DZ v AZ

• Jurisdiction: Cayman Islands
• Judge: (Gunn, Ag. J.)
• Judgment Date: 07 March 2019
• Date: 07 March 2019
• Court: Grand Court (Cayman Islands)

DZ

and

AZ

(Gunn, Ag. J.)

Grand Court, Family Division (Cayman Islands)

Family Law — children — religion — when considering whether to make order directing future of child’s religious upbringing, child’s welfare paramount — interference with parent’s right to include child in religious practices permissible if in child’s best interests — divorced parents with different religions to respect each other’s religion — Christian mother, with sole custody, permitted to take child to church services and events while child wished to attend — Muslim father also permitted to take child to mosque, and teach child about Islam

Held, ordering as follows:

(1) A sole residence order would be made for L in favour of the mother to reside in the Cayman Islands. L would have flexible contact with the father, although no overnight contact would be permitted until the Department of Child and Family Services approved the father’s accommodation; the father completed a parenting programme; and the Department of Child and Family Services was satisfied that he had the necessary skills to parent L. L’s contact with the father should be a minimum of once per month. The father should pay the costs of L’s flight and accommodation for visits to Grand Cayman. L and the father should have unrestricted telephone/social media contact (paras. 29–30).

(2) The mother would be permitted to travel overseas with L for up to one month in the company of another adult. The mother would keep the father informed as to their destination and period of travel. If possible, regular contact with the father would be maintained. L could travel with the father overseas, whether to country A or elsewhere, either with the mother’s consent or the permission of the court (para. 27; para. 33).

(3) The mother would be permitted to take L to church services and activities as long as L wished to participate. Similarly, the father would be permitted to take L to a mosque and she could participate in Islamicactivities for as long as she wished to do so. The mother and father were permitted to teach L about their respective faiths and neither the mother or father, or any third party, should criticize, denigrate or undermine the faith or practices of the other. L should spend religious holidays with the parent celebrating that holiday, as long as she wished to do so and it did not interfere with her education. In considering whether to make an order directing the future of L’s religious upbringing, L’s welfare was paramount and due consideration should be given to the welfare checklist. Parents had freedom over the question of their child’s religious upbringing. The father’s argument that a child’s participation in any religious activity was contrary to the child’s freedom of conscience was unsustainable as such a principle would encroach on areas which were entirely within the rights afforded to a party with parental responsibility. Interference with a parent’s right to include their child in their religious practices was permissible if it was in the child’s best interests. In the present case, the mother’s right to manifest her religion had to be balanced against L’s welfare and the rights of the father. The court was concerned that L was cognizant of the degree of hostility felt by the father towards the mother concerning L’s attendance at church events. The court was also concerned that in the past the father had taken extreme steps to impose his will that L should not attend such events. The court had no doubt that the father’s actions had caused L significant distress and anxiety. To impose a faith or lifestyle on a child which was inconsistent with that of the resident parent was to expose the child to a significant risk of psychological and emotional harm and was likely to undermine the child’s relationship with one or other parent. The court accepted that on Cayman Brac the churches provided valuable community services, included much needed childcare and social events, and were at the centre of community life. If the mother were prevented from accessing the various resources offered by the churches, she would be unable to meet L’s needs. The court accepted that L’s present wish was to participate in church services and activities with the mother. If L was regularly or frequently prevented from accompanying her mother, that would cause long-term harm to L’s wellbeing. The court recognized the father’s concerns that regular exposure to Christian principles and lifestyle might influence L’s decision in favour of the Christian faith, but that could be addressed by the father instructing L about Islam, as he intended to do, and by the parents respecting both religions (paras. 50–66).

