Lmp v Maj

• Jurisdiction: Jamaica
• Judge: Brooks JA,Sinclair-Haynes JA,P Williams JA
• Judgment Date: 17 November 2017
• Neutral Citation: JM 2017 CA 70
• Docket Number: SUPREME COURT CIVIL APPEAL NO 92/2015
• Court: Court of Appeal (Jamaica)
• Date: 17 November 2017

[2017] JMCA Civ 37

IN THE COURT OF APPEAL

Before:

THE HON Mr Justice Brooks JA

THE HON Mrs Justice Sinclair-Haynes JA

THE HON Miss Justice P Williams JA

SUPREME COURT CIVIL APPEAL NO 92/2015

Between

LMP

Appellant

and

MAJ

Respondent

Kevin Williams and Mrs Suzanne Risden-Foster instructed by Grant, Stewart Phillips & Co for the appellant

Ms Marjorie Shaw, Ms Deneve BarnettandMrs Terry-Joy Stephenson-Goulabinstructed byBrown & Shawfor the respondent

Family Law - Custody — Appeal against court order — Whether the judge's order should be set aside — Whether the judge erred in granting sole custody to the respondent — Whether the judge erred in his decision as to the nature and extent of the access granted to the appellant — Whether the judge wrongly exercised his discretion in awarding costs against the appellant — Caffell v. Caffell [1984] FLR 169 — Re B (A Child) [2013] 1 WLR 1911 — Jussa v. Jussa [1972] 1 WLR 881 — ML v. YJ HCMC 13/2006 — Sutton London Borough Council v. Davis (No 2) [1994] 1 WLR 1317.

Brooks JA

1 This is an appeal by Mr LMP, the appellant, against an order by Laing J, delivered on 17 July 2015, in which the learned judge granted custody, care and control of the appellant's son, R, to Ms MAJ, the respondent, who is R's mother. The learned judge also granted the appellant reasonable access to R, along with residential access on alternate weekends (from Friday 2:30 pm to Monday 7:30 am) and half of all major school holidays. Laing J also awarded costs of the claim against the appellant. The names of the parties and of the child have been withheld in order to conceal R's identity and protect his privacy.

2 The appellant urges this court to set aside the order of Laing J. He seeks an order awarding joint custody of R, to his parents, with care and control to the respondent, and no order as to costs. The appellant also asks that he be granted reasonable access to R, along with residential access on alternate weekends from Thursday 2:30 pm to Monday 7:30 am, plus half of all major school holidays and any other period of access as may be agreed between him and the respondent. He further asks that an order be made preventing the removal of R from the jurisdiction by any one parent, without the written consent of the other parent, such consent ought not to be unreasonably withheld.

3 The issues to be resolved in this appeal are whether the learned judge erred in:

• a. granting sole custody to the respondent;

• b. his decision as to the nature and extent of the access granted to the appellant; and

• c. awarding costs to the respondent.

The background to the litigation

4 The parties are not married and have never lived together. They enjoyed a reasonably cordial relationship until R was almost six years old. During that time, the appellant would often visit the respondent's home and interact with R and the respondent's other son H, who is the product of a different relationship. The appellant would also take the boys on trips away from the island.

5 The present dispute had its genesis in January 2014, when the appellant took R to the United States of America (USA). The respondent alleges that the trip was supposed to have been for a weekend. The appellant asserts that the agreement that he had with the respondent was that R would remain in the USA until his immigration status was converted to that of a “green card” holder, that is, a permanent resident of that country. The appellant asserted that his status, as a citizen of the USA, allowed him to apply for R to acquire a “green card”.

The proceedings before the Supreme Court

6 When R was not returned at the end of the weekend, the respondent made a number of frantic attempts to contact the appellant and the child, but with only limited success. Eventually, on 26 March 2014, the respondent commenced proceedings in the Supreme Court applying for custody, care and control of R, and for an order that the appellant return the child to the jurisdiction.

7 An interim order was made by Daye J, on 27 March 2014, in which the respondent was granted custody, care and control of R and the appellant ordered to produce and deliver R to the respondent within seven days of the order. R was not returned to the island until June 2014.

