QUESTION

Courts have often favoured the mother when to comes to custody and access.
Do you think this is correct? In your answer, identify relevant legislative
provisions. Also include any principles of law that you think courts should
consider.

Bula fellow LW310 students. In this week’s discussion forum I found this
week’s discussion particularly interesting. In my opinion, I do believe to some
extent that in the past, preferential treatment were indeed given to mothers
when it came to custody matters. This could be due to the fact that fathers
were mainly breadwinners of the family, the children spent most of the time
with the mothers who were often homemakers who also had the roles of
instilling good values in their children.

However, as society have moved forward towards gender equality approach, it

has been seen that sometimes both parents could be employed. therefore, in
situations like this, the question of custody should rely on the best interests of
the child. This is also evidenced within the legislation in Fiji. Section 116(2) of
the Family Law Act 2003 does not suggest gender preference of the parents
in custody trials, but ultimately what lies in the best interest of the child. For
instance, if a couple in going through a divorce while having a few month old
child, it would be in the best interest not separate the mother from the child
as the child would need sustenance, particularly in the form of breast milk

Bula Fellow LW310 Students. In response to this week’s discussion forum

question, I do not agree with the discriminatory notion that mothers get
preferential treatment when it comes to the custody of children. Courts often
resort to the usage of legislation and common law to aid in their decision
making and particularly within the Laws in Fiji, there is no indication of which
gender the parents must when deciding the custody of the child, but rather
what lies in the best interest of the child.

In Section 116(2) of the Family Law Act 2003, stipulates that “ Courts must
regard the best interests of the child as the paramount consideration”.
Furthermore, in Section 121(2) of the same Act outlines the features in which
the courts must consider in custody matters when determining the best
interest of the child.

Some of these include age of the child, physical or emotional needs of the
child, protection from abuse, etc. This piece of legislation also happens to be
in line with Article 3 of the International Convention on the Rights of the Child
which also reinforces the principle of “The Best Interests of the Child”.
In conclusion, based on the reasoning outlined above, the idea that mothers
can preferential treatment during custody of children is incorrect.

the courts in Fiji have referred to Article 3 of the Convention on the Rights
of the Child (CRC), which establishes the principle of the "BEST
INTERESTS OF THE CHILD." The Court applied the same principle when
deciding the matter in the case of State v Mutch (1999) FJHC 149.

Bula Fellow LW310 Students. In response to this week’s discussion forum question, I
do not agree with the discriminatory notion that mothers get preferential treatment
when it comes to the custody of children. Courts often resort to the usage of
legislation and common law in order to aid in their decision making. Provisions
within the Laws in Fiji give no indication of which gender the parents must when
deciding the custody of the child, but rather what lies in the best interest of the
child.

This is evidenced in Section 116(2) of the Family Law Act 2003, stipulates that “
Courts must regard the best interests of the child as the paramount consideration”.
Furthermore, in Section 121(2) of the same Act outlines the features in which the
courts must consider in custody matters when determining the best interest of the
child. Some of these include age, physical or emotional needs of the child,
protection from abuse, etc. This piece of legislation also happens to be in line with
Article 3 of the International Convention on the Rights of the Child which also
reinforces the principle of “The Best Interests of the Child”.

In conclusion, based on the reasoning outlined above, the idea that mothers can
preferential treatment during custody of children is incorrect.