AH v JH

• Jurisdiction: Jamaica
• Judge: Fraser J
• Judgment Date: 07 May 2014
• Neutral Citation: [2014] JMSC Civ 68
• Court: Supreme Court (Jamaica)
• Docket Number: CLAIM NO. 2011HCV01292
• Date: 07 May 2014

[2014] JMSC Civ 68

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CLAIM NO. 2011HCV01292

In the matter of the Matrimonial Causes Act

In the matter of the Children (Guardianship and Custody) Act

In the matter of the Custody and Maintenance of JEH

In the matter of the Maintenance of AH

Between

AH

Claimant

and

JH

Defendant

Mr. Allan Wood QC and Mrs. Daniella Gentles-Silvera instructed by Mr. Mikhail Jackson of Livingston, Alexander & Levy for the claimant

Mrs. Pamela Benka-Coker QC instructed by Mrs. Debra McDonald for the defendant

Application for Custody — Governing principle: the welfare of the child is the first and paramount consideration — Impact of allegations of sexual molestation, substance abuse and physical violence on the determination of the best interests of the child — Application for Maintenance — Validity of post-nuptial Agreements — Whether proceeds from Trust in respect of which defendant is not the settlor, but is one of a number of beneficiaries, should be included in defendant's means for the purpose of determining his capacity to pay maintenance

Fraser J

INTRODUCTION

1 Throughout this judgment the parties will be referred to by the initials of their first and last names. The child of the parties will be referred to by the initial of his first and last names and one of his middle names, given the similarity in the initials of his first and last names and those of his father. This approach is being taken to protect the privacy of the individuals who are central to this case.

THE APPLICATIONS

2 By way of a Fixed Date Claim Form filed on March 21, 2011 the claimant, AH, sought the following orders:

• (a) sole custody of JEH the only child of the marriage between AH and JH.

• (b) an order that JH continues to pay maintenance in the sum of US$3,500.00 per month for JEH and AH. (This was later increased to a claim for US$4662 per month).

• (c) an order that all passports including JEH's British Passport that is held by JH be delivered to the claimant.

• (d) JH be restrained from coming within 50 yards of the residence of AH and JEH and be restrained from coming within 50 yards of them or otherwise harassing, molesting or interfering with them.

• (e) an order that JH continues to provide accommodation, educational, medical, optical and dental expenses and one-half of the clothing expenses for JEH as set out in Deed of Arrangements made between AH and JH in October 2008.

3 By affidavit dated April 5, 2011, JH himself sought sole custody of JEH and proposed that the sum of maintenance paid by him be reduced to US$1,000.00 for the sole maintenance of JEH.

4 On February 5, 2014 the court made the following orders:

1

Sole custody of JEH the only child of the marriage between AH and JH is awarded to AH. 2. The defendant is granted supervised access to JEH as follows: a. The defendant shall be allowed to have JEH with him three times per month for a period of six hours on each occasion, the dates and times to be agreed in writing between the parties. Failing agreement the dates and times to be determined by the court; b. The supervised access must always be in the company and visual presence of an adult over twenty-one years of age who has some training in counseling, psychology or dispute resolution and who has been approved by an agency such as Family Life Ministries or some other similar agency approved by the court; c. The periods of supervised access must always be in public places agreed to in writing by the parties. Failing agreement, the access shall take place in places approved by the person designated to supervise the access. The claimant should always be aware of the public place or places at which the supervised access will occur on each occasion; d. The costs associated with supervised access shall be borne by the defendant. 3. Commencing February 15, 2014 the defendant, JH, to pay maintenance in the sum of US$1,250.00 per month for JEH until he attains the age of 18 years old or if he undertakes tertiary education until he completes his tertiary education or attains the age of 23 years old, whichever event occurs first. 4. Commencing February 15, 2014 the defendant, JH, to pay maintenance in the sum of US$2,250.00 per month for AH, the last payment to be on August 15, 2015. 5. The defendant shall continue to provide accommodation, educational, medical, optical and dental expenses and one-half of the clothing expenses for JEH as set out in Deed of Arrangements made between AH and JH in October 2008. 6. All passports belonging to JEH including JEH's British Passport that are held by the defendant be delivered to the claimant through her attorneys-at-law on or before February 15, 2014. 7. The defendant is restrained from coming within 50 metres of the residence of AH and JEH. 8. Liberty to Apply. 9. The time within which an appeal may be made from this decision will commence with the delivery of the written reasons for Judgment. 10. Each party to bear her/his own costs.

