ANTHONY NSANGU SIMBEYE V NKULU NYAWA BANDA (Appeal No. 62/2019) [2019] ZMCA 319 (27 August 2019)

LMfWi IN THE COURT OF APPEAL FOR ZAMBIA Appeal No. 62/2019 HOLDEN AT NDOLA (Civil Jurisdiction) BETWEEN: ANTHONY NSANGU SIMBEYE APPELLANT AND . ZG!STRY NKULU NYAWA BANDA 0067 LUS. P' RESPONDENT CORAM : Kondolo, Makungu and Chishimba, JJA 21st August, 2019 and 27th August, 2019 For the Appellant For the Respondent Mrs. A. Mulenga of Messrs Isaac & Partners Ms. I. Nambule of Messrs Sharpe & Howard Legal Practitioners JUDGMENT CHISHIMBA, JA, delivered the Judgment of the Court CASES REFERRED TO: 1. The Attorney General v. Marcus KampumbaAchiume (1983) Z. R. 1 (S. C) 2. Re Adoption Application No 41/61 ([1962] 3 All ER 553 at p 560) 3. J v. C (1970) AC 688 4. S (BD) v. S (DJ) (1977) 1ALL ER 656 5. D v. M (Minor: Custody Appeal) 1982 3 ALL ER 897 6. Elizabeth Nadine Smith Wesson v. Brian Sydney Stroud SCJ No. 35 of 1998 7. Rostron v. Rostron (1982) 3 FLR 270 8. Jobsi Ulrish Stoyke v. Cleotha Llona Emily Stoyke Supreme Court Appeal No 68/1998 9. F v. F [1968] 2 All ER 951 LEGISLATION AND OTHER WORKS REFERRED TO: 1. The Matrimonial Causes Act No. 20 of 2007 2. The Affiliation and Maintenance of Children Act, Chapter 64 of the Laws of Zambia 3. Black DBE, Bridge, Bond & Gribbon. A Practical Approach to Family Law 7th Edition, Oxford University Press, 2004 (cid:9) (cid:9) -J2- 4. Lillian Mushota, Family Law: Cases and Materials, UNZA Press, 2005. 5. Haisbury's Laws of England 4th Edition Volume 13 INTRODUCTION 1. This is an appeal against a ruling by Lady Justice M. Chanda in respect of custody of children of the family under the provisions of Section 72 of the Matrimonial Causes Act. 2. The appeal deals with custody issues in respect of minor children of the family upon divorce. FACTUAL BACKGROUND 3. The Respondent petitioned the Appellant in the High Court seeking dissolution of their marriage and a decree nisi was granted. Thereafter, the Appellant sought a custody order in respect of the children of the family namely; Norah Namwayi Nambeye born on 15thJanuary, 2013 and Tirzha Kuzipa Nambeye born on 17th January, 2017. The basis being the Respondent's unreasonable behavior and alleged unfitness to take care of the children. 4. The Appellant alleged that the Respondent uses abusive language in the presence of the children. He cited one occasion -J3- when the Respondent almost damaged his vehicle after she threw a plate at him. S. It was the Appellant's assertion that the Respondent is in the habit of indoctrinating the children against members of his family. He added that the Respondent had falsely accused his brother of molesting Norah, and brain washed her into believing that the incident actually happened much to the child's psychological detriment. 6. The Appellant stated that he is in a position to financially support the children and added that his mother could assist with caring for them. He further, stated that arrangements have been made to employ a live-in maid to assist with taking care of the children. 7. In a nutshell, the Appellant's submission was that it was in the best interest of the children that they live with him as opposed to the Respondent. 8. The Respondent denied the allegations made by the Appellant. In her affidavit in opposition to summons for custody of the children, she deposed that the 2nd child was in fact born in 2015 and not 2017 as deposed by the Appellant in his supporting affidavit. -J 4- 9. The Respondent conceded that she had threatened violence on the cited occasion because the Appellant was insulting her in the presence of the children. As a way of forcing him to leave, she threatened to dent his car. 10. The Respondent made reference to two incidents when Norah, one of the children, was touched on her genitals by her cousins in July, 2015 and in March, 2016 the Appellants brother, Carson, also touched Norah's private parts. The Appellant when informed accused her of indoctrinating the child with lies about his family. A meeting was proposed for the family to discuss the incident, to date the Appellant refuses to discuss the allegations. 11. On the issue of financial support, the Respondent stated that the Appellant only provides what he considers necessary and not essentials. Further that the Appellant's mother is not fit to look after the children, as she is frail and old at 70 years plus. Moreover, she dislikes the Respondent and does not believe her son touched the child inappropriately. 