DISTRICT COURT OF SAMOA
Tuugamusu v Tuugamusu [2017] WSDC 12

Case name: 	Tuugamusu v Tuugamusu	
		
Citation: 	[2017] WSDC 12	
		
Decision date: 	3 March 2017	
		
Parties: 	LEUTE MATAIPULE TUUGAMUSU of Magiagi 
V APOLIMATAI TUUGAMUSUof Magiagi, Faleula and Apolima-tai 

Hearing date(s): 	21 November 2016	
		
File number(s): 		
		
Jurisdiction: 	FAMILY	
		
Place of delivery: 	The District Court of Samoa, Mulinuu 	
		
Judge(s): 	JUDGE ATOA SAAGA	
		
On appeal from:		
		
Order:	•	I hereby order that custody of Novhatelmsia be with the Applicant with reasonable access to Respondent.
•	I hereby order that the custody of Tuugamusu and Atinae to be with the Respondent with reasonable access to the Applicant.

Representation: 	T Leavai for Applicant
P Fepuleai for Respondent.

Catchwords: 	Custody	
		
Words and phrases:		
		
Legislation cited:	Infants Ordinance 1961 section 4(1) and section 3 Evidence Act 2015 section 76(1) and (2) 

		
Cases cited:	J v C [1969] 1 ALL ER 788 at page 820-821
Hadley v Hadley [1997] WSMC 2
Palmer v Palmer (1961) NZLR 702
Arp v Arp (2008) WSSC 35 
Police v Tanielu [2010]

Summary of decision:		

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER

BETWEEN:

LEUTE MATAIPULE TUUGAMUSU of Magiagi 
Applicant

AND

APOLIMATAI TUUGAMUSUof Magiagi, Faleula and Apolima-tai
Respondent

Counsel:
T Leavai for Applicant
P Fepuleai for Respondent.

