________________________________________________________
APPEARANCES/REPRESENTATIONS

Jamnadas & Associates as Counsels for the Applicant

Ms Anisha Singh (Legal Aid Commission) as Counsel for the Respondent

RULING ON FORMAL PROOF

BACKGROUND FACTS

1. The Applicant, the biological father of the children, namely EAM a female born on 09th July 2010 and AM a male born on 06th July 2012 [hereinafter “the children”] initially filed applications for Residence of the children.
   
2. The respondent lady filed her responses and is seeking residence of her two children. She has also filed a Form 5 application on the 5th of May 2015 seeking child maintenance in the sum of $154 per week for both the children.
   
3. On 15th May 2015 the father filed a form 6 Response opposing the form 5 Application. It is noted for the Court that at the time of the Response the father was unemployed; but that this situation had changed by the date of the hearing and that he had informed the Court of his new employment.
   
4. The Applicant man also filed an application seeking for, child recovery and interim residence of both the children of the marriage on the 10^th day of February 2015. Forms 12 and 23 was heard on the 13th day of February 2015 whereby both parties appeared in person and it was ordered that the Applicant man pick the children from the Respondent lady's residence every Saturday at 9:30am and drop them on Sunday before 8:00pm.
   
5. For clarity, 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, as follows;
   • (a) THAT the Applicant/man to pick the children, namely EAM a female born on 09th July 2010 and AM a male born on 06th July 2012 from Respondent/lady’s residence on every Saturday at 9.30am and drop them back on every Sundays before 8.00pm until this matter is finalised.
     
   • (b) THAT when the children are with each parent, the phone contacts also to be given to each parent during reasonable hours of the day. For example, shall not disturb the children when they are sleeping.
     
   • (c) THAT the Social Welfare House Environment Report to be furnished by Social Welfare Director.”
     
6. The Social Welfare Report and an amended Social Welfare Report has also been provided to the Court, as there was necessary interview done by the Social Welfare Officers.
   

Issues

7. There are currently two issues before this Court. The first being whether Residence of the children of the marriage should be given to the Father or the Mother of the children.
   
8. The second issue is what sum the Applicant man should pay as child maintenance. This issue will only need to be decided if the Mother is given residence of the children.
   

The Evidence

9. 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.
   
10. I also perused the Social Home Environment report and considered the same carefully.
    

The Law and the Determination

11. 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 responsibilities concerning the care, welfare and development of their children.
        
    • (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.
        
12. 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.
  

(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

13. As discussed above Section 121 deals with the various considerations that the court must consider the “best interest of the child”.
    
14. The Social Welfare report (SWHER) which was done during the course of proceedings in this case. It was noted at last page under the heading of Assessment states that the children are closely bonded with the applicant as well as the respondent and her family; as such it is very difficult in making the decision about children’s permanent residence.
    
15. 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.
    
16. Both the children stay with their mother for 5 days of the week surrounded by maternal family. (as per the interim order)
    
17. According to the Interim order father spends 2 days per week (excluding at the time the interim order was varied by consent of the parents out of the court as discussed in father’s evidence)
    
18. The Court cannot justify change the orders dramatically granting the custody to the father.
    
19. Both parents argue and justify that he/she is the best parent.
    
20. The Applicant stance has been that he denied the residence of the Respondents for “good reasons” alleging the attitude of the mother and maternal relatives (mother and step sister) and even the neighbours. He wants the children to be with him. Mother also wants the children to be with her. Both have their reasons and lot of allegations with each other tainted with bitterness and malice.
    
    21. The mother stated with her interview with the social welfare that “she comes from a broken family with struggling lifestyle and she does not want to repeat that on her children and will provide the best for them”. It shows that she admits the fact that she struggled with her life and she is not willing her children to face the same difficulties and hence she wants them to excel and flourish in their lives.
        
    22. It is also noted according to the SWHE Report the applicant also has a step father and the children subjected to this proceedings are also from a “broken family” given the relationship between the applicant and the respondent.
        
    23. The point I wish to highlight here is that both the parties and their children had no any choice about their circumstances’. It is beyond their control. On that understanding the court cannot label the mother considering the attitude or character of the other people as alleged by the father.
        
