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Aruwafu v Buchanan [2012] SBHC 153; HCSI-CC 268 of 2010 (12 December 2012)

HIGH COURT OF SOLOMON ISLANDS
(Mwanesalua J)

Civil Case No. 268 of 2010

BETWEEN:

FRANCIS ARUWAFU
Claimant

AND:

HOLLY RUTH BUCHANAN
Defendant

Date of Judgment : 12 December 2012

D. Marahare for the Claimant
M. Bird for the Respondent

JUDGMENT

Mwanesalua J: This is a claim by the Claimant Francis Aruwafu against Holly Ruth Buchanan, for final custody of the Child John Franklyn Kelesi aged about fourteen years at the present time.

The Claimant is a citizen of Solomon Islands and the Respondent is a citizen of Canada. They were married in church on 2 July 2000 in Solomon Islands. The Claimant is the father of the child through his previous relationship with the mother of the child Dawnie Oeta. The Claimant paid bride prize to the parents of the child's mother. The marriage between the Claimant and the Respondent was dissolved on 8 November 2010 in a divorce proceeding in Solomon Islands. Then on 22 September 2011, the court granted orders to the Respondent to have interim custody, care and control of the child. The child and the Respondent are currently residing in Port Moresby, Papua New Guinea, where the child is enrolled in grade 8 at the Port Moresby International School. The Claimant and the Respondent do not have children of their own due to medical reasons. Each of them is very fond of the child and have shown their love and affection for him.

This custody proceeding is strongly contested by the Claimant and the Respondent respectively. This is evident from their sworn statements. As is usual in such proceedings, the unsuccessful party may have strong feelings of sadness or worry. Parties to such proceedings are expected to understand that such feelings are unavoidable when decisions are made by the court in order to safe guard and secure the welfare and interest of the child. In the context of this proceeding, the welfare of the child would include general health, medical care, education, accommodation, costs of air travel and money to meet the needs of the child.

The parties in this proceeding come from different countries with different environments. However, the Claimant has remarried and moved with his spouse to live in Australia. The effect of this is that the child will live in a new country and environment, whichever party is awarded custody of the child. The difference though, is that, if the Claimant is awarded custody of the child, then the child will live with his father and the Solomon Islands Community living in the city, where his father lives and works in Australia.

The Respondent is receiving a good salary for her work in Port Moresby and is economically and financially secure in meeting education and general welfare of the child. And for the future she has savings in Canada. In addition, she has house furnishings, house furniture and artefacts worth K200, 000.00 in Papua New Guinea. The Respondent says that if she is awarded custody of the child she will: (1) Take full responsibility to provide for the needs of the child and continue to support him to complete his education and when he takes up further studies; (2) Ensure that the child visits his mother, Downie, in New Zealand and his father the Claimant in Australia; (3) She will ensure that the child will inherit all she has because he has been the only child that she has been taking care of all her life and (4) She will still ensure that the child will maintain communication with his father and his people back in the Solomon Islands so as to maintain his cultural heritage.

The Claimant says that he lives and works in Australia. He stays in a house with his wife which has a spare room in which the child can be accommodated while attending school in Australia. There are good schools which the child can enrol while living with him in Australia. He suggests a joint custody of the child by him and the Respondent.

The court has not independently interviewed the child. He says in a report on him that he still wants to remain with Respondent until he completes his education. There is evidence to show that the child has done very well at schools in Port Moresby. There is no doubt that he will continue to do well in school in the future. The mentoring and assistance given by the Respondent to the child with his school work are good for the child in his education.

There is nothing in law to preclude the Respondent having final custody of the child. The idea of having a joint custody of the child may disrupt the education of the child. This is because it would involve the movement of the child between the two countries. The court holds that view that it would be in the interest of the child that the Respondent have full custody of the child with access to the Claimant, his mother Downie and his relatives as proposed by the Respondent while the child is still a minor.

Orders of the Court:

1. That the Respondent be granted custody of the child John Franklyn Kelesi who is currently, about 14 years of age while still a minor.
   
2. That the Respondent is granted leave to take the child with her to Canada.
   
3. That the child will have visits and holidays with the Claimant either in Australia or in Solomon Islands, at convenient dates and times to be agreed by the Claimant and the Respondent at costs to the Respondent.
   
4. The Respondent is to pay the Claimant's costs in this proceeding.
   

THE COURT