[1983] SILR 223

CENTRAL MAGISTRATES' COURT OF SOLOMON ISLANDS

IN RE B

(Joses Sanga, 1st Class Magistrate)
Civil Case No. 400 of 1983

15 September 1983

Child - custody - custom applicable -custom overruled in interests of child.

Facts:

The Plaintiff and Defendant were married in custom, bride price having been paid for the Plaintiff. The Plaintiff claimed custody of B, the 4 year old child of the marriage after the parties separated. The Court heard evidence that in custom the child should always go to the husband even if the family broke up.

Held:

The interest of the child should prevail over the customary rule (Sukutaona v. Hounihou (1982) S.I.L.R. 13 followed). On the facts the best course in the interest of the child was that she should remain with her mother. Order accordingly.

For Plaintiff: K. Brown
For Defendant: A. Nori

Sanga M: This is an application by Margaret for custody of B, a child born of the marriage of the plaintiff and the Defendant. This child was born in October 1979.

In support of this application I heard from the Plaintiff herself and her father, Walter. In her evidence-in-chief the Plaintiff told me that she was married to Defendant in custom sometimes in 1980. Prior to that marriage she delivered B about 6 months earlier. The father of B is the Defendant in this case. The child was then about 6 months old.

On being married, she and the Defendant and B lived with Joseph Huta, and one Joe Porowai at Huta's residence when Huta posted out from Honiara. Defendant then was unemployed and after two months later Plaintiff returned to her parents. She stayed there for a while then Defendant came and took her back. Even then Defendant was still unemployed and his unemployment went on till after 3 months when he had a part time employment at Henderson for 1 month. Defendant then took up work with Honiara Hotel and after 1 month he joined the Pacific Voyager. Plaintiff then returned to her parents. In fact Defendant went on Pacific Voyager on 3 different occasions according to the Plaintiff's story. After the Defendant's return from the first trip, she stayed with Defendant. Then after Defendant's second trip, they went home to Defendant's place and stayed there for about 4 months.

Plaintiff then returned to her father. She said defendant did not look after her properly so his people paid for their fare back to Honiara. However Defendant came after them two weeks later, but did no join his family and then went on the 2nd trip on the Pacific Voyager.

At the end of the 3rd trip, Defendant went home, and Plaintiff and B still remain with her father. Plaintiff then refused Defendant's request to go home as she has then taken up employment with the Soltel Manager as housegirl. Defendant stayed at home for about six months. He then came back to Honiara and stayed with Joseph Huta. Plaintiff then joined him for two weeks. When Defendant return home, Plaintiff returned to her parents.

At the end of 4 months at home Defendant then returned to Honiara. He then admitted to Hospital after a week stay in Honiara.

After the operation Plaintiff lived in Huta's house for 3 weeks after which she separated from Defendant till now. About that time Defendant found employment with the Hospital Authority as security guard.

Plaintiff went on to tell me that since the birth of the child, the child remained with her all the way, and that she did not stop Defendant from seeing the child. Her mother looked after B and she is healthy.

She went on to say that although they have her brother and wife staying with them, they have enough food and B is happy. B had known the Plaintiff's father and mother.

Together with others who live with them are her brothers 8 year and 2 year old.

Plaintiff then went on to say, if Defendant did give any money she would try and save some money for the child's education.

In cross examination Plaintiff says in all they have 10 people in their house and the 11th is on a ship.

I also heard from Walter the father of Plaintiff.

He said he earns a net salary of $60 per fortnight from Ports Authority. He said his wife looks after B when all of them went to work and they have enough money for food.

He went on to tell me that he and his wife are happy to keep B and Margaret.

B knows him and his wife well.

For the Defendant I heard from the Defendant and 3 other witnesses.

Defendant Joseph told me that he married Margaret in April 1980, through custom marriage, at Mbokanivera II. In this marriage a bride price was handed over to the Plaintiff's father.

Then Defendant lived with Joseph Huta and Margaret still stayed with her parents, but he used to see them and gave them things.

Defendant however was unemployed for 2 months after he got married and then found a job with Honiara Hotel. Margaret and the child then lived with him at Huta's house. By then Huta has gone away to Buala and they shared the house with Joe Porowai.

Before the 2nd month was completed, Defendant found employment on the Pacific Voyager. He told Margaret about this to which Margaret agreed. He went for 3 months.

Defendant said he gave $100 to his family for support.

At the end of the 3 months Defendant came ashore and saw his family. Even then Margaret and the child continued to stay with Margaret's parents and Defendant in another place.

I do not know how long but it seems to me that shortly Defendant, Margaret and B all went to Defendant's home in Malaita afterwards. On the 4th month of their stay at home Margaret and B returned to Honiara.