    24. It is also wish to note as per the father’s allegation; mother’s step sister was a “victim” of a sexual abuse or a similar offence. She is not a perpetrator. Assume that she is the perpetrator and for that criminal justice system is there to deal with it and she has the presumption of innocence until proven guilty.
        
    25. Again’ I wish to highlight that the alleged character and nature of the family members of the mother and their neighbours is beyond the control of the mother and also it was not by her choice.
        
    26. 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”.
        
    27. Sec 41.- (1) of FLA reads 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.
          

(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.

28. It is immediately apparent that, in the light of child’s right, no longer to speak of only parents’ rights. Neither the father nor the mother has an absolute right to have the residence of the children. Because, whatever his or her wishes may be, children have the right to know and be cared for by both their parents.
    
29. It will be seen that this provision is very much wider than the above mentioned sections about parents’ rights to be bonded with their children, because it applies not merely to parents, but also to “the children”.
    
30. I note that, there is no injunction against the Mother in relation to the child pursuant to s. 118 (1) a of the Family Law Act, nor is there any Domestic Violence restraining order against the mother for the wellbeing of the child pursuant to Sec. 28 of the Domestic Violence Decree.
    
31. On the same note, there is also no child abuse case against the Mother or the paternal grandmother. In these circumstances’ it is prudent to consider the definition of “child abuse” in the context of FLA.S.42.-(1) reads, “:In this Part, unless the context otherwise requires-
    

"Abuse", in relation to a child, means-

(a) an assault, including a sexual assault, on the child which is an offence under the law; or

(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first-mentioned person or the other person, and where there is unequal power in the relationship between the child and the first-mentioned person;

32. 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.
    
33. Consequently the reasons by the father’ that a mother allegedly neglected the children in the past (some allegations as such playing in the neighbour’s yard, car accident in Tonga, not changing diapers, oral hygienic and other allegations’ as per the evidence), have been not held to be insufficient reason for refusing mother’s right and also child’s right to be bonded with each other.
    
34. I have no doubt that the father may has the socio economic capacity to provide a safe, stable, home with him as he submitted. Considering the SWHE report, it is understood that the applicant’s step father seems to contribute towards the household expenses comparing to the income of the applicant. The applicant father earns only $7,800.00 per annum while they spend $2800.00 per month. It is apparent the applicant does not have enough money to cater for the monthly rent of some $1100.00 rent per month. Thus this is an indication that the applicant has a secured and safe home under the wings of his step father as he is not financially independent to afford and maintain the current life style by earning $650.00 per month.
    
35. The respondent mother also earns $ 6240.00 per annum and her sister who earns $130.00 per week also assists her financially.
    
36. Moreover, the father alleges that the environment of the mother not suitable for the upbringing of the children: comparing to the residence of the respondent in Knolly Street, Suva and its neighbourhood. Apparently the mother is not living equally urban area as per the SWHE Report and mealy considering the evidence of the applicant superficially. But, could be it the prime yard stick to determine the custody of the children? My answer is “No”. Financial status and social status or living standard will not make a parent unsuitable to care for their offspring unless there is an exceptional circumstances’.
    
37. In this comment, I wish to address briefly some of the observations, which is relevant to the current proceedings.
    
38. It is important to note, though that relativities of bargaining power depend on many different sources of power (wade, form of power in family mediation and negotiation (1994) & AJFL. The above concern leads to some questions.
    
39. Also while considering the different bargaining power of the parents, I also consider the “capacity of each parent to provide for the needs of the child” Apparently mother has not in equal bargaining power. What is the basis of mother’s inequality of bargaining power? Is it possible to close the gap? Though it is beyond the scope of this Ruling to fully explore them all, the major ones identified now to address the above concerns.
    
40. In these circumstances, it is not fair if the court consider the socio economic background of the mother or alleged economic stability of the father as a prime yard stick to determine the “best interest of the child”.
    
41. For more clarity, should the mother had a stronger economic stability to afford a flat in the greater Suva area with better neighbourhood comparing to the father then is it justifiable according to the father’s yard stick the court to consider to grant the custody of the children to the mother? Is it fair to allow the “money/ economy” to rule the best interest of the children? Should the mother has economic stability / more income or has a parent or step parent who has a better income to support financially then the mother would rent/ buy a house equivalent to the applicant’s accommodation.
    