Hearing:	21 November 2016
Submissions	15 December 2016
Decision:	3 March 2017

RESERVED   DECISION OF JUDGE ATOA-SAAGA
THE APPLICATION:
1. 	The Applicant lodged an application in the Family Court for the custody of her two younger children Atinae Jr Maroyen Apolimatai Tuugamusu an 11 year old male infant and Novhatelmsia, a 2 years old female infant. She also seeks reasonable access to her eldest son Tuugamusu and does not oppose the Respondent having custody of her eldest son 
The Respondent opposes the Application and seeks full custody of all 3 children on the basis that it would be in the interest of all the children if they are raised together. The Respondent has also raised the issue of the Applicant’s alleged infidelity as a relevant consideration in support of his application for the custody of the children.
THE LAW:
2. 	Section 4(1) of the Infants Ordinance 1961 provides that, “ Either parent of a child may apply to the Court for an order regarding the custody and upbringing of a child and the right of access thereto of either parent and the Court may make such order in the premises as to it seems just.
3. 	Section 3 of the Infants Ordinance 1961 also stipulates that, “Where in any proceeding in any Court the custody or upbringing of a child is in question the Court in deciding that question shall regard the welfare of the child as the first and paramount importance.” Both the Applicant and the Respondent rely solely on Section 3 of the Infants Ordinance 1961. 
4. 	The truism of Section 3 that the welfare and best of interests of the child are to be the first and paramount consideration was discussed by Lord Mac Dermott in J v C [1969] 1 ALL ER 788 at page 820-821, 
	“The second question of construction is as to the scope and meaning of the words “…shall regard the welfare of the infant as the first and paramount consideration.” Reading these words in their ordinary significance, and relating them to the various classes of proceedings which the section has already mentioned, it seems to me that they must mean more than that child’s welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts, relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed, the course to be followed will be that which is most in the interest of the child’s welfare as that term has now to be understood. That is the first consideration because it rules on or determines the course to be followed.
5. 	The conduct of the parents and the emotional welfare of the children are also relevant consideration. In the matter of Hadley v Hadley [1997] WSMC 2 the Court found the allegations of matrimonial misconduct against the husband well founded whilst allegations made against the wife of an affair was found by the Court to be baseless and unfounded. The oldest child had also complained to his mother on one occasion of his father’s affairs with the house girls. Vaai J at page 3 stipulated that,
“The conduct of the parties is relevant to the issue of custody if it affects the welfare of the children. In Palmer v Palmer (1961) NZLR 702 it was said by Gleary J at page 723 that, “…. the conduct of the parents is relevant if it assists the Court to determine what is best for the welfare of the infant. The conduct of the parents not only towards one another but also in other ways, undoubtedly helps the court to assess the character and fitness of each other in relation to the upbringing of a child and in many cases it has been the crucial question”…Apart from the fact that I found the conduct of the husband detrimental to the welfare of the children I also consider the present home of the wife to be much more suitable and secured for both children. Both homes can provide the physical comfort equally. But the word welfare must be taken in its widest sense. In my view after considering the evidence, the emotional comfort of the children can be best provided for in the environment which exists in the wife’s family.”
6. 	In Arp v Arp (2008) WSSC 35 at para 92, Sapolu CJ also stated that, 
“I accept that the welfare of the child is the paramount consideration in custody cases. I also accept that the conduct of a party to a custody dispute is a relevant consideration to the issue of custody where such conduct would affect the welfare of the child.”
7. 	In giving evidence, Section 76(1) and (2) of the Evidence Act 2015 provides that the,” In any proceeding, a party must cross examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters. If a party fails to comply with this section, the Judge may:
(a) 	Grant permission for the witness to be recalled and questioned about the contradictory evidence or
(b) 	Admit the contradictory evidence on the basis that the weight to be given to it may be affect ted by the fact that the witness who be able to explain the contradiction was not questioned about the evidence or 
(c) 	Exclude the contradictory evidence or
(d) 	Make any other order that the Judge considers just.
8. 	Please also refer to the Honourable Chief Justice Sapolu decision in Police v Tanielu [2010] WSSC 134 which provides a useful synopsis of the rule in Browne and Dunn and the development of the law and the codification of that rule under Section 92 of the New Zealand Evidence Act 2006 which is identical to the most recently enacted Evidence Act 2015 under Section 76.
THE EVIDENCE
9. 	 Both the Applicant and the Respondent gave evidence. The Respondent also called Anitelea Niko.
10. 	Leute gave evidence that they had always lived with the Respondent and their children at her family home at Magiagi until the Respondent left her sometimes after Christmas 2015 and took the children with him to his family at Faleula. According to the evidence of the Respondent, they also lived sometime in 2011-2013 with his family at Faleula. He had left in December 2015 with his children when he discovered the Applicant in the bathroom having a telephone conversing with a man that she was having an affair with.