12. The Respondent stated that unlike the Appellant, she normally works from home, therefore she can personally take care of the children as opposed to relying on external help. -is- 13. In reply, to the averments by the Respondent, the Appellant stated that the Respondent only took Norah for psychological evaluation because Carson threatened to take legal action because of the allegations of molestation. (cid:9) The Appellant maintained that there was no abuse of the child. HOLDING BY THE COURT BELOW 14. The lower Court considered the settled legal requirement that the paramount consideration in custody applications is the interests of the children and applied the welfare principal. She held that because the children were of tender age it was in their best interest that they remain in the custody of the Respondent with whom they had been living since 301hMay, 2014 and there was no reason to separate them from her. That it would be distressing to the children and not in their best interest to uproot them from their current home to start living with their father under the care of their grandmother with the help of a nanny. 15. In a nutshell, the court below granted custody to the Respondent, with supervised visits to the Appellant of three (3) times a month; in the presence of a social welfare officer or an independent family member until the youngest child turns seven years. In -J6- respect to the financial responsibility for the children, the same was to be shared equally. APPEAL 16. The Appellant has raised 3 grounds of appeal assailing the award of custody to the Respondent. The grounds are couched in the following terms; (i) The Court below misdirected itself in law and in fact when it found that it would be unjustly distressing to the children and not in their best interests to uproot them from their current home without taking into consideration the circumstances and events that necessitated the custody application as set out in the evidence before it. (ii) The trial Court erred in law and in fact in declining the Appellant's application for custody without considering the children's welfare as the paramount consideration in coming to its determination. (iii) The Court below erred in law when it ordered that the appellant be granted supervised access to the children only three times a month contrary to the provisions of the Affiliation and Maintenance of Children Act which provides for each parent to have parental responsibility over the children of the family. THE ARGUMENTS ADVANCED 17. In ground 1, the Appellant submitted that the lower court did not correctly consider the circumstances and events which -J7- necessitated the custody application. Further, that the Appellant had highlighted the fact that the Respondent's behavior was not suitable for her to have custody of the children. 18. It was the Appellant's contention that there was no evidence tendered by the Respondent to the effect that the children would be distressed if removed from her care. This finding of fact by the lower Court was not supported by the evidence on the record. The Appellant contended that, had the lower Court properly viewed the evidence before her, she would have arrived at a different conclusion. 19. The Appellant on the above basis contends that the findings made by the lower court ought to be interfered with or reversed as the same were arrived at without due consideration of the evidence that was before the Court. We were referred to the case of The Attorney General v. Marcus Kampumba Achiume(1) where the Supreme Court dealt with instances when an appellate Court may interfere with findings of fact made by a lower Court. 20. In ground 2, the Appellant contends that he is better placed to provide for the children with all the necessaries, including care and security. Further, that his mother and a live-in maid will be -J8- there to take care of the children. It was added that reasonable access would be allowed to the Respondent. 21. The Appellant contends that the Respondent, in the lower Court did not tender any evidence with regard to her capacity to provide a stable and secure environment for the children of the family. Further, that the Appellant had shown to the court that the Respondent has made access to the children by the Appellant and his family members very difficult. 22. The Appellant submits that the lower Court ought to have considered the Respondent's unreasonable behavior in determining the best interest of the children and their custody. It was further argued that the fact that the Respondent is the mother of the children is immaterial to the custody application. As authority we were referred to the case of Re Adoption Application (2) where the Court noted that the paramount consideration for a court faced with such an application is the consideration of the welfare of the children. 