Mercer v Hermans

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Rowe and Taylor, JJ.A.)
• Judgment Date: 05 December 2003
• Court: Court of Appeal (Cayman Islands)
• Date: 05 December 2003

Court of Appeal

(Zacca, P., Rowe and Taylor, JJ.A.)

MERCER

and

HERMANS

D.S. Schofield and Mrs. Z.M. Merren-Chin for the appellant;

K. Reid for the respondent.

Cases cited:

(1) Allington v. Allington, [1985] FLR 586; (1985), 15 Fam. Law 157, considered.

(2) B v. B (Minors) (Interviews and Listing Arrangements), [1994] 2 FLR 489; sub nom. B v. B (Minors: Residence and Care Disputes)UNK[1994] 2 F.C.R. 667, referred to.

(3) Brixey v. Lynas, [1996] 2 FLR 499; [1997] 1 F.C.R. 220, dicta of Lord Jauncey of Tullichettle applied.

(4) L (Contact: Domestic Violence), Re, [2000] 2 FLR 334; (2000), 30 Fam. Law 603, dicta of Butler-Sloss, P. applied.

(5) W (Residence), Re, [1999] 2 FLR 390; [1999] 3 F.C.R. 274; (1999), 29 Fam. Law 454, referred to.

Family Law-children-care and control-court to accord weight to mother”s application based on child”s age and sex and bond with mother by whom reared since birth

Family Law-financial provision-children-importance of parents” financial circumstances not to be overemphasized-mother”s ability to provide for children to be assessed as if receiving maintenance payments from father and court should attempt to remedy financial disparity by financial provision

Family Law-children-care and control-child”s wishes and attachment to parent important and normally ascertained by court welfare officer or guardian ad litem-judicial discretion to interview child in private to be exercised cautiously, where good reason, and not to be automatic or routine-court to hear submissions and consider interview in child”s best interests

The appellant applied for an order for sole custody, care and control of the parties” two young daughters and the respondent sought joint custody, care and control.

In divorce proceedings, the Grand Court (Kellock, Ag. J.) granted the parties joint custody of the girls, aged three and five, and awarded care and control to their mother (the appellant). The respondent (the father), who had been the sole wage earner whilst the appellant had cared for the girls, was ordered to provide for their maintenance.

The respondent resigned from his employment in the Cayman Islands intending to return to his family home in The Netherlands. He appealed against the order, seeking care and control of the two girls and permission to remove them from the jurisdiction. A social inquiry report recommended that the girls remain in the Cayman Islands with the appellant, who also filed an affidavit alleging physical and verbal abuse by the respondent and extra-marital relationships. In a consent order the respondent confirmed that those allegations were true.

The Grand Court (Levers, J.) discharged the previous order and granted care and control of the girls to the respondent, who subsequently took them to live in The Netherlands. On review, Levers, J. held that although

both parents were capable of meeting the children”s emotional needs, the respondent”s ability to meet their additional requirements of stability and financial security surpassed that of the appellant, and the order was upheld. Had the parties been equally positioned to provide for the children, care and control would have been granted to the appellant, but there was no presumption that young girls should live with their mother, and her application was therefore not given any extra weight merely due to their age and sex. The court considered the respondent to be a stable character, in contrast to the appellant who had insecure immigration status in the Cayman Islands and an apparent inability to maintain permanent employment. The judge also dismissed the social inquiry report as being fundamentally flawed, instead interviewing the eldest child in private. These proceedings are reported at 2003 CILR 115.

On appeal, the appellant submitted that (a) in granting care and control of the girls to the respondent, the judge had accorded too little significance to her relationship with the girls, whom she had reared from birth; (b) the court understated the respondent”s abusive behaviour towards her, which had been proved by the consent order, and due to this behaviour it was inappropriate to award him care and control of the girls; (c) the financial disparity between the parties ought to have been equalized by the court and in any case the relevance of financial circumstances had been overemphasized; and (d) moreover, whilst the respondent had paid maintenance pursuant to a previous order of the Grand Court (Kellock, Ag. J.), the appellant had not been in financial distress and had been capable of providing for the children.

The court also considered the circumstances in which it was permissible for a judge to interview young children to ascertain their wishes.

Held, allowing the appeal:

(1) The appellant would be awarded care and control of the girls, who were to return to the Islands, and the previous order of the Grand Court (Kellock, Ag. J.) would be reinstated, requiring the respondent to pay for their maintenance. The Grand Court (Levers, J.) had accorded insufficient weight to the age and sex of the girls and the bond which they had formed with their mother, who had reared them from birth (paras. 33–34).

(2) The court had placed undue emphasis on the financial security of the respondent and his superior ability to provide for the children”s material needs. The financial disparity between the parties ought to have been equalized by a maintenance order in favour of the appellant and the assessment of her ability to meet the children”s needs made on the assumption that she was receiving such payments from the respondent, in which circumstances she had previously been capable of providing a stable home here (paras. 31–33).

(3) The Grand Court had also erred by not taking the respondent”s abusive behaviour into consideration. The allegations contained in the

appellant”s affidavit had been confirmed by his consent order and therefore constituted established facts. The court ought to have considered the possible psychological disadvantages to the girls being raised by their father, given that he had evinced in their presence domestic violence and gross disrespect to their mother (para. 18; para. 33).

(4) The emotional and psychological attachment of the girls to their parents was very important when determining care and control and was to be taken into consideration by the court or explained away. Their wishes were normally to be ascertained by the court welfare officer or guardian ad litem, however, who could be cross-examined on that evidence. The judicial discretion to interview a child in private ought to be exercised cautiously and ought not to be automatic or routine. There needed to be good reason for a judge to see a child and the discretion to do so should only be exercised after submissions from the parties and where an interview was considered by the judge to be in the child”s best interests (paras. 29–30).

1 ROWE, J.A., delivering the judgment of the court: The parties to this appeal are the parents of two young girls. Their marriage broke down and was dissolved on the wife”s petition. The problem facing the court is with which of the parents the children of the marriage should reside on a day-to-day basis, or, to put it another way, which parent should have care and control of the children. In March 2003, the learned trial judge entered an order granting care and control of the children, Sabine, born July 9th, 1997, and Famke, born September 4th, 1999, to the respondent, who was ordered to fully maintain them while they resided with him. Consequential orders for access were made. The mother of the children appealed from this order.

2 On August 1st, 2003, we allowed the appeal and entered the following orders:

(a) The appellant shall have care and control of the two children of the marriage, namely, Sabine and Famke.

(b) The said children shall be returned to the jurisdiction by August 31st, 2003, the respondent to be responsible for returning the children to the jurisdiction and to bear half of the cost of their travel expenses.

(c) The respondent shall have access to the children in the following terms:

(i) the school summer holidays;

(ii) every other Christmas break, beginning in 2004;

(iii) every other Spring break, beginning in 2005;

(iv) such access to be realized wherever the respondent is residing, he shall provide to the petitioner his address and phone number of such residence one week prior to the exercise of such access;

(v) the respondent shall pay half of the travel expenses and shall...