Burnett v Burnett

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Bertrand, J.
• Judgment Date: 26 July 1990
• Neutral Citation: VG 1990 HC 3
• Docket Number: Civil Suit no. 75 of 1990
• Date: 26 July 1990

High Court

Bertrand, J.

Civil Suit no. 75 of 1990

Burnett

and

Burnett

Appearances

Mr. Webster for respondent/applicant.

Mr. Archibald, Q.C. with Miss O'Neal for petitioner/respondent.

Family Law - Children — Application for joint custody and for reasonable access — Behaviour of applicant/father towards children so negative that he was considered unfit to be granted reasonable access to the children — Custody, care and control of children to vest in mother.

Bertrand, J.

1 This is an application for joint custody and/or reasonable access to the children of the marriage namely –

Floyd — born September 29th 1984

Angela — born January 9th 1986

Karl — born January 4th 1988

2 The former is not now being pursued by the applicant, but learned Queen Counsel for the respondent has asked the court to pronounce on such an application. I will say at the outset that on the evidence before me the question of joint custody could not be entertained.

3 Nothing in the affidavit of the applicant shows a concern for the said children, only for himself. In cross-examination the applicant admits he slapped the respondent on five occasions. Once in the presence of the five year old child, on another occasion when the respondent cried out and fled from the home. Yet, on another occasion, he slapped the respondent in his studio, and again on the 14th April, 1990, all in the first half of the year.

4 If the respondent did scratch the applicant on his neck, it is my view there must have been cause to do so. The respondent did not have the opportunity to refute or admit this allegation. The applicant refused to assist the respondent with the sick child, but did so alone.

5 The applicant will not correct the children but leaves it to the respondent to do by telling her what she should do to them that is,

“throttle them”

“clobber them”.

6 I do not accept the explanation given by the applicant for the words: “why don't you throttle them”, which is to keep them quiet, because the evidence is when the children are being boisterous, and the respondent/mother is trying to calm them down, the applicant says “why don't you throttle them”. The respondent/mother has already tried to quieten them, and keep them calm. There could be no other meaning than the ordinary dictionary meaning: to choke, strangle, prevent utterance of.

7 To “clobber”, the applicant accepts is “to beat severely”. But he has never beaten the children he said. In my view, the applicant is trying to exert pressure on the respondent/mother to use violence against the said children of ages 5 and 22 years. The applicant seems to want quietness and tranquility from them. But you cannot get that from children of that age, unless you put them to sleep.

8 Referring to children as a bloody nuisance, is not a phrase one should hear from a father who has the welfare of his children at heart, and should not be said. The word “troublesome” is always more likely to be used. The evidence of the respondent/mother's words:

“You look as if you could kill me”

9...