DJ Petitioner v BJ Respondent RK Co-Respondent

• Jurisdiction: Cayman Islands
• Judge: Hon. Mr. Justice Richard Williams
• Judgment Date: 07 September 2015
• Court: Grand Court (Cayman Islands)
• Docket Number: CAUSE NO: FAM 66 OF 2014
• Date: 07 September 2015

Between:

DJ

Petitioner

and

BJ

Respondent

and

RK

Co-Respondent

[2015] CIGC J0904-1

Before:

Hon. Mr. Justice Richard Williams

CAUSE NO: FAM 66 OF 2014

IN THE GRAND COURT OF THE CAYMAN ISLANDS

TRANSCRIPT OF EX TEMPORE JUDGMENT

1 This evening, I now give this Ex Tempore Judgment at the close of today's hearing. It is not intended to read like a formal written ruling. It will have to be perfected and copies of it will be made available to the parties. As this judgment is being given so promptly I invite the parties to interject if they feel any of the figures mentioned are inaccurate. The Co-Respondent has not attended today's hearing.

2 Consideration today is given to the Petitioner wife's Summons filed on 1^st June 2015. The parties should have that Summons in front of them, so I need not read out each paragraph. It primarily relates to the order of the Chief Justice made on 23^rd July 2014. I can summarise the orders sought therein as being:

• (i) a variation, so that orders for certain payments currently being made by the husband directly to entities or to persons other than the wife be paid in the same set amount to the wife, who will then in turn become solely responsible for physically making the payments to the third parties/other entities;

• (ii) clarification of the Order made by the Chief Justice and to assess the level of, and order payment of, any arrears proved to have arisen since the date of the Chief Justice's Order; and

• (iii) for the disclosure set out in the wife's request for further and better particulars, in particular at paragraphs 18 to 25, which relate to the husband's partnership.

3 There is some overlap with the issues I had been asked to determine at the hearing on 14^th November 2014. At that hearing I was unable to deal with some of the issues raised in the wife's Summons then before the Court, because of the short service of her affidavit on the husband and as there was an application made for an adjournment to afford him the opportunity to consider the same, give instructions and to file an affidavit in reply. Having given that opportunity for the reasons stated, I am disappointed that the husband has failed to take the opportunity to file an affidavit to address the evidence in the wife's affidavit filed on 1^st June 2015 and, if needed, in her affidavit filed on 12^th November 2014. Sadly for the husband, although I have had the opportunity to hear from him under affirmation today, he has not produced any documentary evidence to back up his oral evidence.

4 I gave an Extempore Ruling on 14^th November 2014. In that ruling I set out the relevant background. I do not intend to repeat that detail in this ruling as the parties may refer back to what was set out therein.

5 At the outset of today's hearing Mr. Fee sought to persuade me that I should not permit the husband to give oral evidence about the issues raised in the wife's Summons and her affidavits, and contends that I should simply reach my decision on the evidence then before the Court, namely the contents of the wife's affidavits. He submitted that his client would be severely prejudiced if I permitted the husband to give oral evidence today. Despite his forceful submissions, having regard to the overriding objective, I took the view that the husband should be permitted to present oral evidence, but I indicated there may be cost implications as the hearing would now become a more extended one. I also indicated that, if at the close of his evidence in chief, the wife felt she required an adjournment to enable her to properly meet that evidence, then such an application could be made and would likely be granted. No such application was made by her.

6 When the parties came into Court they informed me that, following negotiations this morning between the parties, they have sensibly agreed that the divorce Petitions should move along on an uncontested basis. With this in mind, a draft Amended Petition is to be prepared. The husband and wife have signed a draft copy of the Amended Petition today, to reflect their agreement. Once the Amended Petition has been drafted it should be served on the Co-Respondent. Thereafter, if an order is filed, signed by all three parties, I will administratively grant leave to amend the Petition in those terms.

7 The parties have also agreed that the issue about the enforceability of the prenuptial agreement has been resolved, all parties agreeing that it may be enforced. Mr. Fee indicates that this was communicated to the wife's attorneys in February 2015. Accordingly the husband's Summons of 3^rd September 2014 is withdrawn on a no order for costs basis.

8 By her Summons, I am asked by the wife to vary the terms of the Chief Justice's July 2014 Order, not by changing the amounts determined to be appropriate by the Chief Justice, but by changing the mechanics of the Order to enable the wife to take on a greater responsibility for making payments, rather than relying on the husband to do so.

9 In my Ex Tempore Ruling given at the November hearing I stated:

‘When I look at the order, the minute of order and the affidavits before the Chief Justice, it seems plainly clear to me that the exercise conducted by the Chief Justice and the parties was to replicate payments set out in the payments schedules in the affidavit of the wife in the order. It also seems clear to me that the intention was that they be divided into different schedules in the order, (i) one section to reflect payments that the husband was directed to make to third parties, that is set out in paragraph 1 of the order and (ii) one section to reflect payments that the husband was directed to make directly to the wife, that is set out in paragraph 2 of the order. This makes a great deal of common sense. This would be particular helpful and important now that the payment method for direct payments to wife will be through the Court Funds Office.

It is submitted by Mr McGrath that the entries in paragraph 1 of the perfected order for toiletries and diapers $250 per month, copayments for medical insurance $25 and additional medical costs/pharmacy of $50 should all be moved into the table at paragraph 2 of the order. It is also submitted that the entry entertainment (playgroup, motions) in paragraph 1 should similarly be moved, but there is no amount set out for payment in the order.

The position of the husband appears to be that was not the arrangement that the Chief Justice intended in his order. He says that he goes out and buys the diapers and the Chief Justice did not intend him to pay diaper money to the wife for her to go out and purchase them. He says that makes the co-payments for medical insurance and the additional medical costs/pharmacy expenses, and the chief justice was aware of that that is why they were put in the first paragraph.

It is not for me to second-guess what the Chief Justice intended, especially as the parties have such differing views. However, if I may be so bold as to make an observation when applications come before me dealing with what can be termed as being day-to-day expenses, I much prefer a position where the person who the parties intend to be the one who will be responsible for meeting the cost of items such as diapers, provides for them in monetary terms of the other party, rather than physically going out and purchasing the items and delivering them to the other party. Better position in a case such as the one for me, would be for the wife to satisfy the court about the amount she requires as a contribution towards the cost of diapers, that the husband is ordered to pay that sum of money over to the wife, and the wife is then responsible for going out to purchase the items rather than him having to buy them and carry them over from “Costuless” to the mother's home. There is also another reason, for in some cases an arrangement where the husband wishes to retain the responsibility for actually buying day-to-day items, introduces an element of control by him over the wife in the way that she operates her day-to-day life. Each party should be in a position to manage the day-to-day responsibilities independent from the other party, each party should be responsible for organising their lives knowing what their respective financial obligations are and what they have to pay out and what they would be receiving’.

10 I referred the parties to this excerpt from my Ex Tempore Ruling during today's hearing. I repeat it again in this Ex Tempore Judgment, as my view has not changed. I still feel that what can be characterised as more day-to-day payments should be made by the wife for the same reasons I stated back in November.

11 That said, on the evidence before me, I am satisfied that the more discrete payments for occupational therapy and speech therapy should remain with the husband.xs He must make those payments as and when they fall due. The respective payments will be in the region of $500 and $650. He should provide copies of the payments within five days of payment to the wife.

12 I also order...