F v B
| Jurisdiction | Jamaica |
| Judge | MANGATAL, J: |
| Judgment Date | 16 September 2011 |
| Judgment citation (vLex) | [2011] 9 JJC 1602 |
| Date | 16 September 2011 |
| Court | Supreme Court (Jamaica) |
| Docket Number | CLAIM NO. 2010 HCV-2702 |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE FAMILY DIVISION
CLAIM NO. 2010 HCV-2702
Ms. Ayana Thomas instructed by Nunes Scholefield DeLeon & Co. for the Claimant.
Mr. Gordon Steer instructed by Chambers Bunny and Steer for the Defendant.
CUSTODY – CARE AND CONTROL OF 5 YEAR OLD GIRL – WELFARE OF THE CHILD – PARAMOUNTCY PRINCIPLE – RELOCATION APPLICATION – PRACTICE AND PROCEDURE – APPLICATION TO STRIKE OUT PORTIONS OF AFFIDAVITS MADE AT TRIAL – UNDESIRABILITY OF SUCH PROCEDURE AT TRIAL – MAINTENANCE – RESPONSIBILITY OF BOTH PARENTS
‘F’ and ‘B’ were married in March 2005. L is their five year old daughter. F is L's mother and B is L's father. Both are loving parents who have come before the Court to resolve issues which unfortunately they have not been able to resolve amicably. This Court is faced with the difficult task of deciding as between these two parents, amongst other matters, which of them should have care and control of young L. I shall in this Judgment refer to the parties simply by initials in order to protect their privacy.
F by way of Fixed Date Claim Form filed June 4, 2010 is seeking orders from the Court, including orders that F and B have joint custody, with F being granted care and control of L. She seeks the Court's permission for her to take L outside of the jurisdiction to live in the Bahamas with her. F was born and grew up in the Bahamas. She has also made proposals for B's access to L and is seeking that B pay maintenance in respect of L.
On the 11 th of August 2010, an interim order was made by Brooks J. in the following terms:
Pending the determination of the claim and until further order of the court:
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a. (F) is to have the care and control of the relevant child of the marriage, (L).
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b. (B) is to have access to the relevant child as follows:
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i. During the school term on every alternative weekend beginning at 3:30 pm on Fridays and ending at 4 pm on Sundays. (L) is to be collected by (B) at (F)'s residence at 3:30 p.m. on Fridays. (L) is to be collected by (F) at (B)'s residence at 4 pm on Sundays.
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ii. Residential access for half of all major holidays namely Christmas, Easter and Summer. For the remainder of the Summer vacation for 2010 (B) is to have access to (L) every alternative week ending the 27 th of August 2010 with access on alternative weekends to resume on the 10 th of September 2010 and continue on an alternative weekend basis.
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c. By consent, (B) is to pay (F) the sum of $12,000.00 per month for the day to day maintenance of (L) in addition to her school fees and extra curricular activities of swimming and ballet. The payments are to commence on the 1 st of September 2010 and are to be made on the 1 st day of each month thereafter.
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d. All medical, dental and optical expenses for (L) are to be borne by the parties equally.
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e. Social Enquiry Report and a means report are to be requested from the Family Court Probation Office.
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f. (L) is not to be removed from the jurisdiction without the permission of the Court.
On the 15 th of September 2010, after F's application had been filed, and after the interim order had been made, B filed an application seeking to have care and control of L granted to him to be carried out here in Jamaica, with liberal access to F.
The parties have filed numerous affidavits, and F's mother MF has also filed an Affidavit on behalf of her daughter. The trial has been lengthy, with extensive cross-examination taking place. The Court has in addition been provided with a Report from the Family Court Probation Office.
