Between: SC Appellant v JW Respondent

• Jurisdiction: Cayman Islands
• Judge: Mr. Justice Richard Williams
• Judgment Date: 02 April 2024
• Docket Number: CAUSE NO: FAM 2022-0069
• Court: Grand Court (Cayman Islands)

Between:

SC

Appellant

and

JW

Respondent

Before:

Hon. Mr. Justice Richard Williams

CAUSE NO: FAM 2022-0069

IN THE GRAND COURT OF THE CAYMAN ISLANDS

FAMILY DIVISION

HEADNOTE

Appeal by mother from Summary Court s.10 Children Act orders — Application for Father for variation of Summary Court contact and child maintenance order – Allegation by Appellant of coercive and controlling behaviour — Fact finding hearing at request of Appellant

Appearances:

Ms. Yvonne Mullen of Hampson & Company for the Appellant

Ms. Louise Desrosiers of Travers Thorp Alberga for the Respondent

The Judgment in this matter is being distributed on a strict understanding that in any report no person other than the attorneys (and any other person identified by name in the Judgment itself) may be identified by name or location and in particular the anonymity of the child and the adult members of their family must be strictly preserved.

Introduction

1 This judgment follows a finding of facts hearing concerning allegations made by the Appellant of a pattern of coercive and/or controlling behaviour by the father during and post the parties' relationship.

Background – The parties and the child

2 The proceedings concern the six-year-old daughter of the Appellant mother and Respondent father. The father is aged 32 and is a Caymanian national. The mother is aged 43 and is a Canadian national. The mother is a permanent resident in the Cayman Islands, and she is also a British Overseas Territories Citizen. I will herein refer to the parents as “the mother” and “the father” and to their daughter as “the child.”

3 The parents had a brief relationship which started in July 2016 and the child was conceived unplanned in September 2016. The father lost his employment, as his employer was unhappy that he was having a child out of wedlock. The father moved into the mother's home in May 2017, the same month in which the child was born. The relationship ended shortly thereafter upon the parties' separation in December 2017 when the child was about 6–7 months old. The mother states that the father had entered into a relationship with someone else at that time. The mother added that during their relationship the father did not provide her with the support she needed, and his conduct resulted in her feeling isolated from her friends and family. The father said that his other relationship did not become official until February 2018.

4 The father said that when it came to care arrangements, he was not the controlling parent. Instead, it was the mother, who he said was “self-assured and assertive” and who would not allow him to make any decisions about the child, and it is this that caused the relationship to suffer. He stated that an example of this was when the mother, in November 2017, paid him $1,500 to be the child's nanny and that he felt degraded by the way she treated him. The father said that the mother physically struck him and threw things at him. On the evidence before me I am unable to make findings about his allegations (which the mother denies and claims are examples of him controlling her by making false allegations), but what is evident is that their still embryonic relationship was a difficult one characterised by arguments and disagreements between them. Unfortunately, the difficulties in their communication and lack of cooperation about the child which emerged when they were cohabiting has continued from the end of their relationship to date. From seeing and hearing from them in Court, it stands out that the parties have very different personalities and backgrounds. Although the relationship was a short one, one might conclude that it only lasted as long as it did due to a child being conceived a handful of months after it had commenced.

Background – The proceedings

5 Before the Court can consider the facts that it is asked to make findings about, it must consider the background to put them into context. At first it appeared that the parents may have been able to make workable child contact arrangements. Regrettably, after the initial agreed child contact arrangement had concluded, the mother “halted” contact and there seemed to be little scope for them to agree it without Court intervention. The mother from that stage onwards has expressed that her position surrounding contact has been driven by her concern about the safety of the child whilst in the father's care. The father feels that throughout, for the mother to agree his contact, he had to be “compliant” with the mother's “wants and needs” and if he sought contact inconsistent with her wishes, she would strategically make allegations against him.