42. I have not visited their homes and also the SWHE report also not discloses much about the two households. The reason as to why I put more emphasis on this issue is that given the allegations’ raised by the father about the home environment of the mother.
    
43. The court wish to highlight this as the home environment of the mother may not the ideal place or may not favourable for the children comparing to the father’s home environment. (Considering the father’s evidence and SWHE report). But I wish to raise questions as to whether the mother could afford such a favourable accommodation given her economical stability?
    
44. As already noted, the father is fortunate enough to have a step father who can afford to live in Knolly Street but the mother does not has the same opportunity in her life. They live in a home where they can afford. The environment also may be not favourable or ideal. But that is not her fault.
    
45. Given that, could the court as an institution of justice, serve the bond between her and her children and vice versa? She also cannot pick and choose her neighbours. But, I do agree with the father children going to neighbouring homes unsupervised may pose a threat for the wellbeing of the children.
    
46. Therefore, irrespective of the outcome of this case, I direct the mother and maternal grandmother to take full responsibility of the children while they are under the custody of the mother. Children should be supervised all the time. This should be applicable to the father and paternal grandmother as well.
    
47. The Court also noted what occurred when the Father asked in Court to take one of the children to the dentist and her claims that there was no need and that the child was not in any pain. The Evidence of Doctor Lal was that the child would have been in pain and that it would have been obvious. In order to address this issue I wish to entrust the father with the responsibility of taking care of children’s medical needs. But, past isolated incidents as such alone not going to make the mother as a “bad parent” But’ it is a matter of concern and therefore I have considered a solution to address any similar circumstances’ in the future.
    
48. In regards to the dental issue, he stated that he tricked CC and took the daughter to the dentist. He had told CC that if she gives him the children on Friday he would reconcile.
    
    49. He further went on to say that CC should not get custody as she emotionally blackmails him, had slit her wrist and is in a bad mood. He states that he did not punch CC and that she had made a false compliant to the police. He alleges that the children are with CC's mother and she is not a fit person to look after the children. As per him, CC's mother is sickly and has low pressure. He raises issue about their son losing a toenail.
        
50. It is also submitted by the father that the children would have a better life with the Father. The father gave evidence that he would take the children shopping, play with them, go on outings, get them to run around, have them spend time with the family, feed them healthy food, provide clothing and toys and whatever the children needed. No such evidence was given by the Mother. Further to this the Father gave evidence that he has more time for the children and ensures that they are always supervised, unlike the Mother, as the Father has found the children unsupervised when going to pick them up from the Mother. The Courts attention is drawn to the Fathers evidence of going to pick the children up and nobody at the mothers house knowing where the children where, resulting in the Father having to search the neighbourhood. It is submitted that the father's actions are the behaviour of a caring, loving and responsible parent, while the mother’s behaviour is negligent and irresponsible.
    

Evidence of Mother

51. In regards to their stay in Tonga she states that she used to stay alone with the children and she was the one who used to do all the housework and looked after the children and she fulfilled her duties well. She properly looked after the children contrary to what was said by the Applicant. She was the one who used to cook for the children, feed them, bathe them, change their clothes, stay with them all the time and do all the housework as well.
    
52. I also note that the respondent stated inter alia that after their separation in August 2015, the children were with her.
    
53. The Applicant had asked to take the children during the school holidays and she had agreed on the condition that he would return the children In January.
    
54. However, the Applicant was refusing to see the children and he only agreed to bring the children over for a visit when she informed him that her aunt from New Zealand had come over and wanted to see the children. She states the children were having high fever and were crying when they came and she refused to give them back. The Applicant argued outside her house because of this.
    
55. The respondent denied all the allegations’. Interestingly, her evidence is totally contradictory to the applicant’s evidence meaning that one of the parties has misled the court and it is very difficult for the court to determine as to whether the applicant or the respondent misled the court. Therefore; I consider both of their evidence as a whole while cautioned myself about the credibility of the evidence.
    
56. The respondent mother states that her mother looks after the children while she is away at work. Her mother takes proper care of the child and she has been with the children most of the time after their birth. Regarding her son's injured toe nail, this had occurred while he was playing with her sister and his sister closed on the door on him.
    
57. She further states that she takes proper care of her children's hygiene and their diet. She feeds and dresses them properly.
    