Applications to Strike Out Hearsay in Affidavits
At the commencement of this trial, a considerable period of time (over a day and a third), had to be spent dealing with without notice applications. This matter was originally fixed for one day only. These applications sought to have substantial portions of Affidavits and exhibits, which were filed some time ago, struck out on the grounds that they constitute hearsay evidence. Since the advent of the Civil Procedure Rules 2002, ‘the C.P.R.’, I have noticed a practice developing in civil matters in both Chambers and Open Court trials. Attorneys make these applications to strike out portions of Affidavits or Witness Statements during the time that has been fixed for the trial or substantive hearing. Often the application is made on the basis that the evidence consists of hearsay statements. The judge will in my opinion likely feel obliged to hear the application because he or she does not want to have before the Court impermissible hearsay evidence. I find this practice inappropriate and/or undesirable at this stage for two reasons. Firstly, one would hope that at First Hearings or Case Management Conferences, the estimated length of trial is being proffered and set after proper thought and contemplation of the realistic length of time it will take for the completion of the trial. I doubt that when these trial dates are being fixed, Attorneys in suggesting the appropriate number of days or hours take into consideration, or advise the Case management judge that, at the trial they contemplate making applications to strike out significant portions of the evidence. These applications are often long, extensive and contested, as in the instant case, and consume precious trial time. Secondly, I frankly don't see what the point is of having pre-trial reviews, or case management conferences or other Chambers hearings which occur, or which can be applied for after the allegedly offending document has been filed or exchanged, if the judge at trial will now have to deal with such applications. Obviously when they are made at trial, they can throw out the time estimated for completion of the trial or substantive hearing. This often causes the matter to be part heard, occasioning delays and necessitating further protracted hearing dates, with all the attendant costs and other consequences. There may be the odd instance when it may reasonably not have been appreciated until near trial that a statement should be struck out. However, by and large it is my view that they should be made at an earlier stage of the proceedings. We must be careful not to whittle away some of the gains made in the trial process since the advent of the C.P.R. I think the practice is particularly undesirable in matters to do with custody and maintenance of children, some of which are urgent, but all of which are delicate and emotionally loaded for the parties.
At the initial stages of this matter, Mr. Steer, Counsel appearing for B, also made an oral without notice application for L to be examined by a Child Psychologist in order to assess what impact going to a new environment would have on L. He submitted that this would ensure that the best evidence concerning the welfare of L is put before the Court and relied upon B(M) v. B(R) [1968] 3 All E.R. 170 at page 173 c. The application was opposed by Ms. Thomas, Counsel appearing for F.
I refused the application upon a number of grounds. Firstly, no proper application, indeed no written application at all, was filed and there had been no compliance with Part 38 of the C.P.R. which deals with Expert Evidence. However, even more fundamentally, I considered the fact that the proposals of both parents involve a relocation and consequently a different environment. Thus I did not consider that the Report was likely to be useful to any significant extent. I took the view that the advantages, if any, to be gained from obtaining a psychologist's report, were outweighed by the disadvantage of the delay that would be occasioned while awaiting the examination and report. I considered further that the Court had already been provided with a Probation Report, and ruled that in this case there was no requirement for a psychologist's report to be produced in order for the Court to determine the relevant issues.
BACKGROUND
F and B met in Jamaica in 2001. F is a medical doctor and B is a businessman. At that time F was engaged in a Clinical Training Programme in the Bahamas and was not yet fully qualified. She was however in Jamaica pursuing a six week elective at the Faculty of Medicine, University of the West Indies, Mona Campus. The parties started a relationship and after the elective was completed and F had returned to the Bahamas, they maintained a long distance relationship and ultimately got married in March 2005. By the time of the marriage, F had become a fully qualified Medical Doctor and was working as a Senior House Officer in internal medicine at the Princess Margaret Hospital in the Bahamas.
The marriage took place in the Bahamas, and shortly thereafter F and B returned together to Jamaica to live as man and wife in Mandeville, in the Parish of Manchester where B resides. L was born on the 28 th of December 2005. L is F's only child. B is the father of L and C.B.
It is F's evidence that she had told B of her intention to do post graduate studies in internal medicine prior to the marriage and to L's birth. When L was born F stayed at home with L at the matrimonial home in Mandeville she states until L was nine months old. B states that when L was seven months old F decided to go back to work in Kingston, having previously applied to the University to pursue the Internal Medicine Specialty. B says that when F came to Jamaica she could have opened her practice anywhere in Jamaica and that F became a Jamaican citizen in 2008.
When L and F came to Kingston, they resided primarily in a two bedroom rented townhouse in the Long Mountain Country Club complex. These premises are in relatively close proximity to the University Hospital of the West Indies (U.H.W.I.) where F commenced working and pursuing a residency programme in internal medicine, and where F was currently engaged at the time of...
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