About 3 weeks later Defendant came to Honiara and then went on Pacific Voyager for 6 months. He said they called at Honiara every 4 weeks.

Before he went he saw the child at Holy Cross. He said the child knew him.

At the end of 6 months, Defendant returned, and after a meeting with Margaret, father, Joseph Huta, and Francis an agreement was reached for Defendant to go home and prepare for his family.

However, Defendant developed Hernia and had to return for operation at Honiara.

Defendant told me he is working at present and earns $157 net salary per month. He lives with Huta and there were eight people in the house. There were 3 people in the house working including Joseph Huta all of them pay for food. The other boy earns $80 per month while Huta $13,000 per annum. The house is a three bedroom house. Defendant told me he has no objection to B's mother visiting B if he takes B.

Defendant assured me that he would remain for a long time on his job.

In cross-examination Defendant told the Court that the child had always been with her mother since her birth.

I also heard from Mr Sardues Ne'e a 71 year old man. Mr Neie [sic] is an expert witness in Kwara'ae custom from which area Margaret comes.

Mr Ne'e said that in Kwara'ae, the woman must be bought that every children born from woman must go to man's side. The husband has the power because he bought his wife.

As to land and properties Mr Ne'e said if the husband dies the land or his properties go to the children. However the children would also have rights on the mother's side but not strong rights.

Mr Ne'e was asked what he would do if he has any problem in custom. He said he would go to some old men if he was in doubt:

On being asked about a child who was born before woman got married, Mr Ne'e, said a woman who delivered of a child who would later bought a bride, the child would belong to the man.

On being asked about custom position as to woman who goes back to her father because of row, Ne'e said if two couple married and the man does not look after woman and the woman goes back to her father, the child must go to the man despite what his health is like.

Ne'e then told me later in that he is married to Kiu woman although he is a Kwara'ae man.

I also heard from Primo Apato. Apato comes from Aiairai, West Areare and is called as an expert witness in Areare custom, about marriage.

Mr Aparo [sic] told me that custom helped both sides of marriage. If a woman is bought, the children to the marriage would belong to those who buy the woman, and that no-one from the mother's side would claim the children. Even if the husband does any trouble with another woman the wife could go back and the children would stay with the man.

A row between husband and wife would not affect the children, the children would belong to the buyers.

On being asked in cross examination if his daughter ran away with the child of the marriage to him, Mr Apato said he would look after them till the husband came to take them again.

In re-examination Apato said when leave was granted for Defendant's counsel to ask about rights in custom, that child's rights to land and property are inherited through his father.

However the child could visit his mother's side but cannot make plantings on her side other than his father's side.

In cross examination Apato said even the child lives somewhere away from his father's place, his rights still exist.

I also heard from Joseph Huta. Joseph works for CBSI as secretary and is a teacher by profession. Joseph was involved in the arrangements of the custom marriage of the Plaintiff and Defendant, in 1980. He told me he become so involved because his father paid Defendant's mother. However he said Joseph's relationship with Margaret became decaying when Joseph went on boats. Huta then told me, they have plans for education of the child. They would put her in kindergarten. He said he would have no problem financially with the child and he intend to put B at Coronation kindergarten as the teacher is a professional teacher.

In cross examination Huta said if the child is given to the mother, he would not be prepared to pay for the child's education.

Later on in cross examination Huta said if Margaret obtains custody of B, her rights would not be extinguished. Her rights would still exist and they would still regard her as their relative.

I also have the benefit of the social welfare report made by Mrs Jio made on the 14.7.83.

Those are the evidence, before me. I find as facts the following:-

1. That B is still in her tender age in that she was born in October 1979 and would see her 4th anniversary this October.

2. That from the date of her birth till now B was and is looked after by her mother.

3. That about six months after birth of B, Plaintiff was married according to custom to Defendant. This was about April 1980, when two tafuliae and a substantive sum of money was given to Walter Tonisi the Plaintiff's father.

4. That marriage life for both Plaintiff and Defendant was then hard in that Defendant was unemployed for sometime and support would either come from Huta or Margaret's parents, and that they have no permanent home to house this family, thus resulting in Margaret and B moving backwards and forwards from Huta's house to Tonisi's house.

5. That for some 9 months when Defendant was working on the Pacific Voyager, Margaret and B lived with Margaret's parents, and that support by Defendant was not adequate.

6. That Defendant had tried unsuccessfully to make his home in Wairaha a comfortable place to attract Margaret to live there.

7. That Defendant was unsuccessful in his efforts to make his home in Wairaha an attractive place for Margaret in that Margaret was unwilling to accept Defendant's request for them to go to Wairaha when she had already found employment with Soltel Manager as house girl.

