Borbin Vrs Anderson [2022] GHADC 147 (1 December 2022)

IN THE DISTRICT COURT HELD AT ESSARKYIR ON THURSDAY 1ST DAY OF DECEMBER, 2022, BEFORE HER WORSHIP ARABA NUNOO, ESQ. SUIT NO. TRA4/01/22 PETITIONER CYNTHIA BORBIN EKUMFI EYISAM VRS SAMUEL ANDERSON RESPONDENT EKUMFI ESSUEHYIA JUDGMENT The instant Petition was transferred to this court from the Saltpond District Court, by an order from the Supervising High Court Judge of the Central Region, Her Ladyship Justice Patience Mills Tetteh, on 12th July, 2021. The Petitioner filed her petition dated 24th March, 2021 at the Saltpond District Court. However, upon transfer to this court, counsel for Petitioner applied for leave to amend the Petition, and accordingly, the Petitioner filed her amended petition on 6th January, 2022. Per her amended petition, the Petitioner prayed for the dissolution of the marriage on the grounds of unreasonable behaviour of the Respondent, by which unreasonable behaviour Petitioner prayed that she could not reasonably be expected to live with the Respondent. The Petitioner also prayed for custody of the only issue of the marriage to be granted to her with reasonable access to the Respondent. Finally, the Petitioner prayed for maintenance of GH¢ 400.00 in addition to educational and medical bills for the child. The Respondent, given that he had initially filed an answer and cross petition to the Petitioner’s earlier petition, also filed an amended answer and cross-petition to the Petitioner’s amended petition on 18th February, 2022, in which he opposed paragraph 8 of the Petitioner’s grounds, and cross-petitioned for dissolution of the marriage, custody of the only issue of the marriage with reasonable access to the Petitioner, and an order for both parties to contribute equally in respect of the general care and maintenance of the child. Although the parties initially filed witness statements of other witnesses when the matter began in Saltpond, the parties in this court did not call any witnesses, as they informed the court that they wished to testify in their matter themselves. The court accordingly heard the parties on their testimonies as contained in their witness statements. From the amended petition and amended answer and cross petition of the parties, the parties were married under the ordinance in Saltpond sometime in September 2007. The marriage produced one issue, Blessing Abena Amoaba Anderson, who is currently nine years old. According to the Petitioner, the Respondent was physically abusive to her during the subsistence of the marriage and persistently accused her of adultery. Attached to the Petition was a picture marked Exhibit CA, by which the Petitioner sought to prove that the Respondent had abused and inflicted harm on her eye, as stated in her Petition in paragraph 8 (ii). Exhibit CA is a picture of the Petitioner with a plaster covering her right eye. The Petitioner also said that anytime there was a dispute between she and the Respondent, the Respondent would threaten her with death, and that on one occasion she discovered a pistol in the apartment she shared with the Respondent, which put her in fear of her life. Attached to the Petition to support this claim is Exhibit CA (1), which is a picture of a pistol. The Petitioner said that despite the intervention of friends, family and their pastors from church, the disputes between the parties have never been resolved, and the Petitioner finds it intolerable to live with the Respondent as man and wife. The Respondent denied these claims and said in response to Exhibit CA, that the Petitioner wanted to attend an event concerning a man whom the Respondent suspected to be in a relationship with the Petitioner, and that when the Respondent refused to let the Petitioner attend the event, a scuffle ensued, after which the Petitioner placed a plaster over her eye and claimed that she had been abused by the Respondent. The Respondent said in answer to Exhibit CA (1) that he does not own a pistol, and had never pulled a pistol on the Petitioner. The Respondent further claimed that the Petitioner was flirtatious and sexually immoral, and had on one occasion allowed their daughter to watch pornographic material on her phone. Both parties agreed that there have been efforts to reconcile their marriage by friends and family, but none of those efforts had been successful, and both parties were in support of the dissolution of the marriage. The parties were referred to court connected ADR at Mankessim to attempt a settlement of the issues, and upon their return, the Petitioner informed the court that there was no contention over the properties mentioned in paragraph 11 of her amended petition, and she did not wish to contest same, but that the parties only contention was on the dissolution of the marriage and custody of the child. Consequently, I have examined the evidence of the parties by way of their witness statements, examination in chief as well as cross examinations. I am satisfied that the marriage between the parties is one that has not been without turbulence. I am also satisfied that the parties have not lived together for a period of two years. Both parties have admitted that their families have met to resolve the issues in the marriage, but those efforts have not led to a peaceful resolution of the marriage. On the allegation of abuse, save for the averments contained in her witness statements, the Petitioner has not produced any other evidence by way of medical report or the testimony of other witnesses to support her claims. On the issue of the pistol, save for Exhibit CA (1) which shows a pistol, no police report has been filed as proof to show that any such incident was reported, because possession of a fire arm is regulated by law, and the mere photograph of a pistol does not give me much to go on as to who owns it. Here again, no witnesses were called to give testimony to the facts surrounding the pistol. On the other hand, the Respondent has also not produced any evidence by which the court can be satisfied that the claims he makes against the Petitioner’s morality are true. All the Respondent did was to repeat his suspicions against the Petitioner, which only go to prove what the Petitioner says in her Petition that the Respondent constantly accuses her of adultery. In the absence of any proof, or even witnesses to testify to these facts as having come to their knowledge as well, I am unable to arrive at the conclusion that the Respondent’s claims have any truth in them. However, it is still the responsibility of the court to determine