Carter J
```html <table> <tr> <td>IN THE GRAND COURT OF THE CAYMAN ISLANDS</td> <td>FAM 0150/2020</td> </tr> <tr> <td>FAMILY DIVISION</td> <td>LACVO104/2020</td> </tr> </table> <h2>BETWEEN</h2> <table> <tr> <td>E.M.</td> <td>Petitioner</td> </tr> <tr> <td>AND</td> </tr> <tr> <td>D.M.</td> <td>Respondent</td> </tr> </table> <p>Appearances:</p> <ul> <li>Petitioner appears in person</li> <li>Mr. Lindsay Cacho, Attorney-at-Law for the Respondent</li> </ul> <p>Before:</p> <ul> <li>Hon. Justice Marlene I. Carter (Actg.)</li> </ul> <p>Dates heard:</p> <ul> <li>27 and 28 April 2021</li> </ul> <p>Date Delivered:</p> <ul> <li>23 July 2021</li> </ul> <h2>PREAMBLE</h2> <p>This judgment is distributed with the strict understanding that, in any respect of it, the anonymity of the parties and of the child must be strictly preserved, that is, no party or child may be identified by name, school, location, or by family members.</p> <h2>HEADNOTE</h2> <p>Final Ancillaries; Residence and Maintenance for the child of the family; spousal support</p> <h2>JUDGMENT</h2> <ol> <li> <p>The parties were married on the 3<sup>rd</sup> of February 2015 in Grand Cayman. The dissolution of the marriage was filed on the 3<sup>rd</sup> day of August 2020. There is one child of the family born on the 25<sup>th</sup> of December 2013 (hereinafter “W”) who is now seven years old. He is a special needs child.</p> </li> <li> <p>At the first appointment hearing before the Grand Court, on the 1<sup>st</sup> of October 2020, the Petition for Dissolution was proved and a Court Welfare Officer’s report [hereafter “the Welfare</p> </li> </ol> ```
```html <table> <tr> <td>Report"] was ordered on the issues of residence and contact. The court thereafter fixed a final ancillary hearing and ordered supporting affidavit evidence to be filed by the parties</td> </tr> <tr> <td>3. The Petitioner's first affidavit was filed on the 3rd of February 2021. The Petitioner sought relief as follows:</td> </tr> <tr> <td>“(1) This Court will grant a Sole Residence Order in favour of the Petitioner with Supervised visits to the Respondent or;</td> </tr> <tr> <td>(2) If the Court does not see fit to grant a Sole Residence Order, the Petitioner applies for Shared Residence with 15 day intervals to each parent;</td> </tr> <tr> <td>(3) That neither party be allowed to remove the child from the Jurisdiction without the written permission of the other;</td> </tr> <tr> <td>(4) That the Respondent makes every effort to obtain and keep employment so that she can assist financially with the child's special needs.”</td> </tr> <tr> <td>4. The Respondent's affidavit filed herein on the 22nd of March 2021 was quite comprehensive. The Respondent sought the Court's Orders as follows:</td> </tr> <tr> <td>(a) That a shared residence order for W is made to both parents, alternating weekly as recommended or in the alternative, that if this Honourable Court is mindful of making a sole parental residence order for W that it does so in my favour.</td> </tr> <tr> <td>(b) That when W is in the care of the Petitioner, that the Respondent is granted daily telephonic contact at reasonable times.</td> </tr> <tr> <td>(c) That both parents share summer and Christmas holidays to be agreed between the parties or by order of this Honourable Court.</td> </tr> <tr> <td>(d) ... I am seeking an order that the child is not to be removed from the jurisdiction without the consent of either party or by order of the Court and each party to provide a physical address, and telephone contact of where W will be residing with the party at all given times.</td> </tr> <tr> <td>(e) That the Petitioner is to return W's passports botluban and Islands, back to the Respondent.</td> </tr> <tr> <td>(f) That the Parties must consult each other on all major policies involving and affecting W with a view to adopt a harmonious attitude best calculated for his welfare whilst he is still a minor.</td> </tr> <tr> <td>(g) That both Parties contribute equally to the reasonably incurred medical, dental, and optical expenses of W upon presentation of receipts.</td> </tr> </table> ```
