M Petitioner v M Respondent
| Jurisdiction | British Virgin Islands |
| Judge | Ellis J |
| Judgment Date | 18 February 2015 |
| Neutral Citation | VG 2015 HC 3 |
| Judgment citation (vLex) | [2015] ECSC J0218-1 |
| Docket Number | CLAIM NO. BVIMT9 of 2014 |
| Court | High Court (British Virgin Islands) |
| Date | 18 February 2015 |
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE (CIVIL)
CLAIM NO. BVIMT9 of 2014
Tamara Cameron for the Petitioner
Asha Johnson for the Respondent
The Parties herein were married on 20 th December 2008. The sole child of the marriage (a girl) was born on 4 th December 2010 (the Child). Shortly after the Child's birth, the Parties began to experience marital discord which resulted in Petitioner filing a petition for the dissolution of the marriage on 10 th February 2014. On 19 th June 2014, a decree nisi was granted after the Court found that the marriage between the Parties had irretrievably broken down on the ground that the Respondent behaved in such a way that the Petitioner could not reasonably be expected to live with him.
Prior to the Decree (December 2013), the Respondent moved out of the matrimonial home leaving the Child in the primary care and control of Petitioner. The Parties had agreed for the Respondent to visit with the Child every week from 3:30 p.m. to 7 p.m. on Wednesdays and one day each weekend. The Respondent later sought to vary those arrangements to allow for overnight visits with the Child, but this was rejected by the Petitioner.
The basis for the Petitioner position was revealed in the urgent Application filed on 9 th April 2014 in which she sought an interim order that the respondent's visits with the Child be supervised by an authorised professional or such other person as the Court shall approve pending the outcome of an application for custody or until further order of the court. The grounds of the Application are set out in the Petitioner's affidavit in support filed on 9 th April 2014, in which she states that she reasonably believes that the Child has suffered harm and is at risk of suffering harm while in the Respondent's care. She highlights (1) the Respondent's habitual marijuana use in the presence of the Child and (2) the Child's change behaviour which hinted at sexual abuse.
On 11 th April 2014, the Court made an interim order giving the Respondent access to the Child every Wednesday from 3:15 to 6 p.m. and every other Saturday from 9 a.m. to 1p.m. such access to be supervised by a Social Development Officer. The Social Development Department was also ordered to provide a preliminary social inquiry report following an investigation of the allegations.
By Order dated 15 th May 2014, the Court ordered that the social inquiry report include a psychological assessment of the Parties by Dr June Samuel. A further order made on 28 th July 2014 varied the Order of 11 th April 2014 in the following way: (1) discontinuing supervised access; and (2) granting the Respondent access to the Child on Saturday and Sundays from 9 am to 6 pm with a return no later than 6:15 p.m.
Shortly after the 11 th April 2014 Order, the Respondent filed a Notice of Intention to Proceed with an Application for Ancillary relief seeking sole custody of the Child or alternatively joint custody with primary care and control to the Petitioner and access to the Respondent every other weekend from Friday to Monday as well as every Wednesday from 3:30 p.m. to 7 p.m. The Respondent also sought an order that he pay the monthly sum of $300.00 towards the maintenance of the Child in addition to half of her educational and medical expenses until she reached the age of 18 or thereafter 21 years providing she is pursuing tertiary education.
On 16 th June 2014, the Petitioner filed an Application (later amended on 24 th June 2014) in which she seeks an order of joint custody of the Child with primary care and control to her and reasonable visitation to the respondent. The Petitioner however opposes the Respondent proposed access arrangements to the extent that it includes overnight visits. The Petitioner also asks that the respondent pays the monthly sum of $500.00 as maintenance for the Child as well as half of her educational and medical expenses. She also asks that the Respondent provide her with access to her email account.
During the course of the hearing, the Respondent withdrew his application for sole custody and indicated that he was content with an order for Joint custody with primary care and control to the Petitioner. In the premises, the Court is not required to consider any issues related to custody of the Child. Having read all of the evidence including the Social Inquiry Report provided by Ms Freeman of the Social Services Department, the Court is content to order that the Parties have joint custody of the Child with primary care and control to the Petitioner.
The remaining matters for the Court's consideration relate to (1) access; (2) maintenance; and (3) access to the email account.
Section 44 of the Matrimonial Proceedings and Property Act 1995 gives the Court a wide discretion to make any order it sees fit in the circumstances of the case in respect of custody, access, or financial provision. This provision reinforces section 11 of the Guardianship of Minors Act Cap 270 which also makes clear that the Court may make such orders as it thinks fit regarding custody of an infant and the right of access of either parent. However, section 3 of that Act provides that in exercising its discretion, the Court shall regard the welfare of the child as the first and paramount consideration. It provides as follows:
"Where in any proceeding before the Court the custody or upbringing of an infant, or the administration of any property belonging to or held on trust for an infant, or the application of the income thereof, is in question, the Court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration, and shall not take into consideration whether from any other point of view the claim of the father, or any right at common law possessed by 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."
The import of the term " shall regard the welfare of the infant as the first and paramount consideration" has been judicially considered. The classic construction of this provision is found in the judgment of Lord MacDermott in J v C1 where he stated:
"The second question of construction is as to the scope of meaning of the words '… shall regard the welfare of the infant as the first and paramount consideration.' Reading these words in their ordinary significance, and relating them to the various classes of proceedings which the section has already mentioned, it seems to me that they must mean more than that the child's welfare is to be treated as the top item in a list of items relevant to the matter in question. I think they connote a process whereby, when all the relevant facts,
relationships, claims and wishes of parents, risks, choices and other circumstances are taken into account and weighed the course to be followed will be that which is most in the interests of the child's welfare as that term has now to be understood. That is the first consideration because it is of first importance and the paramount consideration because it rules upon or determines the course to be followed." Emphasis mine
On the specific issue of access, this position was expounded by Sir John Arnold P in Hereford and Worcester County Council v J.A.H2 where he stated:
" The function of a court trying a contested access application must always be to put the interests of the child first and to consider whether, in the particular circumstances of the case, it is favourable from the child's point of view that there should be an order for access, and only if that is the case should the court come to a conclusion in favour of access. This is not a matter which should be influenced by the conception that the natural parent has a right to that access to the child. That right is a right which is the product of the court's decision, and that decision should only be made if it is demonstrated that the access asked for is favourable to the child and, in order to come to a conclusion upon that matter, the court is bound to pay regard, and substantial regard, in the balancing exercise to those factors which are relevantly put forward as factors militating against the conclusion that, in the particular case, access to the child is a desirable development in the interests of the child." Emphasis mine
Both J v C and Hereford and Worcester County Council v J.A.H were considered in the House of Lords decision In Re K. D. (A Minor) (Ward: Termination of Access). 3 After considering whether a natural parent can be said to have a right to access, Lord Oliver made the following critical observations:
"Parenthood, in most civilised societies, is generally conceived of as conferring upon parents the exclusive privilege of ordering, within the family, the upbringing
of children of tender age, with all that that entails. That is a privilege which, if interfered with without authority, would be protected by the courts, but it is a privilege circumscribed by many limitations imposed both by the general law and, where the circumstances demand, by the courts or by the authorities upon whom the legislature has imposed the duty of supervising the welfare of children and young persons. When the jurisdiction of the court is invoked for the protection of the child the parental privileges do not terminate. They do, however, become immediately subservient to the paramount consideration which the court has always in mind, that is to say, the welfare of the child."
And later,
"I do not find it possible to conceive of any circumstances which could occur in practice in which the paramount consideration of the welfare of the child would not indicate one way or the other...
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