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Tor v Tor [1999] VUSC 1; Matrimonial Case 001 of 1999 (18 January 1999)

IN THE SUPREME COURT OF
REPUBLIC OF VANUATU

(Civil Jurisdiction)

Matrimonial Case No. 01 of 1999

BETWEEN:

ELIZABETH TOR
Plaintiff

AND:

WILTON TOR
Defendant

Coram: Mr Justice Olives A. Saksak
Mrs Evelyne Sawia - Clerk

Mr Mark Hurley for the Applicant
Mr Hilary Toa for the Respondent

ORAL JUDGMENT

This is an application by way of a Summons filed on 8th January 1999 by the Applicant seeking declarations and Orders that-

(1) The Applicant has the sole right in law to the custody and upbringing of the children of the parties' union namely, ERINER TOR and ERIKER TOR (both born on 7th March 1995) and VENTURA TOR (born on 4th September 1993) until each and every one of the children reach the age of 18 years.

(2) Due to the Respondent's financial incapability to sufficiently care and manage the well being of the said children to their paramount interest, custody of the said children be awarded to the Applicant.

(3) Pending further order of the Court the Applicant be awarded interim custody of the child, Ventura Tor and the Respondent be and is hereby injuncted and restrained from leaving the child Ventura Tor from the Applicant's custody, care and control.

(4) For such further or other relief as the court deems fit.

(5) The Respondent be ordered to pay the costs of this suit.

The Court granted interim custody of the child Ventura Tor to the Applicant on 8th January on an ex parte application.

The Respondent has filed an affidavit this morning opposing to the grant of the Orders. Mr Toa for the Respondent asks that the hearing be adjourned so as to allow witness to be called to show to the Court what transpired on the night between the Applicant and Respondent when the Applicant left home.

As the issue before this Court is on concerning only custody of children I do no, see any need for an adjournment The Respondent has not shown any sufficient grounds why he should take custody of the said children. He operates a kava business which is done only on a trial basis and which earns only VT40,000 per month.

Further the children are all females. Ventura is only 5 years and will turn 6 in September this year. Eriner and Eriker are twins and are both 4 years and will turn 5 in March this year. There are strong legal authorities to support that children of such tender years will best be served with the mother. No authorities have been referred to me but I think I can safely infer that here the paramount interest of the children will best be served by the Applicant who has a good income and has shown that she is capable to care for and manage the children.

I therefore refuse the Respondent's application for an adjournment and grant the following orders:-

(1) THAT the Applicant has the sole right in law to the custody and upbringing of the children of the parties' union namely, ERINER TOR and ERIKER TOR (both born on 7th March 1995) and VENTURA TOR (born on 4th September 1993) until each and every one of the children reaches the age of 18 years.

(2) THAT due to the Respondent's financial incapability to sufficiently care and manage the wellbeing of the said children to their paramount interest, custody of the said children be awarded to the Applicant.

(3) THAT the Respondent return the children ERINER TOR and ERIKER TOR to the Applicant by or on 31st January 1999.

(4) THAT the Respondent pays the cost of this suit to be taxed if not agreed.

DATED AT PORT-VILA, this 18th DAY of JANUARY 1999

BY THE COURT

OLIVER A. SAKSAK
Judge