```html <table> <tr> <td>(h) That both Parties contribute equally to the educational expenses of W until</td> </tr> <tr> <td>he reaches the age of 16 years or completes his first University degree up</td> </tr> <tr> <td>(to the age of 21 years) whichever is later.</td> </tr> <tr> <td>(i) That this Honourable Court makes an order for the Petitioner to pay</td> </tr> <tr> <td>spousal maintenance as well as child maintenance as it deems fit.</td> </tr> </table>
In his further affidavit filed on the 15th of April 2021, regarding each item of relief sought by the Respondent, the Petitioner responded to each paragraph as follows: <ul> <li>Sole or every two weeks alternation Residence. Anything shorter will create instability for the child.</li> <li>That to this statement the Petitioner proposes two days a week before five for calls by the Respondent, when child is with the Petitioner.</li> <li>That this be split half in half.</li> <li>That this statement is not true. The Petitioner only has one relative who is very old in the USA. The Petitioner does not like the USA. The Petitioner agrees to the prohibited steps Order.</li> <li>That as the child's father, the Petitioner has rights to the child's passports. If parties agree on any particular travel, the Petitioner will provide the Respondent with the passport.</li> <li>The Petitioner only wishes to speak to the Respondent as necessary.</li> <li>Petitioner agrees to continue to pay for child's insurance fully.</li> <li>This is agreed.</li> <li>That the Respondent is much younger that the Petitioner, is in good health and currently holds a RERC or can get a permit. She is very capable of maintaining herself and helping with the child's expense. The Petitioner is fighting to keep his small business a-float. The Petitioner opposes spousal support of any amount or sort.</li> </ul>
From the foregoing, and after hearing both parties, it was agreed between the parties at the ancillary hearing as follows: <ul> <li>That the parties shall have equal access to the child during the school holidays at Easter, Christmas and during the summer vacation, Christmas Day and W's birthday to be rotated on a yearly basis.</li> <li>That when W is in the care of one Party, that the other party is granted daily telephonic contact at reasonable times.</li> <li>The child W is not to be removed from the jurisdiction by either party without the consent of the other party or by order of the Court. The party with whom </li></ul> ```
The child is travelling is to provide a physical address where the child will be residing while overseas together with a telephone contact to the other party. (iv) The court’s order is that The Petitioner will retain the child’s passports. If the child is travelling overseas, or the passport is required by the Respondent for any other reasonable purpose the Petitioner will provide the passport to the Respondent upon her request. (v) The Petitioner will continue to be responsible for the health insurance payments for W. Any other expenses not covered by health insurance should be shared by the parties. The Petitioner will continue to pay for the separate life insurance for W. (vi) That both Parties contribute equally to the educational expenses of W until he reaches the age of 16 years or completes his first University degree up (to the age of 21 years) whichever is later.
The main issues remaining for the Court’s consideration were those of residence and maintenance. The Welfare Report which was completed and filed on the 17th of December 2020 recommends, on the issue of residence that a shared residence order be made, from Monday evening to the following Monday morning. I shall go into further details on this recommendation later in this judgment. **The Father’s position**
As highlighted above, the Petitioner, father, seeks a Sole Residence Order in his favour in respect of the child W with supervised visits to the Respondent. Alternatively, the Petitioner seeks a Joint Residence Order with 15-day interval to each parent.
