Family Court grants order

“…the Police had serious concerns about the girl returning home because they considered her mother and step father were not protective of her, in that they knew Vaa was sexually abusing her, took no steps to prevent it and indeed counselled the girl not to speak of it”

The Family Court has granted custody and guardianship of a 5-year-old girl who was sexually assaulted by her mother’s elderly uncle to the Samoa Victim Support Group (S.V.S.G).

The decision was handed down by her Honour, Judge Tafaoimalo Leilani Tuala-Warren, before the girl’s parents and family members in the Family Court.

The verdict follows an application that sought a protection order for the benefit of the girl against her uncle; Asotasi Va’a Falealili, her stepfather; Sofara Finau and mother Fetu Tavita.

The application for an interim protection order was filed by S.V.S.G on behalf of the girl pursuant to section 5 of the Family Safety Act 2013.

The girl’s name cannot be published following a suppression order from Judge Tafaoimalo. Permission, however, was granted for the publication of the names of Asotasi (Va’a), Finau and Tavita.

During the hearing, all the respondents, who did not have a lawyer, opposed the order.

The Court heard that S.V.S.G became involved as a result of the girl having been brought to them by the Police for shelter on 17 October 2013.

It was the same day Va’a appeared in the Supreme Court on a charge of indecent assault in relation to the girl. It was reduced to common assault to which he pleaded guilty. He was ultimately sentenced to time already served of 10 weeks imprisonment.

“Following Va’a’s appearance on 17 October 2013, the Police had serious concerns about the girl returning home because they considered her mother and step father were not protective of her, in that they knew Vaa was sexually abusing her, took no steps to prevent it and indeed counselled the girl not to speak of it,” Judge Tafaoimalo’s ruling says.

“Although there is no formal application before the Court concerning the custody of the girl, section 3 of the Infants Ordinance 1961 (the Ordinance) says that where in any proceeding in any Court the custody or upbringing of a child is in question, the Court shall regard the welfare of the child as the first and paramount importance.

“Essentially this case is also one concerning the custody of the girl. Under section 4(2) of the Ordinance if it appears to the Court that the parents of a child are unfit to have custody and upbringing of the child, the Court may appoint some other person to be its guardian and may make such order regarding its custody and upbringing and the right to access of either parent to such child as the Court seems fit.

“Section 16 of the Ordinance allows the Court to make an order for the committal of any child living in an environment detrimental to its physical or moral well-being, to the care of a Child Welfare Officer. There has never been a Child Welfare

Officer appointed but by default SVSG has filled this important role. There is no question that S.V.S.G has taken care of many children and it is an organisation which is vital in Samoa where there are no child protection shelters.

“However it is equally important that once S.V.S.G have the custody of any child, they apply to the Court for guardianship orders, unless they have the consent of the natural parents of the child.

“Given that the custody of the girl is at issue, it is important for the court to ascertain her views and that should be done in a safe environment which will not be intimidating. I decided that I should speak to the girl in chambers in the presence of two court registrars.”

In her ruling, Judge Tafaoimalo said the girl was living in an environment that posed more threat to her moral- wellbeing.

“Given the findings I am satisfied on a balance of probabilities that a protection order is necessary for the protection of [the girl] against all Respondents.”

The uncle was found to have sexually and physically abused the girl and as a result intimidated her.

“I am satisfied that he poses an ongoing risk to victim given what I believe he did to the girl given what I believe he did to girl, his history of sexual offending and her fear of him. The girl must be protected from Va’a should never be allowed her again. The girl cannot go back to the home which Vaa shares with her parents.

“I consider that Sofara has intimidated her into not telling anyone about what Va’a had done to her. This amounts to an act of domestic violence. There is a risk that Sofara will continue to intimidate the girl in trying to protect Va’a. The girl is not safe with Sofara, and as such Sofara should not be allowed near the victim again.

“Fetu’s case is not as straight forward. Her love for her daughter cannot be doubted. But she has stood by and allowed Va’a and Sofara to dictate what has eventuated up to this point in time. There is no doubt that despite all this, victim loves her mother.

“Whilst I believe that allowing the girl to go back to her mother will pose a risk to the victim, because she lives with Va’a and Sofara, Fetu should be able to see her daughter in a controlled environment, without Va’a and Sofara and within the safety of S.V.S.G.

“S.V.S.G is currently the safest environment for the girl. She enjoys and is happy with her friends. She likes Lina is comfortable and S.V.S.G shelter provides her with stability. SVSG are the proper guardians for the victim at this time as Fetu and Sofara are unfit to make decisions which are her best interests.”

Lastly, Judge Tafaoimalo said she would review the interim order for custody and guardianship in three months.