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M v W [1998] WSCA 2; 03 1997 (6 March 1998)

IN THE COURT OF APPEAL OF SAMOA
HELD AT APIA

C.A. 3/97

PUBLICATION OF NAMES OR
PARTICULARS OF IDENTITY PROHIBITED

BETWEEN

M
Appellant

AND

W
Respondent

Coram:
The Rt Hon. The Lord Cooke of Thorndon, President
The Rt Hon. Sir Maurice Casey
The Hon. Sir Ian Barker
Hearing: 2 and 4 March 1998

Counsel: A.H.C.T. Gates and Ruby Drake for Appellant
P. Fepulea'i and H.J. Schuster for Respondent

Judgment: 6 March 1998

JUDGMENT OF THE COURT DELIVERED BY SIR MAURICE CASEY

This appeal brought by leave of the Supreme Court is against the decision of Vaai J. delivered on 11 August 1997. He awarded custody of a boy born on 14 April 1994 to his father on his application which was contested by the boy's mother, the appellant. The parties were not married to each other and are still single. They had formed a relationship in 1991 giving rise to the birth of the child in Suva, and lived together there from July 1994 until the father returned to his family in Samoa in January 1995. The mother stayed in Fiji with their son at her parents' home and regarded their association as at an end, although they still remained in contact and the boy moved between them and their respective grandparents under generous arrangements for access and residence. Both parties were working and it is clear that the grandparents played a large part in caring for him, with the assistance of house-girls. Money was never a problem, nor was there any dispute about parentage, the respondent's name appearing in the birth certificate as his father.

Towards the end of 1995 the mother decided to move to Sydney to further her career and it was agreed that the father would take the boy to live with him and his parents in Samoa, the mother believing that when she was settled in Australia the child would come to live permanently with her there. However, on a subsequent visit with the boy, the father was dissatisfied with the arrangements she planned for his care while she was working, and he returned with him to Samoa. The appellant followed, took the boy to her parents in Fiji and returned to Australia.

By February 1997 the father had built his own house in Samoa and obtained the mother's consent to a visit by the boy for four weeks. After he arrived the father wrote to the mother on 24 February advising that he did not want him raised by the grandparents and thought it in his son's best interests to keep him until she had settled in properly in Australia and was able to care for him. She replied on 6 March complaining about the broken promise to send him to her parents in Fiji at the end of four weeks, stating that she wanted the boy to remain with them "for the interim anyway". She asked that he be returned to Fiji by 16 March. When this did not happen, she obtained an ex parte order for custody in the Magistrates Court at Suva on 20 March. The father applied to the Supreme Court of Western Samoa for a similar order (the subject of this appeal) on 19 March.

The evidence at the hearing was in the form of affidavits by the parties with cross-examination and oral evidence. In his judgment Vaai J. set out the history summarised above, emphasising the requirement in s.3 of the Infants Ordinance 1961 that in any proceeding where the custody of a child is in question, the Court in deciding it shall regard the welfare of the child as "the first and paramount importance". He rejected the mother's claim that the father had no right to custody of his illegitimate child, and that only she as his mother was entitled.

His Honour discounted her criticisms of the father and accepted the basic suitability of each parent to bring up the child. However, he did not believe the mother's stated intention of abandoning her plans to work in Australia, in favour of returning to Fiji to work in her father's business and living in the family home where she could play an active part in caring for her son. He found that she was never ready to have him live with her in Australia and that by March 1997 she still had no plans to raise and take care of him there. Accordingly he awarded custody to the father, reserving reasonable access to the mother and her parents, with leave to either party to apply for terms to be defined failing agreement.

We heard further evidence from the parties by leave, updating their circumstances since the judgment was delivered in August.

The mother said she was now settled in Fiji working in her parents' business at Suva and living in an apartment owned by the family adjacent to their home. She referred to the plans she had for her son's education should she get custody, and foresaw no problems about caring for him at her home with flexible working hours and the proximity of her parents, with whom the boy related well. She was adamant that she had no further interest in living in Australia. While she was concerned at what she saw as attempts by the respondent to influence her son (which he denied), she frankly acknowledged that he had formed a good relationship with his father.

The latter described daily life with the boy at his home since last August. He attends pre-school and will go on to the local primary school in six months. He employs a local woman as a house-girl who is at the home during the day and cares for the child when he is at work.

We also interviewed the boy, who appeared well-cared for, although too shy to talk to us.