The Petitioner’s affidavits in support of ancillary relief of the 3rd of February 2021 and of the 15th of April 2021 addressed the issue of arrangements for W while he was in his care. In support of his application for a sole residence order the Petitioner related the following: a. The Petitioner’s sister who has lived with and helped care for the child from shortly after birth, has returned to live with the Petitioner in his house. b. That the Petitioner lives near a park, as part of the plan for the child’s social development, the caregiver, his sister, will accompany the child to the park a few times a week to socialize with other children. 210723 EM v DM – Judgment 4
```markdown ## c. That the caregiver will assist the Petitioner with getting the child to events and outings to further develop his social skills. ## d. The child loves music, hence the Petitioner plans to enroll the child in piano and guitar classes once he can locate persons that are trained to communicate with the child. ## e. That the Petitioner enquired at the child's school for extracurricular activities suitable for the child, unfortunately he was told there is none." ### 10. The Petitioner related that he was pleased with W's progress at LHS. He related that when he picks W up from school, he stays with him at his workplace. He stated that he did not think that this should be a mark against him since a lot of parents take children to work and that he could not send him home alone. He related that W had toys there to occupy himself and that he interacted with adults at the restaurant, saying that W "did not interest too much with young people". He related that young kids did not like to pay attention to him [W] because he can't talk and he gets frustrated. With adults, he related, everybody loves him. ### 11. He agreed that as a young child W needs to have time with his mother. He stated however that he felt that he should have sole residence because the Respondent "does not have time for the child. I have more time because I am self-employed." He related that if the court granted sole residency of W to him, that the Respondent could see him on the weekend, during the day. He stated that even now when the periods are for 15 days each, that the Respondent calls W by telephone and he has no issue with that. ### 12. He related that he wants the child with him, that the divorce was not his fault and that he did not want to be separated from the child because he needs him. ### 13. The Petitioner noted that his main reason for seeking a sole residence order is that the Respondent's behaviour in not picking up W from school on time, he alleges the Respondent's neglect, has a history of violent behaviour, and that W may be exposed to drinking due to the Respondent's lifestyle. He reiterated in his testimony before the court that he has concerns about what would happen to W when the Respondent goes out, as he maintains that she does at night. ### 14. The Welfare Report detailed the expenses of the Petitioner which he accepted while stating that he was operating at a deficit. 210723 EM v DM – Judgment ```
```markdown # Expenses | Expenses | Cost ($) | | --- | --- | | Personal Expenses | | | Rent | 1200 | | Electricity | 200 | | Water | 50 | | Phone | 50 | | Grocery | 200 | | W's lunch and snacks | 400 | | Restaurant Expenses | | | Rent | 1000 | | Electricity | 575 | | Phone and Internet | 250 | | Groceries | 3,200 | | **TOTAL** | **7,125** | ## Earnings | Earnings | Amount($) | | --- | --- | | | | | Average of monthly earnings | 3500 | | | | | **Total** | **3500** | | | | | Deficit: | 3,625 | ## Financial Statement The Petitioner related that he was experiencing financial difficulties as his earnings fluctuate and depends on how well his restaurant is patronized. He shared that he was currently some months behind in the payment of rent for his establishment. His earnings are as follows: The Petitioner stated that the Respondent should make every effort to obtain and keep employment so that she can assist financially with the child's special needs. 210723 EM v DM – Judgment ```
The mother's position
The Respondent, mother, gave evidence under oath with the aid of an interpreter. She also adopted the contents of her affidavits filed on 22nd day of March 2021.
The Respondent, related that she was in full employment as a sales associate until March 2020 when, due to the Covid-19 Pandemic, the jewelry store in which she worked was closed. The Respondent remains an employee but receives no salary. The Respondent does receive a government stipend of CI$1500.00 per month. She also works occasionally at another job part-time for which she earns a salary of approximately $144.00 per month. The Respondent can meet her monthly expenses from this income. The Respondent lives in rented accommodation which comprises a one-bedroom with its own bathroom within the Landlord’s dwelling home. She states that at present it is sufficient for herself and W, although she would like to secure more suitable accommodation once she returns to full time employment.
