Anm v Alm

• Jurisdiction: Cayman Islands
• Judge: Nova Hall
• Judgment Date: 03 October 2018
• Year: 2019
• Court: Grand Court (Cayman Islands)
• Docket Number: CAUSE NO. FAM. 53 OF 2014

Between

ANM

Petitioner/Respondent

and

ALM

Respondent/Applicant

Before:

Hon. Justice Nova Hall (Actg.)

CAUSE NO. FAM. 53 OF 2014

IN THE GRAND COURT OF THE CAYMAN ISLANDS FAMILY DIVISION

Appearances;

Petitioner represented by David McGrath instructed by McGrath & Tonner.

Respondent represented by David Holland instructed by KSG Attorneys-at-Law

IN CHAMBERS

RULING

1 The divorce between the parties hereto was finalized on 9 ^th February 2016. Prior to that, on September 21 ^st, 2015, after trial, the following Decision was issued as to ancillary matters:

• 1) A Residence Order is granted to the Respondent/Wife with respect to R, A and I, the children of the marriage;

• 2) The Petitioner/Husband shall have liberal contact with the children of the marriage at such times as agreed between the Petitioner/Husband and the Respondent/Wife. Failing agreement either party shall be at liberty to return the matter to the Grand Court for determination;

• 3) The Petitioner/Husband shall pay child maintenance of CI $1,500.00 per month per child until the child ceases full-time education or reaches the age of 21 years whichever is the later;

• 4) The Petitioner/Husband shall pay the school fees and agreed extra—curricular activities of each child until the child ceases full-time education or reaches the age of 21 years whichever is the later;

• 5) The Petitioner/Husband shall pay the health insurance and additional medical/dental/article expenses for each child until the child ceases full-time education or reaches the age of 21 years whichever is the later;

• 6) The Petitioner/Husband shall contribute an additional sum of CI $3,500.00 per month towards the housing needs of the children of the marriage. Such payments to continue until the last child ceases to reside with the Respondent/Wife, ceases full-time education or attains the age of 21 years whichever is the earlier;

• 7) The Petitioner/Husband shall pay spousal support to the Respondent/Wife in the sum of CI $3,000.00 per month for a period of three (3) years commencing 1 ^st October 2015;

• 8) The previous 50/50 division of the proceeds of sale of the real estate owned by the parties to the marriage is noted and approved;

• 9) The Respondent/Wife shall retain ownership of the Mazda motor vehicle and the Petitioner/Husband shall retain ownership of the Porsche and Toyota motor vehicles outright.

2 The eldest child of the marriage, R is now 18 years of age and about to start University in Australia, the birthplace of the Respondent/Applicant, the former wife. Both R and her mother are currently in Australia. The two younger children are residing with their father.

3 The Respondent/Applicant has filed an application to relocate to Australia with the two younger children of the marriage, A and I. The matter is listed for a contested 4 day trial along with an application filed by the Petitioner/Respondent (the former husband), for consequential variations to the Order for Ancillaries.

4 The current application is brought by the Respondent/Applicant for a legal costs allowance to be paid by the Petitioner/Respondent “for the benefit of the subject children pursuant to Schedule 1 Children Law (2012 Revision)”. This application is opposed.

The Plaintiff

5 On behalf of the Respondent/Applicant, it was pointed out that during the divorce proceedings the future uncertainty of her post-divorce immigration status in the Cayman Islands had been raised. It was submitted that although it had not been a part of those proceedings, there had always been a real prospect that she may wish or need to relocate with the children to her native Australia at some point in the future.

6 It was submitted that the need for relocation has now arisen because of the desire of the eldest child to pursue further education and university in Australia. It was submitted that this child has had struggles with anxiety and mental health issues for some time and it was the belief of her mother that it was in the child's best interests that her mother remain close to her to provide ongoing emotional and parental support. This would also necessitate the proximity of her siblings.

