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GD v JK [2012] FJMC 184; Family Case 442.2009 (2 August 2012)

IN THE FAMILY DIVISION OF THE MAGISTRATE'S COURT
AT NASINU

Family Case No. 442/09

BETWEEN:

G D
[Applicant]

AND:

J K
[Respondent]

Appearances:

Applicant appeared and represented by Mr. Nilesh Sharma as duty solicitor of Legal Aid Commission.

The Respondent appeared and represented by Mr. Kunal Singh (Messrs Jamnadas & Associates)

Trial Details:

Date of Hearing: 12th April 2012

Date and Place of Judgment: 02nd August 2012, at Nasinu, Fiji Islands

Judgment of: Resident Magistrate Sumudu Premachandra

Decision on Children's Custody, Maintenance and Divorce

1. These are applications by the Applicant-lady for order seeking full custody of children namely A A K (DOB: 25th May 2009 and A A K (DOB: 12th July 1999) (Form 9) and Children Maintenance (Form 5). In addition that the Respondent has filed divorce application (Form 1), which the applicant opposed for it.
   
2. On 16th June 2011 the court made orders by agreement that children's custody to be with the applicant mother and the respondent to have access on every Sundays between 9am to 5pm. The respondent to pay interim maintenance as $30 per week and it is to be increased for $40 per week from June 2011.
   
3. The Respondent asks that the maintenance be reduced to $30 per week.
   
4. At the hearing the applicant said that she is still legally married to the respondent. From this marriage she got three children and one is deceased now. Her eldest son is 12 years and youngest is 3 years now. They have separated in November 2009. The applicant said the respondent is in relationship with one Nazreen Nisha and when they got caught the respondent assaulted her and one criminal case is pending in court no: 2. This medical was tendered as Ex-1. Later the applicant said the respondent was bound over for this assault charge. The respondent then left the marital house leaving the applicant and the children. Once the respondent left her she came to mother's place and was renting several places. He cannot meet the needs. Now she is leaving in a flat in Hart in Narere with Housing assistance. She gave the breakdown as follows;
   
   1. Rent - $25.00 (Twenty Five Dollars). ( Ex-2 and 3 tendered)
      
   2. Water - $4.00 (Three to Four Dollars).
      
   100. Fiji Electricity Authority - $6.00 (Six Dollars).
        
   4. Koro Money - $3.50 (Three Dollars and Fifty Cents).
      
   5. Garbage - $2.90 (Two Dollars and Ninety Cents)
      
   6. Shopping (including vegetables) - $160.00 (One Hundred and Sixty Dollars).
      
5. The applicant said though the eldest son's school fees are paid by the respondent the son has to walk to the school. If the children are sick she has to go to chemist and it will be additional expenses for her. She has no saving and if not she do not buy clothes and fancy things to the children. The applicant said when she was with the respondent that he had enough money to maintain them. He said she worked in Nabua Curry Kona after her youngest child was born she had to left the job. If she got a baby sitter she has pay $60 per week, so she is staying with the child and has no capacity to earn.
   
6. The applicant in her evidence said she has no issue regarding divorce case. That means she is not objecting to the divorce application now.
   
7. The Applicant was cross examined at length. The applicant admitted that she is receiving $200 per month from previous land owner. The applicant admitted that the respondent worked in western and northern. But she denied the suggestion of that she left the respondent. The respondent tendered REX-1 letter and pointed out in that both of them (Suraj Chand and Gaitri Devi) agreed to look after the children, but the applicant said she was misled and forced to signed REX-1. She said on that she complained this to the police and police advised her to move out from the house. The applicant said that she is aware that eldest son wants to go with the respondent. She said that she can look after children but she cannot meet their needs. She said that she is away from her parents and she cannot her youngest leave with them and go to work.
   