The monthly expenses of the Respondent were set out as follows: | a. | RENT | $600.00 | | --- | --- | --- | | b. | LIGHT | (included in Rent) | | c. | WATER | (included in Rent) | | d. | GROCERIES | $375.00 | | e. | INTERNET | (Included in Rent) | | f. | TELEPHONE | $25.00 | | g. | PERSONAL | $100.00 | | Total monthly expenses are: | $1,100.00 |
The Respondent confirmed that she has no savings. Although the Respondent stated in her testimony before the court that, at present, she provides for W’s expenses with her stipend, she is mindful that if the stipend upon which she is dependent ceases and she returns to full time employment that she will be unable to provide for W. The Respondent stated that if or when the stipend ceases, prior to obtaining full time employment, she is seeking maintenance for both herself and W from the Petitioner, as the Court deems fit.
The Respondent seeks a Shared Residence Order with respect to W or alternatively a sole Residence Order with liberal access to the Petitioner. Regarding the period that W now spends between parents the Respondent related: “I don’t think it is a stability for the child.” “When 210723 EM v DM – Judgment
```html <table> <tr> <td>after 15 days, he has attitude and says bad words to me, and he is nervous ... he says he does not want to be away from me. He would say he is afraid, become afraid of losing me.” She acknowledged that the child adores his father. She offered that that it was because of the lack of communication or a relationship between the parties, that the child is nervous. “He thinks that we are about to fight, or he [the Petitioner] is going to say something ill to me.”</td> </tr> <tr> <td>22.</td> <td>The Respondent stated that she preferred a shared residence order: “One week is the most suitable period. I don’t have a problem with [the Petitioner] seeing the child. If he wants to see the child everyday its fine. The problem is communication. We don’t have communication.”</td> </tr> <tr> <td>23.</td> <td>The Respondent in her affidavit in support of Ancillary relief notes that W is a happy child and feels that they share a special bond. She stated that she believes that the Petitioner also loves and adores W. The Respondent stated that in the event that she returns to full time employment, she would need to have some place to take W for approximately 2 hours after school. She had hoped to use the Petitioner’s sister for this aspect. She stated: “I would never put W’s safety or interest into jeopardy”.</td> </tr> </table> <h3>Maintenance</h3> <p>24. The Matrimonial Causes Law (2005 Revision) provides with respect to ancillary proceedings:</p> <p>“19. In dealing with all ancillary matters arising under this Law, the Court shall have regard first of all to the best interests of any children of a marriage and thereafter to the responsibilities, needs, financial and other resources, actual and potential earning power and the deserts of the parties.”</p> <p>25. The current arrangement is that each parent has custody of the child for a continuous period of 15 days. Each parent assumes full financial responsibility for the child while he is in his/her care.</p> <p>26. All medical bills are at present covered by the Petitioner. The Petitioner pays for the insurance as well as a separate life insurance policy for W. In his testimony before the court the Petitioner confirmed that he is happy to continue to pay for health insurance for W himself. He related that he spends approximately $50.00 on Walter per week. He “buys the things that he needs.”</p> <p>210723 EM v DM - Judgment</p> ```
```markdown # Judgment
For the Respondent's perspective, she states that, at present, the expenses for W amount to approximately $250.00 - $300.00 per month, although it was difficult to calculate as these are tied with her personal expenses as she would shop for both herself and W when she goes to the supermarket.
The parties agree that there are no school fees payable for W.
It is clear to this court that all of W's financial needs are being adequately met by both of his parents. The Respondent is also able to meet all her financial needs. At issue is what will be the position in the future for both the Respondent and W in this respect. The court is mindful of the somewhat precarious position in which the Respondent finds herself. She is dependent on a subsidy that may be ended without recourse to her at any time.
There appears to be no impediment to the Respondent being able to obtain employment once the industry in which she works is once more fully operational. As set out above, the Respondent was in full employment as a sales associate up to March 2020. She remains an employee but receives no salary. She anticipates that she will be able to return to this position. She has been able to secure a part-time position in the interim. While it is difficult for the court to anticipate what will be necessary in the future, in the interest of moving towards a clean break between these parties, I will order that a nominal sum be awarded for spousal maintenance for the Respondent.
