Between: F Applicant v M Respondent

• Jurisdiction: Cayman Islands
• Judge: Justice Richard Williams
• Judgment Date: 20 August 2021
• Court: Grand Court (Cayman Islands)
• Docket Number: CAUSE NO. FAM 228 of 2020

Between:

F

Applicant

and

M

Respondent

Before:

Hon. Justice Richard Williams

CAUSE NO. FAM 228 of 2020

CAUSE NO. FAM 158 of 2019

IN THE GRAND COURT OF THE CAYMAN ISLANDS

FAMILY DIVISION

HEADNOTE

Family Law — Children — s.15 Children Act application for leave to permanently remove child from jurisdiction — father wishing the child relocate to Canada — s.3 Children Act paramountcy principle and application of the ‘welfare checklist’ to s.I5 applications — relevant considerations to be applied to relocation — applicability of Article 7 and Article 9 Bill of Rights to removal cases arrangements for the child under section. 10 Children Act

Appearances:

Mrs. Cherry Bridges of Ritch & Connolly for the Applicant

Ms. Lynne Mooney of Broadhurst LLC for the Respondent

1 The Court is concerned with the welfare of one child, “N”, a 6 year old girl born in St John's, Newfoundland and Labrador, Canada. N is the only child of the parties — respectively F “the father” aged 40 and M “the mother” aged 41. N and the parents are all Canadian citizens 1. At the

time of the hearing there had been no previous s. 10 Children Act (2012 Revision) (“the Act”) orders made in relation to N

Application and the Parties' Positions

2 The application before the Court is the father's application dated 8 October 2019 made by Form C1 in Fam 228/2020 for leave forN to permanently relocate from the Cayman Islands and to live with him in St John's, Newfoundland and Labrador, Canada. That application is opposed by the mother.

3 The mother has informed the Court that if the Court ordered that N should live in Canada, then she would terminate her employment here and return to Canada to continue to care for N. The father has stated that if the Court were to order that N live in Canada and if the mother were to move back to Canada, then there should be a shared residence order with N spending equal time with each parent, possibly on a two week on/two week off cycle. The mother also opposes this suggestion and states that if she was to return to Canada, then N should primarily reside with her under a sole residence order. The mother contends that she would unlikely be able to find employment in St John's upon her return and that, due to her resultant financial position, she and N would have to initially live with her parents in Renews in Newfoundland. She contends that, due to the distance and travel time from there to St. John's, (i) it would not be feasible for N to spend equal time with each parent and (ii) N would not be able to attend Vanier School in St John's.

4 If an order is not made for N to relocate to Canada then the father naturally seeks more frequent contact.

5 The mother, by an Amended Summons dated 22 October 2020, issued in the divorce proceedings Fam 158 of 2019, applies for a sole residence order to be made in her favour in relation to N 2 3. Whatever the status of that application made in that Amended Summons in those proceedings, when carefully considering the s. 10 of the Act orders being sought by each parent. I am also conscious that, pursuant to s.3 (3) (g) of the Act, I must have regard to the range of powers available to the Court under the Act in the current proceedings.

The Hearing

6 Voluminous written evidence has been filed (especially by the father) and the parties and their various witnesses have given oral evidence over a number of days. Due to the COVID travel restrictions, the father joined the hearing (and his witnesses gave their evidence) remotely by Zoom. His and their remote attendance was agreed by both parties and approved by the Court. Thankfully there were minimal connectivity issues. I am satisfied that I did hear all of the evidence that each witness had to give, and that I was able to assess the evidence of the various witnesses properly.

