Barrett v Barrett

• Jurisdiction: Cayman Islands
• Judge: (Sanderson, J.)
• Judgment Date: 05 February 2001
• Court: Grand Court (Cayman Islands)
• Date: 05 February 2001

Grand Court

(Sanderson, J.)

BARRETT

and

BARRETT

Mrs. E. Nervik for the petitioner;

H.D. Murray for the respondent.

Cases cited:

(1) Caffell v. CaffellFLR(1984), 4 FLR 169; 14 Fam. Law 83, dicta of Ormrod, L.J. applied.

(2) D. v. S. (Parental Responsibility), [1995] 3 F.C.R. 783, dicta of Stephen Brown, P. applied.

(3) Dipper v. Dipper, [1981] Fam. 31; [1980] 2 All E.R. 722, considered.

(4) H (Minors) (Local Authority: Parental Rights) (No. 3), In reELRUNK, [1991] Fam. 151; [1991] 2 All E.R. 185, sub nom. Re H (Minors) (Rights of Putative Fathers) (No. 2), [1991] F.C.R. 361, dicta of Balcombe, L.J. applied.

(5) H v. H, 1999 CILR 552, applied.

(6) Jussa v. Jussa, [1972] 1 W.L.R. 881; [1972] 2 All E.R. 600, considered.

(7) Miller v. Miller, 1980–83 CILR N–6.

(8) P (A Minor) (Parental Responsibility Order), Re, [1994] 1 FLR 579; [1993] 2 F.C.R. 689, dicta of Wilson J. applied.

(9) Wachtel v. Wachtel, [1973] Fam. 72; [1973] 1 All E.R. 829, dicta of Lord Denning applied.

(10) White v. White, [2001] 1 All E.R. 1; [2000] 2 FLR 981; [2000] 3 F.C.R. 555, dicta of Lord Nicholls of Birkenhead applied.

Legislation construed:

Matrimonial Causes Law (1997 Revision) (Law 9 of 1976, revised 1997), s.19: The relevant terms of this section are set out at para. 13.

Family Law-children-custody-joint custody may be ordered even if acrimony between parents, unless would adversely affect children-court to consider degree of commitment by applicant parent, emotional attachment between parent and child, and reasons for applying

Family Law-children-custody-joint custody favoured if sole custody by one parent increases chance of other losing residence rights in Islands or if active efforts by one to achieve deportation of other

Family Law-financial provision-capital assets-assets to be divided are those acquired during marriage or the value of previously acquired assets attributable to parties” efforts during marriage-parties” direct and indirect contributions as bread-winner and home-maker to be given comparable weight

The parties applied for orders relating to the custody of and access to the children of their marriage, maintenance for the children and the division of matrimonial property.

The parties had been married for 16 years and had three children, aged 11, 13 and 14, to whom they were devoted and caring parents. The husband ran a car repair business and the wife also worked outside the home. The wife, as respondent in the divorce proceedings, felt bitter toward the husband and had in the past persuaded the Immigration Department to revoke his Caymanian status. He remained in the Islands by virtue of a self-employed work permit.

The parties agreed that the wife was to continue to have day-to-day care and control of the children, with access for the husband. The wife, however, sought sole custody, claiming that the husband opposed her on every issue concerning them, whilst the husband applied for a joint custody order. The wife applied for maintenance for each child, payment of half of their school fees and medical, dental and optical expenses, and a division of the matrimonial property.

Held, making the following orders:

(1) In determining the question of custody, the interests of the children were to be regarded as paramount, and the other factors listed in s.19 of the Matrimonial Causes Law (1997 Revision) with regard to the making

of ancillary orders were secondary. Acrimony between the parties was a common feature of divorce proceedings and would not necessarily preclude joint custody, but was relevant to the application of the welfare principle if such an order would adversely affect the children. The court should also consider whether joint custody might help to reduce that acrimony. The degree of commitment to the children shown by the parent without care and control, the degree of attachment between the children and that parent, and his or her reasons for applying for joint custody were all relevant. Furthermore, in this case the facts that granting sole custody to the wife might create a possibility that the husband would be deported and that the wife had actively attempted to achieve this were matters of some weight and were contrary to the interests of the children. On balance, a joint custody order was in their best interests (paras. 3–7; paras. 12–14).

(2) Access for the husband was granted as agreed between the parties. The husband would be ordered to pay maintenance for each child in line with his own proposals and half of the children”s medical, dental and optical expenses as claimed (paras. 15–21).

(3) The matrimonial property consisted of those family assets acquired during the course of the marriage or the proportion of the value of previously acquired assets which was attributable to the efforts of the parties (e.g. in paying off attached debts) during the marriage. Bearing in mind that the division of property was to be made without discrimination as to the respective roles of husband and wife in acquiring and maintaining it, the assets would be divided on a roughly 50/50 basis. The family business was to be retained by the husband, who would be ordered to pay the wife a lump sum to make up her share together with the other property. Costs were awarded to the husband (paras. 22–25; paras. 27–29).

1 SANDERSON, J.: The petitioner, Mr. Barrett, has applied for the determination of the following ancillary matters: (a) custody of and access to the three children of the marriage; (b) the amount of maintenance to be paid by Mr. Barrett in respect of the children; and (c) disposition of the matrimonial property.

Custody

2 It has been agreed that the respondent, Mrs. Barrett, have day-to-day care and control of the three children, aged 14, 13 and 11. She also seeks an order that she be granted sole custody of the children, primarily because of the bitterness in the relationship between her and Mr. Barrett.

3 This case occupied 2½ days of hearing and both Mr. and Mrs. Barrett gave evidence and were cross-examined. From all of the evidence, I am satisfied that Mr. Barrett is a good father and a caring parent and that it would be in the best interests of the children that joint custody be awarded. In fact, I believe it would be contrary to the best interests of the children to grant sole custody to Mrs. Barrett. If that happened, I believe she would be more likely to take steps to have Mr. Barrett deported from the Cayman Islands. She has, on a previous occasion, written to the Immigration Department, requesting that it revoke Mr. Barrett”s Caymanian status, which it did. He was, however, granted a self-employed work permit and has remained here.

4 I believe it would...