IN THE DISTRICT COURT OF SAMOA
HELD AT APIA

BETWEEN:

MAINTENANCE OFFICER
acting on behalf of FIASILI TIA,
married woman of Satitoa, Housewife
APPLICANT

AND:

KALAPATI FUIMAONO,
married man of Alafua
RESPONDENT

Mr Falevi Petana for the Applicant
Mr Fuimaono Feleti for Respondent

Date of hearing: 23.08.03
Date of decision: 23.08.03

ORAL DECISION OF NELSON, J.

I have listened carefully to the evidence and what the witnesses have had to say to the Court. That is witnesses from both sides as each side called a number of witnesses and I have carefully observed their demeanour when testifying.

Clearly despite what the applicant said in her evidence that she and the respondent may get back together again and despite what the respondent also said in his evidence that that is possible, I do not think that is ever going to happen. Too much has happened here and the differences between the couple seems to me to be differences that cannot be reconciled and this is a case where a family has been torn in half.

This is sad because of the future of the children of this relationship. Sad because this is a couple with irreconcilable differences and in my experience in this sort of case, there are no winners because everyone loses one way or another and no party should ever think that they have come to Court and walked away with a victory.

The paramount question for the Court to decide today is which parent is to get custody of these children. The Courts task has not been made easy because representatives of both parties are not qualified legal people. It may be Mr Petana and Mr Fuimaono that the Court has been a little impatient in trying to properly conduct your case and I apologise for that but from where I sit and from the position of the law, the only thing that matters is the welfare of the children. And the children are unfortunately in our system not represented in these proceedings so there is no one acting for them or representing their interests. It is therefore left for the Court alone to decide and do what it believes is in the best interests of these children.

Now each of the parties in this matter, the husband and the wife, wants custody of all 4 children. They are also applying in the documents filed before the Court for an order for maintenance. I will deal first with the issue of custody.

The representative for the respondent requested the Court to question the children to ascertain their wishes in this matter. I have given this issue some careful consideration but considering the ages of the children that are involved, and the fact that the two girls have been with the mother for some time and the two boys have been with the father’s family for sometime now, I do not consider questioning the children would be productive. I am very mindful of the fact that we are dealing with young children, not adults but young children and to ask them to make such choices between the mother or the father is to ask them to make a decision that even an adult would find hard to make. The Court would not want to run the risk of causing further emotional harm or pain by asking that the children, with a judge who they do not know and have not seen before, to make a choice between their father and their mother.

There is also the fact as pointed out to Fuimaono who is representing the respondent, that there are legal authorities that speak as to matters that the court can question children upon - and these are only in certain and exceptional areas and circumstances. The application to question the children is accordingly rejected which leaves me then with the evidence that the Court has heard today and as I have gone to great pains to point out to the representatives of the parties during the course of these proceedings, the court will only decide matters on the evidence given before the Court and on no other basis.

Nothing that I have heard in this case persuades me that either parent should have custody of all the children. The applicant or wife clearly has limited means. She does not live in her own house and she does not have a steady job. She is very much relying on money provided to her by her relative Pelepesite with whom she is presently living and she is very much reliant on money provided to her by other members of her family. She is primarily relying on only one person namely, her cousin Pelepesite. And while he says that he will “back her 100%” in his own words, I must also take into account the fact that this man has his own family and children to take care of. Similarly the other members of the applicant’s family have their own families and if it comes to the priorities, it is natural that they will place their families and their own children first. The two young girls that are presently in the care and custody of the applicant are young girls. They are growing up, their education and associated costs will grow, and their other needs will grow every year. To add to these two children the burden of a further two young children would be in my view dangerous and unsafe for all the children.

On the other side of the coin is the respondent or husband. Does he own his own house? Clearly, he does not. Does he have a job? Clearly he does not. Does he have any special skills or qualifications that would enable him to get a better job? Evidence before me is that he has none. The evidence indicates that the respondent at present looks after the family plantation for which he does not receive any set wage or a particular payment or remuneration. The evidence indicates that the respondent is relying on his parents and his family to accommodate, to clothe, to feed, educate and provide for the upbringing of his children. The respondent is fortunate that his parents are able to support and provide for all the financial needs for his children which clearly the respondent cannot do by himself. It is also a concern to the court that the respondent does not even live at home where the children are. He, according to the evidence looks after the family plantation at Afulilo near Fagaloa while the children live at Alafua with his parents.