58. Regarding her slitting her wrist, she states she did that once but it was before the children were born and this was due to the Applicant having affairs with other women. She did not do this after she gave birth.
    
59. In regards to maintenance, she states she earns a minimal amount but is able to cater for the needs of her children. She stated she herself does not go to see a doctor at times when she is sick but ensures that her children's needs are properly taken care of. She does not earn sufficient and is finding it difficult to cater for all the needs of her children hence she has filed a Form 5 application.
    
60. Nonetheless to say that, with currently with no proper contribution from the Applicant for interim child maintenance she still manages to look after her children from her pay.
    
61. In relation to their separation, he agreed that when they returned from Tonga in April, 2014 they again started living in Davuilevu with CC's mum and that they had separated on 25th August 2014. Objections were raised by his counsel again when asked questions about his abusive behaviour leading to the separation. When asked if he had asked to take the children during school holidays from December 2014 till January 2015, he said he took them in November 2014. He denied that CC only gave him the children on the condition that he would return them in January 2015 or that he later refused to return the children to her.
    

Evidence of Doctor Ashwin

62. He gave evidence on the dental hygiene of the daughter of the parties stating that it was poor. He said that he is not blaming the mother and went on to say that parents have failed to look after the children and that he blames the parents. In cross-examination he said that he was relying on the father's (Applicant) word and cannot give his own opinion as to who was at fault, the mother and the father.

Evidence of ZB

63. In her examination-in-chief she stated that Applicant is her son and that he lives with him. She commented on the mental status of CC and said she was going to recommend counselling and mental test. She further stated that she had mentioned to CC that if she did not give time to the children she was going to recommend for the children to go to the father. She gave her opinion on the social welfare report and said it was biased. She further commented on the state of the children when she goes to pick them up from CC's place with her son and that she had tried her best to make her son's marriage work. In cross-examination, it was put to her that she not in a position to give her opinion on CC's mental status.
    

Evidence of Ms. Nileshwari Bandana

64. She is the social welfare officer who had submitted the report in Court and stated that she had made an error while preparing the report. She also stated she has 13 years of experience. She further went to say that the Respondent had made her wait for an hour or so before allowing her to visit her house and that the children were having their bath unattended.
    
65. I consider the submission of the father in terms of Mrs Bandana, it is submitted that she is an independent person, who has nothing to gain or lose from these proceedings. Father seeks
    
66. The court ought to be heavily relied upon by this Court given the fact that she has some 13 years' experience in her field and conducted a thorough investigation into the Parties, the children and the circumstances of this matter as per her requirements when compiling the social welfare report.
    
67. But the experienced social welfare officer’s conduct was somewhat questionable as her evidence shows that she initially went to the mother’s house without a notice in advance. Mother’s reactions were somewhat understandable as the officer introduced herself later. In these days any reasonable person may has doubt and reluctance to welcome a stranger with prevalence of crimes. The court also noted that the officer said that there was a commotion in her office caused by the respondent and her seniors had to involve.
    
68. In the recommendation, it is clearly stated in her report under the heading assessment that the children are closely bonded with the Applicant and his family, as well as the Respondent and her family; as such it is very difficult in making the decision about children's permanent residence. But in the conclusion, she recommends the Residence to be given to the father.
    

Evidence of RD

69. She is the Respondent's mother and stated that she has been looking after the children since their birth except for about 6 months. She does everything for the children and even teaches them things like the months of a year. She states that the Respondent drops her daughter to school and she is the one to pick her from school. In regards to the injury of her grandchild's toe nail, she said it occurred when he was playing with his sister and that she had taken him to the hospital after she treated at home to save him from the pain. She stated that she cared about the children.
    
70. In her cross examination she was firm and concise and stated that she had no health issues. She had blood pressure before but not now. She said she did not have any hard time in looking after the children. When asked if she had called the Applicant's mother and said that she can't look after the children.
    
71. The children in the present case have lived with the mother and maternal grandmother comparing to the father and his family. Considering the evidence adduced in court, the children have always been with the mother and with their maternal grandmother since their birth. While the Applicant had gone to Tonga in April 2013, the children were with their mother and maternal grandmother in Davuilevu, Nausori until they went to Tonga in November 2013. The children were away from their father for a period of about 7 months. Further to that, after the parties separated in August, 2015, the children have been residing with their mother more time (Ref. I/Order) until now except for a few weeks whereby the Applicant had taken the children with him. Except for this short period the children have never been separated from their mother.
    
