IN THE SUPREME COURT OF TONGA
Supreme Court, Family Jurisdiction, Nuku'alofa

FD 45/2005

Taufa

v

Afu

Shuster J 
16 June 2008 

Family law – custody of 4-year-old girl – custody to mother for two years with weekend visitation rights to father 

Temporary custody of a four-year-old girl had been granted by the court to the respondent mother when the parties, a married couple, broke up in 2005. The petitioner, the child's natural father, sought custody of the child on the basis that it was in the best interests of the child as he was able to give her a better life. The petitioner claimed to be very concerned about the welfare of the child because he alleged that the respondent drank alcohol, smoked and on occasions she left the child at home alone while she went out clubbing. The petitioner impressed the court as being an exceptionally caring, loving father who was sincere and who doted upon his daughter. 

Held: 

1. It was widely recognised in most common law jurisdictions that custody of a child, and more particularly the custody of a female child of tender years, was usually granted to the mother, unless she was declared an unfit person. It was for the courts to decide who was an unfit person, on a case-by-case basis, based upon the facts. Every court would have reservations and concerns about placing a young female with a father who lives alone. 

2. Custody of the child was granted to the respondent for a period of two years and then it would be reviewed. The respondent was granted weekend visitation rights. 

Counsel for the petitioner: Ms Tonga 
Counsel for the respondent: Mr Niu 

Judgment

I wish to say at the outset Family Cases are always the most difficult cases to decide upon. For the parties there will inevitably be hurt feelings, perhaps a thought in the back of your mind thinking that you have lost, or, how could you have won.

For the Judge, there is also a nagging question, have I done right to these parties? That said, the court MUST in all cases in deciding the issue of custody of any human being do a balancing exercise. In other words the court MUST always look at, what are the Best Interest of the child; and not what are the best interests of the parents. A court will inevitably have to make difficult and unpopular decisions and orders from time to time. 

THIS IS MY RULING

• This case concerns an application for the custody of the first child of the marriage, Marryanne Taufa, by the petitioner Telekitonga Tafua (the child's natural father) 

• The Petitioner was lawfully married to the Respondent on the 12th February 2002 at Nuku'alofa, Tongatapu. 

• Marryanne was born on the 3rd August 2003 and is now aged four years. Temporary custody of the child vests in the mother, and was awarded in 2005 by this court. 

• The petitioner asks the court today to award custody of the child Marryanne to him; as being in the best interest of the child, stating he can give the child a better life. 

• The Petitioner testified he is an aircraft engineer by trade, he owned property and can provide the child with a stable and loving home environment. To do that, he would need to make arrangements for help and assistance from relatives whilst placing the child at his own accommodation. 

• The Petitioner says he is very concerned about the welfare of the child because he says the Respondent drank alcohol, smoked and on occasions she left the child home alone, whilst she went out clubbing. 

• The Petitioner alleged the child had been hit by the Respondent on a number of occasions; as a result she was injured, and once required medical treatment. The court saw a medical report which showed some evidence of a physical injury to the child's neck. 

• The Petitioner came over (to the court) as being an exceptionally caring, loving father; a man who was sincere and who doted upon his daughter. The court could not fail to see how the child Marryanne clung onto her father during the course of these proceedings. 

• On the other hand; it will be of some concern to the court that the petitioner takes home considerably less than he spends each month. He has a mortgage and car loan. To his credit he has his own vision for the future with hopes of working abroad with good prospects of achieving his dream and prospects of an enhanced salary. 

• I have no doubt in my mind he would lovingly care for his only daughter, but would he spoil her and make her unmanageable?

THE RESPONDENT 

• The Respondent testified she was the mother of the child Marryanne, that she is separated from, and has recently divorced the Petitioner. The Decree has not yet been made Absolute. 

• The Respondent accepts, as does the Petitioner, the marriage is at an end. The Respondent has two other small children who live with her mother in Hawaii and which the Petitioner claims are not his. 

• The Respondent readily accepts she drinks alcohol and that she smokes. She accepts on occasions she stays out late with her friends. She denies leaving Marryanne alone, as the Petitioner alleges. She brought two witnesses to give evidence to counter the Petitioners allegations. 

TEMPORARY CUSTODY of the child is currently vested with the Respondent, and was granted in 2005 by this court when the couple broke up. I was told the Petitioner refused to let the respondent have the child; so the court ordered the child placed with the mother, with access by the father on a regular basis. 

It is widely recognised in most common law jurisdictions that custody of a child, and more particularly the custody of a female child of tender years, is usually with the mother, that is to say unless she is declared an unfit person. Who is an unfit person, is for the courts to decide, on a case by case basis, based upon the facts. 

It is generally accepted that a child will benefit by having both a father and a mother, (or a male and female figure) and live in a stable environment in which to grow up in, in order to develop and grow up, into a good citizen. 

The evidence revealed the father paid no maintenance or accommodation costs for the child, but he paid school fees for the fourth term of last year. The evidence also revealed, the father was never asked to pay maintenance by the Respondent, however he voluntarily paid for treats and for the child's food and provided some clothing, as any father would.

By and large the child's weekend visits to the Applicant were a success; the visits also benefited the Respondent who could go out drinking and clubbing, which she admitted she liked to do, whilst the father had the care and control of Marryanne.  

During the week the Respondent paid for the child's food, most of her clothing and generally looked after the child. I do not find on the evidence before me, that the Respondent is an unfit mother. I have reservations about her method of discipline towards the child, which I deal with below. 

Every court will have reservations and concerns in placing a young female with a father who lives alone (as per the date of this application i.e. now). The courts concern is; that a young female child might fail to develop, or, mature especially during the early years and during puberty. It is well known girls need a mother (and a of course father) 

The court also has grave concerns about the respondent's use of her method of, shall I call it discipline. It can never be acceptable in any modern society to hit any young child, more so, and particularly : if the child is of tender years; in order to discipline him (or her) I fully agree with the Applicant, there are other ways to discipline a child than by hitting. 

I will take this opportunity to remind all parties of the laws relating to the Convention on the Rights of the Child (1989) with the optional protocols, and, the Declaration on the Elimination of Violence against Women (1993) and the Commonwealth Plan of Action for 2005-2015. 

Accordingly 

I ORDER 

1. Custody of the child, Marryanne 'Ofahemo'oni Kapiolani Taufa is granted to the respondent and the respondent shall immediately have possession, care and control of the said child until further order of this court. Custody is granted for a period of two years and then will be subject to review. This condition is imposed because of the allegation of assault / method of dealing with discipline by the Respondent. 

2. Access to the said child is granted to the petitioner and to any person acting on his behalf as may be arranged and agreed, and; in particular the petitioner shall have access to the child from 18:00 each Friday to 08:30 on the following Monday by way of (weekend) visitation rights. 

3. The said child shall not be taken out of the Kingdom, except by leave of this court, and upon application to the court by notice. 

4. A copy of this notice is to be served by counsel for the respondent on the appropriate Immigration Authorities.