(4) When determining what constituted matrimonial property, the court had regard to all the circumstances including circumstances and timing of the acquisition of the property, the parties’ contributions, their apparent intentions with regard to and the use of the property during the marriage and how they organized their financial affairs. In respect of the division of matrimonial property, three principles guided the court: need, compensation and sharing. Although the mother purchased the former matrimonial home prior to the marriage, the parties agreed that the property was amatrimonial asset. The parties agreed that they had both contributed to repayment of mortgages and household bills while they cohabited, albeit the mother bore the majority of the expenses. The court accepted the evidence that there were unlikely to be any funds remaining once the mortgage was repaid. The mother inherited the North Side land but the parties intended the land to benefit the family because it was used to raise funds for the family business. Consequently, the land was a matrimonial asset. The loan secured on the North Side land was therefore matrimonial debt. The evidence was that this property had been listed for sale and that upon sale there should be some funds remaining. The court was mindful that the mother had a significantly higher income than the father and that once the matrimonial debts were repaid she would have a more comfortable lifestyle. On the other hand, as she had been repaying the family debt for some 2½ years by working two jobs, in balancing the factors of need, compensation and sharing it would be appropriate to allow the mother a partial credit, namely 20% of all past payments and 50% of all future payments of the loan and Credit Bureau debt from the proceeds of sale of the two properties. The mother would be permitted to retain the vehicle and the father would receive the equivalent of 50% of the value of the vehicle as a credit from the sale proceeds of the North Side land. The remaining equity would be divided equally between the parties thereby providing the father with a lump sum sufficient to provide a start-up sum to secure accommodation for himself and L when she visited (paras. 67–76).

(3) The father had very limited means and the cost of meeting L’s needs was far beyond his current disposable income, particularly as he would meet the costs of flights and accommodation for all visits with L. The father’s contribution to L’s maintenance would have to be nominal for the time being. The court considered his offer to pay the mother CI$75 per fortnight for L’s maintenance to be reasonable in his current circumstances. Child maintenance would be paid until L was 18 or completed tertiary education (but no later than 21). The parties could apply for a variation of the maintenance payments should circumstances change (paras. 77–80).

Cases cited:

(1)B-H v. B, 2009 CILR 185, referred to.

(2)G (Children), Re, [2013] EWCA Civ 1233; [2012] 3 F.C.R. 524; [2013] 1 FLR 677; [2013] Fam. Law 398, considered.

(3)Ismailova v. Russia, [2008] 1 FLR 533, referred to.

(4)J (Child’s religious upbringing & circumcision), Re, [1999] 2 F.C.R. 345, considered.

(5)McTaggart v. McTaggart, 2011 (2) CILR 366, applied.

(6)N (A child: religion: Jehovah’s Witness), Re, [2011] EWHC B26 (Fam), dicta of Bellamy, J. applied.

(7)T (Minors) (Custody: religious upbringing), Re (1981), 2 FLR 239, considered.

Legislation construed:

Children Law (2012 Revision), s.3(3):

“(3) In the circumstances mentioned in subsection (4) a court shall have regard in particular to—

(a)the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding);

(b)his physical, educational and emotional needs;

(c)the likely effect on him of any change in his circumstances;

(d)his age, sex, religious persuasion, background and any characteristic of his which the court considers relevant;

(e)any harm which he has suffered or is at risk of suffering;

(f)how capable each of his parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting his needs; and

(g)the range of powers available to the court under this Law in the proceedings in question.”

s.3(5): “Where a court is considering whether or not to make one or more orders under this Law with respect to a child, it shall not make the order or any of the orders unless it considers that doing so would be better for the child than making no order at all.”

s.5(1): The relevant terms of this sub-section are set out at para. 52.

s.10(1): The relevant terms of this sub-section are set out at para. 50.

s.24(5): “[T]he Department shall give due consideration . . . to the child’s religious persuasion, racial origin and cultural and linguistic background.”

s.35(5): “[T]he Department shall not . . . cause the child to be brought up in any religious persuasion other than that in which he would have been brought up if the order had not been made . . .”

Matrimonial Causes Law (2005 Revision), s.19: The relevant terms of this section are set out at para. 5.

s.21: The relevant terms of this section are set out at para. 4.

Cayman Islands Constitution Order 2009 (S.I. 2009/1379), Schedule 2, Part 1, s.1: The...