72. The children will be affected if they are separated from their mother and maternal grandmother. There is an emotional attachment as well.
    
73. The Applicant had stated that if he is given residence the children would be looked after his sister who is a third year law student and his mother.
74. 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.
    
75. Thus there will be changes in the child's circumstances, including the likely effect on the children of any separation.
    
76. 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.
    
77. Both the parents are employed and have been contributed to look after the children since birth, taking care of needs of the child, including emotional and intellectual needs;
    
78. There is evidence as to the child is 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.
    
79. It is submitted by the father that it is in the best interests of the children to grant him the custody, because the Respondent has been shown to put her children at risk. It was undisputed from the evidence in Court that the Respondent had previously driven the children in a vehicle, while not legally allowed to drive the vehicle, and had an accident with the children in the car.
    
80. On the same token’ I have noted and clarified from the parties about the fathers criminal case on Assault and both parties confirmed in court there was a permanent domestic violence restraining order for the wellbeing of the mother against the father.
    
81. The court also confirmed the same by Nausori Registry via the Suva court that the respondent was charged for the offence of Assault casing actual bodily harm contrary to s. 275 of the Crimes Decree and on the April 2008 he pleaded guilty and subsequently a Final DVRO granted for the wellbeing of the mother. Registry as it a mandatory consideration under s.121 (g, i, j) of the FLA to determine about any related family violence.
    
82. The point I wish to highlight here is father has lot of allegations about the mother. So; what about him? I am not intending to cause him double jeopardy, but I only discuss a mandatory requirement under the s.121 of the FLA.
    
83. I understand the principles and objects of the Sentencing and hence wish to see outside of the box not to label the father as a domestic violence perpetrator. It is also noted that the protected person is the mother; not the children but it is still applicable under s.121 (I), (j) of the FLA.
    
84. This is not a contest to grant the best father’s or best mother’s award. Both the parents have their strengths and weaknesses. On the same breath I wish to invite both the parents to move on positively for the betterment of their own children rather than focusing on the past conducts.
    
85. When considering this application I bear in mind relevant provisions including section 41, 120, 121 and 122 of the Act, it is concluded that it is in the best Interest of the children.
    
86. 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.
    
87. 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 both parents are capable and can provide for the needs of the children, including emotional and intellectual needs and therefore is the best persons to have Residence and take care of the children. (while either of them are not an ideal parent)
    
88. The children’s interests are the most significant consideration and that they would best met by facilitating the establishment of a relationship with both the parents. This is reasonably practicable by granting the below mentioned orders. I have to consider of how a meaningful relationship for the children with both of their parents despite of the apparent animosity and bitterness between the parents.
    
89. I also very concerned about the fact that not separating the siblings. Both the children grew up together and a strong bond between them is inevitable. Therefore, it is beyond my comprehension to separate the children. Separation will definitely affect both the children negatively for their overall wellbeing and psychological wellbeing.
    
90. Both parties have 2 children and it is not $1000.00 to be divided equally to grant $5000.00 to the applicant and $ 5000.00 to the respondent. Both parents are very passionate and this custody case is highly contested by both the parties.
    
91. Given all the circumstances of this case; I am of the view that the following orders are fair and reasonable for the best interest of the children.
    

ORDERS

(I). Interim Residence and Contact Order to be varied as follows;

• (a) That unless the parties otherwise agree in writing both parents shall have joint residence of the children.
  
• (b) The children shall spend time with the mother and the father equally. As an example three days and 12 hours with one parent including one day of the weekends to commence within the first 78 hours following the making of these orders.
  
• (c) That unless the parties otherwise agree in writing the children shall spend time one day of the weekend with each parents , as an example Saturdays with the mother and Sundays with the father. Vice versa, each weekends, to commence on the first Saturday following the making of these orders.
  
• (d) That unless the parents otherwise agree in writing, the location nominated by the Court after consulting both the parents in accordance with the above order shall thereafter be the place of exchange for the purpose of these orders.
  
• (e) That unless the parents otherwise agree in writing, both parents shall cause the child to be delivered to each parent or a nominee by each parent at the place of exchange at commandment and of conclusion of time the both parents time.
  
