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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
(Civil Jurisdiction)
Matrimonial Case No. 16 of 1996
BETWEEN:
PANDOSY JEAN CHARLES
ApplicantAND:
PASCALINE THUHA
Respondent
Coram: Mr Justice Oliver A. SAKSAK
Mr Stephen JOEL, Public Solicitor for the Applicant
Mr Silas HAKWA for the RespondentJUDGMENT
This Judgment provides reasons for the Orders of the Court dated 2nd December 1997.
The, Applicant applied by way of an Originating Summons seeking an Order for the custody of two children named Cynthia Pandosy born 5th May 1989, aged 8 years, and Leititia Pandosy born 13th October 1991, aged 6 years.
The Applicant and Respondent were never married. They lived in a de facto relationship from about 1987 until December 1990 when they finally separated. On separation the children lived with their mother, the Respondent who went back to live with her parents. Sometime in 1994 the children's grandmother (Applicant's mother) asked permission to have the children live with her for sometime. This was an amicable arrangement whereby the grandmother was responsible for seeing them go to school and back. The mother had right of access at all times. All was well until sometime in May 1996 when the Applicant took the children from grandma's to his own home. The children have been living with him since then to the date of hearing.
The Applicant made arrangements to pay maintenance in the sum of VT20.000 per month to the mother for the up-bringing of the children. This was stopped in November 1996. He now seeks an Order granting him custodial rights of the children. He filed an affidavit in support of his application. His current de facto wife also filed an affidavit in support of the Applicant's application. The Applicant gave no oral evidence.
The Respondent filed an affidavit and gave oral evidence in Court. She had a further witness give evidence in her support.
Having read the affidavits filed on behalf of the Applicant and having heard oral evidence in support of the Respondent's defence as to custody, and upon further hearing submissions from both Counsels, I was satisfied that the children's welfare would be better served by or with the Respondent, the mother.
ISSUES
1. Custody
Firstly I find no legal basis for the Applicant's application.
The Applicant was never legally married to the Respondent. If there was a legal marriage in existence then such an application would have been proper under the provisions of the Matrimonial Causes Act [CAP 192], but this was a de facto relationship and I find no legislation in place which caters for custody in such relationship.
The Court is not suggesting here that the Applicant, being the natural father of the children in question has no rights at all. It is just that in the absence of legal provisions how does a natural parent wishing to obtain custody come to Court, or can he or she come to Court at all? In my Judgment the answer is no. It is therefore up to parents in such circumstances to make whatever arrangements between them outside of Court as they see fit in respect of custody of children of their de facto relationships.
Marriages are entered into in three ways under the provisions of the Marriage Act [CAP. 60] and become legal if celebrated:
(a) before a District Registrar (Civil Marriage);
(b) before a Minister for celebrating marriages (Christian or Religious Marriage); and
(c) in accordance with custom.
Where couples live together under any of these three circumstances and they separate and wish to apply for custody of any children of such relationships they have a right to invoke the jurisdiction of the Courts to determine that right in accordance with law. If as here the relationship is outside the three legal modes, it is my Judgment that the Applicant has no right to invoke the jurisdiction of the Court to look into the matter. They have, as I have said to deal with the situation by some private and amicable arrangements themselves outside of the Courts.
Having said that the Court finds that the only avenue in which to accept such an application is through Article 47(1) of the Constitution which reads:
"47(1) The administration of justice is vested in the Judiciary, who are subject only to the Constitution and the law. The function of the Judiciary is to resolve proceedings according to law. If there is no rule of law applicable to a matter before it a Court shall determine the matter according to substantial Justice and whenever possible in conformity with custom." (Emphasis, mine)
Here it is my view that substantial Justice requires that the Court hears the matter and determines it according to substantial Justice because there is no law providing for custody of children of a de facto relationship.
The Court has been greatly assisted by the submissions of Mr Hakwa on behalf of the Respondent. He referred the Court to a Victorian case of P. v P. [1964] VicRp 55; (1964) 5 F.L.R 452. That case was different to this in that there the parties were legally married and the husband sought legal dissolution of marriage and claimed custody of their children aged 10 and 8 years. There the Court was concerned with the interpretation of the word "paramount consideration" as required by legal provisions. Given its strict interpretation Latham CJ observed in Lovell -v- Lovell (1950) 81 C.R. 513 at p.522 that the word "paramount" would mean that the welfare of the infant should overcome all considerations of any kind. The Court therefore must concern itself only with the welfare of the children here and not with competing claims by the parents.