The Petitioner will pay the sum of $200.00 per month for spousal maintenance and the sum of $200.00 per month for maintenance of W. These payments will commence once the Respondent stops receiving the subsidy that at present meets her needs and that of the child W while he is in her care. The payment for spousal maintenance will continue up and until the Respondent is able to return to full-time employment. The court is mindful that this order for spousal maintenance is being made and is dependent on uncertain circumstances in the future. As a result, either party will be at liberty to return to the court on this issue of spousal maintenance if warranted. This court encourages the Respondent to seek employment to assist with the maintenance of W. **The Welfare Report**
Section 3 (3) of the Children's Law (2012 Revision) states as follows: S.3 (1) Where a court determines any question with respect to: (a) the upbringing of a child; or 210723 EM v DM – Judgment 9 ```
```html <table> <tr> <td>(b) the administration of a child's property or the application</td> </tr> <tr> <td>of any income from it,</td> </tr> <tr> <td>The child's welfare shall be the court's paramount consideration.</td> </tr> <tr> <td>(2) In any proceedings in which any question with respect to the</td> </tr> <tr> <td>upbringing of a child arises, the court shall have regard to the general</td> </tr> <tr> <td>principle that any delay in determining the question is likely to</td> </tr> <tr> <td>prejudice the welfare of the child.</td> </tr> <tr> <td>(3) In the circumstances mentioned in subsection (4) a court shall have</td> </tr> <tr> <td>regard in particular to-</td> </tr> <tr> <td>(a) the ascertainable wishes and feelings of the child concerned</td> </tr> <tr> <td>(considered in light of his age and understanding);</td> </tr> <tr> <td>(b) his physical, educational and emotional needs;</td> </tr> <tr> <td>(c) the likely effect on him of any change in his circumstances;</td> </tr> <tr> <td>(d) his age, sex, religious persuasion, background and any</td> </tr> <tr> <td>characteristic of his which the court considers relevant;</td> </tr> <tr> <td>(e) any harm which he has suffered or is at risk of suffering;</td> </tr> <tr> <td>(f) how capable each of his parents, and any other person in</td> </tr> <tr> <td>relation to whom the court considers the question to be</td> </tr> <tr> <td>relevant, is of meeting his needs; and</td> </tr> <tr> <td>(g) the range of powers available to the court under this Law in</td> </tr> <tr> <td>the proceedings in question.</td> </tr> </table>
The Welfare Report, focusing on the issues of contact and residence, was prepared by order of the Court wherein the officer assessed W's welfare in accordance with the Section 3 (3), "the Welfare Checklist". In so doing, the officer had extensive contact with the parties, W's school, and previous reports from relevant agencies as well as her own interactions with and observations of W. There findings contained in the report are very helpful to this court's further understanding of the parties' positions and of the child in this matter. The report detailed as follows: (i) Wishes and feelings: [of W] He has a speech impediment this a communicate. ... He has expressed that he loves both of his parents and liked being at their homes. Observation of the client in the care of both parents showed that he has a strong attachment to both. ...From all indications he would like his parents to be more cordial to each other. (ii) Physical, educational, emotional, behavioural and health: W is ambulate and has no problems with physical mobility. He has sessions with a Speech Therapist every week. ```
```markdown (iii) **Education:** W was diagnosed with an Intellectual Disability-Mild and attends LHS. His teacher shared that he was eager to learn and performing well at school. His communication skills have been improving and this makes it easier for him to relay information. His attendance at school has been excellent. Both parents reported that they noted positive changes since he started attending Lighthouse School and were proud of the progress being made. (iv) **Emotional/Behavioural:** W has parents who love him and try their best to provide the care he needs. He seems to have a deep attachment to both his parents. He does not have the support of an extended extensive family since he is an only child. At this age it is important that he feels secure in his attachment to those persons who provide care for him. There are no behavioural issues reported and he appears to have normal engagements with his classmates. He shared that he had specific friends he preferred and was able to share about their activities. However outside of school, he does not appear to have a lot of interaction with children his age and this can affect his social development. (v) **Sex, age Background and any other relevant characteristics – already described** (vi) **Likely effect of any change in circumstances –** W has a deep attachment to both his parents. However, his parents’ contentious relationship has resulted in both seeking a residence order. It would be devastating to W to be separated for an extended time from either parent. (vii) **Harm suffered or risk of suffering:** It was reported that W suffered from anxiety and worries about his parents not getting along with each other. The contentious relationship between the parents appears to contribute to this anxiety. This can have a negative long-lasting effect on his mental health. W would benefit from involvement in extracurricular activities. Reports from both parents indicate that the only interaction he has with children is when he attends school. W’s social development will be negatively impacted if he is kept from socializing with children his age. He needs to learn appropriate behaviors expected of a smaller group within the larger society.
