Between: T Applicant v R Respondent

JurisdictionCayman Islands
JudgeJustice Richard Williams
Judgment Date12 June 2024
Docket NumberCAUSE NO. FAM 29 OF 2021
CourtGrand Court (Cayman Islands)
Between:
T
Applicant
and
R
Respondent
Before:

Hon. Justice Richard Williams

CAUSE NO. FAM 29 OF 2021

IN THE GRAND COURT OF THE CAYMAN ISLANDS

FAMILY DIVISION

HEADNOTE

Children Law (2012 Revision) — Single Sex divorced couple with parental responsibility due to shared residence order — Application by one parent to discharge shared residence order and replace with sole residence order in her favour and a no contact order for the other parent — Application by the other parent to vary the contact/child care arrangement order to defined alternate week contact — Consideration of varying/refining a prohibited steps order concerning restrictions on removal of children from the jurisdiction — interaction of human rights considerations and s.10 Children Law applications — A child's welfare is the paramount consideration in the determination of residence and contact applications

Appearances:

The Applicant in Person

The Respondent in Person

Ms. Laura Clemens (Guardian ad Litem) instructed by Ms. Lynne McDonagh of KSG to represent the children

Introduction — The parties and the children
1

“Making contact happen and, even more importantly, making contact work is one of the most difficult and contentious challenges in the whole of family law.” 1 That is what this Court is grappling with in these long-running Children Act proceedings. Both parties are seeking to vary the terms of a comprehensive Final Consent Order (Children) reached by them on 4 February 2022 (“the Order”). 2

2

Both parties are female and are aged in their early forties. They are United Kingdom (“UK”) nationals. The Applicant has the right to reside in the Cayman Islands due to her work permit. The Respondent's previous employment in the Cayman Islands came to an end in or around December 2023, after which she returned to the UK. After the hearing the Court has been informed by the Respondent that she will soon be returning to live and work under a new work permit in the Cayman Islands, but no commencement date is yet known due to a delay in her employer completing the work required to set up their business facility. The Respondent stated that she has retained her rental property in Grand Cayman during her absence. I am therefore determining the applications before me and making any resulting orders based on R's clear indication that, by the completion of this Judgment, she will either have resumed residing in Grand Cayman or will resume residing in Grand Cayman very shortly thereafter. The considerations to be had and possible orders made would be different if R were to fail to return to the Cayman Islands and permanently resided in the UK. Any continued absence of R from this jurisdiction would delay the implementation of the child arrangements orders relating to the time the children would spend with her which are made herein.

3

The parties married in April 2016 and were divorced in February 2022. During the latter part of this hearing, in February 2024, the Applicant married her partner (“D”) in New York. Although there is no specific date set out in evidence for the start of the Applicant's and D's relationship, it appears that the Applicant has stated that it had been a serious relationship for about nine months prior to January 2023. 3 The Applicant has issued an application to permanently relocate with the children to New York and an application to temporarily remove the children to the UK for an

extended period of time over the Summer 2024 school holidays. Directions in relation to both of those applications will not be given until after this Judgment has been delivered
4

There are two relevant children. The eldest child (“RI”) is a 10-year-old female. She was conceived by the Applicant using a sperm donor. She was born 18 months prior to the parties commencing their relationship. The youngest child (“RA”) is a 5-year-old male. RA was conceived by the Applicant using the same male sperm donor who donated for RI. He was born during the marriage and both parties' names appear on his birth certificate, so both have parental responsibility in relation to him. They both now also have parental responsibility for RI, as a shared residence provision in relation to both children was in the Order.

5

The Respondent changed her surname to the Applicant's surname as it was also RI's surname and she felt it would make them more of a family unit. For ease of reference, with no discourtesy intended to the parties, I hereafter refer to the Applicant as “T”, to the Respondent as “R”, to the eldest child as “RI” and to the youngest child as “RA” in this Judgment. T's new wife will be referred to as D.