23. In ground 3, the Appellant contended that in line with the provisions of Section 15 (2) of the Affiliation and Maintenance of Children Act, Chapter 64 of the Laws of Zambia, the lower Court erred when she took the view that the Respondent's claim, -J9- with respect to custody, was superior to that of the Appellant. Further, that no evidence was led by the Respondent to show that the Appellant was not a fit and proper person to have custody of the children. In addition, that the lower Court erred when it held that transferring custody of the children from the Respondent to the Appellant would adversely affect the children's psychological wellbeing. 24. The Appellant argued that the supervised visitation ordered by the lower Court effectively diminishes the Appellant's right to parental responsibility of the children. We were referred to an extract from the book A Practical Approach to Family Law 7th Edition, 2004 where the author stated that orders that regulate the arrangements for children's upbringing are sufficiently flexible to reflect the constantly changing needs and circumstances of the children. 25. The Appellant contends that the lower court's decision does not have flexibility in terms of the Appellant's access to the children. Further, that this is a proper case for the appellate court to interfere with the findings made by the lower court. We were urged to allow the appeal in its entirety. 26. The Respondent, on 8thMay, 2019, filed into court heads of _J10- argument. In response to grounds 1 and 2, it was submitted that in custody applications, the courts are mandated to take into account the interests of the child. We were referred to an extract from Lillian Mushota's Family Law in Zambia: Cases and Materials and Halsbury's Laws of England 4" Edition Volume 13 at paragraph 932 as well as the provision of Section 15 of the Affiliation and Maintenance of Children Act, Chapter 64 of the Laws of Zambia and the holding in the case of J V. C (3) as authority for the said legal principal. 27. It was contended that the children of the family being aged 6 and 4, their interest is to be taken with great consideration; and requires that the court takes extra care in making any orders affecting them. We were referred to the case of S (BD) v. S (DJ) (4) where the court held that continuity of care was one of the important considerations the courts take into account in deciding what is in the best interest of a young child 28. The Respondent argued that she ought to be allowed to continue caring for the children as she has been their primary care giver. Further, that there was no evidence adduced in the lower court -iii- showing that the continued stay of the children with the Respondent was not in their best interest. 29. With regard to ground 3, the Respondent argued that there was evidence in the lower court that one of the Appellant's relatives molested a child of the family. It was contended that as a consequence the child of the family suffered psychological damage. Further, that in the circumstances it was in the best interest of the children to remain in the custody of the Respondent. We were referred to the case of D v. M (5) where the custody awarded to the father was reversed by the appellate court for failure to take into account; the continuity of the care the father's lack of cooperation in giving access to the mother and the issue of domestic help as care opposed to the mother taking care of the child. 30. It was the Respondent's contention that the Appellant has little time for the children and has suggested that the children be cared for by his elderly mother and a hired nanny. Further that, there was evidence adduced in the lower Court that the Appellant's mother has shown a dislike of the Respondent and she fears this may filter down to the children. -J12- ii2- 31. We were invited to consider the Supreme Court decision in 3 1. Elizabeth Nadine Smith Wesson v. Brian Sydney Stroud (6) where the Court granted the mother custody of the child of tender age. The Respondent submits that the children being of tender age should remain in her custody. The Respondent argued that she is not averse to the Appellant having access to the children but the access ought to be supervised. 32. The Respondent urged the Court to consider the fact that the acknowledgement of service signed by the Appellant stated that he has no objection to the Respondent having custody of the children. Further, that it was only after the Appellant was presented with the counsellor's report following the molestation allegations that the Appellant filed an application for custody of the children. We were referred to the case of Rostron v. Rostron(7) where the Court held that the benefit from disrupting children's lives is not equal to the risk of the emotional devastation to the said children. 