5 These are the reasons for the orders made.

THE BACKGROUND

6 AH and JH got married in November 2003. The only child of the marriage, JEH was born on June 8, 2006. The parties separated between March and June 2008 and by Deed of Arrangements dated October 1, 2008, AH and JH agreed to have joint custody of JEH with day-to-day care and control of JEH to be given to AH.

7 By the same Deed of Arrangements JH agreed to pay US$4,000.00 per month for the maintenance of JEH and AH, to provide them with accommodation and to pay all of JEH's medical, dental, optical and educational expenses plus one-half of his clothing costs. The parties subsequently agreed that the figure of US$4,000.00 be reduced to US$3,500.00 which is presently being paid.

8 In late 2010 on the evidence of AH, JEH first made allegations against JH of sexual molestation. JEH made other allegations of sexual molestation by JH in August and September 2012. Upon application by AH, the initial allegations lead to the Court ordering that all access by JH to JEH be supervised. This was eventually liberalized to allow overnight supervised access. After the further allegations in August and September 2012 all access was suspended by order of this Court on September 12, 2012.

9 Divorce proceedings were initiated by JH on May 3, 2012.

A – CUSTODY AND ACCESS

The Paramount Consideration

10 The Children (Guardianship and Custody) Act governs the power of the court to make orders for custody and access in relation to a child. Sections 7 and 18 are of particular relevance. Section 7 provides that:

7 . (1) The Court may, upon the application of the father or mother of a child, make such order as it may think fit regarding the custody of such child and the right of access thereto of either parent, having regard to the welfare of the child, and to the conduct of the parents, and to the wishes as well of the mother as of the father , and may alter, vary, or discharge such order on the application of either parent, or, after the death of either parent, of any guardian under this Act; and in every case may make such order respecting costs as it may think just…

(3) Where the Court under subsection (1) makes an order giving the custody of the child to the mother, then, whether or not the mother is then residing with the father the Court may further order that the father shall pay to the mother towards the maintenance of the child such weekly or other periodic sum as the Court, having regard to the means of the father may think reasonable …

(5) Any order so made may, on the application of either of the father or mother of the child, be varied or discharged by a subsequent order. (Emphasis added).

11 Section 18 of the Act provides that:

Where in any proceeding before any Court the custody or upbringing of a child or the administration of any property belonging to or held in trust for a child, or the application of the income thereof, is in question, the Court in deciding that question, shall regard the welfare of the child as the first and paramount consideration , and shall not take into consideration whether from any other point of view the claim of the father, in respect of such custody, upbringing, administration or application is superior to that of the mother, or the claim of the mother is superior to that of the father.

12 An extract from the case of Dennis Forsythe v Idealin Jones SCCA 49/1999 (April 6, 2001) was relied on by counsel for the claimant to demonstrate how our Court of Appeal has interpreted section 18 of the Children (Guardianship and Custody) Act. At pages 7 – 8 Harrison JA (as he then was) said,

Despite the wishes and desires of the parents, the welfare of the child is ‘the first and paramount consideration.’

This emphasis on the welfare of the child should therefore be the primary focus of a court considering a custody application. However, the court is required to take into consideration, in determining that primary question, the conduct of the parties in all the circumstances of the case. In the case of In re McGrath (infants) [1893] 1 Ch 143, in dismissing a summons to appoint new guardians for four young children, the Court of Appeal, per Lindley, LJ, commenting on the principle by which the court is guided said, at page 148:

“The dominant matter for the consideration of the Court is the welfare of the child. But the welfare of a child is not to be measured by money only nor by physical comfort only. The word welfare must be taken in its widest sense. The moral and religious welfare of the child must be considered as well as its physical well-being. Nor can the ties of affection be disregarded.”

In R v Gyngall [1893] 2 QB 232, the mother of a child at about 15 years old, sought by habeas corpus, the custody of her child who had been living with the defendant at a convalescent home for several years,...