Patrick Albert Smith Respondent v Lydia Lavorne Smith nee Scatliffe Applicant
| Jurisdiction | British Virgin Islands |
| Judge | Joseph-Olivetti J |
| Judgment Date | 28 February 2012 |
| Judgment citation (vLex) | [2012] ECSC J0228-3 |
| Date | 28 February 2012 |
| Court | High Court (British Virgin Islands) |
| Docket Number | BVIHMT2006/0028 |
IN THE HIGH COURT OF JUSTICE
BVIHMT2006/0028
Richard Arthur of Hunte & Co. for the Applicant
Corine George of J.S. Archibald & Co. for the Respondent
(Family Law - Ancillary Relief - Maintenance and custody of children - Interest in matrimonial home. The Matrimonial Proceedings and Property Act 1995 Sections 44, 47 and 51)
In this case we are concerned with two of the almost inevitable issues which arise on the breakdown of a marriage - custody of children and ownership of the matrimonial home.
The main issues which arise are: (1) whether the custody order of 13 November 2007 which granted joint custody of the children to their parents with primary care and control to Mrs. Smith, the Mother should be varied, Mr. Smith, the Father, having made an application to do so; and (2) whether the Mother should be granted a life interest in the matrimonial home or in lieu thereof a lump sum payment.
The parties were married on 31 December 1993. They have two minor children, a boy, we shall call him "A", born 22 April 1995 and a girl "B" born 9 July 1996. The Father filed for divorce on 20 April 2006 and a decree nisi was granted on 5 February 2007.The Mother subsequently filed an application for ancillary relief on 27 June 2007 which included, inter alia, prayers for custody of the two children and for a life interest in the matrimonial home.
The court decided the custody issue and on 13 November 2007 granted joint custody of the children to both parents with primary care and control to the Mother. Events took an interesting twist thereafter when in or about May 2008 A left the Mother's home and took up abode with the Father. The Mother retaliated by filing a contempt application on 13 April 2009 seeking arrears of maintenance for A even though he had ceased to reside with her. To regularize matters the Father then filed an application for variation of the custody order on 18 May 2009. It is the Father's application the court is here concerned with in relation to the custody issue.
The Mother is employed with the Government of the Territory of the Virgin Islands and the Father is employed with the H. Lavity Stoutt Community College. During the currency of the marriage the parties lived together at the matrimonial home which is owned by the Father's parents, Mr. James McDonald Smith and Mrs. Ethlyn Smith. The Mother currently resides at the matrimonial home with B whilst the Father lives with A, a short distance away in his parents' home on Frenchman's Cay in a 4 bedroom 3 bathroom house. His sister and her daughter also live at the home.
I shall deal with the custody issue first.
By section 44 of the Matrimonial Proceedings and Property Act 1995 'the MPPA,' the court has the power to make any order it thinks fit regarding the custody and education of any child of the family who is under the age of 18 in any proceedings for divorce 1. And by s. 44(5) the Court has power to vary any such order at any time.
And it is well established that in such issues as custody of children that the paramount consideration is the welfare of the child. See the Guardianship of Infants Act Cap. 270 s 3.
Furthermore, in determining what is in the best interests of the child the court is entitled to take into account all the circumstances of the case including the wishes of the parents and of the child where that child is of an age that he or she can be deemed to understand the nature of the proceedings. See Rayden and Jackson Divorce and Family Matters 17 th Edn. para 36.5 2.
As already noted, since May, 2008 A has been living with the Father due to allegations of abuse he made against his mother. His move was initiated and supported by the Social Development Department who recommended the move after the Father reported the matter to them and after investigations by case worker Ms. Stacy Stoutt 3.
On 5 June 2009, Hariprashad-Charles J ordered a psychological evaluation on A to be conducted by Dr. Virginia Rubaine. Dr. Rubaine in her report stated that the Mother did not cooperate with the process; she
said she was unavailable at the time initial contact was made and that she would get in touch with Dr. Rubaine at a later date. She never did so 4.After evaluating A Dr. Rubaine found that he was well adjusted due to the efforts of his father and other paternal relatives. Dr. Rubaine remarked that the Mother's non-participation in her son's evaluation could be indicative of parenting difficulties she might be experiencing with respect to both children. The doctor strongly recommended that A be allowed to remain with the Father and consideration be given to the Father being the custodial caregiver of both children with liberal visitation to the Mother.
