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Sukutaona v Houanihou [1981] SBHC 1; [1982] SILR 12 (9 December 1981)

[1982] SILR 12

HIGH COURT OF SOLOMON ISLANDS

Civil Appeal No. 7 of 1981

BETWEEN:

SUKUTAONA

AND:

HOUANIHOU

Before: Daly, CJ.

Date of Judgment: 9^th December, 1981

(Daly C.J.). This is an appeal from a decision of the Principal Magistrate sitting of Afio in which he rejected the application of the Appellant for maintenance for herself and custody of the two children of the marriage.

The grounds of appeal are three in number. The first concerns the question of interpretation. I leave aside questions of the identity of the interpreter and quality of the interpretation which were not pursued. On important matter remains. That is that the appellant gives evidence that the examination-in-chief of the despondent, which was given in English, a language she does not understand, was not translated for her into Are Are. If this were so it is a most serious matter she would, of course, be unable to understand the case what was being made out against her. There is a conflict of evidence on this point as the Respondent says that his evidence was translated to the Appellant. However when dealing with this point in his evidence I found the Respondent an unsatisfactory witness. He changed his mind about what form of translation took to the Magistrate and was uncertain and unsatisfactory as how the departure of the interpreter, which he agreed occurred, came to the attention of the magistrate. I found him unconvincing on this point and I prefer the evidence of the Appellant. I am sure it was a matter of everyone failing to notice the departure of the interpreter but nevertheless I must find that the omission to have this important evidence translated is a defect in the trial which inevitably must result in an order for a retrial of the issues before the court.

There are two other matters with which I must deal concerning the children, custody of both of whom were awarded to the Respondent.

The first is that the learned Magistrate in deciding this part of the case completely relied on what he considered to be the custom position relating to custody of children in circumstances such as he found obtained.

It is quite right that custom law is now part of the law of Solomon Islands and courts should strive to apply such law in cases where it is applicable. However it must be done on a proper basis of evidence adduced to show the custom and its applicability to the circumstances. This evidence should be given by unbiased persons knowledgeable in custom law or extracted from authentic works on custom. In this case the evidence of custom, as counsel for the Respondent rightly concedes, was very slim and I do not consider there was sufficient for the firm finding reached by the learned magistrate.

In any event it remains open to question to what extent Rules of custom law of the kind discussed in this case should be firmly applied to cases where the welfare of children is at stake.

The courts have always regarded the interest of the children to be of paramount importance and should continue to do so.

Due regard for the custom background may well be an important factor in deciding where that interest lies in the sense that custom Rules may well be designed to protect the children from an unsatisfactory family life where, for example, a husband or a wife has gone off with another partner and the custom Rule says that that parent should not have custody.

A thorough consideration of the custom rules will often reveal that they too are founded on the sort of common sense that all courts look for in their laws and the application o f them.

The second is that despite the fact that the Social Welfare Officer has played al hart in discussion relating to this marriage, there was no welfare report on the children and their interests before the court. It seems to me that in a case such as this such a report is not only desirable but essential. How else can one decide the paramount question of the welfare of the children? Unhappily and with great reluctance courts sometimes for practical reasons have to dispense with such reports. But in this case such a report should have been available and should have been before the court.

The third point is the question of an interim order for custody. The youngest child Jennifer who is aged almost 3 years has always lived with her mother, the Appellant. As a result of the learned Magistrate's order she is now the Respondent's mother. I too have had no Social Welfare Report. But working on the basis that a child of this should usually be with its natural mother and no complaint is made of the way in which the appellant looks after the child, I consider that the most appropriate interim order is that Jennifer should be in the custody of the Appellant and I so order. I have of course considered the question of further disruption in the life of the child by another move but she is of an age when I doubt if that disruption will have great effect.

I therefore set aside the findings and decision of the court below and remit the case for retrial afresh by a different magistrate.

I order that Social Welfare Reports be prepared on the welfare of both children of the marriage.

I make an interim order that custody of Joyce be vested in the Respondent and custody of Jennifer be vested in the Appellant.

Daly, C.J.