8. That both Plaintiff and the Defendant at present are employed. However that since about the end of May or beginning of June, this year the couple have lived apart in that Margaret lives with B at her parent's home while Joseph lives with Huta. So that the Defendant rarely sees B.

9. That Walter Tonisi home is accommodating about 11 persons, Margaret and B inclusive, yet, they have sufficient to eat.

10. That Huta's home is accommodating eight persons Defendant inclusive and has no problem with food.

11. I also find as a fact, from the Social Welfare report, that Mrs Huta upon whom Defendant would rely to look after the child for him would soon have another baby.

12. That Margaret is not a bad mother in that no evidence was adduced to say that she would not be able to look after B.

14. That in both Kwara'ae and Areare the children of the marriage, in custom, belongs to the husband's side once the bride price was paid and that no consideration can be given as to the interest of the child.

15. That even when the child lives away from his father's place in custom his rights to land and property still exist and cannot be extinguished by the fact that he lives away from them from his father's place.

16. That B's rights to education from Huta can only be enjoyed by her if custody is granted to the Defendant i.e. to say that right is conditional and is not a customary right.

It seems to me that this case involves two matters and from the facts outlined above, the matters are rights of the Defendant as to custom and the interest of the child.

Perhaps before dealing with those two matters, I must remind myself that I am not dealing with custody of say 12 year old girl or say 7 year old child. I am dealing with B a little girl of an age less then 4 years old. I must approach the case bearing in mind that the child is of a tender age.

Customs involving in cases of this nature was discussed by Daly C.J. in the case of SUKUTAONA -v- HOUANIHOU, S.I.L.R. (1982) p. 13 and I quote:-

"It is quite right that custom law is now part of the law of Solomon Islands and courts should strive to apply such law in cases where it is applicable. However it must be done on proper basis of evidence adduced to show the custom and its applicability to the circumstances. This evidence should be given by unbiased persons knowledgeable in custom law or extracted from authentic works in custom .....

In any event it remains open to what extent Rules of custom law of the kind discussed in this case should be firmly applied to cases where the welfare of children is at stake.

The courts have always regarded the interest of the children to be of paramount importance and should continue to do so. (my underlining)

Due regard for the custom background may well be an important factor in deciding where the interest lies in the sense "that custom Rules may well designed to protect the children from an unsatisfactory family life where, for example, a husband or a wife has gone off with another partner and the custom rules says that that parent should not have custody."

I have in this proceeding, had the benefit of hearing from Primo Apato on the question of custom rules on cases of this nature. I have been told that once bride price was paid the children of the marriage would become the property of the buyer if the marriage is broken down. No due regard would be given to the child's welfare or health or age. I find, with respect, the custom rule, is inconsistent with the words of C.J. Daly in the Sukutaona ats Houanihou case.

Therefore what now remains is the interest of the child.

The Social Welfare report had said something on the residents of both parties at p. 2 of the report. The report on the surrounding seem to balance and the child is said to be cheerful when Mrs Jio made her visit.

I have heard from Margaret that if maintenance is paid towards the child she would try and keep some money towards the child's education. She has no immediate plan as yet towards B's education. Huta has told me that he would send B to Coronation Kindergarten, and would pay for her education if custody is granted to Defendant. Although I consider education of the child an important factor I do not think it is an immediate need that would affect the interest of the child so as to put her in jeopardy. The child whose custody is the subject of this case is less than 4 years old, and her education would be in her interest only when she attains the age for preschool.

Mr Brown referred me to p. 71 and 72 of Summary Matrimonial and Guardianship Orders 5th Ed. I quote the relevant passage:-

"Normally young children will stay with the mother and the fact that she has committed adultery has not for many years been regarded as itself a reason for refusing custody to her if she is otherwise suitable and the child's welfare requires it."

As I have said earlier B is in her tender age. She has been with Margaret all the way since her birth. At present she is living with Margaret and her parents and is happy according to the Social Welfare Officer. The family has sufficient food to eat and the surrounding is no problem although the area is slightly small compared to Huta's residence.

I have heard no evidence whatsoever that Margaret is a bad mother and that would not be in the best interest of the child if she is granted custody. I feel that it would not be in the best interest of the child if the continuous custody of the child with her mother is disrupted by the court, by granting the custody to the Defendant, especially at her early age. Accordingly having regards to all that is; before me, I make the following order:-

Order

1. Margaret to have custody of B with reasonable access by Defendant the child's father. Defendant to pay maintenance.

2. Maintenance of $15 per month commencing at the end of September.

3. Costs of $15.00 to be paid at 2 monthly basis i.e. Sept - $7.50 and Oct - $7.50.

MAGISTRATES' COURT.