Mrs. S v Mr. S

• Jurisdiction: Jamaica
• Judge: Jackson-Haisley, J.
• Judgment Date: 13 December 2016
• Neutral Citation: [2016] JMSC Civ 224
• Docket Number: CLAIM NO. 2013M00454
• Court: Supreme Court (Jamaica)
• Date: 13 December 2016

[2016] JMSC Civ 224

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

IN THE CIVIL DIVISION

Coram:

Jackson-Haisley, J. (AG.)

CLAIM NO. 2013M00454

Between

Mrs. S

Petitioner/Respondent

and

Mr. S

Respondent/Applicant

Mrs. Tamara Francis Riley-Dunn and Ms. Melissa Watson instructed by Nelson Brown-Guy & Francis for the Petitioner/Respondent

Gordon Steer and Mrs. Kaye-Anne Parke instructed by Chambers, Bunny & Steer for the Respondent/Applicant

Family Law — Applications for Joint Custody and for Sole Custody — Application for Unsupervised Access — Removal of Child from the Jurisdiction — Sections 7 & 8 of the Children (Guardianship and Custody) Act — Welfare of the Child — Section 14 of the Property (Rights of Spouses) Act — Transfer of Heritage Education Plan

IN CHAMBERS

1 The relationship between the parties began when they were both employed to the now defunct Air Jamaica. The Petitioner, Mrs. S was then a flight attendant and the Respondent Mr. S, an airline pilot. The parties solemnized their relationship in a ceremony of marriage which took place on the 21 ^st day of June 2008. Just over a year later, on the 30 ^th October 2009, the parties had a daughter, Z. When Air Jamaica ended its operations Mr. S sought and obtained a position as an airline pilot with Air Malaysia. Inevitably this resulted in the parties moving from Jamaica to live in Malaysia, Mr. S first went and then Mrs. S followed with Z. The move to Malaysia saw the deterioration and demise of their relationship and on February 10, 2012 Mrs. S took Z and returned to this country. On February 21, 2013 she filed a Petition for Dissolution of Marriage. That Petition is still pending before the Court. Three Notices of Application for Court Orders are currently before me for consideration. As is the norm, these applications have to be determined before the Petition for Dissolution of Marriage can proceed. The first Notice of Application for Court Orders was filed on December 18, 2014 by Mr. S, pursuant to which he seeks the following orders:

That the Applicant/Respondent and Petitioner be granted joint custody of the relevant child, Z born on the 30th day of October, 2009 with care and control to the Petitioner, with reasonable access to the Applicant/Respondent; 2. That the Applicant/Respondent be granted residential access to the said child in Malaysia for four (4) weeks during the summer holidays; 3. That while the Applicant/Respondent is vacationing in this jurisdiction he be granted residential access to the said child on alternate weekends, with reasonable access throughout his visit; and 4. Either party shall give the other seven (7) days notice of an intention to remove the child temporarily from the jurisdiction, and must provide a contact number and address at which the child can be reached.

1 The sole ground on which he seeks these orders is that they are in the best interest of the child.

2 A second Application was filed on April 30, 2015 by Mrs. S pursuant to which she seeks twelve orders. Nine of those orders were resolved amicably by the parties and so the remaining ones are as follows:

1

That the Claimant be granted custody, care and control of the relevant child ZS, born on the 30th day of October 2009 with access to the Respondent within Jamaica; 2. That the said child shall not be removed from the jurisdiction without consent of the Claimant; and 3. Such further and other relief as this Honourable Court deems just.

3 By way of a Notice of Application for Court Orders filed by Mr. S on July 23, 2015 an Order is sought that the Petitioner/Respondent be ordered to sign the necessary documents to have her name removed from the Heritage Education Funds International as joint subscriber. The grounds upon which he seeks this Order is that he solely contributes to the Fund and that it is just, having regard to all the circumstances.

4 These three applications were heard on the same date. Based on the substance of the first two matters, they will be dealt with together and the third will be dealt with separately. For the avoidance of confusion, in respect of all three matters, the term Petitioner when used will be in reference to Mrs. S and the term Respondent when used will refer to Mr. S.