8. The respondent also gave sworn evidence. The respondent said when he filed response he worked in carpenters shipping but now he works as a taxi driver. He is driving somebody's taxi and must give $250 per week to the taxi owner. He said he should pay for fuel and he has only $120 to $130 per week. In his evidence he gave his expenditure breakdown as follows;
   
   1. Rent - $300.00 (Three Hundred Dollars).
      
   2. Fiji Electricity Authority - $90.00 (Ninety Dollars).
      
   100. Water - $8.00 (Eight Dollars).
        
   4. Telephone - $15.00 (Fifteen Dollars).
      
   5. Food – Approximately $160.00 (One Hundred and Sixty Dollars).
      
   6. Insurance - $15.00 (Fifteen Dollars). Find enclosed a copy of the Insurance Policy.
      
   7. Maintenance Payments - $160.00 (One Hundred and Sixty Dollars).
      
9. The respondent submitted REX-2 rent receipts REX-3 electricity bills and REX-4 water bills. He said for school fees and clothes he pays $300-400 per year. He is paying LICI insurance $15 weekly. He pays S10-15 for his mobile. When he got son's custody on Sundays he has to bear the cost. He said that if he doesn't have money he borrows money from de facto.
   
10. In cross examination the respondent admitted that when he was with carpenters shipping he did overtime and got extra money. He works 6 days as taxi driver and Sunday is his holiday. He starts taxi job at 7am and knock off at 7 pm. As sick person that he cannot drive in the night. The respondent said he is not in a position to shift to smaller house. His de facto earns $60 to $70 per week but he doesn't have her payslip. The respondent admitted the buys things for whole family. The applicant suggested his phone bill was unnecessary. But he denied it. He said he is a heart patient. The respondent says he is on daily medication. The respondent admitted sometime he pays bus fare for his son. He said he treated them equally. He further said his de facto hired a solicitor to defend this case.
    
11. The respondent did not submit any documents for his heart disease at the hearing but he was given time to submit a report. He submitted a report from CWM Hospital medical unit. It was an old medical report which was issued on 08th March 2010. In that the respondent was assessed as "having Angina on a back ground of Ischemic Heart Disease". In that medical report Medical Registrar Dr Vikash Sharma says "On examination the vital signs were all normal and general systems exams was unremarkable including cardiovascular system". He was prescribed following drugs;
    
    1. Asprin 150mg po daily.
       
    2. Atenolol 25mg po daily.
       
    100. Simvastatin 25mg po daily.
         
12. This is an old medical and it is unclear that hhe is taking these tablets daily on instruction the medical itself indicates that he is not following up medical checkups regularly . it says "However he has been lost to follow up since"
    
13. In considering evidence before me, I first deal with custody of the children. It is to be note that child is living with the Applicant mother since her birth. According to the applicant both children were with their parents till the separation of the parties. There is no paternity issue here; the respondent is the biological, natural father of the children. It should be noted, Family Law Act 2003 provides that the best interest of the children to be prevailed in parenting order. I reproduced section 120 of the Family Law Act 2003 for clarity.
    

"120.-(1) This subdivision applies to any proceedings under this Part in which the best interests of a child are the paramount consideration. (Underlining is mine)

(2) This Subdivision also applies to proceedings, in relation to a child, to which section 60(6) applies."

Section "(121) - (1) Subject to subsection (3), in determining what is in the child's best interests, the court may consider the matters set out in subsection (2).

(2) The court must consider-

(a) any wishes expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's wishes;

(b) the nature of the relationship of the child with each of the child's parents and with other persons;

(c) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from-

(i) either of his or her parents; or

(ii) any other child, or other person, with whom the child has been living;

(d) the practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis;

(e) the capacity of each parent, or of any other person, to provide for the needs of the child, including emotional and intellectual needs;

(f) the child's maturity, sex and background (including any need to maintain a connection with the lifestyle, culture and traditions of the child) and any other characteristics of the child that the court thinks are relevant;

(g) the need to protect the child from physical or psychological harm caused, or that may be caused, by-

(i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or

(ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards, or may affect, another person;

(h) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;

(i) any family violence involving the child or a member of the child's family;

(j) any family violence order that applies to a child or a member of the child's family;

(k) any other fact or circumstances that the court thinks is relevant."

