[1982] SILR 50

IN THE HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 100 of 1982

T

v

T AND A

High Court of Solomon Islands
(Daly C.J.)
Civil Case No. 100 of 1981

23rd April 1982

Custody – "child of the marriage" - section 21 of the Islanders Divorce Act (Cap 48) - meaning of - res judicata.

Facts:

In a divorce petition it was alleged that T was a child of the marriage. At the hearing the Petition was undefended and counsel for the Respondent stated that custody of the children including T was disputed. An interim order was made granting custody of T. to the Petitioner. The Respondent subsequently took out a summons claiming custody of the children including T. At the hearing of the summons the Respondent argued that the court had no jurisdiction in relation to T. as she was not a child of the marriage within the meaning of section 21 of the Islands Divorce Act (Cap. 48).

Held:

As the Respondent had refrained from raising the matter at the hearing of the divorce and permitted the court to make an order in relation to T. as though it had jurisdiction, then the question of whether T. was a child of the marriage was res judicata as the matter had been directly in issue and was decide when the court made the order for custody. (Lindsay v. Lindsay (1934) P. 162 applied). T. was therefore a child of the marriage within the terms of section 21.

Case also referred to:

Nokes -v- Nokes (1957) 2 All E.R. 535

For the Petitioner: G. Strang
For the Respondent: K. Brown, Public Solicitor

Daly CJ: This matter arose on a summons claiming custody of three children following divorce of the parties. The questions of fact arising in relation to two children having been heard and determined in chambers, a point of law was taken in relation to the third child T so hearing on that point was adjourned into open court.

The point arises in this way. The parties were married on the 15th March 1971. On the 10th November 1981 a Petition for divorce was filed by the husband. Paragraph 2 of the Petition stated that amongst the issue of the marriage then living was the child T. aged 13 years. It was apparent then that that child must have been born prior to the celebration of the marriage of the parties. The Petition sought custody of the children named as "children of the marriage".

The Petition came on for hearing on 27th January, 1982. The Respondent was represented by counsel at the hearing. However the petition was not defended. As to the children, counsel for the Respondent merely stated that custody was disputed in relation to three children of whom T was one.

The court granted a decree nisi. An interim order of custody of the three children was made in favour of the Petitioner and the question of the proper order to be made was adjourned into chambers. The formal order of the court stated "that the Petitioner shall have interim custody of the remaining three children of the marriage namely T, K and N, the question of custody of the latter three children being adjourned for a chambers hearing".

On 30th March 1982 a summons was taken out by counsel for the Respondent stating that on the return date "the Respondent intends to apply for an order that the children T, K, and N be given to the custody of the Respondent."

However on the 21st April 1982 in Chambers counsel for the Respondent (who did not appear at the hearing of the Petition and who did not draft the summons) took the point that the court had no jurisdiction to award custody of the child T to either party.

Counsel based his argument on the terms of section 21 of the Islanders Divorce Act (Cap. 48) ("the Act") which reads:-

"21. In any proceedings for divorce, nullity or judicial separation, the court may make such orders as appear just and necessary with respect to the custody and education of the children, the marriage of whose parents is the subject of the proceedings, and the maintenance of the wife."

Counsel’s point is that T is not a child "the marriage of whose parents are subject of the proceedings". Counsel for the Petitioner disputes the meaning which is given to Section 21 by the Respondent and contends that, even if he is wrong on the meaning of section 21, the course of this matter through the courts has led to the Respondent placing herself in a position in which she can no longer assert that the court has no jurisdiction in relation to T. I shall consider these points in turn.

1. The meaning of section 21 of the Act

The words of section 21 quoted earlier were clearly taken by the draftsmen of the Act from the words of the English Matrimonial Causes Act 1950 S. 26 (1) which similarly gives jurisdiction to make orders in relation to "the children of the marriage of whose parents is subject of the proceedings". Although our Act was not passed until 1960 the draftsman and the legislature chose not to extend that jurisdiction to "children of one party of the marriage (including an illegitimate or adopted child) who has been accepted as one of the family by the other party" as was done by the English Matrimonial Proceedings (Children) Act, 1958).