• (f) In the event, the parents do not nominate an alternative given the distance between Suva and Nausori) handover location in accordance with these orders, the place of exchange shall be at the Respondent/lady’s residence (the current place of exchange)
  
• (g) That in the event the Mother/Father have to work on during their respective residence days, they shall inform each other at least three hours prior to contact time and advise each other on a time in which they will be in a position to pick the child for their contact/ weekend contact and the parties will endeavour to make alternative arrangements that is suitable to the children and both parties.
  
• (h) That the children will reside with the their parents (joint custody) at a their current residence and in the event a parent should move from the current residence the respective parent, shall be given prior notice of the same to the co parent and to the Court Registry.
  
• (i) The parents are also allowed to have contact with the children via telephone and virtual contact via video conference , Skype or other electronic contact with the child while the child with the mother or under the care of a co parent, during reasonable hours, for as long as such contact is not disruptive to the children’s schedule. Each parent shall keep the co-parent advised of a current home address, telephone numbers (including cellular phone numbers), email addresses.
  
• (j) If a dispute arises about the number of contacts, the each party shall be entitled to place [5] telephone calls and initiate [4] other electronic communications to the children each week. The parents shall attempt to resolve all other disputes regarding telephone/electronic access through Family Court Registrar or the Family Court prior to initiating any litigation on the matter.
  
• (k) The privacy of the parents and the child are of paramount concern. The parties shall undertake such parental control measures as will safeguard the child while engaging in internet activities but shall not interfere with the right of either parent to communicate with the child. Each parent shall refrain from monitoring computer or electronic communication activities, personally or through any third person or entity acting at the parent’s direction, that occur between the co-parent and any other person or entity.
  
• (l) Should the child removed from the jurisdiction of this court it would be by consent of both the Applicant and the Respondent, or by a way of a Court order.
  
• (m) Alternatively; Instead of above order ( b), due to the distance between Suva and Nausori and given the fact that the elder child attending primary school in the near future and the younger child may be attending preschool or will be attending preschool in the near future both parents may have Monday - Friday contact starting from the mother. (5days with the mother and 5 days with the father) and the weekend with the other co parent. (first that sort of weekend to be with the father)
  
• (n) Education expenses to be divided by both the parents.
  
• (o) Should the parties agreeable for the alternative plan by consent it has to be confirmed in Court within 7 days after the Judgement was granted in writing or confirm at the end of granting of the Ruling. If any consent fails; parties must comply with the above order (b).
  
• (p) Moreover, both sidings also must be bonded with each other and therefore shall not separate from each other.
  

(II). Medical

• (a) 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.
  
• (b) That, in any event parties are not willing to communicate with each other, they shall advice the other through their respective counsellors or text message / email.
  
• (c) That the father shall arrange, and ensure that the children attend to the Health Ministry Children Clinical and for the immunization clinics and other medical and dental check-ups. He may take the children to government hospital/clinics if he is not in a position to cater for a private hospitals/ medical services.
  

(III). Parents Unavailability

• (a) That both parents shall inform each other in the event that, due to medical reasons, overseas travelling or due to any other reasons, if the each parent are unable to provide full time and on-going care for the children.
  
• (b) Both the parents 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 while the children are with co parent.
  

Child Maintenance

The Law

92. The application is made pursuant to Section 89 of the Family Law Act where in determining child maintenance, court would consider the following:
    
    • (a) I now draw my attention to Section 45 of the Family Law Act 2003. Parental responsibility is defined under Section 45 of the Family Law Act 2003, which states:
      
    • (b) “parental responsibility”, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
      
93. Section 46 of the Act states that:
    
    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 changes in the nature of the relationships of the child’s parents such as becoming separated or either or both of them marrying or remarrying.
    3. Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
94. Sections 90 and 91 of the Act outline the matters to be taken into consideration before maintenance payment is ordered.
    
95. 90.- (1) In considering the financial support necessary for the maintenance of a child, the Court must take into account the following (and no other) matters-
    
    • (a) the matters mentioned in Section 91;
    • (b) the proper needs of the child;
    • (c) the income, earning capacity, property and financial resources of the child.
      

