JE v ND

• Jurisdiction: Cayman Islands
• Judge: Justice Cheryll Richards
• Judgment Date: 04 March 2019
• Court: Grand Court (Cayman Islands)
• Docket Number: CAUSE NO: FAM 0115/2012
• Date: 04 March 2019

Between

JE

Petitioner/Applicant

and

ND

Respondent

Before:

The Hon. Justice Cheryll Richards Q.C.

CAUSE NO: FAM 0115/2012

IN THE GRAND COURT OF THE CAYMAN ISLANDS

FAMILY DIVISION

HEADNOTE

Family Law — Children — Application for leave to permanently remove child from the jurisdiction — Mother wishing to relocate to Dubai with child. — Section 3 Children Law (2012 Revision) — Paramountcy principle and relevant considerations to be applied to a permanent removal application.

Appearances:

Mr. David Holland of KSG Attorneys for the Applicant (Mother)

Mr. Alex Davies of McGrath Tonner for the Respondent (Father)

Introduction

1 By Originating Summons filed 11 ^th April 2018, the Applicant JE seeks the permanent relocation from the Cayman Islands of a female child E, aged 8 years. JE is the mother of E. ND, the father of E opposes the application. By summons filed 7 ^th September 2018, he seeks the variation of the existing final ancillary order in terms that there be a sole residence order in his favour and for the variation of the contact arrangements for mother to have generous contact with E. In the course of this judgment, I shall refer to JE and ND as mother and father respectively.

2 Following the divorce of mother and father in December 2014, mother has remarried since 2015 and has a child (baby E, aged 16 months) with her new husband, JAE. JAE has obtained employment outside of the Cayman Islands, in the United Arab Emirates (Dubai) since February 2018 and mother is therefore seeking to join him at his new residence and to take her two daughters, E and baby E with her.

3 Father is employed and resident in the Cayman Islands. He is in an ongoing relationship with his new partner ACP and the couple presently reside together. They plan to get married in the near future. Father and ACP have one child together, a son, baby L aged 12 months. Additionally ACP has one child, a daughter, S, aged seven years from a previous marriage. Father seeks to have E reside with him in the Cayman Islands with his new family.

Background

4 Mother is from Guatemala. She met the father, who is Caymanian, in 2005 when she was visiting the United States. While the father remained in the States and she returned to Guatemala, they dated long distance for a period of time and were married in 2007 in that country. Shortly after their marriage they moved to the Cayman Islands where their daughter E, the sole child of the marriage was born on the 3 ^rd April 2010.

5 On the 30 ^th May 2012, mother filed a petition for divorce on the grounds that the marriage had irretrievably broken down. In tandem she sought restraining and occupation orders pursuant to s.5 and s.10 of the Protection from Domestic Violence Law 2010. On the 14 ^th July 2014, she filed an Amended Petition which was ordered proved on the 6 ^th August 2014. The father did not contest the proceedings and a Decree of Dissolution of marriage was made on the 30 ^th December 2014. By consent a final ancillary order was made on the same day. This provided that there shall be shared residence and financial support in respect of E. In addition to an equal share of all school vacation periods, birthdays and public holidays, the order was, inter alia, in the following terms:

“2. The child shall reside with the Petitioner save for the following periods:

week 1

• i) The Respondent shall pick up the child directly from school on Wednesday afternoons and drop-off the child directly at the school on Thursday mornings.

• ii) The Petitioner shall drop-off the child directly to the Respondent on Saturday mornings and the Respondent shall drop-off the child directly at school on Monday mornings.

Week 2

• i) The Respondent shall pick-up the child directly from school on Wednesday afternoons and drop-off the child directly after school on Friday mornings.

• ii) In the event that the Petitioner is working on either Saturday or Sunday, the Petitioner shall drop-off the child directly to the Respondent on Saturday or Sunday mornings and pick-up the child directly from the Respondent on the same afternoon once she has finished work,

• iii) In the event that the Petitioner is working [on both days of the weekend], the Petitioner shall drop-off the child directly to the Respondent on Saturday mornings and pick-up the child directly from the Respondent on Sunday afternoon once she has finished work.

Other

vi) The parties agree that any additional contact or variation to the terms can be agreed between themselves in advance.”

6 These care arrangements were subsequently changed by agreement of the parties and up to the time of the hearing they are as follows:

a. Weeks 1 and 3- E is with father on Thursdays only;

b. Weeks 2 and 4 - E is with father on Monday to Tuesday and Friday to Sunday.