Background — The procedural background prior to the Order — The Court Welfare Officer's Report submitted by Mrs. Toolsiram
6

T filed a Petition for Divorce on 15 February 2021 on the grounds of behaviour. The particulars of the grounds were unremarkable. The Petition was not contested, and it was proved on 9 April 2021. In the Petition, T pleaded that RA was the only child of the marriage. However, as the evidence of this hearing establishes, RI was brought up in the matrimonial home of the parties as a child of the family. R stated, in her Acknowledgement of Service filed on 23 February 2021, that both children were children of the family and that she sought a shared care arrangement.

7

On 19 February 2021, T filed a Summons dated 15 February 2021 seeking orders for interim spousal maintenance and interim child maintenance for only RA. On 23 February 2021, T filed an Ex-parte Summons seeking protection orders pursuant to the Protection Against Domestic Violence Law 4. The Ex-parte Summons came on before the Court on 23 February 2021 and Protection Orders were made, including an Order directing R to return RA to the care of T and a

Prohibited Steps Order preventing the removal of RA from T's care save for periods of contact that had been agreed between the parties. The return date hearing for the protection orders hearing was scheduled for 1 March 2021, which was the same date that had been allocated for the hearing of T's Summons for interim financial orders
8

On 24 February 2021, R filed a Summons seeking a discharge of the Ex-parte Order and for an interim contact order in her favour in relation to both children. That Summons was also listed for 1 March 2021.

9

The parties, who were both represented by Counsel at the hearing on 1 March 2021, gave mutual/cross-undertakings, thereby bringing the protection order proceedings to a close. Undertakings were also given by R concerning health insurance coverage for both children, payment of RA's nursery fees and payments towards the cost of the nanny for the upcoming half-term break. The parties undertook not to remove the children from the jurisdiction without an order of the Court or the consent of the other parent. Interim Contact Orders were agreed, which included mid-week and weekend contact for R with both children. The parties agreed to attend mediation to try and resolve the wider issues.

10

Between April and June 2021, the parties attended a number of mediation sessions. At that time, they only returned to Court on one occasion (in May 2021) when directions were sought and given in relation to financial disclosure. On 3 June 2021, a Notice of Cancellation of Mediation was issued by the Mediation Officer indicating that mediation had been halted as one of the parties no longer wished to participate in the process.

11

On 11 June 2021, T again filed a Summons seeking protection orders. In the Summons she also sought orders that contact should be reduced and that any contact visits with R must include both children. A prohibited steps order was sought to prevent either party from removing the children from the jurisdiction without the consent of the other party or order of the Court. When the matter came before me on 30 June 2021, I made a referral for a Court Welfare Officer's Report. Directions were given for a one-day final children hearing and for a separate final ancillary relief hearing. In relation to the protection order application, the notes in my notebook record that:

“The Judge, in his case management capacity pursuant to the overriding objective, has expressed views about the merits or not of the protection order application in the recent circumstances of this case and recent evidence filed.”

With that in mind, I felt it proper that I recuse myself from hearing the protection order application and I gave directions for an on notice hearing of that part of T's Summons. It is evident that T did not then pursue the protection order application. Neither party has sought my recusal from this children case.

12

On 27 August 2021, Mrs. Renetta Toolsiram, the first allocated Welfare Officer, filed her Court Welfare Report. In her report, Mrs. Toolsiram set out each party's views about the events that had occurred in their relationship and about the children's relationships. Having observed the children with T, Mrs. Toolsiram noted that:

“The interaction was natural and affectionate, there were hugs and the children followed her directions.”

She observed R's interactions with RA and recorded that they were also natural and that RA “seemed comfortable with her”. She said that R was “knowledgeable about (RA's) eating habits”.

Mrs. Toolsiram met with school officials from RI's school 5. The school painted a positive picture of RI as a student and indicated the school had no child protection...

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