whether the marriage between the parties has broken down beyond reconciliation, and in that regard, I have taken notice of the fact that the parties have been separated for a period of two years. I take cognizance also of the fact that the parties never seem to get along in the slightest, and same was evidenced during the pendency of this suit, when the court made orders pertaining to the temporary custody and access to the child. During that time, the Respondent had custody of the child and the Petitioner was given access to the child during the holidays. On one occasion, the Respondent went to the house of the Petitioner and somehow managed to get into a physical altercation with her, as a result of which the Petitioner got hurt. In light of everything that the Petitioner has said in her Petition, and given the conduct of the Respondent even while this matter was pending in court, I am inclined to believe that the marriage between the parties has come to the point where physical harm is a constant threat, and the parties are no longer able to live together as husband and wife. Consequently, I am satisfied that the marriage between the parties has broken down beyond reconciliation. Accordingly, the marriage celebrated between the parties in September, 2007 is dissolved as follows; CUSTODY OF THE CHILD – BLESSING ABENA AMOABA ANDERSON These orders pertaining to the custody of the child are made pursuant to the welfare principle in section 2 of the Children’s Act, 1998 (Act 560) which provides that the best interest of the child shall be paramount in a matter concerning a child, and also that the best interest of the child shall be the primary consideration by a Court, person, an institution or any other body in a matter concerned with a child. Temporary custody of the child was given to the Respondent during the pendency of the suit, with reasonable access to the Petitioner. Indeed, when the marriage between the parties collapsed, the Respondent took custody of the child, and the court only maintained the status quo while the matter was in court. During the trial, the Respondent admitted that he sent the child to go and live with his brother in Accra, outside the jurisdiction of this court, and outside the jurisdiction where both the Petitioner and Respondent live, and this is where the child currently lives and attends school. Asked why he did not care for the child himself, the Respondent said that he wanted the child to have access to quality education, and in his estimation, he believed the child would receive the best education in Accra. Hence, at all material times, the child was not in the care of the Respondent himself. The Respondent has stated on cross examination that the education of the child was of paramount concern to him, and that is why he sent the child away to live with his brother in Accra. While the court commends the Respondent for his concern for the child’s education, Accra is not the only place in Ghana where quality education can be accessed, and it is not only education that a child needs to grow and develop. The child also needs emotional and psychological care, especially since she is still of tender years. The child is currently 9 years old and approaching the age of puberty and adolescence. It is in the best interest of every child to grow with their own parents, where they can get the utmost care be it physical, financial, emotional and psychological, and none of these can be compromised at the expense of the other. There are good schools in this jurisdiction where both parties reside, where the child can have access to education while still being close to her parents. The Respondent sought to raise issues with the Petitioner’s parenting and work schedule, by insisting that the Petitioner had exposed the child to pornographic material and the fact that the Petitioner’s work would not enable her to take care of the child. However, these claims were not substantiated by any evidence or witnesses. Rather, the Respondent agrees even by his amended answer and cross petition, that the Petitioner is a woman of means who is capable of taking care of the child. While the Petitioner admits that her work takes her away from home sometimes, I find no reason why this would be detrimental to the child, provided that the Petitioner makes reasonable arrangement for a child minder or a care giver to take care of the child during the periods where her work takes her away briefly. It is not out of the ordinary for working parents to be away from their child for a short period of time, as long as the parent is not away for extended periods of time, and in this case, it has been shown that it is only on some weekends that the Petitioner travels for work, and even those are not regular, as she mostly works within the jurisdiction. At all other times, the Petitioner is available and capable of taking care of the child. Indeed, the Petitioner and Respondent both live in the jurisdiction, and if the Respondent were concerned for the welfare of the child during the weekends that the Petitioner was away working, the Respondent could take the child for those periods and care for her till the Petitioner returned. The fact that the Respondent would not keep the child and cater for her himself, but would rather take her far away from both parents to go and live in another jurisdiction where none of the parents, most especially the petitioner, have easy access to her, leads me to the conclusion that the Respondent took the child away to deprive the Petitioner from having access to her. Nevertheless, this court ordered a social enquiry report into the current living circumstances of the child, and while the decision of the court is not bound by the findings of the report, the court took notice of the following 1. That the child currently lives with the Respondent’s brother in Accra, where she attends school and her educational needs are provided. 2. That in the 2 years that the parties have been separated, the child has lived in three different places and with different persons, some of the places being Mankessim, Immuna, and currently, Teshie. 