8 By the time that the case came on for hearing before Laing J, in April 2015, the appellant had also filed a claim in respect of custody on 9 March 2015. Whereas the respondent sought sole custody, care and control of R, the appellant sought joint custody of the child with care and control being granted to him or in the alternative to the respondent. He also sought various stipulations as to the access to the child consequential on the order made with regard to care and control. The orders that he sought are set out below:

• “1. That in respect of the minor child [R], the parties be granted joint custody, with care and control to the [appellant];

• 2. That the [respondent] be given residential access on alternate weekends Fridays 6pm to Sunday 6pm, plus half of all major school holidays or in the alternative;

• 3. The parties be granted joint custody with residential access to the [appellant] every weekend Fridays 2:30 pm to Mondays 7:30 am plus half of all major school holidays;

• 4. That the [appellant] be allowed to access and supervise the said child during those times when the [respondent] is at work, off the island, or otherwise unable to personally supervise the said child.

• 5. Any other Order that this Honourable Court deems fit.”

9 A number of affidavits had, by the time of the hearing, been filed by each party. In those affidavits, various allegations were made by each of them concerning the negatives said to be associated with the other. Those allegations, together with the dispute concerning the January 2014 trip, were among the issues of fact, which Laing J had to resolve.

10 No other person filed affidavits, but there were two Social Enquiry Reports which gave a very favourable impression of the appellant. One of those reports was ordered by a judge of a Parish Court. The other was ordered by a judge of the Supreme Court, when the appellant made an interim application for residential access to be given to him, pending the hearing of the respondent's custody claim. In the latter of those reports, the probation officer, in her assessment and recommendation, noted that the communication between the parties “is strained”. She formed the view that the appellant is “an exemplary father” and his proposed accommodation for R appeared to be ideal. She also noted that the respondent had no objection to the appellant having access to R, but that orders should be made to prevent him from removing the child from the jurisdiction. R, when he was interviewed by the probation officer, expressed a preference to live with his father, because the appellant treated him well and he had more fun with the appellant. The interview was conducted as part of the preparation of the report to the court by the probation officer.

11 The basic circumstances of each party, which were outlined by the evidence, are that the appellant is a married man who lives with his wife and a grown son. He is better off financially than the respondent, who is struggling with a business in which she sells clothing that she buys abroad. He has more flexibility with his time so as to spend time with R and to help R with his homework.

12 The evidence also showed:

• 1. The respondent spends long hours at her business and, like the appellant, sometimes goes abroad to purchase goods for her business.

• 2. She has a domestic helper who stays with the children and sometimes they are sent to their maternal grandmother if the respondent is away from the island on business.

• 3. Although both H and R were said to have behavioural problems, R was said to be a bright child who did well in school. The boys share a close relationship.

• 4. The appellant and the respondent have had their fair share of confrontations, including physical fights, which have resulted in at least one intervention by the police.

13 At the hearing, each party was cross-examined before Laing J.

The decision

14 In making his decision, the learned judge accepted the respondent's account of how R came to have gone to the USA, and that he was being kept in the USA without her consent. He also found, based on his resolution of the several factual disputes, that R would be better served by the respondent having custody, care and control of him, and with the appellant having reasonable access to him. That access included residential visits on alternate weekends and half of all major school holidays.

15 Laing J, in reliance on section 18 of the Children (Guardianship and Custody) Act (the Act) and Dennis Forsythe v Idealin Jones (unreported), Court of Appeal, Jamaica, SCCA No 49/1999, judgment delivered 6 April 2001, observed that the court when dealing with a matter of custody of a child must have paramount regard for the welfare of the child. He noted, at paragraph [24] of his judgment, that the evidence clearly disclosed that the parties love R and have his best interest at heart. The learned judge found, in reliance on Robert Fish v Fenella Victoria Kennedy (unreported), Supreme Court, Jamaica, Claim No HCV 373/2003, judgment delivered 2 February 2007, however, that the current state of their relationship “does not lend itself to an award of joint custody”. He arrived at that view in reliance on the respondent's evidence that, “[the appellant] is not a reasonable person and we cannot cooperate in the upbringing of [R]”.

16 In arriving at his conclusion on what best served R's interest the learned judge took into account the fact that R had lived with the respondent for his entire life. The language that the learned judge used was, however, not entirely accurate. He had opined that his order, with respect to...