The Welfare Officer made recommendations which were detailed at the end of the Welfare Report: “Recommendations:” 210723 EM v DM – Judgment ``` This text is a transcription of the content visible in the image, maintaining the original structure and phrasing.
```markdown ## Court Order ### i. That the parents make arrangements for the child to have after school care and engage in age-appropriate activities, giving him the opportunity to interact with other children his age; ### ii. Both parents participate in parenting and co-parenting sessions through the Family Resource Centre (FRC) ### iii. That [the Petitioner] obtain counseling at the Counseling Centre to learn techniques such as communication skills, nonviolent assertiveness, social skills and anger management ### iv. "That a shared residence order be granted to [Petitioner and Respondent] [Petitioner] be granted custody of the child during the week, Monday to Friday and [Respondent] take custody of the child from Friday after school and drop him off at school on Monday mornings until such time that he secures after school services for the child. At which time this worker recommends each parent has custody of the child for seven days cycle, starting from Monday evening to the following Monday morning. Each parent should collect the child after school and take custody and drop off the child the following Monday morning to school. After with the custodial parent for that period would take custody of the child." ### v. School holidays should be split equally between the parents and consideration should be given for special occasions such as Mother's Day and Father's days so that the child can spend that time with the appropriate parent if not in their custody. Birthdays and other occasions such as Christmas should be rotated on a yearly basis." ### 35. At the final ancillary hearing the parties agreed to recommendations (i), (ii), (iii) and (v). The Welfare Officer was tasked by this court to approach W's school to inquire as to what extracurricular activities may be offered at school and to continue to interact with the parties in this regard. During the hearing, the parties agreed to the recommendations regarding participation in parenting and co-parenting sessions through the Family Resource Centre to learn techniques such as communication skills, nonviolent assertiveness, social skills, and anger management. The Court is grateful to the parties for their agreement and commitment to these recommendations. ### 36. The Welfare officer gave evidence at the hearing. She related that from her observations of W, he was very comfortable around adults. During her visits to his school, she had noted his ```
```html <table> <tr> <td>interactions with other children. He appeared to be quite social and had a few friends. He</td> </tr> <tr> <td>engaged with his classmates. She related that during the period that she had interacted with</td> </tr> <tr> <td>him, that there has been a marked improvement in his speech. The Welfare Officer stated that</td> </tr> <tr> <td>W would benefit from further development of his social skills, to her words：“if he was less</td> </tr> <tr> <td>isolated”.</td> </tr> </table> 37.On the matter of the 15-day intervals for access, the welfare officer’s concern was that it was</td> </tr> <tr> <td>too long a period for W to be separated from either parent. She related to the court of one</td> </tr> <tr> <td>occasion during which she was present when W was in the custody of the Petitioner and had</td> </tr> <tr> <td>had telephone contact with the Respondent. She stated：“What I witnessed once after a call</td> </tr> <tr> <td>with the Respondent. W was anxious and crying and Petitioner was unable to control him. If</td> </tr> <tr> <td>it is once a week, he is re-assured. It applies both ways.” In her opinion the anxiety that she</td> </tr> <tr> <td>witnessed was“not because he is special needs, but because he is still a young child.”</td> </tr> </table> 38.She noted that the Petitioner is seemingly unaware that it may be that the clinginess that he</td> </tr> <tr> <td>describes in W, after speaking to the Petitioner, may be a sign of such anxiety. She related that</td> </tr> <tr> <td>the Petitioner is very protective of W but offered that the Petitioner has now to translate that</td> </tr> <tr> <td>caring and protectiveness to reach the place where he can see that he does not need to protect</td> </tr> <tr> <td>him from his mother and that he can show that love by concentrating on what is best for W at</td> </tr> <tr> <td>this point in his young life.