3. That the child lives in a onebedroom accommodation which is shared by four persons, including a 19 year old male. The child is a nine- year old girl, on the threshold of puberty and adolescence, and I am of the opinion that this is a crucial age where she needs to be with her parents so her emotional and changing physical and psychological needs would be adequately monitored and catered for. Section 45 of the Childrens’ Act provides the guidelines for considerations for custody or access, and per section 45, the court shall consider the importance of a young child being with the mother when making an order for custody. In addition to this, the court shall also consider the age of the child, and the fact that it is preferable for a child to be with the parents, except where the rights of the child are persistently being abused by the parents. In this instance, it has not been shown that the rights of the child are in any way abused, let alone persistently, by either the Petitioner or the Respondent. Aside the one instance of allegedly watching pornographic content, which the Respondent has cited without proof, no other claims of abuse towards the child have been made by either the Petitioner or the Respondent. Consequently, I find no reason why the child cannot live with her own mother, who has the first right as provided by the Childrens’ Act, to cater for her. The Petitioner currently lives in a chamber and hall, which is sufficient accommodation for herself and her child, as compared to the child living with relatives and sharing a room with four others, one of whom is an adult male. The Petitioner also has a job, and has the means to provide for the needs of the child. It is in the best interest of the child therefore, that she lives with her mother, who can provide all the care she needs both physically, emotionally and psychologically, while also being close to her father, who also lives in the jurisdiction. Accordingly, custody of the child is granted to the Petitioner with reasonable access to the Respondent as follows 1. The Petitioner shall have custody of the child, and the child should be returned to the Petitioner immediately the current school year ends for the Christmas holidays. 2. The Petitioner is ordered to find a school for the child within the jurisdiction before the start of the next academic term, and to submit details of the school to the court and copies also sent to the Respondent, so that the child can begin attending that school at the start of the next academic term. 3. The Respondent shall pay the school fees of the child as well as cater for books, school bus fare and all other educational expenses. The Petitioner shall make available to the Respondent the list of books and items needed for school for the child as soon as possible, before the start of each school term. 4. The Petitioner shall make available to the Respondent, the time-table and school calendar of the child at the start of every school term, in order for the Respondent to plan ahead and make arrangements for picking up the child during the holidays. 5. The Respondent shall have reasonable access to the child during school vacation holidays in the following manner – i. With the exception of festive holidays such as Christmas and Easter, where the school vacation holidays is for a period of three weeks or more, the Respondent shall have access to the child for the entire period of the vacation until one week to re-opening, where the child must return to the Petitioner to prepare for the start of the school term. ii. Where the school vacation holiday is for a period of less than three weeks, the Respondent shall have access to the child for a period of two weeks, and the child shall return to the Petitioner for the remainder of the time, to prepare for the start of the school term. iii. Where the school holiday is for a period of less than one week, the child shall remain with the Petitioner, and the Respondent may have access to the child on the weekend. iv. Where the Respondent is entitled to have the child for the holidays, but for any reason, the Respondent is unable to take the child for that period, the child shall remain with the Petitioner, and the Respondent shall not take the child to stay with any other person without mutual agreement from the Petitioner. v. The parties may vary the terms of the holiday arrangements subject to mutual agreement by both parties. vi. The Respondent may have access to the child every other weekend, from Saturday morning at 12 noon till Sunday afternoon at 3p.m. vii. The parties shall alternate the festive holidays such as Easter and Christmas, so that where the child spends the Easter holidays with the Petitioner, then she shall spend the Christmas with the Respondent, and vice versa, and then the following year, she shall spend Easter with the Respondent and Christmas with the Petitioner, unless the parties can mutually agree to vary these terms amicably. This is to ensure that each parent gets the opportunity to create memories with the child through all the changing seasons. 6. The Respondent shall at all times give prior reasonable notice to the Petitioner before coming for the child. The Respondent shall not show up unannounced to take the child. Neither shall the Respondent pick the child up from school, without prior mutual agreement from the Petitioner. 7. The Petitioner shall make arrangements to engage a responsible adult to serve as a child minder or temporary care giver to the child during the occasions that the Petitioner has to work outside the jurisdiction for short periods of time. 8. The Petitioner shall register the child on the national health insurance scheme, and the parties shall share any extra health bills equally, where health insurance does not make provision for same. 9. The Respondent shall pay an amount of GH¢500.00 to the Petitioner every month as his contribution towards the maintenance of the child. 10. The Petitioner shall provide clothing, shoes, toys and recreational materials for the child, although this does not preclude the Respondent as a loving parent from also providing same for the child, if he so chooses. 11. At the end of each school term, the Petitioner shall make available to the Respondent a copy of the terminal report of the child as soon as it becomes available, so that the Respondent can track the progress made by the child and take interest in the educational needs of the child. It is my admonishing to both parties, that they would be reasonable and fair in keeping to these terms of custody, with the welfare of their daughter as the overriding consideration at all times. Neither Petitioner nor Respondent should seek to deprive the other of their rightful access to the child, and both parties are to work hard to create an environment that is cordial and safe for the development of their child, despite the dissolution of their marriage. There shall be no orders as to cost, and the parties shall bear their own legal costs. SGD HW ARABA NUNOO MAGISTRATE