33. It was submitted that removing the children from the care of their mother would be emotionally devasting given their tender ages. We were urged to grant an order for full custody of the children to the Respondent with supervised access to the Appellant. -J13- DECISION OF THE COURT 34. We will deal with grounds 1 and 2 together as they both deal with the issues relating to the paramount principle of the welfare/best interest of a child when dealing with a custody application. 35. The principal of paramount consideration of the children's welfare/ interest in respect of the award of custody order is settled. Section 15 (2) of the Affiliation and Maintenance of Children's stipulates that; "In making any order as to the custody or access, the court shall regard the welfare of the child as the paramount consideration, and shall not take into account whether from any other point of view the claim of the father in respect of the custody is superior to that of the mother, or vice versa." 36. In a custody application one key consideration is the welfare of the minor child of the family. This is evident in Section 75 (1) of the Matrimonial Causes Act, which provides that: "The court shall regard the interest of the children as the paramount consideration in custody applications..." 37. The welfare of the child is not measured by money or physical comfort. See the case of Jobsi Ulrish Stoyke V Cleotha Liona Emily Stoyke (8) which states that welfare of the child encompasses physical, educational and emotional needs amongst others. -J14- 38. The issue is whether the learned judge did consider the welfare or interest of the children as paramount in arriving at her decision to award custody to the Respondent. 39. The Appellant has vehemently argued that the lower Court did not consider the best interests of the children considering the nature of the Appellant's testimony regarding the conduct of the Respondent. Further, that the Appellant maintained that his mother and a house help will be in a position to properly take care of the children of the family. 40. With respect to the interest of the children and their welfare, we are of the view that a court determining an application for custody must at all times consider what is in the best interest of the child/children. The Court must not be swayed by the animosity that may exist between the parents of the children. We agree with the opinion of the English Court of Appeal in the case of F v. F ()where it was stated as follows; "The paramount duty of the court in custody proceedings is to consider what is in the best interests of the child. Of course, in a sense it is a fight between the father and the mother, but the court does not decide it on the basis of whether the mother ought to win or the fat her ought to win, but chiefly on the basis of what is best for the child." -J15- 41. The court below had considered the issue of welfare of the children at great length. In a nutshell it held that it is in the children's interest to be looked after by their mother as opposed to external help such as a nanny. Further, there was evidence before the lower Court that the Appellant's mother, the children's grandmother, is advanced in age. The Respondent on the other hand who has been looking after the children, works mostly from home and would care for the children herself as opposed to a nanny. The Learned Judge further considered the tender age of the children. In the circumstances, we find no merit in grounds 1 and 2. 41. The issue in ground 3 is the limited supervised access to the children that was granted by the lower Court to the Appellant. The lower Court had granted the Appellant 3 days of supervised visitations per month on account of the allegations of molestation of Norah one of the children. 42. The Appellant raised issue with regard to the number of visitations ordered by the lower Court. 43. We are of the view that the question we must ask is whether 3 days a month is fair and in the interest of the children? Our response to this question is in the negative. We are of the view -J16- that supervised visits of 8 times a month is more reasonable and is in the interest of the children. We therefore set aside the Order of the lower court in respect of the 3 days visitation per month and hereby substitute it with 8 days supervised visits per month. For the avoidance of doubt, the visitation rights are to be effected during the day and the children must be returned to the mother by 18:00 hours. Ground 3 therefore succeeds in part. CONCLUSION 44. Grounds 1 and 2 having failed, we uphold the lower court's decision granting custody to the Respondent. Ground 3 succeeds only to the extent that the Appellant is entitled to 8 monthly supervised visits. M. M. Kondolo, SC COURT OF APPEAL JUDGE C. K. Makungu F. M. Chishimba COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE (cid:9) (cid:9)