B Petitioner v B Respondent
| Jurisdiction | Cayman Islands |
| Judge | Hon. Justice Richard Williams |
| Judgment Date | 10 April 2013 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO. FAM 180 OF 2011 |
| Date | 10 April 2013 |
Hon. Justice Richard Williams
Family Law — Children — Application for leave to permanently remove children from jurisdiction — Mother wishing to relocate to Florida USA with children — Relevant considerations to be applied to a permanent removal application
Ms. Francesca Dowse of Samson & McGrath for the Petitioner
Mr. Nicholas Cusworth QC instructed by Campbells for the Respondent
This matter concerns C, a 5 year old boy born on 14 th May 2007 and K, his 4 year old sister, who was born on 26 th December 2008. Both children were born and have since birth resided in the Cayman Islands, a state of affairs summarised by Mr. Cusworth QC in his final written submissions when he stated:
‘…their pre-school past and present has centered on Cayman, which is their familiar world.’
On 18 th August 2011 Quin J ordered that the Cayman Islands be deemed to be the country of residence for the children for the purposes of the Hague Convention for the Prevention of the Abduction of Children. Interim care and control of the children was granted to the mother by Henderson J at the ex parte hearing held on 12 th August 2011. That order, with access to the father, was reconfirmed at an inter-partes hearing before Quin J on 18 th August 2011. The father contends that there is a ‘ shared care agreement’ between them, but this is disputed by the mother.
The parents, who were married on 22 nd December 2008 in Grand Cayman, are separated and in the midst of protracted divorce proceedings. The mother, an American national, is aged 28 and the father, a Caymanian national, is aged 37. The mother currently has a Residency and Employment Right Certificate (‘RERC’). The mother is Jewish and the father is of the Christian faith. I hope that the parties will not be offended if from now on I refer to them for convenience as the mother and the father.
The application before the Court is the mother's application dated 28 th September 2011 for leave to permanently remove both children from the Cayman Islands to relocate with her to Florida, United States of America. It is intended that she would initially live in the town of Wellington, Florida. At the hearing, the mother indicated that if leave were given she intended to relocate during Summer 2013, at some stage after the current school year had come to an end. The father opposes the application, contending that removal would not be in the best interests of the children. If leave to relocate is given it will require a discharge of the consent order made by Quin J on 18 th August 2011 which prohibits removal of the children from the jurisdiction without written consent or order of the Court.
Mr. Cusworth QC rightly highlights that relocation cases are among the most difficult cases that family courts face, and drew our attention to Professor Patrick Parkinson of the University of Sydney's apt reference to them as being ‘the San Andreas fault of family law.’
Mostyn J succinctly describes relocation cases at paragraph 4 in Re AR [2010] EWHC 1346 (FAM), when he stated:
‘Applications for leave to relocate are always difficult for the court and distressing for the parties. They involve a binary decision — either the child stays or he goes. There is no scope for any middle way. If the decision is that the child goes, then the left-behind parent inevitably suffers a disruption to his relationship with the child, at the very least in quantum and periodicity of contact. If the decision is that the child stays then the primary carer, if not invariably, then frequently will suffer distress and disappointment in having what will normally be well-reasoned and bona fide plans for the future frustrated. So the decision, whichever way, is bound to cause considerable trauma.’
The hearing lasted four days with this judgment being reserved to a date after receipt of written closing submissions.
The parties are embroiled in increasingly acrimonious divorce proceedings covering almost all areas of family law, whether financial or child related. As I stated in my ex tempore ruling given on 16 th December 2011:
‘Although it is undeniable that they both love their children dearly and feel that their actions and positions taken are done for what they believe to be (in) the children's best interest, a sad feature of this case is their inability to resolve a number of issues that keep arising between themselves concerning the immediate and long term future of their children.’
As a consequence, there has been a plethora of child and financial applications. The court time occupied in dealing with the various summonses and the legal costs incurred since August 2011 has been disproportionate to the potential matrimonial assets and the issues to be resolved.
Mr. Cusworth QC reminded me of my sentiments expressed in KP v JB (Fam 245 of 2010). Although the parties have given some oral evidence in previous hearings, there is value in repeating the same herein:
‘7. This hearing is the first time during these proceedings that the parties have been able to give oral evidence and be tested in cross examination. As a consequence, both parties seemed intent on trawling through the whole history of their relationship from its inception to the current date. Such a detailed analysis of the history of their relationship is not as helpful to the Court when determining the applications as the parties appear to believe it to be. A great deal of irrelevant and unhelpful evidence has been placed before this Court. Since the parties have been given the opportunity to conduct such an exercise at this hearing, the Court would not now expect them to seek or feel the need to do the same at any future related hearing.
8. I will now go on to deal with the relevant background. I have regard to the approach of Thorpe LJ in Re F (Shared Residence Order) [2003] EWCA Civ 592 , [2003] 2 FLR 397, namely that one of the functions of the judge is to make findings and that another function is to be selective and to make findings that are relevant and necessary for the disposal of the issue. When considering what orders would be in the best interest of J at this time, I am not required to make findings on every area or issue that has been presented to me for determination or which have become apparent during the hearing. I must determine the factual issues that have implications for the decisions that I have to take relation to J.’
Although the paternal grandparents are divorced, having had the opportunity to hear from them in court, it is clear that the father comes from a very supportive family. The father's parents are affluent and this enabled him to gain a good education, obtaining a bachelors degree in International Business from the University of Florida in 2000. He has been a restaurateur, a building developer and a businessman, but his various projects appear to have encountered difficulties. The father states that he has been employed as an assistant project manager with CDA Construction since February 2012. He has been indicating for quite some time that he hopes, in the foreseeable future, to obtain better paid employment within the Dart group of companies.
It appears that the mother did not have an ideal relationship during her late teen years with her mother, seemingly wishing to assert her independence by spending time out of the home for periods of time. The mother finally left home aged eighteen. A number of the issues between them have since been resolved. The maternal grandmother, who I heard from in court, is supportive of her daughter's proposed relocation with the grandchildren to Florida. It is evident that their relationship has improved since the birth of C and following the mother's move to the Cayman Islands. The quality of the mother's long term relationship with her family in Florida remains an uncertainty, as it has been untested since her late teens. I have regard to this when I consider the indisputable bond and interaction of the father and children with the paternal grandparents, despite the latter's divorce. I noted the respectful manner in which the paternal grandparents spoke about each other, and the clear recognition that, although they had both moved on with their personal lives, the family remains an important unit which needs both of their united support. I did not gain the impression that the mother's family was as close or had been as emotionally supportive to her, as the father's family had been to him. I acknowledge that the geographical distance between them is a contributing factor to this state of affairs.
The parents met in Florida in late 2005 when the mother was aged twenty-two and employed as a waitress in a cocktail bar, being so employed since the age of nineteen. The mother stated that when they met she was ready to go back to college, although in reality she said that she never actually ‘ started college after High School but I was not sure what I wanted to pursue my degree in.’ She said that by the time she met the father she had decided that she wanted to get a degree in business. The mother stated the advent of motherhood with C placed a temporary halt to her plans of advancing her education.
The parties moved to live in Cayman in around September 2006, a time when the mother was pregnant with C. The mother contends that in agreeing to relocate she had relied upon a promise from the father that, when they had earned enough money, they would move back to Florida to live. However, as Mr. Cusworth QC forcefully points out:
‘… Even if there is now some issue as to what their longer term plans may have been, or what the reasons were for settling in Cayman in the...
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