Vbd v Ad
| Jurisdiction | Cayman Islands |
| Judge | Cheryll Richards |
| Judgment Date | 24 March 2021 |
| Court | Grand Court (Cayman Islands) |
| Docket Number | CAUSE NO: FAM 153 of 2018 |
The Hon. Justice Cheryll Richards Q.C.
CAUSE NO: FAM 153 of 2018
IN THE GRAND COURT OF THE CAYMAN ISLANDS
FAMILY DIVISION
Family Law — Final Ancillaries, s. 19 and 21 of the Matrimonial Causes Act.
Ms. Stacy Thompson for the Petitioner
The Respondent in Person
These are short reasons following the oral decision given at the final ancillary hearing on the 15 th December 2020.
The Petitioner VBD (“the wife”) and the Respondent AD (“the husband”) were married on the 30 th October 2010. The marriage lasted some eight years. On the 31 st May 2018 the wife filed a Petition for divorce on the basis of irretrievable breakdown. On the 21 st June 2018, the husband acknowledged service of the Petition and indicated thereby an intention not to defend the action. The Petition was ordered proved on the 20 th July 2018.
The wife is now 29 years old and the husband is 41 years old. There are two children of the marriage, a daughter TD born on the 25 th December 2010 aged 10 years old and a son AD born on the 25 th March 2015. He is 5 years old. Both attend local schools with the older child at a government school and the younger child is at a private pre-school.
The husband is a landscaper by occupation and the wife has worked at different jobs most recently as a dishwasher at a local restaurant in 2019. She has not been consistently employed for more than 6 months at any one time. The parties did not own a home or other property real or personal. They each have small pensions but neither party seeks distribution of these amounts.
The sole issue before the Court is the custody and living arrangements of the children and their maintenance.
Prior to December 2020, the matter had been set for hearing on the 20 th March 2019. On the day of the hearing, the husband indicated the he was no longer consenting to the wife having custody of the children. He said that he was concerned that the wife had not been sending TD to school. He produced a letter from TD's school dated the same day which confirmed that TD's attendance was poor and well below the required standard. He said that he was seeking custody of the children and would be seeking his own legal representation. The Court sought the assistance of a Welfare Officer of the Department of Children and Family Services to review the circumstances and prepare a report on the issue raised.
The subsequent report indicated that there were a number of concerns with the living arrangements in respect of both households. There was also concern that the wife needed to recognise that her parenting obligations were serious and full time, and that it was an insufficient excuse for her to say that she woke up late and could not get the children ready to catch the school bus on time.
The Welfare Officer stated:
“While the most ideal circumstances would be for the children to remain stable in their environment, it is difficult to overlook the deficits and attitude of (“the wife”). Given the history of the core problem and inconsistent improvements, one would generally lean towards a change in residence for the children. However, it is not believed that this will necessarily provide overall better outcomes. The children are closely bonded to their mother and that household has two additional maternal figures to supplement care. (The husband's) situation too has some deficits. The home is overcrowded and the sleeping arrangements are not the most desirable for the children. Additionally, based on his work hours it suggests that the children's care will have to be supplemented by a Carer as his mother has not elected to do so.”
The recommendations of the Officer included the following:
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(a) A shared residence order. The children to reside with their mother and spend weekends with their father from Friday evenings to Sunday evenings, three weekends per month.
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(b) The parties could agree to a mid-week evening contact where father can assist with the teaching/learning process for both children to ensure that he can have a positive impact on their education.
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(c) Both parties to attend the Family Resource Centre's Co-parenting Programme.
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(d) The wife to attend the Family Resource Centre's Parenting Ages and Stages Programme to assist her to understand and support the developmental needs of the children.
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(e) The wife to seek the services of the Needs Assessment Unit for financial assistance while unemployed.
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(f) The wife to seek stable employment.
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(g) Parties should share the responsibility of the outstanding school fees as agreed.-.
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(h) Parties to take steps to have the younger child enrolled in school for the start of the 2019/2020 academic school year.