7 On the 30 ^th December 2014, the Court also ordered that the Respondent father pay E's school fees of $525.00 per month directly to her pre-school until July 2015 and thereafter pay any school fees in respect of her attendance at another educational institution where the parties agree that she should attend. The parties are to share equally all other reasonable educational costs and expenses.

8 On the 25 ^th February 2015, mother issued a summons seeking from father arrears of school fees and an attachment of earnings order. An initial attachment of earnings order of $700.00 per month - which was made on the 18 ^th January 2016, was varied on the 10 ^th June 2016 to $450.00, being $200.00 per month for child maintenance and $ 250.00 per month towards arrears. As at 26 ^th June 2017, payment of the arrears was completed. The child maintenance order of $200.00 per month remains in force to date. Unless varied or discharged it will expire on E's 18 ^th birthday or alternatively on her 21st birthday if she is enrolled in tertiary education.

9 The 30 ^th December 2014 Order also provided that both parties shall be prohibited from removing E permanently from the jurisdiction without the written consent of the other party or further to an order of the Court.

10 On the 4 ^th May 2018, the Court made an order as to arrangements for the hearing of the Originating Summons filed 11 ^th April 2018 including that the Department of Children and Family Services (“DCFS”) prepare a s.9(4) Welfare Report under the Children Law (2012 Revision) on the issue of the possible relocation of E. On 21 ^st August 2018, the Court ordered that an Addendum Welfare Report be prepared.

11 Both summonses came before me for hearing on the 22 ^nd January 2019. The following written material was put before the Court:

• i. First Affidavit of the Applicant/Mother dated 6 ^th September 2018 in support of her application to relocate E;

• ii. First Affidavit of the Respondent/Father dated 5th September 2018;

• iii. Affidavit of ACP, dated 5 ^th September 2018;

• iv. Second Affidavit of Applicant/ Mother dated 25 ^th September 2018;

• v. Affidavit of JAE dated 25 ^th September 2018;

• vi. Second Affidavit of the Respondent /Father dated 31 ^st December 2018;

• vii. Third Affidavit of the Applicant/Mother dated 14 ^th January 2019;

• viii. Report of Ms. Dominique Orakwue, Social Worker with the Department of Children and Family Services (DCFS) dated 19 ^th July 2018;

• ix. Addendum Report of Dominique Orakwue, Social Worker with DCFS dated 16 ^th November 2018;

• x. Applicant's opening submissions dated 21 ^st January 2019;

• xi. Respondents opening submissions dated 21 ^st January 2019.

12 Over three-and-a-half days, from the 22 ^nd to the 25 ^th January 2019,1 heard oral evidence from Ms. Orakwue, JAE, mother, father and ACP. Written submissions were received from both parties on the 8 ^th and 11 ^th February 2019. In addition, I received from Counsel on behalf of the Respondent father, Inspection Reports for E's school in the Cayman Islands. Having taken the time to carefully review all the written material and to listen to the audio recordings of the evidence, this is my reserved decision.

The Positions Of The Parties - Mother's Position

13 It is the mother's belief that it would be in the best interests of E. for her to relocate with the family to Dubai to join her husband JAE. Her reasons include that E. would be part of her family unit, would have her as a fulltime mother, would have access to good educational and development opportunities and would also have the benefit of having new experiences and of being exposed to new culture. She states that her husband JAE has generous employment terms in his new job which include allowances for education, housing, transport, health insurance and air travel. JAE's education allowance is for up to three dependent children so that he will be reimbursed the costs associated with their schooling up to High School level.

14 Given JAE's employment terms, it is not intended that mother will be working in Dubai which will enable her to be at home providing fulltime care for her family. She will be there on a daily basis to assist E after school with her homework in contrast, she says, to father and ACP who both have busy jobs and would not have the same time to commit to spending with E after school.

15 In Dubai, JAE presently resides in a 4 bedroom, 3.5 bathroom family home in a gated community with direct access to a pool and parklands. E. has a confirmed place to attend a private school for the school year 2018-19. The school has a UK-based school curriculum, with English as the language of instruction, and a teacher-student ratio of 1:16.

16 Mother understands that it will be a big change to relocate E, but she believes that her husband JAE has within the year that he has been away for this new job, created a warm home environment for the entire family. She states:

“My husband had made good friendships with other families with children, including other families from the Caribbean. He also has friends from the Cayman Islands and the...