11. 	In February 2016, Leute discovered that the Respondent had taken all the children to New Zealand without her knowledge. At the time, she had made an arrangement for her daughter to attend Manumalo Baptist School but was surprised when she called Apolima and found him at the airport with the children boarding the plane for New Zealand. They were away for a month.
12. 	When Apolima returned in March 2016 with the children, Leute arranged for a meeting with the Respondent and the children. Leute noticed that her sons have distanced themselves from her especially her eldest son and that both boys refused to go with her after the meeting. 
13. 	 The Applicant believes that the Respondent had threatened her sons not to return to her and that is the primary reason for their refusal to go with her.  She refers to the Respondent relationship with their children as “ tasi lava le upu”  (instruct them once  ) and they listen. Her application for custody of her second son Atinae is to allow the Applicant to build a relationship with her second son. She believes that she still has a chance with her son Atinae unlike her eldest son Tuugamusu who she believes has been brainwashed by the Respondent and his family against her. Notwithstanding Tuugamusu’s attitude towards her, the Applicant still wishes to maintain contact with her eldest son hence her request for reasonable access to him. Leute maintained that since March 2016, she has not contacted nor visited her sons at Faleula as she feared for her life as his aunties and cousins had approached her with machetes at the end of 2015.
14. 	The Respondent denies that he had threatened their sons and prohibited them from seeing their mother. He said that on 5th March 2016, they had met on the request of the Applicant and that he had allowed his daughter to go with her mother when Leute could not persuade the older boys to go with her. She also tried twice after to get the boys to go with her but they still refused to go with her preferring to stay with their father. Apolima also stated that his eldest son is old enough to know what is going on and that on one occasion he had brought his mother’s phone to him alerting him to the telephone conversation between the Applicant and a man that she was having an affair with.  He also attributed the actions of his family members in 2015 to the Applicant’s infidelity.
15. 	Their young daughter is currently with her mother since March 2016. The Respondent had also tried to contact the Applicant to return his daughter but she has continuously evaded his calls.
16. 	The Applicant earns $17,000.00 per year as a Sports Officer for the Ministry of Education, Sports and Culture. She is confident that her income is sufficient to cater for the needs of the two younger children. The Respondent is a bus driver and earns $400.00-$500.00 per week. He too is able to financially provide for the children needs.
17. 	The Applicant lives with her mother and younger sister who assist her in looking after their daughter Novhatelmsia. They also live with her older sister and her family. They have two houses. The Applicant, her mother and younger sister all live in a two bedroom house with the Applicant and her daughter sharing one room and her mother and her sister sharing the other room. The Respondent lives with his mother, sister and niece. They also have two houses. One European 2 bedroom house and a large House (faletele) where his aunties live. The Respondent’s mother, sister, niece and aunties all help look after their two sons Atinae and Tuugamusu who are both attending Faleula Primary School. They also attend the school with other cousins who they live at Faleula.
18. 	It is the Respondent contention that the Applicant is unfit to look after the children because of allegation of infidelity.  The Applicant strongly denies ever having extra marital affairs and that even if Court should find that the Applicant has had an extra marital affair, it does not diminish the Applicant’s love for her children. 
19. 	A Mother’s day card found by the Respondent in the Applicant’s file was tendered as evidence by the Respondent. This card was given to the Respondent in 2015. When asked about the card and its contents, Leute said that it was a card she had received from a male friend at work and that she had briefly glanced at it and did not mind the contents. The card had the following words written in it with some words underlined,
	“SOMEONE SPECIAL LEUTE.E. BBY YOU KNOW HOW MUCH I LOVE YOU. ALL MY HEART N MY LIFE I GAVE IT TO YOU. I WISH WE WILL BE TOGETHER. BE HAPPY BE STRONG N TAKE CARE. HAVE A PLEASANT MOTHERS DAY, GOD BLESS. REMEMBER..I LOVE YOU SO MUCH, BBY, LOTS N LOTS OF LOVE FROM DAD N DAUGHTER 09.22 ZORI BBY NO PRESENT JUST LUNCH..OK. BBY E MAVAE LE ROSA AE LE MAVAE LOU ALOFA IA OE LEUTE.M.F”.
20. 	The Respondent also referred the Applicant to seven receipts from Samoa Holiday Hotel. The receipts shows the name Theresa Fou of Vaitele Fou and each receipt represents seven different occasions from March to September 2015 in which this person stayed at Samoa Holiday Hotel for  a duration of one to three nights on some occasions.
21. 	In his affidavit which was tendered by the Resopndent, the Respondent stated at paragraph 12,
•	“E Mulimuliane, na ou maua faamaumauga o lea sa nofo le Itu Talosaga I le faletalimalo o le Samoa Holiday Hotel I Alamagoto ma fai ai le faapouliuli ma le tamaloa mai I le Asosi Voli Polo. Sa faaaogaina e le Itu Talosaga le igoa o “Theresa Fou” e tusi ai le potu. O loo iai ia te au se kopi o lisiti mai I le faletalimalo e faamaonia ai lea tulaga ma o loo iai foi molimau e mafai ona ou valaauina e faamaonia ai o le Itu Talosaga lea sa faaaogaina le igoa lea o Theresa Fou e tusi ai le potu. O nisi taimi e tasi le aso ma e oo atu foi I le 3 aso le umi sa tusi ai le potu I le Itu Talosaga” (At the end, I found documents to confirm that the Applicant was staying at the hotel Samoa Holiday Hotel at Alamagoto with a man from the Volley Ball Club. She was using the name Theresa Fou to register the room. I have the copies of the receipts of the hotel and witnesses who can prove that the Applicant used the name Theresa Fou to stay at the hotel room. Sometimes she will stay there for one day but at times she will stay up to 3 days.)