If the mother had produced better financial evidence to satisfy me that she is financially able and capable of supporting and providing for all of the 4 children, I would have given her custody of all four children because the law says her rights supersedes the rights of the grandparents to custody. But there is insufficient evidence provided before the court to satisfy me that I can safely award custody of all 4 children to the mother. The evidence before me is to the contrary and suggests that the children’s grandparents are able to provide for the children and the ultimate concern of the Court is as I have noted, is the welfare of the children.

The applicant in her evidence during the case has tried to make out that the respondent is a wife beater, a drunkard and a dope smoker. Well there is insufficient independent evidence supporting that because her evidence by itself is not necessarily reliable evidence as the applicant has every reason to try and discredit the respondent and testify that he is a bad person. The evidence of the police officers does not help the applicant’s case because the first police officer stated that the applicant subsequently withdrew her complaint against the respondent. In any event, that was a complaint lodged in 1996 some 7 years ago. The evidence of the other police officer as to the previous convictions of the respondent does not help the applicant’s case either because it does not say whether that previous conviction relates to her or somehow otherwise affects the children. I therefore find that the allegations made by the applicant against the respondent as to his character have not been proven by the evidence produced before the Court. This means to put it in another way, the respondent has not been proven to be a person to whom custody should not be awarded.

Before I leave this issue of allegations by one party against another, I wish to say something to the parents. It is sometimes difficult when you have cases like this, to remember that your children will grow up and they will realise they have both a mother and a father. It does not matter how much you try to put one parent to the side, but a child eventually comes to realise that he is the product of two people, and if the mother spends all her time telling the child that his father is a drunk and is no good, what good do you think would happen or come out of that? And likewise if the father spends all his time telling his children that their mother is a bad person, what would the children think about that? They will think they too must therefore be bad and no good. The Court always advises the parents in cases like this to keep their opinions of one another to themselves. Because if they don’t then the children will inherit the problems of the parents. Fiasili and Kalapati, I am sure neither of you would like to see your hatred of each other being followed by your children.

From what I have seen today, I have no doubt you both love your children. Do not make the mistake of thinking that your love for the children is somehow greater or much better than the love of the other parent for the children. These are observations that the Court makes to the two of you in the hope that it will help you to move on from today because whatever the result of this case, you must move on and not dwell on the past and what has happened.

I have come to the conclusion, considering all these matters and the time that has now gone by, that custody should continue in accordance with the interim order that is presently in force. That is for the boys Junior and Jadan, custody will remain with the respondent with reasonable access reserved to the applicant and likewise that the custody of the two girls Tamasailau and Faamata is awarded to the applicant with reasonable access reserved to the respondent. Reasonable access will not be defined at this stage by the Court but will be left to the parties to arrange but if there is a problem with access then either party can apply to the Court and then it may come down to supervised access, that is at the offices of and in the presence of the Maintenance Officer is the only way either of you will get access to the other’s children. Supervised access is not an option either of you will like because that would mean bringing the children to the office and conducting visits there by one parent. But it is an option available to the Court which prefers the matter be left to the parties to resolve. But if the parties cannot agree, then the court of course must make a decision regarding access arrangements.

As to the issue of maintenance no evidence was placed before the Court by either side on the issue of maintenance. No evidence as to the expenses required and incurred for the upkeep of any of the children, clothing costs, food, educational costs etc. - nothing was put before the court. In the absence of such evidence the court cannot make an order as to maintenance and it will only make orders as to the custody of the four children. You Kalapati will be responsible for the maintenance of the two boys you have custody of and you Fiasili will be responsible for the maintaining of the two girls you have custody of.

Court is adjourned.

DISTRICT COURT JUDGE