APPLICATIONS FOR CUSTODY, ACCESS AND FOR THE REMOVAL OF THE CHILD FROM THE JURISDICTION

5 The first Application of the Respondent is supported by his Affidavit filed December 18, 2014. He also gave testimony at the trial of the matter on September 20, 2016 and was subjected to lengthy cross-examination. Although much of the cross-examination related to the matters no longer before this Court, there are some aspects that affect the issues that remain to be resolved. He gave evidence that after they got married, Air Jamaica began downsizing their operations and that this was the catalyst for leaving Jamaica. An opportunity arose for him as an airline pilot in Malaysia and after having discussions with the Petitioner he took advantage of the opportunity and moved to Malaysia and the Petitioner and Z followed later.

6 According to the Respondent the relationship between the two of them first improved and then deteriorated with the effect that in February 2012 the Petitioner uprooted Z and left for Jamaica, never to return to Malaysia. Further, that it was not until April 2013 that he returned to Jamaica and spent time with the Petitioner and Z and he was surprised that on the eve of his return to Malaysia, he was served with a Petition for Dissolution of Marriage. He pointed out that he maintains Z and that despite his efforts to be a reasonable man, he is often prevented from accessing her.

7 He alleged that in 2013 he returned to Jamaica for vacation and during that time Z spent a weekend with him and his mother at his mother's house in Mandeville. Further, that during the visit he bathed Z and himself at the same time. This he said was a common occurrence when the three of them lived together in Malaysia as they often took showers together. He expressed shock at being contacted by the Petitioner sometime later and accused of inappropriate behaviour towards Z, which according to the Petitioner was brought to her attention by teachers at Z's school. Despite this accusation he alleges that the following weekend Z came to his mother's house and spent the day with him.

8 On subsequent trips to Jamaica he indicated that he was not allowed to see Z outside of the presence of the Petitioner and that he has only been allowed to access Z in public places and in the Petitioner's front yard. He has exhibited correspondence between himself and the Petitioner which according to him demonstrates difficulties faced when seeking access to Z. Below I have reproduced an excerpt from one of the conversations:

Mr. S: I think taking Z's things to school and giving them to her in the parking lot is not only demeaning but also quite inappropriate. To see her open the gifts, play with them, see if she likes them or not, just to spend some time with her to learn who she is becoming may be silly to you but those simple times are precious moments which I cherish. I'm not asking to spend the entire day with her but just to be allowed to spend what I regard as quality time with my daughter. You claim you would like her to have a relationship with her father yet you deny us every opportunity to bond. Based on your instructions, I have suggested the following options to you: Firstly, I can come to your house and stay out in the yard by the stairs as you have previously allowed me to do and watch her open the stuff. Afterwards, we can play in the yard where you can have us in full view at all times. Secondly, you may bring her too my mother's house. However you blatantly refuse to even consider any of these and in the same breath you have not offered any suggestion to resolve this issue. I have promised to take her for pizza and it is of paramount importance to me that this promise is kept and I think Friday would be good. As it pertains to Friday, Saturday and Sunday I am still awaiting your response as to where and who will be coming with her.

Mrs. S: After thoughtful conversation, I will allow you to come to the house and drop off whatever you have for Z this Friday at 4pm. Pizza on same Friday should be fine. As per our last conversation I will confirm venue for Saturday and Sunday as soon as possible.

9 The Respondent has expressed that he is of the view that the Petitioner has no genuine basis to deny him access to Z and that her attempts to portray him as an abusive man are hurtful and demeaning and prevent him from bonding with his child. According to him, even his mother, Z's grandmother has difficulties accessing Z as she has had to meet the Petitioner at school to deliver gifts he has sent and she is not even permitted to go to the Petitioner's home. Further, that even his sister was not allowed to see Z on an occasion when she drove from Kingston to Manchester for the purpose of delivering a bicycle to Z.

10 He mentioned an occasion when the Petitioner allowed Z to access a video on her tablet with an inappropriate scene which depicted a woman beating a naked man with a leather belt and when he contacted the Petitioner she advised him that Z had downloaded the clip and sent it to him.

11 In his affidavit filed July 20 ^th 2015 he indicates that he never ignored Z whilst in Malaysia and that he spent most of the time when not at work with her. He indicates that it is a fabrication to say that he suggested boarding school for Z. He insists that the three of them bathed together on numerous occasions. He denies ever sexually abusing Z and asserts that she has never touched his penis and he will never harm her. He is of the view that Z is at an age that she can travel with him to Malaysia.

12 He also indicated that he presently lives in Dubai and has been living there since February 2016....