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Taylor v Teika [2005] SBHC 174; HCSI-CC 015 of 2003 (17 March 2005)

HIGH COURT OF SOLOMON ISLANDS

Civil (Domestic) Case Number 01503

GRACE TAYLOR

-V-

PRIDE TEIKA

(Palmer CJ)

Date of Hearing: 16th March 2005
Date of Judgement: 17th March 2005

G. Suri for the Applicant/Petitioner
K. Anderson (Mrs.) for the Respondent

Palmer CJ.: This court granted a decree nisi for dissolution of marriage on 28th February 2003 and ordered the issue of custody which was disputed to be heard after directions were issued. The decree nisi was made absolute on 18th August 2003.

One of the directions issued by the court was for social welfare reports to be produced. The court also adopted earlier custody orders in favour of the Applicant which the Magistrates Court had issued over the children. The court was told at the hearing that there were difficulties experienced with the behaviour of the Respondent as he had not complied with those orders. After those custody orders were adopted by this court the Respondent was told to seek the assistance of a lawyer. He was not represented in court at that hearing.

Things did not seem to make much progress regarding the custody issue until a Notice of Motion was filed on 15th February 2005 by the Applicant, seeking orders inter alia as follows:

(1) That the Applicant/Complainant be granted permanent custody of the three children of the marriage, namely William T Taylor 11 years, Josses M Taylor 10 years and Sarah T Taylor 8 years.

(2) That the Applicant/Complainant be granted leave to take the children with her to Australia.

(3) That the Defendant/Respondent be entitled to have reasonable access to the said children.

(4) That the Defendant/Respondent be granted permission to visit the said children during holidays in Australia upon the Defendant’s request and upon approval and consent of the Applicant/Complainant.

An affidavit in support by the Petitioner was filed on 15th February 2005 in which she deposed that she had remarried and was in the process of accompanying her husband to Australia. She intended to take the three children with her. She also attached a purported affidavit of consent from the Respondent regarding those arrangements. I could not be satisfied however with its authenticity due to some discrepancies in its execution and so ordered that the Respondent appear in person to attend to his case as well as asking the Public Solicitor to assign a solicitor to assist the Respondent. The husband of the Applicant, Christopher R. Thompson has also sworn an affidavit in support of the Applicant’s Notice of Motion basically in which he has given assurance that he will assist the Applicant to bring up those three children.

I allowed adjournment when the matter came before me last Friday 11th March 2005 on the hope that the parties would come to some common understanding regarding custody issues over the children. Unfortunately that has not been successful and it has been left to the court to discharge its functions in settling this dispute of the parties.

It is trite that in any custody dispute, the interest of the children is paramount. The court is required to look at what would be best for the children when a marriage fails. In many instances, parties normally agree on what should happen. In others they don’t as is the case here. In such instances, the court normally seeks the assistance of the Social Welfare Office to provide reports on the circumstances of each party. Where the children are old enough to be interviewed sometimes the Social Welfare Officer interviews the children separately and gauges their perceptions before making recommendations (if any). Such reports can be quite useful as it gives the court some background information to the parties, their residential and employment status (if working) and their ability to support and provide a conducive environment in and for the upbringing of the children. Where there is more than one child in the marriage as is the case here, normally the court would decline to have them separated unless there are good reasons for that. The same would apply to this case, unless there are good reasons why the three children should be separated, none has been provided and so that option or consideration has been ruled out from the outset.

Things however have changed since the matter last came before this court. The Respondent is now serving a term of imprisonment. According to submissions of Mrs. Anderson, the earliest release date expected, all things going well for him would be sometime in June 2006. All along the Applicant has had custody of the children. No attempt has been made to have those orders varied until this application was lodged. There is no point in asking for a social welfare report as the Respondent is in no fit condition/state to look after the children. On the other hand, the new husband of the Applicant has provided this court with an affidavit providing basic details as to his place of address, his residential situation, his religious ties and convictions and status of employment. No affidavit in opposition or objections have been raised. I accept the affidavit of Mr. Thompson as correctly reflecting his personal circumstances and ability to assist the Applicant to look after the three children. I can find no reason to vary or change those custody orders.

The orders of the court therefore are a foregone conclusion. Custody must be granted in favour of the Applicant. Submissions for joint custody by learned Counsel for the Respondent are a non-issue. Even if granted the Respondent is in no fit state to comply with those orders.

I observe the Applicant has been quite reasonable and understanding in this custody dispute as indicated by her Counsel that she is prepared to have the custody orders of the court reviewed after some two years. In essence, before any application for review can be ordered it would be incumbent on the Respondent not only to file application for review but also he must provide supporting material which justifies such application.

Whilst custody is awarded in favour of the Plaintiff which includes being able to take the children with her to Australia to live with her new husband, reasonable access must be given to the husband. That includes being able to have the children during school holidays at least once per year. He can visit the children if in Australia but with arrangement and consultation with the Applicant. I will also order that for any costs where the children are to be brought over to Honiara these are to be shared on one third and two thirds cost basis between the Applicant and Respondent respectively; that is the Applicant shall be responsible only for one third of the costs whilst the Respondent two thirds.

I will also order that save for exceptional circumstances, the access rights may not be exercised until after the Respondent is released from prison.

Orders of the Court:

1. That the Applicant be granted custody of the three children of the marriage, namely William T Taylor 11 years, Josses M Taylor 10 years and Sarah T Taylor 8 years.

2. That the Applicant is granted leave to take the children with her to Australia.

3. That the Respondent be entitled to reasonable access to the said children, including rights enabling the children to spend at least once each year of their holidays with the Respondent but subject to costs sharing on one thirds and two thirds basis as described in this judgement.

4. That the Respondent shall have visitation rights if he is in Australia to visit the said children during holidays in Australia upon request and prior approval of the Applicant.

5. That these Orders may be reviewed any time after release of the Respondent from prison and on application with supporting affidavits and a social welfare report.

The Court.