IN THE HIGH COURT OF TUVALU
FAMILY APPELLATE JURISDICTION

Case No: 6/03

Between:

Moale Lalaia
Appellant

v

Tefale Lotonu
Respondent

BEFORE THE CHIEF JUSTICE

Duckworth (later Seluka) for Appellant
Respondent represented by his brother Manase Lotonu

Hearing: 26 September 2003 and 5 and 7 April 2004 
Judgment: 7 April 2004

Judgment

This case involves the custody of a girl now aged about four years (the exact date of birth is not stated in any of the court papers but would appear to have been in the latter half of 2000). She is the illegitimate child of the parties both of whom are from Nanumaga. The respondent accepts he is the father.

The child was living with her mother initially and the father’s family was giving some support to the child. However, on 12 February 2002, the natural father and his mother applied to the Resident Magistrate’s court for a custody order in their favour. All the parties and the child were on Funafuti at that time. The basis of the application appeared to be their concern that the mother was intending to emigrate to American Samoa and to take the child with her. She has relatives with permanent residency in that country.

The case came before Resident Magistrate Saloa Tauia on 14 February 2002. He ordered a welfare report and, in the meantime, made an interim order that the custody of the child should be with the father’s family and she was not to be taken away from Funafuti by either party pending the continued hearing.

A detailed report was received and the case was continued on 12 April 2002. The Resident Magistrate correctly considered the welfare of the child as the paramount consideration and ordered:

1.	Custody of the child to be with the mother
2.	Free access of the father to the child is not to be prevented
3.	When the mother and the child are ready to go to Samoa, the mother to inform father leaving a full address to enable the father to communicate with them, especially the child
4.	Freedom of the child to choose where to live when she reaches 18 years of age.

It was a properly conducted hearing and a sensible, well considered and, in the light of the welfare report, almost inevitable result. There was no appeal and that would have appeared to be the end of the matter. The mother did not, in fact, go to Samoa and returned to Nanumaga to live with the child.

The case then took a most extraordinary turn. The mother received a document dated 6 March 2003, addressed to her in Nanumaga and headed ‘Injunction Order’. It bore no court number nor any other reference to suggest it was the result of a hearing but it was signed by the, then Resident Magistrate, Evi Tauaa, and was sealed with the court seal. It certainly was not an injunction but appeared effectively to be a direction to her not to prevent the paternal grandmother from having access to the child on Nanumaga. It concluded with an ill-disguised threat that the court had power under section 20 of the Native Lands Act to give the custody of the child to the father when she reached 2 yeas old.

Whilst it may reasonably be assumed this was the result of a complaint by the grandmother, there is no record of any written request or application for variation of the previous Resident Magistrate’s order. There is no record of any hearing nor any evidence of what, if any, consideration of the child’s welfare the magistrate applied. It is clear that the mother was not warned or given any opportunity to respond. The first she knew was when this document arrived out of the blue.

What is clear is that the paternal grand mother must have had access because, in June 2003, she took the child with her to Funafuti and she has kept her here ever since.

On 11 June 2003 the mother filed a notice of appeal from the ‘Injunction Order’ of the Resident Magistrate. The grounds are confused, no doubt because it was far from clear what, if any, proceedings she was appealing from.

It came before this court in September 2003. The mother was present and the father, who was away at sea, was represented by his brother. The brother urged the court to find that it was in the child’s best interests to remain with the father although he agreed that the father was away and so the effective custody was with his parents. He also suggested that the mother would not be able to support the child. The mother explained that she would live with her natural father in Samoa.

I ordered a welfare report in order to try and ascertain the up to date position particularly with respect of the child. I now have that report and also the detailed report prepared for the Resident Magistrate’s Court in March 2002.

The child is still on Funafuti with the paternal grandparents and the father is away at sea. As a result, the mother is unable to have effective access to the child. Her position has changed somewhat. She no longer intends to go to American Samoa as she was married in November 2003 and she and her husband live on Nanumaga. The mother is a pre-school teacher although it is not stated whether she is working but her husband works in the Fusi Co-operative store on the island.

The latest welfare report gives a careful analysis of the present circumstances and advises unequivocally that the child should be with the mother. It is the same conclusion as was given in March 2002 and is as firmly presented. The author of the report is satisfied that the step-father will be a responsible and good parent to the child.

The appeal must be allowed. The action of the Resident Magistrate in March 2003 was improper and without any semblance of legality. The result is that the paternal grandparents (no doubt fortified in their belief that they should have custody by the magistrate’s extraordinary action) were able to remove the child from its mother’s custody. The emotions of a little girl have been disturbed in a manner which should never have occurred.

Although the result of this appeal - if it was an appeal as there were no lawful proceedings - was never in doubt, once the child had been removed, the court needed to obtain up to date information about the child before making any final order. The test in all custody proceedings is the child’s best interests which must be the first and paramount consideration overriding the relative claims of the father or mother. It must be considered whenever any fresh order is considered whatever the current rights of the parents. I have considered that afresh in the light of the latest welfare report and am satisfied that it is in the child’s best interests to return to its mother with reasonable access to the father.

I directed on 26 September 2003 that both parties should have 14 days to file any written submission if they wished and that the papers were then to be sent to me as soon as practicable. The case had, by then, already been delayed for three months since the grandparents had taken the child from Nanumaga. No papers were sent to me with the result it has now been delayed a further and totally unnecessary six months.

The so-called injunction order of 6 March 2003 is quashed. The child is to be returned to the mother in Nanumaga by the paternal grandparents at the latter’s expense within 28 days. Failure to obey this order will be a contempt of court and will render them liable to imprisonment.

Dated: 07th day of April 2004.

CHIEF JUSTICE