(2) In taking into account the proper needs of the child the court-

(a) must have regard to-

• (i). the age of the child;
• (ii). the manner in which the child is being, and in which the parents expect the child to be, educated or trained; and
• (iii). any special needs of the child; and
  

(b) may have regard, to the extent to which the Court considers appropriate in the circumstances of the case, to any relevant findings of published research in relation to the maintenance of children.

(3) In taking into account the income, earning capacity, property and financial resources of the child, the Court must-

(a) have regard to the capacity of the child to earn or derive income, including assets of, under the control of or held for the benefit of the child that do not produce, but are capable of producing, income; and
(b) disregard the income, earning capacity, property and financial resources of any other person unless, in the special circumstances of the case, the Court considers it appropriate to have regard to them.

(4) Subsection (2) and (3) do not limit the matters to which the Court may have regard in taking into account the matters referred to in subsection (1).

96. 91.-(1) In determining the financial contribution, or respective financial contributions, towards the financial support necessary for the maintenance of a child that should be made by a party, or by parties, to the proceedings, the Court must take into account the following (and no other) matters-
    
    • (a) the matters mentioned in section 90;
    • (b) the income, earning capacity, property and financial resources of the party or each of the parties;
    • (c) the commitments of the party, or each of the parties, that are necessary to enable the party to support-
      • (i). himself or herself; or
      • (ii). any other child or another person that the person has a duty to maintain;
        
    • (d) the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child;
    • (e) any special circumstances which, if not taken into account in the particular case, would result in injustice or undue hardship to any person.
      

(2) In taking into account the income, earning capacity, property and financial resources of a party to the proceedings, the Court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing, income.

(3) In taking into account the direct and indirect costs incurred by the parent or other person with whom the child lives in providing care for the child, the Court must have regard to the income and earning capacity foregone by the parent or other person in providing that care.

(4) The court also mindful about sec.89 of the FLA as well. In the present case the applicant is unemployed and her child is tender ages. Therefore, it is understood that she cannot be engage in gainful employment. Further, I note that pursuant to Section 91 (d) the Applicant mother has to incur indirect cost and other relevant expenses when she is caring for the child. I also note that she provides a shelter for the child and labours to up bring the child.

97. Section 86 of the Act defines the primary duty of the parents of a child:
    

(1) The parents of a child have, subject to this Division, the primary duty to maintain the child.

(2) Without limiting subsection (1), the duty of a parent to maintain a child-

(A) is not lower priority than the duty of the parent to maintain any other child or another person?

(b) has priority over all commitments of the parent other than commitments necessary to enable the parent to support-

(i) himself or herself; or

(ii) any other child or another person that the parent has a duty to maintain; and

(c) is not affected by the duty of any other person that the parent has a duty to maintain; (Emphasis added)

98. Parental responsibility is defined under Section 45 of the Family Law Act 2003, which states:
    

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

99. Section 46 of the Act states that:
    
    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 changes in the nature of the relationships of the child’s parents such as becoming separated or either or both of them marrying or remarrying.
       
    3. Subsection (1) has effect subject to any order of a court for the time being in force (whether or not made under this Act and whether made before or after the commencement of this section).
       
100. Given that the above criteria both the parents is equally responsible for the children's maintenance,
     
101. The parental duties as stipulate in Section 86 and 45 and 46 of the FLA. The Court also mindful that Pursuant to Sec.89. Pursuant to sec.86 of the Act parents have primary duty to maintain their children. And also above all other commitments parents have prime duty to maintain their children.
     
102. The court also inter alia considered Sections 90 and 91 of the FLA in respect to the matters to be taken into account when the maintenance payment is ordered as above discussed. Accordingly, the s. 91 of the FLA this Court to take into account the income, earning capacity, property and financial resources of the Applicant and the [a party to the proceedings,] as the Court must have regard to the capacity of the party to earn and derive income, including any assets of, under the control of or held for the benefit of the party that do not produce, but are capable of producing income.
     
103. I will consider the income or the earnings of both parties and how much each party needs to maintain himself or herself and any other person he or she is required to maintain.
     
104. Both the parents are working and therefore both the parents must cater for day to day expenses (maintenance of the children) while the children are with them.
     
105. The Acting Senior Court Officer must serve this Judgement on the Family Court Registrar and the Director Counsellor within 7 with effect from today.

30 days to appeal.

LAKSHIKA FERNANDO

RESIDENT MAGISTRATE

On this 13^th day of July, 2016