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Nauka v Kaurua [1998] VUSC 53; Matrimonial Case 006 of 1996 (11 September 1998)

IN THE SUPREME COURT OF

THE REPUBLIC OF VANUATU

(Civil Jurisdiction)

Matrimonial Case No. 06 of 1996

IN THE MATTER of
 an application for custody of children-

BETWEEN:

LOUISE NAUKA
Applicant

AND:

SETH KAURUA
Respondent

Coram: Mr. Justice Olce Oliver A. SAKSAK.

Counsel: Mr. Stephen JOEL, Public Solicitor for the Applicant.
Mr. George NAKO as spokesman for the Respondent.

JUDGMENT

This matter was heard on 07th September 1998. The Applicant seeks custody of four children by way of an Originating Summons filed on 15th July 1996. The children are:

(a) Dick a male born 13th March 1978, aged 18 now 20;

(b) Serah a female born 09th September 1979, aged 17, now 19;

(c) Dickson a male born 24th November 1985, aged 11, now 13; and

(d) Sheba a female born 28th November 1986, aged 10, now 12.

The Applicant and the Respondent were, it seems married in accordance with custom. They lived together between 1975 and 1992 when they finally separated. The Applicant relies on her affidavits of 11th August 1997, 3rd September 1996 and 26 August 1998. She further relies on the affidavit evidence of Mrs. Mason sworn and dated 16th July 1996 and that of her father Johnny Nauka sworn and dated 25th August 1998.

The Respondent swore an affidavit on 4th September 1997. He admits living together with the Applicant in 1975 and separation in 1992. He admits that Dick, their eldest son is now 20 years old and is a student at the USP in Vila. He says that Serah is now 19 years old and she lives with her boyfriend at Ohlen. He says that Sheba and Dick are attending Aore Academy and they both live with him. He refers to the proceedings in the Magistrate's Court in April 1996 in which the Magistrate ordered that Dick and Sheba be in his custody and that Serah and Dickson be in the custody of the Applicant. He says that Dickson left the Applicant's home less than 1 week after the Court order to live with the Respondent. He attaches letters from Dickson and Sheba who express their wishes to remain with their father, the Respondent. (see Annex C1 & C2) The Respondent says that he pays for these children's school fees and maintains them at school and meets all their travelling to and from school.

The Applicant alleges that the Respondent has had affairs with other women and that at some early stages he neglected to provide proper and adequate maintenance for the children when they were in her care. She says that she had provided the children with money and clothes and foodstuff. She alleges that the Respondent had beaten up Dickson at one time with a belt. She provides to the Court a copy of a leasehold title in her brother's name and a copy of a certificate of employment confirming that the Applicant earns VT30.000 per months and VT10.000 as Housing Allowance. She says that she is building her own house now and produces an invoice from Port Vila Hardware showing the supply of materials at VT68.79.... She says she is paying back this amount at VT3.000 per month. She says that she is capable of looking after the children if the Court decides in her favour.

The Respondent denies the allegations and claims of the Applicant saying they are frivolous and vexatious. The Respondent was given the opportunity of cross-examining the Applicant on her affidavits and re-examined by Mr. Joel. Counsel for the Applicant chose not to cross-examine the Respondent.

In his submissions Mr Joel urged the Court to deduce out of the conduct of both the Applicant and the Respondent as to where the children's welfare would best be maintained and preserved. Mr Joel referred to four cases firstly G -v- L, CC No. 120 of 1990 2 VLR p. 488 for [indecipherable] that the welfare of the children is of first and paramount importance or consideration in any application for custody of children. Here the mother was granted custody.

Secondly in Hannett -v- Hannett [1954] VLR p. 533 it was held that a child's interest would best be served in the care of its mother unless the court had some grave reasons why it should grant custody to the father.

Thirdly, in Pandosy -v- Thuha (Unreported case) the Applicant who worked in a Kava Nakamal was granted custody of her children. That fact did not make her incapable of looking after her children.

Fourthly in V -v- V [1964] 5 Fed.L.R. p. 452, where a father pleaded conduct of his former wife as very bad morally, the Supreme Court granted custody to the mother.

Mr. Joel submitted that these cases support the Applicant's application for custody and she should be granted such right with reasonable access to and by the Respondent.

Mr. Nako submitted that the interest and welfare of the two children would best be served by the Respondent who has continually supported the children financially and materially also.