7 It was stated that the expiration of the Respondent/Applicant's lease at the end of July 2018 coincided with the period in which the eldest child had to leave in order to settle in Australia and her mother accompanied her. The Respondent/Applicant finds herself in the unenviable position of having to pursue legal action in a heavily contested matter without the requisite funds to ensure that there is equality of arms during such proceedings. It is submitted that due to all the circumstances of the case it is appropriate, fair and reasonable for the Court to make an order requiring the Petitioner/Respondent to make payments towards the legal costs of the Respondent/Applicant.

The Law

8 Both sides agreed that the leading authority on costs allowances in this jurisdiction is the decision of Williams, J in B v B [2012 (2) CILR 124]. That case cited with approval the approach of Wilson LJ and the English Court of Appeal in Currey v Currey (No. 2) [2007] 1 FLR 946.

9 At paragraph “52” of his Judgment, Williams, J expressed the following.

“Wilson LJ at paragraph 20 went on to say that the “initial over arching inquiry” should be whether an applicant for a costs allowance order can demonstrate that she could not reasonably procure legal advice and representation by any other means. So in a case where an applicant has assets she needs to demonstrate that they could not reasonably be deployed either directly or by raising a loan to fund legal services. It was held that an applicant should also have to demonstrate that she had not reasonably procure legal services by the offer of a charge upon the ultimate capital recovery. Wilson LJ added an additional criterion, namely the need to satisfy the courts that no legal aid was available to the applicant to enable her to obtain legal advice and representation at the level of expertise commensurate with the complexity and nature of the proceedings. In other words, if an applicant did not wish to take an offer of legal aid because of the operation of the statutory charge she should not be able to seek to persuade the Court to make a costs allowance order.”

10 Williams, J continued as follows at paragraphs 53 and 54 of B v B.

“Wilson LJ outlined a different approach to that commended by Mr. Mostyn QC in Moses-Taiga v Taiga when at paragraph 21 he stated that even if an applicant satisfied the Court concerning the criteria, which she would have to do to establish that there was a lack of alternative funding, that may not be a sufficient condition for a costs allowance order to be made. Wilson LJ felt that other factors may need to be considered, such as the subject matter of the proceedings, and the reasonableness of the applicant's stance in the proceedings. A variety of other features may be relevant, including an ongoing liability as to costs owned by the applicant to the other party. The list is not limited to those specifically mentioned by Wilson LJ. He added that the Court should proceed with a “judicious mixture of realism and caution as to both the amount and duration of any order.”

The approach outlined by Wilson LJ and the Court of Appeal in Currey v Currey is the one which I endorse and adopt. I must determine whether the wife can be reasonably procure legal advice and representation at the level of expertise apt to these proceedings otherwise that by a costs allowance order. If I find that she cannot, I must then go on to consider the other factors raised by Mr. McCann when exercising my discretion as to whether, on the facts, an order should be made.”

Jurisdiction

11 Counsel for the Petitioner/Respondent submitted that the Court lacks jurisdiction to make the order which was sought.

12 Counsel argued that the children of the marriage are the subjects of and subject to orders made pursuant to the Matrimonial Causes Law (2005 Revision). It was argued that any variations should be subject to that law. The Petitioner/Respondent has sought variations under that law. In contrast, the Respondent/Applicant brought applications pursuant to Schedule 1 of the Children Law (2012 Revision).

13 Counsel for the Petitioner/Respondent submitted that it would be illogical and unlawful for some aspects of orders made under the Matrimonial Causes Law to remain in force and be varied; while other aspects of the children arrangements to be made pursuant to the Children Law. Counsel argued that the reason that the Respondent/Applicant's purported to use the Children Law was because she was seeking to have her former husband pay the legal costs of her application.

14 In submitting that there was no Children Law jurisdiction to make a legal costs allowance order Counsel for the Petitioner/Respondent made further reference to the decision of Williams, J in B v B. Therein he stated obiter at paragraphs 61 and 62:

“As the relevant applications before me are brought within pending proceedings, and as a consequence the Children Law does not apply, I need not carry out a review of that case law.

62. A significant part of the costs in the matter before me are related to the wife's temporary and permanent applications to remove the children from the jurisdiction and private law custody access applications. If these were not pending proceedings, the wife might arguably have been in a position to contend that cost...