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G v L [1990] VULawRp 5; [1980-1994] Van LR 486 (18 December 1990)

[1980-1994] Van LR 486

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CIVIL JURISDICTION

Civil Case No. 120 of 1990

BETWEEN:

G
Applicant

AND:

L
Respondent

Coram: Acting Chief Justice Goldsbrough

JUDGMENT

[CUSTOM, FAMILY ARRANGEMENTS]

Both the natural father and mother of a child S, who was born on 20.12.88 in Port Vila apply to the court for custody of that child.

The parents of the child were never married to each other.

The father had lived and produced a child with one E with whom he now lives, prior to living with and producing a child with the child's mother.

After they parted, which was before the birth of the child the father went back to E and still lives with her. They expect their second child in May 1991.

After the birth of S in December 1988, the mother went to live with her parents. From February to May 1989, she went back to live the father, leaving after an argument, going back to her parents and subsequently to live with a Mr L to whom she is now married.

The child has always, since birth, lived with its mother wherever she has made her home. Since her marriage to Mr L the child has been accepted as a child of the family.

They have no other children. The child has been permitted to go and stay with his father, his father's de facto wife and their child.

The extended families of each parent enjoy and assist in the upbringing of the child.

This arrangement could no doubt have continued well into the future save that Mr and Mrs L are now to go and live in France where Mr L is to begin work in his father's company. Mrs L wishes to take the child with her. G does not wish the child to go and live in France.

Although there were no earlier complaints, now each party makes complaint about the other party's ability to care for the child, one complaining that the child is not clean when returned from access; the other that the child always has a cough when taken for access. I dismiss these complaints on each side. Had they been serious complaints they no doubt would have been made much earlier than today. Indeed each parent should have raised them before now if they believed that they were a problem to the child's well being.

The father points out that the child will lose the benefit of living in its native country and the support of its extended family. That is a serious issue.

He poses the question of what might happen if Mr and Mrs L argue or separate after they have gone to live in France. I view those concerns seriously. The mother points to the fact that she has brought the child up since its birth with very little support from its father in the way of money for food or clothes. She says she is concerned that G and E (who is only 18) are unlikely to be able to cope with a family of three children, that as they both work the children will be mainly in the care of the house girl. She refers to G's habit of taking excess drink (and kava). E says that G has changed his ways.

Malvatumauri were consulted, a step which I applaud. The decision of the council was that as this child represented the blood of both the father and the mother it should spend time with each of them. That in fact is the view taken up to date by these parents but regrettably will not be practically possible when the mother goes to live in France.

They add that custom dictates that a child should stay under the control of its father. I respect that too, although I am by law obliged to apply different principles.

I am obliged by law to put the welfare of the child as the first and paramount consideration. Taking all the evidence which I have considered into account I come to the conclusion that it is in the best interests of this young child to remain with his mother and I therefore grant custody of S to his mother, Mrs L.

Contact with his father should be maintained if that is at all possible and his grandparents and I encourage Mr and Mrs L to do all they can to see that this happens.

18 December 1990

E.P. GOLDSBROUGH
ACTING CHIEF JUSTICE