Mr. Nako refers the Court to the proceedings in the Magistrate's Court in 1996 where the Court granted custody of 2 children to the Applicant and 2 to the Respondent. The Order is still in force. Both children ordered to be under the Applicant's custody have left her to live with their father ever since. They have expressed their wishes to remain with their father but wish to have access to their mother. Mr. Nako submits that the treatment by the Respondent has been the key element in persuading the four children to continue to live with him even though the Court has ordered that Dickson be in the custody of his mother

Mr. Nako refers to the Fijian Case of re: M (1995) Fiji L.R. p 274. Here 2 children aged 7 and 8 had lived with their father for over 5 years following separation. Contact with the mother broke down and 18 months later she sought a contact order from the Court which was refused and on appeal the decision of the Court below was upheld. The children did not wish to see their mother. It was held that to order contact against their wishes would be harmful.

Mr. Nako relies on this authority and submits that here it is clear that Dickson and Sheba do not wish to reside with the Applicant but state specifically that they wish to reside with the Respondent but wish to have reasonable access to their mother, the Applicant.

I am very much persuaded by this authority. It is clear that Dickson who is 13 years &n1"> pan>odd anbaSheba who iwho is 12 years old have indicated their respective wishes to live with their father, the Respondent. In Annex C3 this is what Sheba wrote on 4th Seer 19 span>

"TO WHOM IT MA MAY CONCERN

I am Sheba Kaurua, daughter of Seth Kaurua and Luis Nauka attending Aore Academy School. Because of the problem between my parents, I Sheba would personally like to be on my dad's side no matter what happens. (emphasis, mine)

I would like to thank my dad and my step mother for all the support given me since mum left home."

Dickson writes in the same words. His letter is Annex C2 to the Respondents affidavit.

This Court can do no more than go by the wishes of Dickson and Sheba. They are the ones who have been in the middle of their parent's problems all along and they know with which and they are loved, cared for and supported. And they have chosen that parent.

The cases cited by Mr. Joel are strong and persuasive authorities too but I think that it is correct to say that each case has to be decided on its own merits and circumstances: The principles laid down in these cases are considered also by the Court in this case but due to the special circumstances of this case, this Court is of the view that the interests of both Dickson and Sheba will best be served with the Respondent.

Article 3(1) of the Convention on the Rights of the Child which has been ratified by Vanuatu Parliament by Ratification Act No. 26 of 1992 reads:-

"In all actions concerning children, whether undertaken by public or private social welfare institutions, Courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration". (emphasis, mine).

Here as I have said earlier, it is the two children concerned who are facing the reality of the problems associated with parents who have separated. And they have in the light of all the circumstances that they face chosen to live with the Respondent. That is a choice which I am satisfied they have made in their own best interest now and in the future. Here the children are their own Judge. They have faced all kinds of situations and have made their decisions based on that. This Court can only respect that choice and I agree with Mr. Nako that to decide otherwise would be harmful to the children.

These two children maintain their father's surname Kaurua. The Respondent is from Tanna and so is the Applicant where I believe the paternal pattern is adhered to in respect of inheritance of property etc. This concept bears directly on the principle of "the best interests of the children" required by the Convention. In this regard I endorse the views of His Lordship the Chief Justice in Patricia Molu -v- Cidie Molu CC No. 30 of 1996 as Matrimonial Cause No. 130 of 1996 at pp. 8 and 9 paragraph (a).

As regards the Orders of the Magistrate's Court in Civil Case No. 85 of 1996 the Orders are interim orders only preserving the status quo until the hearing of this application. At the time it was ordered that Dick and Sheba remain with the Respondent and that Dickson and Serah remain with the Respondent.

It appears now that Dick and Serah are of mature ages. Dick is 20 years and Serah is 19 years. By Article 4(2) of the Constitution the age of maturity is 18 years and therefore these two children are excluded from the Application.

That leaves only Dickson and Sheba. The view of the Court is clear. The circumstances of the case are such that the best interests of these two children would best be served with the Respondent and I so rule. I now order that Dickson and Sheba be in the custody of their father, the Respondent.

As regards access, I am of the view that the Applicant as the natural mother with natural love and affection for her children, be given access to her children and I so rule. I order that the Applicant be given access to Dickson and Sheba during weekends and/or public holidays and school holidays. Where it is expected that a child is to stay with the Applicant for more than seven (7) days or nights, the Applicant shall first obtain the consent of the Respondent 2 clear days before the relevant period is to begin.

There will be no orders as to costs.

Dated at Port Vila, this 11th day of September 1998.

BY THE COURT

Oliver A. SAKSAK
Judge.

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