In the result we share Vaai J.'s conclusion that each parent is genuinely concerned with the boy's welfare, and able to provide him with the affection and care that he needs. The Court is faced with the unhappy task of having to make a decision which is going to grieve one of them. On the evidence available to him we are not persuaded that the Judge's decision was one made outside the proper exercise of his discretion. However, the further evidence given in this Court satisfied us that the appellant has no present intention of returning to Australia, so that the factor of her residence there, which influenced Vaai J.'s decision, is no longer relevant. Nevertheless, the reality is that the boy has lived happily with his father for the past 12 months and is well settled and cared for. We think it would be disruptive to send him to Fiji now to live with his mother, there being nothing in the circumstances of the case to warrant such a course.

A major ground of appeal was the contention that an unmarried mother's role as sole parent could be displaced only by proof that she was an unsuitable custodian of the child. The argument was based primarily on the following definition of "parent" in s.2 of the Infants Ordinance, taken in conjunction with s.4:

"Parent" includes the mother of a child born out of wedlock.

Section 4 reads:

4. Application regarding custody, etc. - (1) 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.

(2) If it appears to the Court on the application of an adult person that the parents of a child are unfit to have custody and upbringing thereof the Court may appoint some other person to be its guardian and may make such order regarding its custody and upbringing and the right of access of either parent to such child as to the said Court seems fit.

Appellant's counsel submitted that the specific reference to "mother" in the s.2 definition necessarily implied that the father of an illegitimate child was not to be recognised as a parent entitled to apply for custody under s.4(1). Unlike the position in Western Australia considered by the House of Lords in Re J (a minor) [1990] 3 W.L.R. 492, this Ordinance does not provide that custody of a child of unmarried parents vests solely in the mother.

Section 2 defines "parent" only in terms of her inclusion. Why such a provision was put into an Ordinance passed in 1961 must be a matter for conjecture. It may have been thought desirable to have at least the obvious parent of an illegitimate child legally recognised, in order to overcome the old common law view of such a child as "filius nullius" i.e. nobody's child. But such an attitude, developed in a context of property rights and succession, seems quite inappropriate in matters of custody and guardianship, where the child's welfare is the primary consideration. If the foregoing submission by the appellant's counsel were correct, the effect would be to relegate the father of a child born out of wedlock to the status of any other member of the public, entitled to custody on only an application under s.4(2) if he could prove that the mother was unfit. As we see it, however, a Court is far more likely to reach a decision in the child's best interests as required under s.3 if it is able to make a comparison between the positive contributions each parent can make to its welfare, instead of concentrating only on whether one of them is fit to have custody.

Ordinarily, "parent" means the mother and father of a child, whether legitimate or not, and this would have been its meaning in 1961. If the provisions of ss.3 and 4 of the Ordinance are to achieve their aim of securing the child's welfare, it would be counter-productive to read down the meaning of "parents" in the latter section as excluding the father of a child born out of wedlock, merely by implication from the definition in s.2. We are not prepared to do so.

Support for the view that "parents" is used in its ordinary sense in s.4 can be found in subs.(2) thereof, conferring the right on an adult to apply to the Court if it appears that the parents of a child are unfit to have custody. It may happen that a natural father caring for his child is unfit to do so. Nevertheless, if the operation of s.2 excludes him from the definition of "parent", then nobody can apply under s.4(2) to have a guardian appointed, because the right to apply is one available against only a "parent". Such a result can never have been intended.

The provisions of Article 15 of the Constitution also suggest a broad approach should be taken to the interpretation of "parents" in s.4. It relevantly provides that no law shall, either expressly or in its practical application, subject any person to any disability or restriction, or confer on any person any privilege or advantage on grounds only of sex or family status.

For those reasons we conclude that 'parents' in s.4 means both the mother and father of a child, whether legitimate or not, and the appellant's submission to the contrary is rejected. As we are satisfied that the boy should remain with his father, the appeal must be and is dismissed.

Counsel are agreed on terms of access. By consent, and subject to the order for custody in the Suva Magistrates Court being set aside by the appellant, each shall have access for half the Christmas school holidays, and alternately for the whole of the May and August holidays, with leave to either to apply to the Supreme Court for any further directions or variation in case they cannot agree.

An order was made by consent prohibiting publication of the names of the parties and the child or of any details which might identify them. That order will remain in force.

We make no order for costs.

Solicitors:
Drake & Co., Apia, for Appellant
Fepulea'i Law Office, Apia, for Respondent