AL v NL
| Jurisdiction | Cayman Islands |
| Judge | Mr. Justice Richard Williams |
| Judgment Date | 25 September 2020 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO: FAM 194 OF 2012 |
Hon. Mr. Justice Richard Williams
CAUSE NO: FAM 194 OF 2012
IN THE GRAND COURT OF THE CAYMAN ISLANDS
FAMILY DIVISION
Application to vary consent ancillary relief order — periodical payments for children — Court's duty when approving consent order — Judge has a wide discretion to make appropriate order for benefit of children — need not be exclusively for their benefit — may order child maintenance to be paid by the father comprising mother's child-related expenses and her other expenses of providing suitable home for them when they are home from boarding school.
Ms. Yvonne Mullen of Broadhurst LLC for the Petitioner
Mr. David McGrath of McGrath Tonner for the Respondent
I have before me the Summons filed by NL, the Respondent father (“the father”), dated 25 July 2019, which was supported by the affidavits sworn by him on 4 October 2019 and 9 December 2019. In his Summons NL seeks an order that the amount of child maintenance payable by him to AL, the Respondent mother (“the mother”), in respect of their child of the marriage, X aged 15 1, pursuant to the terms of the comprehensive consent Amended Ancillary Relief Order dated 9 October 2013 (“the Order”), be varied downwards to CI$850 per month. The father does not seek to vary any of the other still relevant child maintenance provisions in the Order, namely paragraphs 2 and 4, and he confirms that he will continue to be responsible for meeting those needs. 2 Pursuant to the terms of the Order the parties were granted a Shared Residence Order, with X and his 17 year old brother, Y 3, thereafter spending approximately equal time in their respective homes.
I will hereafter refer to AL as the mother and to NL as the father.
The mother opposes the father's application, contending that there should be no variation in the level of child maintenance ordered to be paid to her for X. At paragraph 10 of the mother's Closing Written Submissions she states that the reduction would be:
“devastating to her financial position, would undermine her ability to provide a home for her children and to maintain a strong relationship by visiting them regularly at school.”
The Certificate of Dissolution of Marriage was granted on 9 October 2013. I hope that the parties do not feel it inappropriate for me, for convenience sake, to refer to them herein as the father and the mother.
At paragraph 5 in the Order the parties agreed that on the first day of each month, commencing 1 April 2013, the father would pay into the mother's designated bank account child maintenance in the sum of $2,500 per month for X and the same amount for Y. The said payments would continue “until the children are no longer in secondary education.”
To her credit, although the father during cross-examination conceded that the mother had been entitled to $9,000 in maintenance back pay for the period between March and September 2013, she did not pursue it, as she voluntarily indicated to the father at the time that he could use that money to decorate the children's bedrooms in his home. She told the Court that she took that decision “emotionally as the boys are my priority and I want to make sure that they have two comfortable homes.”
The parties also agreed at paragraph 5 in the Order that:
“In the event that a child attends a school outside of the Cayman Islands, the parties agree that this shall be a significant change of circumstances such that they will revisit the issue of child maintenance payable under this provision.”
The mother contends that, at the time of the Order, both parties were “in full agreement” that the children “were never to attend a boarding school” and that “if the plan were for the children to attend school outside the Cayman Islands” she would not have agreed to the wording included in paragraph 5 of the Order.
However, whether or not it was agreed that the children would attend boarding school, it is clear from the evidence that prior to the Order both parties were discussing the possibility of the children attending school with sporting academies overseas, possibly with the mother moving overseas with them during, at least, the term time. The email exchanges between the parties in June 2013 make this abundantly clear. Therefore, when arriving at the wording in paragraph 5 of the Order, I am satisfied that the parties had in mind the possibility of the change of circumstances that would come about if the children moved overseas to be educated. However, the Order having provided for a review upon the said event occurring and the parties now not agreeing what should happen upon them revisiting the issue of child maintenance, it is something which this Court must review and then decide what the variation, if any, should be at this time whilst putting X's needs first.
For the avoidance of doubt, in this case, the children's move to the USA for education which is solely funded by the father is a significant change of circumstances and, in the context of the natural changes that will have occurred seven years on, it grounds the Court's jurisdiction to review the child maintenance order, even if such an event had not been specifically addressed in the Order. On top of this, the father's obligation under the Order to meet X's (and Y's) education needs means that the relevant educational and travel expenses for him to meet have greatly increased, especially in relation to the level of school fees. It is clear that Goldring P in K v K [ 2017 (2) CILR 682] at paragraph 40, although I accept when he was discussing oversees studies at a university for a child over 17, considered that a child studying overseas could amount to a change of circumstances.
Also of relevance when considering whether there has been a change of circumstances is the level of each party's income now when compared with what it was when the Order was agreed, as well as the fact that both parties' expenses in relation to meeting the children's needs when they are in the Cayman Islands have lessened because of the greatly reduced amount the boys now stay in each of their households.
I also note that seven years have passed since the making of the Order and this is not a variation application made shortly after a relevant order. Apart from the financial changes brought about by the children attending school overseas, on top of the increase of the cost of living in the Cayman Islands over the years, their needs may well have changed due to them being seven years older.
When considering whether there has been a change of circumstances and then whether there should be a variation, it is important to take into account the additional requirements in the Order in relation to the wider considerable financial provision made by the father for the children, especially how these, not just including educational expenses, have now greatly increased. In effect, on top of the child maintenance payments to the mother, the father agreed and continues to meet all of the other expenses for the children.
At paragraph 2 of the Order it was agreed that the father would be responsible not only for the children's reasonable educational expenses (up to and including completion of tertiary education), but also their medical, optical and dental expenses.
The order provided that the parties agreed that child maintenance would cease upon the completion of the relevant child's tertiary education. The father indicated that his intention, when agreeing to this cut-off date, was that when the children commenced their studies at university, rather than paying child maintenance to the mother, he would give financial support payments directly to the children.
At paragraph 4 of the Order it was agreed that, on the proviso that he was consulted, the father would be responsible for the children's reasonable and agreed extracurricular costs and the reasonable and agreed travel, and associated travel costs and expenses. During the hearing the father indicated that paragraph 4 of the Order includes the cost of the children travelling to and from school, which may occur about 10 times per academic year. He added that:
“To the extent that (the mother) wants to take the boys on holiday and feels that she is not able to meet the costs of those holidays, I am happy to contribute to that.”
The requirement of paragraph 4 in the Order ceases when the respective child reaches 18 years of age.
The father stated in his oral evidence that, if the mother wished to visit the boys at their school, he would be happy to contribute to her travel costs. I gained the impression from his evidence that he felt that, based on his history of travel to the see the boys at school, it would be reasonable and appropriate for each parent to travel two or three times per academic semester to the school in the USA. 4 In the Scott Schedule attached to the Closing Written Submissions filed on the behalf of the father it is stated that there should be four trips. Having regard to the frequency of the father's trips to the school in the past academic year, I find that there should be funding for two visits pre-Christmas vacation, two pre-Spring break or Easter and two post Spring Break or Easter.
The mother stated that each trip costs in the region of CI$900 which, if spread over the year, would amount to CI$450 per month. The father stated in his evidence that when he takes a school trip it costs him only CI$450 each time...
To continue reading
Request your trial