I note that A is reported by Dr. Rubaine to have expressed concerns for his sister's and his own safety at his mother's house 5. Dr. Rubaine reported that he felt he was unfairly punished by his mother and preferred living with his father. That he saw his sister in school every day but would like to see her more. That the decision to live with his father was his own and that he describes his relationship with his Mother as unstable. That he says he is comfortable living with his father and wants the arrangement to continue. That despite this, he appears to love his mother and wishes that his parents could be reconciled. (In the court's view this is a not unusual sentiment often expressed by children of divorced parents.)
The Mother, the court notes, was likewise uncooperative in making herself and B available to be interviewed by Social Workers at the Social Development Department as ordered by the court on 25 January 2011. The Department's report states that the Department was not afforded the opportunity to interview the Mother or B as the Mother failed to contact them.
The Social Worker, Ms. Laurel Freeman, conducted interviews with the Father and A. The Father expressed his interest in being the primary
caregiver of both his children and expressed concerns about the Mother's ability to do so.The Mother freely admits that she is a strict parent and disciplined A when he behaved badly or had been dishonest. She maintains that he is allowed to do whatever he wants at his father's home and this is contributing to his falling grades. Significantly, she has provided no proof of falling grades. The Mother alleges that there is no supervision at the grandparents' home and in short that she wanted her son back at her home as she wanted her children to grow up together in the same house.
I accept and agree with Ms. George, learned counsel for the Father, that adverse inferences against the Mother can be drawn from her lack of cooperation with Dr. Rubaine and the Social Development Welfare Officer. In fact she deliberately frustrated the Court's orders. With respect to B, Ms. George further submitted further that the Mother's behaviour was not consistent with that of a parent who had her child's best interests in mind, in that her "negative" behaviour has prevented B from being evaluated and thus B has been denied the opportunity to state her experiences and be interviewed.
The Court notes that this lack of cooperation by the Mother is not only with the Court's orders. On February 11, 2010 the lawyer who had represented her since 2006 made an application to be removed from the record citing the Mother's refusal to accede to requests to meet to give instructions on this very matter. The efforts made by her then counsel are recorded in an affidavit of 11 February. On 9 March 2010 the application was granted.
As already alluded to, it is established law that in making orders for custody or maintenance of a child the child's welfare must be the paramount consideration. The children need to be in a stable loving environment that fosters their overall growth and well being. Having regard to all the evidence, including the two reports, this court is of the opinion that the Mother is not capable at this time of providing such an environment. Her lack of compliance with court orders and refusal to cooperate with social services does not bode well for her.
I am satisfied that it is in the best interests of the children that the prior order be varied and that the Father be granted sole custody of both children with reasonable access to the Mother. He is not seeking maintenance for them from the Mother and therefore, I will not make an order for maintenance but will leave it to the Mother's good sense to assist with the children as she is able.
Further, although the application for contempt is not the subject of this application I am constrained to say that it was ill-advised in all the circumstances and I trust that the Mother will be moved to take the necessary steps to discontinue it. It is in the best interests of all concerned to bring an end to this prolonged and bitter custody battle. I now turn to the Mother's claim for a life Interest in the Matrimonial Home.
Part IV of the MPPA (Sections 47 - 57) gives the court wide powers with respect to the matrimonial home.
Section 47(1) of the MPPA defines a matrimonial home as
"any dwelling being used exclusively or principally as a home by one or both parties to a marriage in respect of which a decree of divorce is or has been granted, in any case where
(a) either or both of the parties or the personal representative of one of them
(i) owns the dwelling; or
(ii) owns a specified share of any estate or interest in the land on which the dwelling is situated and by reason of reciprocal agreements with the owners of...
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