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(i) TD is to attend school every day unless she is ill. It is the responsibility of the parent whose home she wakes up on the school morning to ensure that she is prepared and arrives at school via the bus or alternately, prior arranged transportation.
The Officer noted that over the period that the review took place, there had been considerable improvement in TD's school attendance. Additionally the husband indicated during this hearing that this improvement had continued and that he was satisfied that given the changes, custody could remain with the wife subject to him having visits with the children.
Both parties reside in different houses in close proximity to each other and as recommended by the Officer, the children visit with the husband each weekend and also mid-week when he assists them with their homework.
There being agreement on this issue, the only remaining area of disagreement was the level of maintenance for the children and the level of arrears.
By Order of the Summary Court dated 20 th October 2017, the husband is required to pay $200.00 per fortnight for the children, $100.00 per child starting on the 27 th October 2017.
The wife's position at the hearing was that more money is needed to maintain the children and that the husband earns more than he claims. The wife states that the husband is employed to his mother's construction company and that he lives in her home rent free and thus has very few expenses. In addition the husband's mother has four businesses and the husband works for her other businesses in addition to the construction company.
The husband's position is that he contributes to his mother's household and has very little surplus income.
The relevant legal provision is Section 21 of the Matrimonial Causes Act (2005 Revision). This states:
At the time of pronouncing a decree under this Law, the Court shall, as appropriate, make orders for
(a) the custody, care and control of the children of the marriage;
(b) the disposition of matrimonial property, including the matrimonial home;
(c) varying any settlement of the property of the spouses made in consideration of the marriage, whether such settlement was made before or upon the treaty of the said marriage.
(d) varying any other settlement of matrimonial property;
(e) making financial provision from the property of either spouse for the children of the marriage and for the other spouse;
(f) providing for periodic payments to be made by either spouse for the benefit of the children of the marriage and for the other spouse; and
(g) costs.
By section 22 an order in respect of payments for the benefit of a child of the marriage shall remain in force until the death of such child or until such child attains the age of sixteen years, provided that this may be extended so long as the child is receiving education and under the age of twenty — one years.
Section 19 of the Act provides that in dealing with all ancillary matters arising under this Law, the Court shall have regard first of all to the best interests of any children of a marriage and thereafter to the responsibilities, needs, financial and other resources, actual and potential earning power and the deserts of the parties.
Counsel for the Petitioner relied on the case of K. v. K. 1 in which the Cayman Islands Court of Appeal held that:
“Section 21(f) of the Matrimonial Causes Law obliged the court to make an appropriate” order “for the benefit of the children.” The latter words gave the judge a wide discretion, The order did not have to be solely for the children's benefit, it would be sufficient if it could reasonably be said of the order that it fulfilled the needs of the children.”
The Court concluded that there was nothing objectionable in the decision of the learned trial Judge to provide the respondent with sufficient resources to enable her to provide for the children at an appropriate level by means of child maintenance payments rather than by way of spousal maintenance payments.
In her Affidavit evidence of 26 th November 2018, the wife gave evidence of expenses and income as follows:
| INCOME Salary Child maintenance | CIS 1080.00 400.00 EXPENSES | |
| 1. | Telephone | 50.00 |
| 2. | School fees for son (child of the marriage) | 450.00 |
| 3. | Groceries | 500.00 |
| 4. | Transportation | 100.00 |
| 5. | Personal expenses—hygiene, grooming | 100.00 |
| 6. | Lunch for TD (child of the marriage) | ($4.00 daily) 84.00 |
| 7. | Clothing for children | 150.00 |
| 8. | Lunch for Petitioner | 70.00 |
| 9. | Son's uniform & miscellaneous items (including pull ups for bedtime) | 100.00 |
| 10. | Toys/entertainment for children | 90.00 |
| TOTAL EXPENSES | CI$1,694.00 | |
| SHORTFALL | CI$214.00 |
At the time of the hearing she was unemployed and entirely dependent on the maintenance paid by the husband and support from family members.
The husband in his Statement of Means filed 19 th October 2018 gave his net income as $1,385.00 per month. He owns a car valued at $7,000.00 in respect of which there was then an...
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