6 As a consequence of the breakdown in contact arrangements, these proceedings began in the Summary Court 1 by Forms C1 and C3 Applications filed on 13 February 2018 by the father 2 (“the Forms”) seeking a defined contact order and a prohibited steps order. The Forms plead no basis upon which a prohibited steps order could be grounded. Unfortunately, in many children cases involving an expatriate parent, prohibited steps applications are often made without any evidence or foundation, due to being wrongly perceived as being a standard application in such circumstances. Although it is not an appropriate approach, I would not elevate such an application made at the outset of proceedings and soon after a relationship breakdown as evidence to be relied upon in support of an allegation of litigation abuse. In fact, as mentioned in paragraph 8 below, the making of the application turned out to be the vehicle which enabled the parties to put in place a mechanism for travel requiring the mother to provide the father with notice and details of the child's travel. 3

7 On 20 February 2018, the mother, by a Form C3, filed an application for: (i) a sole residence order in her favour; (ii) defined contact orders; and (iii) a Schedule 1 financial provision order. In her contentions, the mother alleges that the father had her served with his application at her work despite her then having legal representation, and that this is an example of conduct by him amounting to litigation abuse. However, the evidence on the C8 Statement of Service Form indicates that service was effected by Mr. Bradley Robinson on 15 February 2018 by personally providing the documents to Lenisha Ebanks (a secretary at McGrath Tonner) after Mr. Robinson had spoken to the mother and she had informed him that they were her lawyers. 4 The Court did not hear from Mr. Robinson and I do not make a finding about where the service occurred, but even if it was at the mother's work place, the serving was carried out by a court appointed process server and not by the father.

8 On 26 March 2018, an Interim Residence Order was made by Magistrate McFarlane in favour of the mother with defined contact granted to the father on Wednesdays from 5:30 p.m. to 7:30 p.m. and on Saturdays from 7:00 a.m. to 12:00 p.m. noon The Magistrate's Order recorded that the father withdrew his prohibited steps application on the basis that the mother agreed to provide him with advance notice and travel itineraries of any proposed travel out of the jurisdiction with the child, which was a sensible resolution. A referral was made for a Court Welfare Officer's Report to be filed by 7 May 2018. The matter was listed for Case Management on 10 May 2018.

9 Following genuine concerns relating to the child's health, the mother sought an urgent listing of an application to vary the contact order. Both parents were making accusations that the other may be poisoning the child. On 6 April 2018, Magistrate McFarlane amended the contact order to require that: (i) the Saturday contact be supervised by a member from DCFS; and (ii) the child only be fed types of food approved by the child's paediatrician. The Magistrate adjourned the matter to 20 April 2018 for further consideration with an updated Welfare Report.

10 On 19 April 2018, the father filed a C3 Application Form seeking: (i) a shared residence order for himself and the paternal grandmother; (ii) a discharge of the supervision condition for the Saturday contact; and (iii) a variation of the interim contact order to one for him and his mother to have

contact every weekday from 2:00 p.m. to 6:30 p.m. and every Saturday from 7:00 a.m. to 12:00 p.m. noon. At the time, the father was aggrieved that, despite there being no determination as to who or what was causing the child's medical issues, it was being inferred that he was the more likely cause, resulting in his contact being curtailed due to the variation being made to the 26 March 2018 contact order

11 On 20 April 2018, Magistrate McFarlane, after considering the content of an Interim Welfare Report filed on 19 April 2018 by Ms. Carol Robinson, removed the supervision requirement and restored the 26 March 2018 Contact Order. The supervision requirement was removed after the child's doctor had stated that the child's health issues might be caused by her having an egg allergy. Although the nature of the ill-thought out and poorly brought shared residence application was questionable, the father should not be criticised for making the variation of contact application because, without it, the restoration of the earlier order may not have occurred. I accept that the making of the shared residence application would have been unsettling to the mother, especially after she read the content of the Form C3 Application. The father's Form C3 Application failed to mention that the father had also made allegations of poisoning against the mother. There is a duty to give full and frank disclosure in such applications and it was misleading to fail to comment that he had made the same allegations about the mother. This is particularly so when he sought to use the mother's alleged actions to ground his submission that there were mental health concerns relating to her. It is...