7 I have heard the oral evidence from and read the report prepared and filed by the Court appointed Welfare Officer, Melissa Alexander, on 12 March 2021. Included in the welfare report is the written “Parent Assessment” prepared by Ms. Lorna Piercey, a registered psychologist, who gave insight into the father, his family and the circumstances that exist and which could be put in place for N in Canada. As well as hearing from family members of the parents, I have also received oral evidence from Ms. Philecia Clarke (a teacher at N's School), Ms. Brianna Bergstrom (a teacher from N's previous school), Ms. Teena Saunders (speech language pathologist and counselling

psychologist with Achieve Cayman) and Ms. Anousha Pal (Operations Manager & Case Manager at ABA) who attended by subpoena issued by the mother

8 Also before the Court is a report from a clinical psychologist. Dr. Laurence Van Hanswijck de Jonge C'Dr De Jonge”) which the parties received on 22 March 2021. This report was not prepared by Dr De Jonge for use in these Court proceedings, but as an assessment evaluation after N was referred to her “due to hyperactivity and struggling to focus, as well as being behind academically”. Dr. de Jonge wrote in a disclaimer set out at the start of the report “This report is not “A forensic child custody evaluation, which is an in-depth analysis and report from a licensed mental health professional that provides detailed psychological information about each member of the family as it relates to their respective roles in the parent/child relationship.” Dr. de Jonge concluded the report by saying “I now look forward to discussing the outcome of this assessment with (N's) parents and remain at your service should further elaboration or clarification be necessary.”

9 Both the parents sought, and the Court felt it would be helpful, for there to be further elaboration upon and clarification about the content of Dr. de Jonge's report. Regrettably, despite (i) the various requests made by the parties, (ii) the sharing of the Court's observation that her attendance may greatly assist the Court when seeking to determine what is in the best interests of N and (iii) the Court's expressed willingness to work around Dr. de Jonge's availability to facilitate her attendance at her convenience. Dr. de Jonge felt unable to attend Court or even to provide written answers to written questions concerning her report sent to her by the parties. This is disappointing as it means that the Court has been unable to gain a greater insight into her diagnosis and her important observations including those about the assistance N should receive and about its availability in the Cayman Islands.

10 At the end of the hearing on 21 April 2021, the matter was adjourned to enable the Court to review the evidence and submissions. The time for the parties to submit their written closing submissions was, upon request from Counsel, extended on more than one occasion. The submissions were eventually filed on I and 2 June 2021. This is my reserved judgment delivered, having had the opportunity to conduct that further review.

The volume of evidence and size of bundles

11 Before I move away from the hearing itself and turn my attention to the background. I must comment upon the nature and the volume of the written material placed before this Court. Parties should take great care to file affidavits that are not excessive in length and repetitive. Parties should not file voluminous documentary exhibits/evidence and should limit the same to what is really necessary. In this case it is apparent from the formatting and nature of the father's documentary evidence that it has been greatly driven by him and his attorney appears to have felt compelled to submit such a large amount of the material presented to her by the father on to the Court. There are a number of repetitive chronologies covering the same period of time and summaries as already set out in exhibits. These are clearly prepared by the father due to their formatting and content, in which injudicious and emotional language is on occasion used by the father to vent his concerns and unguarded comments about witnesses and experts. They have the character of the type of material that litigants might send to their attorney if they are trying to provide them with their unfiltered views and can give the impression of someone being overtaken by their emotions. Prime examples of this are the summaries and comments made therein which can be found in the Education Bundle at GEW19. The summaries which too frequently contain his opinion expressed in overly emotional language are an example of unhelpful evidential documents. The father seeks to elevate these often rambling summaries to the status of affidavit evidence. The above having been said, I accept that the father's attorneys have clearly worked commendably studiously to organise the bundles into different subject areas with detailed pagination and cross referencing as per the relevant parts of Practice Direction No. 11/2014 Court Bundles in Family Proceedings in the Family Division of the Grand Court (“PD 11/2014”). This must have taken them an extraordinary amount of time to do. Despite that hard work, it is still important that attorneys carefully review the material put into the bundles and then only submit what is truly required to put the Judge in a position to carry out the task outlined by Thorpe J 4.

12 I accept that a party would wish to ensure that the evidence is before the Court to support the arguments he raises and that it ‘covers the necessary ground’, but the view that the more information one inundates the Court with the stronger the case for that individual will be is not one with merit. In fact, it can on occasion have a detrimental effect. If a Judge, as I have had to do, has to wade through pages and pages of often irrelevant and overly repetitive material when preparing for a hearing or judgment writing, the risk a party runs is that the real gems in that party's evidence which really relates to the important core issues may...