Mercer v Hermans

• Jurisdiction: Cayman Islands
• Judge: (Levers, J.)
• Judgment Date: 04 April 2003
• Court: Grand Court (Cayman Islands)
• Date: 04 April 2003

Grand Court

(Levers, J.)

MERCER

and

HERMANS

Mrs. Z.M. Merren-Chin for the petitioner;

Mrs. L.D. DaCosta for the respondent.

Cases cited:

(1) A v. A (Child: Removal from Jurisdiction)FLR(1980), 1 FLR 380, dicta of Ormrod, L.J. applied.

(2) Belton v. Belton, [1987] Fam. 344; [1987] 2 FLR 343, dicta of Purchas, L.J. considered.

(3) Johansen v. NorwayHRC(1996), 23 E.H.R.R. 33; [1997] E.H.R.L.R. 81, considered.

(4) Payne v. Payne, [2001] Fam. 473; [2001] 1 F.C.R. 425, dicta of Thorpe, L.J. applied.

(5) Poel v. PoelWLR, [1970] 1 W.L.R. 1469; sub nom.P(LM) (orse. E) v. P(GE), UNK[1970] 3 All E.R. 659, considered.

(6) Simpson v. CondappaUNK(1988), 25 J.L.R. 444, referred to.

Legislation construed:

Guardianship and Custody of Children Law (1996 Revision) (Laws of the Cayman Islands 1963, cap. 65, revised 1996), s.7(1): The relevant terms of this sub-section are set out at para. 3.

s.11: The relevant terms of this section are set out at para. 10.

Family Law-children-care and control-if both parents able to meet child”s needs of stability, security of routine and social development, may be preferable for young girl to live with mother-where parties unequal, court not to give preference to mother only by reason of sex and age of child

Family Law-children-access-on international relocation, measures needed to preserve access of non-resident parent to child and relationship-access subject to overriding importance of welfare of child

The petitioner 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 made an interim order granting joint custody to the parties, but awarding care and control of the girls, aged five and three, to their father (the respondent). He had by then established a permanent home in the Netherlands, supported by his family, and had a steady income. The petitioner, on the other hand, was an American visitor to the Cayman Islands, and her inability to obtain permanent employment made her financially dependent on her new boyfriend. Both the petitioner and the respondent were affectionate parents, having good relationships with the children.

On review of the interim order, the petitioner submitted that (a) she should be awarded sole custody, care and control of the children, because young girls should ideally be brought up by their mother; and (b) if care and control of the children were to be granted to the respondent, who lived in the Netherlands, their subsequent relocation would effectively destroy her relationship with them and her right of access.

The respondent submitted in reply that he was better able than the petitioner to provide for the children”s needs, being financially secure and able to offer them stability.

Held, awarding care and control to the respondent:

(1) The respondent would be granted care and control of the girls, with custody being given to the parties jointly. In determining all questions of custody, care and control, the welfare of the children was the paramount consideration. As both parents were able to meet the children”s emotional needs, their financial situation and lifestyle had to be assessed to

determine their ability to meet the children”s additional needs of stability, security of routine and social development. The respondent, having a steady income and a supportive family, was better able to provide for their stability and their physical and educational needs than the petitioner, who was unemployed and had only visitor status in the Cayman Islands. Had the parties been equally able to provide for the children, then care and control of these young girls might ideally have been granted to their mother. Greater weight would not, however, be given to the mother”s application in this case simply by reason of the age and sex of the children (para. 14; paras. 19–21; para. 41).

(2) A further order would be made setting out the details of the contact the petitioner should have with the children after their relocation to the Netherlands. Subject to the overriding consideration of the children”s welfare, on an international relocation the court had a duty to endeavour to ensure that the rights of the children and the petitioner were protected and their relationship preserved (paras. 15–16; para. 43).

1 LEVERS, J.: On August 21st, 2002, this court handed down an interim ruling, awarding joint custody of the children of the marriage to the petitioner (the mother) and the respondent (the father), and care and control to the father for six months. The further orders made during the six months were:

(a) Access during the month of December in the Netherlands or wherever the petitioner may be employed.

(b) Generous telephone access to either party, whether the children are with their mother or father.

(c) Generous access in the Netherlands should the mother be there, including overnight access commencing and concluding at such dates and including such blocks of time as shall be reasonable at the time.

(d) The parties immediately to advise each other of any change of residential address, e-mail address or telephone number.

(e) Each party to keep the other fully informed of significant issues relating to the children”s education, health, welfare, school reports and any medical reports to which they have access.

(f) The parties to refrain from denigrating the other to, or in the presence of, the children, whether in person or by telephone.

(g) The father to use his best endeavours to register and/or file the order in the relevant court in the Netherlands.

(h) The father to maintain the children fully.

(i) The order to be subject to review on or before six months from the date made. Prior to the six month review, leave reserved to any party to apply immediately to this court for such further order or directions as may be necessary in connection with any of the orders thereby made, if there was a change of circumstances in the lives of either party, more particularly if either party should get married, find employment or seek to change residence.

Other orders were made, but this review deals only with the question of custody, care and control of the children.

2 Before embarking on a review of the facts of this matter, the chronology of the relevant events that took place after August 21st, 2002 should be set out. On August 22nd, 2002, an application for leave to appeal was granted and a stay of the order was refused. A notice of appeal was subsequently filed. An application for a stay of the order was extended until September 2nd, 2002. On September 25th, 2002, the matter was heard, but the stay of the order was not extended and judgment was delivered. Due to certain allegations made by the petitioner against the respondent”s counsel, there was an investigation by the Chief Justice and another stay was granted, pending the investigation. On October 4th, 2002, as a result of a complaint previously filed by the petitioner with the Netherlands” Embassy in Jamaica, alleging that her signature on the application for the children”s passports was forged, the police interviewed the respondent. On October 7th, 2002, the respondent was permitted to travel, but because the Netherlands” Embassy in Jamaica held that the youngest child”s passport was not validly issued, the

respondent left the Cayman Islands on October 9th, 2002 with only the eldest child. The court then ordered the petitioner to sign a new request for a passport for the youngest child and an application for costs was filed by the respondent. A new passport arrived and the respondent returned to the Islands to collect the youngest child, after a further order was made for her return.

Present application

3 This application now comes before me by way of two summonses-one...