</td> </tr> </table> <h3>Court’s considerations and conclusions</h3> 39.The parties’ reasons for seeking sole residence orders for W, many of which centered on their</td> </tr> <tr> <td>concerns about the suitability of the other were all addressed in the Welfare report. The</td> </tr> <tr> <td>Petitioner’s concerns noted at paragraph 13 above and about W having been injured while in</td> </tr> <tr> <td>the Respondent’s care and not being taken to have immediate medical treatment were noted.</td> </tr> <tr> <td>The Respondent’s concerns were also noted. These stemmed from W’s being at his father’s</td> </tr> <tr> <td>restaurant after school, that he was being left unsupervised on a busy business complex. Also,</td> </tr> <tr> <td>the effect on W of witnessing the Petitioner’s behaviour towards her and the tone of their</td> </tr> <tr> <td>communications which also make W very anxious and upset.</td> </tr> </table> 40.As the welfare officer described there is proper cause for the anxiety expressed by the mother</td> </tr> <tr> <td>At paragraph 124 of the Welfare Report she noted：“This worker has discussed with [the</td> </tr> <tr> <td>Petitioner] the danger of W playing in front of the restaurant on the sidewalk, since there is an</td> </tr> <tr> <td>active parking lot located a few feet away and a busy highway. [The Petitioner] became upset</td> </tr> <tr> <td>when this worker raised this concern and does not see the risk this poses to the child. He did</td> </tr> </table> 210723 EM v DM - Judgment ```
```html <table> <tr> <td>not agree that safeguards have to be put in place to ensure that W remains safe in that environment."</td> </tr> <tr> <td>41.</td> <td>Issues of suitability were also highlighted before the court when each of the parties gave their own evidence. The medical issues, relating to minor injuries sustained by Walter while in the care of each of the parties at different times were explained to the satisfaction of this Court.</td> </tr> <tr> <td>42.</td> <td>It is evident to this court that the parties shared a willingness to do what was necessary for W’s welfare and improvement. There is absolutely no question in this court’s mind on that point. However, many of the concerns expressed by both parties of the other stem from a lack of communication. The Court’s observations about the lack of communications are supported by the evidence of the welfare officer. The parties must continue to try to achieve some sort of working relationship in the interests of W.</td> </tr> <tr> <td>43.</td> <td>As with all matters concerning children, on this issue of residence for W, I have as my paramount consideration the welfare of W as mandated by Section 3(1) of the Act. I consider the evidence that W’s anxiety and signs of distress are in part caused by long periods of absence from either parent. I must determine how these are to be mitigated in the child’s best interest. It is clear to my mind that the present arrangement for access is sustainable only if the parties are to establish a framework for communication about W. However, this is clearly not possible in the present climate where emotions are still running high because of the circumstances alleged in the petition. I am especially mindful that as far as the interests of W are concerned, the lack of communication between his parents is a stumbling block preventing easier resolution of both issues of concern relating to W and to misunderstandings between the parties.</td> </tr> <tr> <td>44.</td> <td>I have considered the welfare checklist, the evidence presented both at the hearing and from the affidavits filed by the parties, as well as the recommendations of the welfare officer regarding residence for W. I find that her recommendation on residence is not unreasonable. During his testimony, the Petitioner could only offer one reason for seeking the 15-day split and that is because he may want to travel and the difficulties that may occur if he travels for more than one week. The force of this argument was however somewhat diminished by the evidence that he does not have many relatives abroad and by his evidence that his sister may not be able to assist with him to assist with W. I am convinced that suitable arrangements can be made to accommodate his travel while ensuring that W’s care is not affected. In any event, on this issue, I am not overly concerned with the convenience of the parties.</td> </tr> </table> ```
