Tuvalu Island Courts Bench Book - Federal Court of Australia

The Court must not consider whether from any other point of view the claim of the father is
superior to the mother or whether the claim of the mother is superior to that of the father in
custody hearings: s3(1)(b) Custody of Children Act (Cap 20).
The Court may ask for a report to be prepared by the Welfare Officer. The Welfare Officer will
conduct interviews with the parties, parents and extended family. The report will explain the
background and history, and make recommendations for the future of the child.
The recommendations made in the Welfare Officer’s report are very important. Those
recommendations can assist the Court in order to assess what is in the best interests of the child.
See Lokega v Lokega (Tuvalu HC 1/95) which emphasises the importance of the role of the
Welfare Officer.
Also see Faalo Liai v Puatalo Pasama (HC 39/03), which emphasises the importance of taking
the time to make a full enquiry and assess the best interests of the child.
4.4 Culture and Child Custody
The role of culture is highly significant in assessing custody of children. The law provides that
any application for child custody is subject to the Native Lands Act (Cap 22).
A particular problem arises where the child is born to parents who are not married. In this case,
if the child has attained a particular age, the child may be ordered to live with the father in
accordance with custom: s3(5) Custody of Children Act (Cap 20); s20(2) Native Lands Act (Cap
22). At June 2004 an interpretation of s20(2) remains pending with the High Court of Tuvalu.
4.5 How an Application for Child Custody is Made
An application must be made on notice to the Island Court. This will state:
• who is making the application; and
• the names of the parties.
The application may ask for:
• an interim custody order to be made if it is necessary; and
• the Court or a Welfare Officer to prepare a report on the circumstances of the child, and
give any recommendations.
Every interested party has a right to be served with the application and seek legal advice.
Tuvalu Island Courts Bench Book June 2004