Sam Hanna v Krystal Noumeh
| Jurisdiction | Barbados |
| Judge | Madam Justice Barbara Cooke-AIleyne |
| Judgment Date | 08 July 2021 |
| Neutral Citation | BB 2021 HC 20 |
| Docket Number | Family Suit No: 124 of 2021 |
| Court | High Court (Barbados) |
IN THE SUPREME COURT OF JUDICATURE
HIGH COURT
CIVIL DIVISION
The Hon. Madam Justice Barbara Cooke-AIleyne, QC, Judge of the High Court (Ag.)
Family Suit No: 124 of 2021
Ms. Marguerite Woodstock-Riley, QC and Mrs. Amanda Riley-Jordan for the Applicant/Husband.
Counsel for the Respondent/Wife was Mr. Amilcar Branche for the period May 6–28, 2021. New Counsel Ms. Margot Greene QC and Ms. Peta Gay Lee Brace joined thereafter as Counsel for the Respondent/Wife.
The parties were married on February 12, 2012 in Melbourne, Australia and lived as a family in Australia. Mr. Sam Hanna, the Applicant/Husband is Australian. Ms. Krystal Noumeh, the Respondent/Wife is Barbadian and she has permanent residency in Australia. They are the parents of one child Abraham Hanna born on May 4, 2015 in Australia.
On November 20, 2019, the Applicant/Husband consented to the Respondent/Wife travelling to Barbados with the minor child for the period November 26,2019 until February 5,2020.
On January 14,2020, the Respondent/Wife informed the Applicant/Husband that she wished to stay longer in Barbados. He deposes that he did not give consent.
He said that the Respondent/Wife had given and withheld consent on various occasions in respect of the minor child returning to Australia with him.
On April 30, 2021 the Applicant/Husband filed an urgent application asking that the minor child be allowed to return to Australia with him and that custody care and control be given to him. In his supporting affidavit, filed on April 30, 2021, he sought permission to return home and to have the courts in Australia resolve the issues between the parties.
Ms. Woodstock Riley who appeared for the Applicant/Husband in association with Mrs. Riley Jordan asked that the file be sealed owing to the nature of the matter. Mr. Amilcar Branche agreed. Initially he appeared for the wife.
On May 6, 2021, the Court made the following Order:
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(i) That the minor child's passport be handed over to the Registrar of the Supreme Court on or before the May 7,2021.
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(ii) Respondent/Wife to file and serve her affidavit in response under seal on or before the May 12, 2021.
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(iii) The Applicant/ Husband at liberty to file and serve a further affidavit under seal.
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(iv) That the affidavit filed by the Applicant/Husband on April 3, 2021 be removed from the JEMS system and placed under seal.
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(v) Adjourned until May 20,2021.
In a further affidavit dated May 26, 2021 at paragraph [63] the Applicant/Husband stated that he was asking for joint custody and care and control. He deposed “that I am of serious belief she is not a fit mother at this time. Her behavior continues to deteriorate and she has shown that she cannot control herself even in his (Abraham's) presence.” He said in paragraph [69] that after February 5, 2020 the Respondent had kidnapped their son.
The Respondent/Wife said that the Applicant/Husband consented to the extension. Her evidence is that she ensured that the minor child had daily contact with him via FaceTime and WhatsApp. She deposed further that to travel to Australia, you have to go through the USA, Hong Kong, China and that Covid deterred her from travelling via these countries. She said the pandemic COVID-19 took precedence and derailed travel plans.
The Respondent/Wife said that the Applicant/Husband only formally addressed her in an email dated May 7,2020 about her and Abraham returning home to Australia. She stated further in an email dated September 30, 2020 that he, the Applicant/Husband, should come to Barbados.
The Respondent/Wife said it was not her intention to keep the minor child from his father. She pointed out the benefits of Abraham living in Barbados including his residing at the family house where both of her parents live. She identified the fact that she did not pay rent or utilities as one such advantage for her and the minor child living in her parents' home. She referred to the doting grandparents and the loving uncle and aunts who were great role models for Abraham. She argues that the minor child has established roots in Barbados having been here for 18 months.
The Respondent/Wife in her affidavit in response filed on May 28, 2021 sought the following orders:
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(i) Abraham be made a ward of the court to prevent his removal from the jurisdiction and to protect him from the domestic violence and abuse displayed in the household.
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(ii) care and control be given to the Respondent/Wife.