Thus it must be shown for the purposes of section 21 of the Act that the child is one "the marriage of whose parents is subject to the proceedings". Counsel for the Petitioner urged that what was necessary was to consider if the child is a "child of the family". But, with respect, that would be to take advantage of the extension incorporated in the English 1958 Act which has not been embodied in section 21 of the Solomon Islands Act. In my judgment the meaning of words of that section are clear and restrict jurisdiction of the court to children of whom the parties to the matrimonial proceedings are the natural mother and the natural father.

In this particular case the Petitioner is not the natural father of T and so, if the matter rested there, the Respondent would succeed in establishing that the court had no jurisdiction to make an order for custody in respect of T.

2. Estoppel of the Respondent

However the matter does not rest there. The Petitioner argues that at the hearing of the divorce the Respondent had an opportunity to raise the question of jurisdiction in relation to T. She did not do so but was prepared to allow the court to make an order for the custody of T. on the basis that the court had jurisdiction and, indeed, to take out a summons on the same basis. The Respondent is by these matters prevented, says the Petitioner, from asserting at this stage that the court does not have jurisdiction in respect of T.

In Lindsay v. Lindsay (1934) P. 162 a wife filed a petition for divorce claiming custody of the child of the marriage. A decree nisi was granted ordering that the child "issue of the marriage between the Petitioner and Respondent do remain in the custody of the Petitioner until further order of the court". On subsequent proceedings for maintenance of the child, the husband sought to establish that he was not father of the child. The President of the Probate Division (Sir Boyd Merriman) held that the husband was estopped from so doing. The learned President drew attention to the different types of res judicata. At p. 167 he said:-

"In considering the doctrine of res judicata, the distinction is to be borne in mind between a case in which a party who has had an opportunity of providing a fact in support of his claim or defence, and has not chosen to rely on it, is afterwards precluded from putting that fact before any tribunal, and a case in which the very fact itself has been judicially determined. The principles relating to both these classes of case are fully dealt with in the judgment of Lush J. in Ord v. Ord (1)".

The learned President observed that that case was within the first category "inasmuch as the Respondent deliberately abstained from putting in issue the paternity of the child in his answer to the wife’s original petition, and made no answer to the supplemental petition." However the learned President went on to say that that case was "essentially one of the class of case in which, as between these parties, a fact "directly in issue in the case has actually been decided by the court and appears from the judgment itself to be the ground on which it is based" (at p. 168). After analysing the distinction between the decree nisi and the decree absolute the learned President said at page 169:-

"Thus it appears that the order for custody in the decree nisi is the substantive order, and that it precedes the petition for maintenance. The fact that the child is issue of the marriage between the petitioner and the respondent is the fact directly in issue, is actually decided and appears from the judgment itself to be the ground on which it was based, as must necessarily be the case if the court is to make the order."

Much of this is applicable to present case; there was an assertion in the Petition that T was a child of the marriage. This was not disputed and, indeed, accepted when counsel said that custody of T. was in dispute. The decree nisi states that T. is a child of the marriage and makes an order in relation to that child. For that order to be made the court must have found that T was a child of the marriage within the meaning of section 21 of the Act.

It is argued that that case is distinguishable from the present case on the basis that an interim order was made in relation to T. rather than a final order. To some extent all orders for custody are interim orders as all such orders are subject to variation. I do not consider that any such order granting custody to one party could be called "final". However what is not subject to variation is the finding of the court which enables it to make any such an order, that is, that the child is within the terms of section 21 of the Act. This particular element of the decree nisi is what creates the res judicata rather than the order for custody in the name of a party itself.

I have also been referred to the case Nokes v. Nokes (1957) 2 All E.R. 535. In that case, the order made by a registrar for maintenance of a named "child of the marriage" was relied upon as creating an estoppel. However the Court of Appeal refused to accept that argument pointing out that question of custody of children may only be dealt with by judges and therefore the registrar was not a court of competent jurisdiction in relation to the issue of whether the child was "child of the marriage". In the present case there can be no dispute that the court pronouncing the decree nisi was competent to make an order in relation to whether or not T. was a child of the family. Nokes v. Nokes (as cited) is however useful in indicating that Lindsay v. Lindsay (as cited) remains authority for the existence of estoppel in such circumstances.

In my judgment the course adopted by the Respondent at the hearing of the Petition and the form of the order made in the decree nisi in respect of T have created a situation in which the Respondent is not to be permitted to assert at the hearing on the question of the proper order for custody that the court does not have jurisdiction in respect of T.

Until further hearing the interim order that T should remain in the custody of the Petitioner shall stand.