White v White
| Jurisdiction | Barbados |
| Judge | Beckles, J. |
| Judgment Date | 08 September 2017 |
| Neutral Citation | BB 2017 HC 24 |
| Docket Number | FL 0218 of 2017 |
| Court | High Court (Barbados) |
| Date | 08 September 2017 |
High Court
Beckles, J.
FL 0218 of 2017
Ms. Alicia Dells, Attorney-at-Law on behalf of the applicant/Husband
Ms. Hal Gollop, Q.C., Attorney-at-Law on behalf of the respondent/Wife
Family Law - Child — Whether High Court had jurisdiction to hear the applicant father's application under the circumstances — Jurisdiction — Welfare of the child.
This matter commenced by way of an exparte application filed under a certificate of urgency dated 18th May, 2017 by Alicia Dells, Attorney-at-Law for the applicant/Husband.
The application was tirst heard on the 19 th May, 2017 by Justice Beckles who made the following Orders:
“(a) That the respondent/Wife shall be prohibited from leaving the jurisdiction until further Order of the court.
(b) That the applicant/Husband is permitted to serve the relevant immigration authorities and airline companies operative in this Island with a copy of this Order prohibiting the respondent/Wife from leaving the jurisdiction until further Order of the court.
(c) That a copy of this application and the accompanying documents shall be served on the respondent/Wife as soon as possible.
(d) That the matter is adjourn until Monday 22 nd May, 2017 to be heard before the Honourable Madam Justice Pamela Beckles at 9:30 a.m.
(e) Liberty to apply.”
The substantive application concerns the custody, care and control of the minor child of the marriage J-Shawn Zaayr Omar White (the minor child). Under this application, the applicant/Husband applies for the following orders:
“(a) That the applicant/Husband and the respondent/Wife shall have joint custody of the minor child of the marriage J-Shawn Zaayr Omar White with the care and control of the said minor child vested in the applicant/Husband.
(b) That the respondent/Wife shall forthwith return the minor child of the marriage J-Shawn Zaayr Omar White, who was born on the day of July, 2014, to the jurisdiction of Barbados.
(c) That the respondent/Wife shall be responsible for paying the airfare and the necessary travel expenses associated with the return of the said minor child to the Island of Barbados.
(d) That the respondent/Wife shall be prohibited from leaving the jurisdiction until she has returned and/or delivered the said minor child of the marriage to the applicant/Husband.
(e) That the applicant/Husband be permitted to serve the relevant immigration authorities and airline companies operative in this Island with a copy of this Order prohibiting the respondent/Wife from leaving the jurisdiction until the said minor child is returned to Barbados or until further Order of the court.
(f) That the respondent/Wife shall deliver up her passport and/or other travel documents to the Registrar of the Supreme Court within 24 hours of service of this Order.
(g) That the respondent/Wife shall deliver up the minor child's passport and/or other travel documents to the applicant/Husband once the minor child is returned to this jurisdiction.
(h) Such further Orders as this Honourable Court deems necessary.
(i) Liberty to apply.”
The parties were married in Barbados on the 18th April, 2015. The applicant/Husband is a Barbadian and the respondent/Wife a Jamaican. The minor child was born on the1lst July, 2014 in Jamaica and is the only child of the marriage. The minor child has dual citizenship and resided in Barbados with the parties from on or about November, 2014 at their matrimonial home situate in Baywoods in the parish of St. James until around May 2016 when with the applicant/Husband's consent, the respondent/Wife took him to Jamaica with her. The minor child has been in Jamaica from then and has not returned to Barbados. However, the respondent/Wife subsequently returned to Barbados without the minor child.
The applicant/Husband filed an affidavit in support of his application. The matter came on for hearing on the 28th June, 2017 with the respondent/Wife being present and represented by Attorney-at-Law, Mr. Hal Gollop, Q.C.
After hearing both parties the court made the following Orders:
“(a) That both parties file and serve their written submissions on both points raise in limine by the 19th day of June, 2017.
(b) That the Order made by the Honourable Madam Justice Pamela Heckles on the 19th May, 2017 is hereby vacated.
(c) That the matter is adjourned for the 28th June, 2017.
(d) Liberty to apply.”