```html <table> <tr> <td>45.</td> <td>I agree with the Williams J in the case of AP v AP when he expressed the following: "The long-term best interests of a child are invariably best protected if, despite the breakdown of the parents’ relationship, both parents are able to continue to play an equal role in making the important decisions that will determine the child’s upbringing."</td> </tr> <tr> <td>46.</td> <td>After full consideration of all relevant issues, I am satisfied that a this is a case in which, pursuant to Section 3 (5) of the Law, the making of an order in respect of W is better for this child than making no order at all. I find that a joint residence order should be made. It is important that the parties understand the effect of such an order.</td> </tr> <tr> <td>47.</td> <td>In Re P (Shared Residence Order), Wall LJ stated as follows: "Such an order (shared residence) emphasizes the fact that both parents are equal in the eyes of the law and that they have equal duties and responsibilities as parents. The order can have the advantage of conveying the court’s message that neither parent is in control and that the court expects parents to cooperate with each other for the benefit of the children." These sentiments are entirely relevant in the circumstances of this case.</td> </tr> <tr> <td>48.</td> <td>The joint residence order is in effect the arrangement that the parties currently have in place. Except that I will change the terms of that arrangement. The full orders made by the Court are as follows:</td> </tr> <tr> <td>(i)</td> <td>That a joint residence order is made in favour of the Petitioner and the Respondent. W shall reside with each party for alternate periods of seven days starting from Monday evening to the following Monday morning. Each parent should collect the child after school on the Monday evening at the start of their seven day cycle and drop the child to school on the following Monday morning.</td> </tr> <tr> <td>(ii)</td> <td>That the parties shall have equal access to the child W during the school holidays at Easter, Christmas and during the summer vacation, Christmas Day and W’s birthday to be rotated on a yearly basis.</td> </tr> <tr> <td>(iii)</td> <td>That when W is in the care of one Party, that the other pv is granted contact at reasonable times.</td> </tr> <tr> <td>(iv)</td> <td>The child W is not to be removed from the jurisdiction by either party without the consent of the other party or by order of the Court. The party with whom the child is</td> </tr> </table> ``` ```latex \footnote{Cause no. Fam 3 of 2010} \footnote{[2005] EWCA Civ 1639} \footnote{210723 EM v DM - Judgment} ```
Judgment The Petitioner will retain the child's passports. If the child is travelling overseas, or the passport is required by the Respondent for any other reasonable purpose the Petitioner will provide the passport to the Respondent upon her request. That the Parties must consult each other on all major issues involving and affecting W with a view to adopt a harmonious attitude best calculated for his welfare whilst he is still a minor. The Petitioner will continue to be responsible for the health insurance payments for the W. Any other expenses not covered by health insurance should be shared by the parties. The Petitioner will continue to pay for the separate life insurance for W. That both Parties contribute equally to the educational expenses of W until he reaches the age of 16 years or completes his first University degree up (to the age of 21 years) whichever is later. Both parents participate in parenting and co-parenting sessions through the Family Resource Centre (FRC) That the Petitioner obtain counseling at the Counseling Centre to learn techniques such as communication skills, nonviolent assertiveness, social skills and anger management. **Justice Marlene Carter (Actg.)** **Grand Court** 210723 EM v DM – Judgment 16