•	Apolima also stated at paragraph 15 and 16 that,
•	“I le aso 21 o Tesema 2015, na usu le Itu Talosaga e faigaluega ma ave lou afafine. Sa ou lagona le popole tele mo si ou afafine na alai na ou oo mai I le Ofisa o Aoga I le mea e faigaluega ai le Itu Talosaga. O iina na ou iloa ai, e le o faigaluega le Itu Talosaga o lea e ave ana livi mo le 2 vaiaso. Ao le mea lea e fai e le Itu Talosaga e usu mai e pei o lea e sau e faigaluega, ae o loo usu I le faletalimalo ma faatatau mai I le taimi manava. O lou popolega tele lava I si ou afafine ona alai ona ou suesueina I lea lava aso o le aumai fua o lou afafine, ao lea e ave I le faletalimalo ma tilotilo I nei amioga le talafeagai.” ( On the 21st September 2015, the Applicant went to work and took my daughter. I was worried for my daughter so I went to Ministry of Educations Sports and Culture where she workds and found out that she was on leave for 2 weeks. What she was doing was that she will come to work but instead will go to the hotel and just come home at the time when is she supposed to finish work. I was worried for my daughter so questioned the Applicant as to why she would take my daughter and let her see her mother’s inappropriate behavior)
•	At paragraph 19, Apolima also stated that,
•	“O leisi itu ou te popole tele iai, ua amata ona inu pia le Itu Talosaga ma taa I le RSA ma o itu uma ia ua ou popole tele ai pe o malu si ou afafine I lenei tina, aua sa ou faalogo I tala, e fai mo ia le RSA. Sa ou fesili  iai e uiga I ana tafaoga I le RSA ae fai mai poo o le a lau feau. Out e popole I le saogalemu a si ou afafine ona o lenei tina, ua tumu  I le pepelo ma le le alofa I lana fanau.” ( The other reason I was worried, is because the Applicant has started to drink and going to RSA. I am concerned whether my daughter is safe because I have heard rumors she is now a regular at RSA. When I confronted her about her going to RSA, she said I had no business to question her. I am worried for the welfare of my daughter because this mother is full of lies and has no love for her children.)
•	The Respondent also called Anitelea Niko an ex employee of Samoa Holiday who testified that he had answered a phone call from a Theresa Fou and was surprised when Theresa Fou turned up at the Hotel and he discovered that she was the Applicant and that he recognized her as “Apolima’s wife.”  His service has since been terminated from the Hotel and he is now employed by St Therese Hotel at Leauvaa.
DISCUSSION
22. 	In determining who I should award the custody of the children to, I have to consider what is in the best interest of each child. I must also be mindful that what is best also for the parties may not necessarily be in the best interests of the children.
23. 	Both the Applicant and the Respondent have the financial means to raise the children. Equally also, they have family members who can assist and support them in looking after the children. Their homes can also accommodate for each or some or all of the children although it may not be appropriate for all of the children to sleep in one room with either the Applicant and the Respondent as the eldest son will soon become a teenager and may need his own space and privacy. 
24. 	The Applicant has inadvertently raised the issue of the Respondent being a very strict and dominant father. The Respondent has also raised allegations of the Applicant’s infidelity as a main issue for contention. The conduct of the parties as parents is therefore a relevant consideration in these proceedings and their conduct must come under scrutiny in determining whether their conduct does and will affect the children interest both physically and emotionally.
Apolima
25. 	There is no evidence before the Court to show that the Respondent has threatened the children and prohibited them from spending time with their mother. From the evidence, I am of the view that the Respondent is strict with his kids but he will not prohibit them from seeing her even if it was for a limited time. As the Applicant puts it “e tasi lava le tala faalogo tamaiti” (he only has to say it once and the kids listen). He agreed for them to meet with the Applicant and gave them the choice to go with their mother but despite her requests, they still refuse to go.
26. 	The Applicant also could have arranged other meetings with the children at any other place outside Faleula if she still feared for her life but there is no evidence before the Court to suggest that she had actively pursued an opportunity to be with her sons or get all her children to meet.  
Leute
27. 	Notwithstanding the denial by the Applicant, I find the contents of the card as compelling evidence that the Applicant was having an extra marital affair with the author of the card. The card was given to her for Mothers Day in 2015 which is a momentous occasion for mothers or women who are mother figures in their homes.  The card states amongst other things,” I love you so much Bby, lots of love from Dad and Daughter 09.22.” Only the author knows what these words and numbers denote and it is written for the Applicant who is presumed to have the requisite knowledge to decipher and understand the meaning behind these words and numbers. The words also in the card are conveyed in a language of endearment and signifies an intimate knowledge of the Applicant. Even if this card is given to her by a male colleague, it is still inappropriate given the language and the underlying fact that she is a married woman.