Written submissions with supporting authorities were filed by both parties addressing the main issue whether the court has jurisdiction to hear the instant application. The detention of the respondent/Wife in Barbados is no longer an issue as that Order was vacated on the 28 th June, 2017.
The applicant/Husband filed an affidavit in support of his application which gives some background information. Therein, he asserted that while the respondent/Wife was pregnant with the minor child she returned to Jamaica to give birth. The applicant/Husband stated that he subsequently visited Jamaica to attend the birth of his son.
He averred that after the birth of his son he returned to Barbados in July, 2014 and the respondent/Wife and his son then came to Barbados in November, 2014. On her return they resided at the matrimonial property situate in Baywoods in the parish of St. James for approximately two years before her return to Jamaica to receive medical treatment.
According to him it was agreed that the child and the respondent/Wife would return to Barbados in order for the child to begin nursery school in the upcoming school year. However, this never materialized.
The applicant/Husband asserted that it was only when his father visited Jamaica in or around June 2016 and attempted to see the minor child, but was denied access by the respondent/Wife, that he realized something was wrong. He noted that communication between him and the respondent/Wife had reduced significantly as she stopped answering his calls.
The applicant/Husband further deposed that he subsequently visited Jamaica to see his son but upon reaching the residence of the respondent/Wife's family, she informed him that the child was with her mother in the parish of St. Mary.
Subsequently, on one occasion, the applicant/Husband was able to see his son.
The applicant/Husband contended that he tried making arrangements to see the child on his birthday in order to spend quality time with him but the respondent/Wife informed him that she sent the child back to his grandmother's house in St. Mary.
The applicant/Husband contended that after he realized that the respondent/Wife was deliberately withholding his son from him, he threatened to deal with the matter legally.
In his affidavit the applicant/Husband revealed that upon his return to Barbados on 15th July, 2016, he discovered that the respondent/Wife's belongings were removed from the matrimonial home and that among the missing items were the minor child's birth certificate and the respondent/Wife immigration documents.
In or about November, 2016 the respondent/Wife returned to Barbados and informed the applicant/Husband that she returned to Barbados but left the minor child with her mother in Jamaica. The applicant/Husband contended that he pleaded with the respondent/Wife to return the minor child to Barbados but she has refused to do so.
The applicant/Husband is of the opinion that he is able to adequately care and provide for the child and that he should be vested with the care and control of the minor child with reasonable access to the respondent/Wife.
The Affidavit also revealed that the applicant/Husband is fearful that if the respondent/Wife is allowed to leave the jurisdiction that he will never see his son again.
In light of the application and affidavit in support thereof, on 19th May, 2017 the Honourable Justice Beckles ordered, inter alia, the respondent/Wife not to leave the jurisdiction until further Order of the Court.
The applicant/Husband submitted that the court derives its jurisdiction from the Family Law Act, Cap. 214 of the Laws of Barbados. In particular, he asserted that pursuant to section 19 (1)(b)(ii) of the said Act the High Court is empowered to hear matrimonial causes instituted under the Act which constitutes matters concerning the guardianship, custody or maintenance of children.
He further submitted that with the exception of conditions or restrictions as may be contained in the Family Law Rules, the jurisdiction of the High Court may be exercised in relation to persons or things outside Barbados.
Alluding to section 40(1) of the Act, the applicant/Husband submitted that where there is no court Order of the High Court with respect to the guardianship and custody of the child of the marriage, each party to the marriage is a guardian of every child of the marriage who has not attained the age of 18 years and the parties to the marriage have joint custody of each child.
The applicant/Husband submitted that the removal of the child from Barbados to Jamaica by the respondent/Wife resulted in the denial of his rights to guardianship and custody and a denial of the child's right to maintain contact with both parents, which is an essential element in the promotion of the welfare of the child. He further submitted that the removal or retention of a child is wrongful if the act is contrary to the rights of custody under the law of the state in which the child habitually resides.
The applicant/Husband contended that the respondent/Wife initially decided to leave the minor child in Jamaica without consulting him.
It is the applicant/Husband's further contention that since the respondent/Wife removed the child from this jurisdiction, she has since returned to reside in Barbados but decided...
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