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(iii) maintenance for Abraham along with half all educational including school fees, dental, extra curriculum activities, ophthalmic and medical expenses.
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(iv) Discovery of relevant documents in the possession of the Applicant/Husband.
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(v) Injunction under section 91 (1) of the Family Law Act Cap. 214 (Family Law Act) for the personal protection of herself and Abraham as a result of the domestic violence and abusive behavior to the Respondent/Wife by the Applicant/Husband.
Mr. Branch sought to ascertain whether the Court will be hearing the Respondent/Wife's application. I determined that whether the court would hear the application for the orders sought at (ii) and (iii) above would depend on the outcome of a preliminary consideration as to whether the minor child was subject to a summary or peremptory return to Australia. That decision will determine the appropriate forum.
The Respondent/Wife changed lawyers after filing her application for ancillary relief. Counsel for the Applicant/Husband gave an undertaking to provide Ms. Margot Greene, QC and Ms. Peta Lee-Brace who replaced Mr. Branch with all of the documents that were filed. New counsel did not pursue the Respondent/Wife's application for ancillary relief.
On 4 June 2021, the Court made an order for the Respondent/Wife to file her response to Mr. Ibrahim Noumeh's affidavit by June 7, 2021 and giving the Applicant/Husband liberty to reply by 8 June 2021. The hearing was adjourned until June 9, 2020.
Having considered the evidence and counsel's submissions the court has decided to allow the application. The court has ordered the summary return of the minor child to the custody of his father, the Applicant/Husband and to Australia. The reasons for the decision are below:
The issue before the court is whether it is in the best interest of the child to grant summary return of the minor child to Australia in the custody of his father, the Applicant/Husband.
The Applicant/Husband's Counsel initially referred to The Hague Convention on Civil Aspects of International Abduction (The Hague Convention) and submitted that under Article 11 of that instrument the court had a tight timeline of six weeks within which to conclude this matter Counsel for the Respondent/Wife contended that to ground this application under The Hague Convention, Counsel should have referenced the convention in the heading of the filed documents. The Hague Convention was signed by Barbados on October 1, 2019. Barbados does not have a reciprocal agreement with Australia. This court felt it was important that there be ventilation as to whether this Convention was to be followed in the case at bar and that a determination be made before hearing oral evidence.
Hence, in an email dated June 8, 2021,1 requested Counsel for the parties to make submissions on whether:
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(i) the Convention has been incorporated into our laws;
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(ii) if it has not been should the court follow the Convention in determining the case before the court;
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(iii) what is the effect of Australia not being one of the countries that recognised Barbados as signatory to the Convention in respect of this case.
Counsel for both sides agreed that the Convention was not incorporated into our laws. They cited Attorney General, Superintendent of Prison and Chief Marshal v Jeffrey Joseph and Lennox Boyce CCJ APP 2/2005.9 ( Joseph and Boyce), a decision of the Caribbean Court of Justice on appeal from the court of Appeal of Barbados.
Brief facts are that both Joseph and Boyce were found guilty of murder and sentenced to death. They appealed the decision. The Court of Appeal dismissed the appeal. They subsequently appealed to the Judicial Committee of the Privy Council who also dismissed the appeal and upheld the mandatory death sentence in Barbados.
Joseph and Boyce made an application to the Inter-American Commission on Human Rights seeking declarations inter alia that their rights under American Convention on Human Rights had been violated. They also appealed to the Caribbean Court of Justice (CCJ) and a joint judgement was given by the Right Hon. Justice de la Bastide and Justice Saunders.
In that case the CCJ considered the relationship between domestic law and unincorporated treaties. The executive had ratified the American Convention on Human Rights (ACHR) but it was not incorporated into our law.
At paragraph 55 President de la Bastide and Saunders J said:
“In states that international lawyers refer to as ‘dualist’, and these include the United Kingdom, Barbados and other Commonwealth Caribbean states, the common law has over the centuries developed rules about the relationship between domestic and international law. The classic view is that, even if ratified by the Executive, international treaties form no part of domestic law unless they have been specifically incorporated by the legislature. In order to be binding in municipal law, the terms of a treaty must be enacted by the local Parliament.”
Counsel for the Applicant/Husband cited the Australian Case Minister of State for Immigration for Ethnic Affairs v Teoh which was referred to in Joseph and Boyce. In reference to the Australian case, de la Bastide P and Saunders J stated at paragraph...
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