28. 	Similarly, I am satisfied on the evidence adduced by the Respondent and for the Respondent that the Applicant was Theresa Fou who stayed at Samoa Holiday Hotel on numerous occasions from March to September 2015. Similarly, I can also draw inference from the fact that the card was received by the Applicant around May 2015 which is when we celebrate Mothers Day that she was having an affair with the author of the card around the time that she was staying at the Hotel. However whilst it was put to the Applicant that she was staying with a man from the Volley ball club at the Hotel, there was no evidence before the Court to establish that this man referred to or any male actually stayed in any of the rooms with Theresa Fou on any occasion. 
29. 	There is also no evidence put to the Applicant and provided by the Respondent to confirm that their daughter was with the Applicant at the hotel on 21st December 2015 and two weeks prior and exposed to her extra marital affair as this time would fall outside the time that she is alleged to have stayed at the hotel which is from March to September 2015. The issue is essential and should have been put to the Applicant. I will therefore exclude this evidence.
30. 	Another essential matter is in respect of allegations of the Applicant drinking and being a regular at RSA. It is an important matter for the Court to consider as it raises the question as to how much time she gets to spend with her daughter who will be in the care of her relatives when she is at the nightclub. The Respondent however did not call any witnesses from whom he had heard that the Applicant is a regular customer at RSA and that her nightlife was having an effect on the daughter. His evidence is hearsay and given this proposition was also not put to the Applicant during cross examination pursuant to Section 76 of the Evidence Act 2015 I will exclude this evidence.
31. 	The estranged relationship of the Applicant and the Respondent and the incident after the Christmas resulted in the Respondent leaving Magiagi with the children in December 2015. It has caused the strain in her relationship with her sons especially her eldest son. It is the Applicant’s responsibility to earn the trust of her sons. To grant custody of her second son to allow her to build that relationship is primarily in her interest and not of her son.
Novhatelmsia
32. 	Novhatelmsia is a two year old female who currently lives and sleeps with her mother. Her age and gender are important factors for consideration. She is still a toddler, and whilst every child is unique a 2 year old requires unlike her older siblings requires constant care and attention from her parents especially her mother and this is indicated by her current preference to remain with her mother and the fact that she does not want be with the Respondent given the length of time that she has been away from him and has stayed only with her mother. 
33. 	To award custody of Novhatelmsia to the Respondent will require uprooting her from the environment that she is currently familiar with and comfortable with and result in her immediate separation from her mother. The two months separation from her mother when they left Magiagi after Christmas and when they left for New Zealand in February 2015 cannot be equated with a permanent separation. The permanent separation from her mother can cause an adverse emotional effect on her especially when she is still very young and  does not understand the purpose for the separation from her mother and possibly her grandmother who she spends time with when her mother is at work. There is no guarantee also that the Respondent will allow access at any time and day that the child needs her mother. I acknowledge however that the Respondent has every right to see his daughter and to maintain a close relationship with her. It is also important for the child to have a close relationship with her brothers and that she must continue to see them and spend time with them.
Atinae and Tuugamusu
34. 	Both boys have been living with their father from December 2015. They both refused to live with their mother and have declined requests from her to spend time with her at Magiagi. I am not prepared to grant custody of Atinae to the Applicant for the sole purpose of building a relationship with the Applicant. That arrangement is in the interest of the Applicant but not necessarily in the interest of Atinae. He has been with his father and brother since December 2015 and attends with his brother Faleula Primary School which is nearer to where he is and affordable for the Respondent. His brother also would be a more suitable companion as he is 4 years older him rather than his sister who is 5 years younger and is still a toddler. He has also refused to go to this mother so the effect of a custody order is to force him against his will to suit the interest of the Applicant.
35. 	By not granting custody of Atinae to the Applicant however does not mean that Atinae should not see his mother. It is in the long term interest of both Atinae and Tuugamusu that they rebuild and maintain a strong relationship with their mother although it should not be by force but through a genuine effort of both the Respondent and the Applicant to spend time with their children and showing their love and support for them despite the end of their marriage. The Respondent must allow the Applicant access to her sons at every opportunity possible just as the Applicant must allow the Respondent to see their daughter. She must also make every effort to create opportunities to spend time with her sons as only through love and care would she be able to earn their trust and rebuild that relationship.
Result:
36. 	I hereby order that custody of Novhatelmsia be with the Applicant with reasonable access to Respondent.
37. 	I hereby order that the custody of Tuugamusu and Atinae to be with the Respondent with reasonable access to the Applicant.
JUDGE TALASA LUMEPA ATOA SAAGA