Court grants mother access to children despite father's refusal citing her adultery and mental health.

[*373] 1984 Jan. 9

(NIKITAS, P.D.C.)

IN THE DISTRICT COURT OF NICOSIA

In the matter of Guardianship of Infants and Prodigals Law, Cap. 277,

and

In the matter of Theodosis Constantinou and Christina Constantinou,

Infants,

and

In the matter of an application between Eleni Avraam née Kardana,

Applicant,

and

Panayiotis Avraam,

Respondent.

(Application No. 26/83).

Children - Access to the children of the marriage - Parents divorced - Custody kept by the father, who refused to allow the mother to have access to the children of the marriage - The statutory power of the Court to grant access - Its exercise depends on the circumstances of each .case - The paramount consideration is the benefit and interest of the children, not the punishment of the guilty spouse - In the circumstances the mother’s application for access would be granted.

the

R. Schizas, for/Applicant.

A. Hji Ioannou, for the Respondent.

JUDGMENT

The judgment of the Court was delivered by:-

NIKITAS, P.D.C.:- This is a wife’s application for access to the children of the marriage. The parties were married in January 1977. There were two children, a son born in December 1979 and a daughter born in April 1981. Differences arose from the very beginning and the relationship was far from being a happy one as it may be discerned [*374] from a social investigation report - exhibit I in the proceedings - made available to the Court pursuant to the provisions of the Guardianship of Infants and Prodigals (Amendment) Rules of Court 1972. The culmination of it all was a serious incident that occurred on Christmas day, 1982, in consequence of which applicant attempted to commit suicide. She had taken an overdose of pills for which she received treatment in hospital and was also treated for several days in the Psychiatric Wing of the hospital. Earlier in 1976 when she was still a schoolgirl she had made another attempt to take her own life following serious friction with her family because of her affair with respondent with whom she had eloped before marrying eventually at the beginning of 1977. After the episode in Christmas 1982 the parties separated and before the hearing of this application they obtained their divorce.

The children stayed with their father at what used to be the matrimonial home, a refugee flat at Pallouriotissa. As from March 1983 they live with the respondent’s parents in Limassol the respondent, a house painter who got engaged to be married in the meantime, visiting them during weekends.

The respondent refused to allow the applicant to visit the children practically ever since the time they parted almost a year ago. In his evidence before me respondent tried to justify his attitude on the following grounds. First, that he was granted a divorce on account of his wife’s adultery. Secondly, that the applicant ill-treated the children and, lastly, that if she is allowed to have, any contact with the children their life or health will be put in danger because of her psychological condition as manifested by her previous suicidal tendencies. [*375]

Despite his grave objections respondent had originally agreed, according to Mrs. Christodoulidou the welfare officer who prepared exhibit I and also gave evidence in the case, to give the children to the applicant, but when the latter asked him to make the necessary financial arrangements for the purpose - and sensibly so in my opinion in view of her poor economic situation - he changed his mind and refused to let applicant see the children. In his evidence he said that he is not willing to let applicant have access, but he is ready to consent to a custody order in her

favour because as he astonishingly stated “παρα να είμαι συνένοχος προτιμώ να της τα δώσω, να μην έχω τύψεις ότι έχω επιτρέψει να πάει να τα δει και μετά να τους κάμει κακό”.

At some stage I postponed the hearing of the case on the joint application of counsel to afford them a chance to discuss the question of custody of the children, but no progress was made because, it seems, there could be no agreement on the financial aspect of the matter.

It is important to note that applicant was not cross-examined or seriously cross-examined on any of the charges levelled against her by her former husband. Nor was there any medical evidence that she is not a mentally fit person or that her communicating with the children will harm them in any way. Her cross-examination was confined only to the extent of her right of access. In answer to her own counsel applicant denied the charge of ill-treating the children and that she ever allowed her personal problems to interfere with the love and affection she feels towards them. Mrs. Christodoulidou says in her report that respondent admitted to her that applicant was [*376] a loving mother showing interest in the children, but there was some deterioration in her behaviour towards them during the last months of cohabitation which he attributed to their strained relationship. The welfare officer also says that access will be most beneficial to the emotional welfare of the children.

There is no clear evidence as to the ground upon which the divorce was granted but even assuming that applicant was guilty to adultery this is no reason in itself disentitling applicant to her rights of access. The statutory power of the Court to grant custody or access should be exercised according to the circumstances of each particular case, always bearing in mind that the paramount consideration is the benefit and

interest of the children, not the punishment of the guilty spouse. See Stark v. Stark (1908 - 1910) All E.R. Rep. 643. Wrangham J. aptly put

the matter in M v. M (1973) 2 All E.R. 81 as follows:-

“No Court should deprive a child of access to either parent unless it was wholly satisfied that it was in the interests of that child that access should cease, and that was a conclusion at which the Court should be extremely slow to arrive. Access was to be regarded as a basic right of the child rather than a basic right of the parent. Save in exceptional circumstances to deprive a parent of access was to deprive a child of an important contribution to his emotional and material growing up in the long term”. [*377]

See also S v. S & P (1962) 2 All E.R. 1.

Coming back to the facts of this case I am satisfied in the light of the evidence of Mrs. Christodoulidou and applicant which is accepted that there are no valid reasons for depriving applicant of access. Far from that, as the evidence discloses, an order to that effect will definitely contribute to the welfare of the children. The unreasonable stand taken by respondent can only be attributed to his vindictive motives against applicant as he himself freely admitted to the welfare officer on several occasions.

I therefore make an order that applicant shall have access to the children as follows:-

Every Tuesday and Thurday from 2.30 p.m. to 6.00p.m.

The applicant who has the use of her employers’ car and travels to Limassol for her work will visit the children there as I consider it undesirable that they would have to travel to Nicosia twice a week.

She will further have access every other weekend from 2.30 p.m. on Saturday to 6.00 p.m. on Sunday, three days during the Christmas and Easter holiday, and ten days during the summer vacations. The welfare office is directed to render its assistance for facilitating the enforcement of this order. The respondent to pay the costs of the application which will have to be assessed by the Registrar and approved by the Court.

Order accordingly.