14. In view of the above governing law the best interest of the child should be the paramount consideration. Section 121 indicates factors to be considered when a question of custody. There is a welfare officer's report to consider parent's background in depth. In that the social status of the respondent is given as follows;
    

"Respondent

J K lives at Lot 29 Koko Place at Nadawa with his defactoo wife and her son. He is 35 years old and employed as a taxi driver at Lami Town. He earns a weekly income of $200.00.

Income and Expenditure

J K works as a taxi driver and has no saving but heavily depends on the current income which he earns from driving taxi.

Home Situation

J K lives with his de facto wife in their three bedroom wooden and iron house which consists of a kitchen, living room toilet and bathroom is located within."

15. The Social Welfare Officer had visited those houses and this is an independent assessment. The Social Welfare Officer states the applicant's status as follows;
    

G D is living with her two children at the above given address. She wishes to raise own children as she is the biological mother and does not wish to part from her children.

Household Members

1. G D - age 28 years old, mother, Domestic Duties
   
2. A A K - D.O.B. 12/7/99, 11 years old, son, School – Narere Sangam Primary School, Class – Seven.
   
3. A A K – D.O.B. On year seven months. Infant stays with the mother.
   

Financial Situation

According to her, she is unemployed and depends on the maintenance income to meet her daily needs.

Her maintenance income is $80.00 per month and has no individually saving. Her parents are well off in terms of finances and have moral support available from within her family circle.

Home Circumstance

She lives with her two children in Narere HART in a bedroom house which also includes a kitchen and a living room. Toilet and bathroom are included within. Water, electricity and telephone are well connected. The house itself has plenty space for the children to live with."

16. This court has referred parties to the counselling. The eldest son refused to see the father and the applicant had made police report to that effect. The child was counselled individually. The counsellor's reported dated 05th July 2012 says;
    

"i) The 13 years old son is very matured and quite understands the situation at their home with his parents

ii) he clearly states that he wishes to reside with his father because he only spends Sundays with him.

iii) the Child says there are times the mother tells him she does ot want him going to see his dad

iv) the Child elaborates he gets on well with his step mother and his step brother. He would really love to reside with his father

....Both Parties have been counselled about the changes and residence of older son. They accept the decision of their son and will work on adopting to changes around their homes"

17. The Social Welfare Officer's report compiled on 24th March 2010. This is the recent report on residence and contact. It seems that the applicant had influenced the eldest not to see his father. According to the law relating to the parenting order which I stated in above the child wish has considerable weight on deciding residence and contact. I hold that custody of the eldest son (Amol) to be given to the respondent from Sunday 5pm to Friday 5pm. The weekend custody to be given to the applicant mother. I note there is young biological brother and I must consider his plight on this separation. He is three years old and he must be attracted to the eldest brother. Thus weekend custody has been given to the applicant, and then the eldest child could mingle with the youngest child. The custody of the youngest child is given to the applicant with full time reasonable access to the respondent. The applicant must be informed by the respondent prior to the access before 12 hours.
    
18. I now address the issue of maintenance. The Respondent is paying $40 per week as interim maintenance. In this matter the Respondent filed response Form 6 and asked current $40 per week maintenance payment to be decreased to $30 per week. He is not in arrears. He is a taxi driver and he has skill and capacity to earn. I consider law on this area. Section 86 of the Family Law Act 2003 says
    

86.- (1) The parents of a child have, subject to this Division, the primary duty to maintain the child.

(2) Without limiting subsection (1), the duty of a parent to maintain a child-

(a) is not of lower priority than the duty of the parent to maintain any other child or another person;

(b) has priority over all commitments of the parent other than commitments necessary to enable the parent to support-

(i) himself or herself; or

(ii) any other child or another person that the parent has a duty to maintain; and

(c) is not affected by the duty of any other person to maintain the child. (Emphasis added)

(d) Thus, above all other commitments the Respondent has prime duty to maintain his child and he has liability to pay maintenance to her.

(e) The Applicant says the Respondent is in extra marital affair. It created situation more difficult to The Respondent. The Respondent has not proved that he has any financial commitments. His new partner can help to build up better life for the newly marriage life. The applicant withdrew her spousal maintenance application. As I noted the Respondent has primary duty to maintain his child. He cannot evade that responsibility. I hold he has a capacity to earn and capacity to clear up JDS.