Where will the children's welfare be better served in this case? In my Judgment it is with the Respondent. In her evidence when asked why she resisted the father having custody of the children she said: "They are my children. I love them." There is nothing in the affidavit of the Applicant which expresses his love clearly for these children as the Respondent mother has. She told the Court boldly and the Court believes that she is serious about what she says.
Natural love and affection is very important for the upbringing and mental health of the children who should be allowed to enjoy a warm, intimate and continuous relationship with the mother. (see Hannett -v- Hannett (1954) V.L.R.533).
The Respondent is now living in quarters of two bedrooms one of which is specially reserved for the children. She no longer works at the kava bar and she now has a boyfriend whom she told the Court would have no difficulty with the children. In or about 1991 when the Applicant left the Respondent and the children, Cynthia would have been almost two years and Leititia two months old, the Respondent kept them and cared for them until 1993 when she made arrangements with the Applicant's mother for the children to stay with her. Nothing in evidence suggests that she is incapable of taking care of her children. Indeed with the love she expresses for them I am certain that the welfare of these children will be well-served with her.
2. Maintenance
The Respondent in her defence and counterclaim claims for maintenance from the Applicant. The relevant law is the Maintenance of Children Act [CAP.46] Section 1 reads:
"A woman, who at the time of the birth thereof-
(a) was unmarried; or
(b) .... ;
is delivered of a child, may apply to the Magistrate's Court .... for an Order against the man to be the father of the said child that he do pay to her such sum as may be sufficient for the maintenance and upbringing of the child..."
There is no dispute as to paternity.
The Respondent has never applied for an Order seeking for maintenance previously. In evidence it is shown that there was a private arrangement made by the Applicant after he had sought legal advice under which he was paying VT20.000 per month to the Respondent as maintenance for the purposes of Section 1 of the Act. This payment stopped in or about November 1996. There is nothing in the Applicant's affidavit showing how the sum of VT20.000 was used but the Respondent in her oral evidence told the Court that school fees, food, medicine and clothes were paid for with this money. That evidence was not rebutted by the Applicant.
The Respondent has a legal right under Section 1 of the Act to claim maintenance from the Applicant. The Court has a discretion to determine how much the Applicant has to pay. The Court in its Judgment thinks that the sum of VT10.000 per month is appropriate. This amount will be used for food, clothes and other necessities only. School fees and medical expenses will continue to be the responsibility of the Applicant. These obligations will be carried out by the Applicant until each child has reached the age of maturity. Under Article 4 (2) of the Constitution, the age of maturity is 18 years.
As the Applicant has questioned how the sum of VT20.000 was used, it is proper in my view that the Respondent be obliged to be accountable for the monthly sum of Vt10.000. As has been stated, this sum is to be used for food, clothing and other necessities only. The Respondent is therefore obliged to provide all receipts showing items purchased, the date of purchase, the price and the balance if any. This ensures responsible spending on the Respondent which will in turn. ensure that payment by the Applicant is maintained.
3. Access
In the circumstances of the case access to the children by the Applicant is a right which cannot be denied. Being the natural father he has to be accorded that right which is not absolute but shall be subject to the Respondent's permission leave or consent. Visitation rights during periods of sickness or ill health is not limited by the Orders of the Court. Only the rights to bring the children home for weekends, school holidays or outings are limited in the sense that they are subject to leave, permission and consent of the Respondent mother.
4. Costs
No application for costs was made but costs is a matter for the Court's discretion. Here it was only proper that the Applicant pays the Respondent's costs of the proceedings.
Finally I ought to say something about the duration of these Orders. Except for paragraphs 1 and 2 of the order, the duration of Orders in paragraphs 3 and 4 is 18 years.
I am mindful of the fact that in some cases some children leave school earlier for some reasons or the other. If that happens in this case, then the obligation automatic comes to an end as regards school fees. On the other hand if it occurs that one of the children or both attend universities or some tertiary education, then negotiation as regards fees should be had between the parties.
Further, I am mindful of the fact that in some cases girls get married at 16 or 17 years of age. If that happens in this case, again the obligation of the Applicant to pay maintenance come to an end on that day on which marriage is celebrated.
The above are merely clarifications which should further assist the parties in case some uncertainties exist.
Dated at Port Vila, this 10th day of December 1997.
BY THE COURT
Oliver A. SAKSAK
Judge
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