19. The evidence revealed that somebody namely Suraj Chand agreed to look after both children. (See REX-1). Does Suraj Chand have responsibility to maintain these children? Section 46 of the Family Law Act states that "each of the parents of a child who is under 18 years has parental responsibility for the child" and this responsibility persists "despite any changes in the nature of the relationships of the child's parents such as becoming separated or either or both of them marrying or re-marrying". Thus, Suraj Chand has no responsibility to maintain or look after any child.
    
20. The respondent is in de facto relationship. He admitted that he helps the de facto's family providing, foods and bus fare. This is a good thing. But it seems that the respondent created more responsibilities. Thus while having his luxuries he must fulfil the obligations. The medical condition of the accused is stable as he did not produce any recent assessment.
    
21. The applicant admitted that she is receiving $200 per months for housing arrears but it will stop after 5 payments. When ordering a maintenance order the court should look current cost of living, change of circumstances. I decreased the maintenance as the eldest child's custody is given to the respondent from this order. I am mindful of weekend custody of the eldest child of the applicant thus only $10 per week reduction could be given considering current cost of living and state of affairs. The applicant with a render age child. The child is attracted to the mother. There is no one to look the child if she engages a work. As child is 3 years I hold the applicant has no way to do a job, but it is high time to seek a job near future when child completes 5 years. Therefore the respondent to pay maintenance $30 per week. The respondent as a father of the children has priority to maintain his children over all commitments.
    
22. I now consider the divorce application. Grounds for dissolution of marriage have been given in section 30 of the Family Law Act 2003. I reproduce it for clarity.
    

"30.-(1) An application under this Act by a party to a marriage for an order for dissolution of the marriage must be based on the ground that the marriage has broken down irretrievably.

(2) Subject to subsection (3), in a proceeding instituted by an application, the ground will be held to have been established, and an order for dissolution of the marriage must be made, if, and only if, the court is satisfied that the parties have separated and have thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for dissolution of marriage.

(3) An order for dissolution of marriage will not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed."

23. Our Family law simply allows divorce whether party is a guilty party or innocent party to get divorce after one year continuous separation. Only two things to be considered. The first one is one year continuous separation. Latter is the marriage has been broken down irretrievably. That is no chance for reconciliation of the parties. Whether you are guilty or not guilty of offence such as adultery has no effect on getting divorce. It may be unfair by innocent party but the court cannot help. The evidence shows that and it was never challenged by the respondent the applicant caught red hand intimate moments of respondent and his de facto and it led their separation. The applicant in her evidence stated that they separated in November 2009. Form 1 for divorce was filed on 23-05-2011. It mentioned the date of separation as 27th November 2009. It is apparent, the parties have separated continuous period of 12 months before the application. There is no chance for resume cohabitation as the respondent has moved on his life with de facto partner. I hold this marriage has been broken down irretrievably. I therefore grant order for conditional dissolution of marriage.
    
24. Considering all these facts, on balance, I make following orders;
    
    1. The Applicant –mother to have full and permanent custody of the child namely Master A A K (DOB: 25th May 2009.)
       
    2. The Respondent –father to have full and permanent custody of the child namely Master A A K (D.O.B. 12th July 1999). The applicant mother to have weekend custody of the said A A K between every Fridays 5pm to Sundays 5pm. Point of exchange and drop off is the applicant's house.
       
    3. The Respondent to pay $30 weekly as Children's Maintenance.
       
    4. The Respondent to pay expenditures of School fees, Stationeries, clothing of the child yearly.
       
    5. The Respondent to pay the applicant's bank account directly and receipt to be kept as proof of payment or pay M Paisa account of the judicial department. Senior Court Officer to inform the procedure.
       
    6. In event of default the applicant to file JDS
       
    7. I grant conditional order for dissolution of marriage and it will absolute after one month.
       
    8. Orders with effect from today
       

Orders Accordingly

30 days to appeal

SUMUDU PREMACHANDRA [Mr]
RESIDENT MAGISTRATE
02-08-2012