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In the Grand Court of the Cayman Islands — Family Division

[2018] CIGC (FAM) 16

Cause No. FAM 0619/2015

Between

- v -

AR - Judgment

Before
Carter J

Judgment delivered 2018-02-28

<table>
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<td>IN THE GRAND COURT OF THE CAYMAN ISLANDS</td>
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<td>1</td>
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<td>2</td>
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<td>3</td>
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<td>4</td>
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<td>5</td>
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<td>6</td>
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<td>7</td>
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<td>8</td>
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<td>9</td>
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<td>10</td>
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<td>11</td>
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<td>12</td>
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<td>13</td>
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<td>14</td>
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<td>15</td>
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<td>16</td>
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<td>17</td>
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<td>18</td>
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<td>19</td>
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<td>20</td>
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<td>21</td>
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<td>22</td>
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<td>23</td>
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<td>24</td>
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<td>25</td>
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<td>26</td>
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<td>27</td>
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<td>28</td>
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<td>29</td>
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<td>30</td>
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<td>31</td>
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<td>32</td>
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<td>33</td>
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<td>34</td>
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<td>35</td>
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<td>36</td>
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<td>37</td>
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<td>38</td>
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<td>39</td>
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<td>40</td>
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</table>

<table>
<tr>
<td>JUDGMENT</td>
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<tr>
<td>1</td>
</tr>
<tr>
<td>2</td>
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<tr>
<td>3</td>
<td>On the 30th November 2016 this Court made an Order which was agreed between the</td>
</tr>
<tr>
<td>4</td>
<td>parties，“the Consent Order，” which among other matters， granted a sole residence</td>
</tr>
<tr>
<td>5</td>
<td>order to the Petitioner.</td>
</tr>
<tr>
<td>6</td>
</tr>
<tr>
<td>2.</td>
<td>It is not disputed between the parties that the Court was aware， at that time， of， and</td>
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<td>7</td>
<td>endorsed， further discussions between the parties with a view to the submission to the</td>
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<td>8</td>
<td>Court on a further agreed position for the Court's approval on matters relating to the</td>
</tr>
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<td>9</td>
<td>Respondent's contact with the two minor children of the marriage.</td>
</tr>
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<td>10</td>
<td>3.</td>
<td>On the 15th of June 2017 the Respondent filed a summons seeking the following：</td>
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<tr>
<td>11</td>
<td>i. That the Order made on the 30th November 2016 by McMillan J. be varied</td>
</tr>
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<td>12</td>
<td>such that a shared Residence Order be made；</td>
</tr>
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<td>13</td>
<td>ii. An Order for an increase in contact with the Respondent；</td>
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<td>14</td>
<td>iii. Such further or other Order as the Court deemed fit.</td>
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<td>15</td>
<td>4.</td>
<td>After a hearing on the 29th of September 2017 this court asked that the parties submit</td>
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<td>16</td>
<td>submissions on costs. This they did in October 2017.</td>
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<td>17</td>
<td>5.</td>
<td>The Respondent was unsuccessful his application with regard to both items outlined in</td>
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<td>18</td>
<td>the summons above.</td>
</tr>
<tr>
<td>19</td>
<td>petitioner no costs on</td>
</tr>
<tr>
<td>20</td>
</tr>
</table>

Judgment. N R v A R. FAM 0169/2015. Coram： Carter J. (Actg.) Date： 28th February 2018

The Respondent submits that the Court should exercise its wide discretion on costs and make no order. For the Respondent it is argued that:

- On the interim application concerning the welfare of the children the court should depart from the ordinary rule that costs follow the event;
- The court is not seized of sufficient information to make an assessment of the parties’ assets and resources to be able to gauge the effect of a costs order on the parties;
- The summons being, as it was, an interim application concerning the welfare of the children, despite the Respondent being unsuccessful on his application, the court should find that costs have not been unnecessarily incurred;
- That the parties required some guidance from the Court as to how to proceed and work together in relation to all children issues;
- That the application did not unnecessarily take up the Court’s time or cause any unnecessary delay in the proceedings.

The Petitioner states in her submissions on costs that, after agreement had been reached for a sole residence order to be made in her favour on the 30th of November 2016, as envisioned by the Court on the 30th November 2016, a formal Draft Consent Order was forwarded to the new attorneys for their attention. No response was received.

Judgment. N R v A R. FAM 0169/2015. Coram: Carter J. (Actg.). Date: 28th February 2018

The Petitioner states that:

"...it was not until after the Respondent had filed his Summons on 15th June, 2017 for a Shared Residence Order and increased contact, and filed his Affidavit in Support, on 7th August, 2017 that it became clear that he had agreed to some of the provisions of the draft Consent Order (paragraphs (d) – (g)) but that he was seeking increased contact by means of having the children sleep over with him on [alternate] Mondays."1

The Petitioner also stated that the increased contact sought by the Respondent was only with regard to the overnight stay on the alternate Mondays as it had already been agreed that the children have contact with the Respondent on alternate Mondays until 6:00pm.

Finally, the Petitioner asks the Court to consider that the Position taken by the Respondent has had the result that:

"...the Petitioner has had to pay additional legal fees during the period January, 2017 – September, 2017 and also for a full hearing relating to this matter, when at the end of the day, the Order made was the same as that submitted to the Respondent’s attorney in January, 2017 some 8 months earlier."

1 Written Submissions on Behalf of the Petitioner (Costs) at page 1

Judgment. N R v A R. FAM 0169/2015. Coram: Carter J. (Actg.). Date: 28th February 2018

<table>
<tr>
<td>1</td>
<td>THE LAW</td>
</tr>
<tr>
<td>2</td>
<td>12.</td>
<td>The position in law is not disputed, costs should usually follow the event. This was</td>
</tr>
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<td>3</td>
<td>confirmed by the Court of Appeal in Roy Michael McTaggart v Mary Elizabeth</td>
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<td>4</td>
<td>McTaggart2:</td>
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<td>5</td>
<td>106. Put shortly, the position, here, is that costs in matrimonial</td>
</tr>
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<td>6</td>
<td>proceedings - as in other proceedings - are governed by the Grand Court</td>
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<td>7</td>
<td>Rules; and, in particular by GCR Order 62, rule 4, which requires (at sub-</td>
</tr>
<tr>
<td>8</td>
<td>rule (3)) that:</td>
</tr>
<tr>
<td>9</td>
<td>10</td>
<td>11</td>
<td>12</td>
<td>13</td>
<td>‘If the court in the exercise of its discretion sees fit to make any</td>
</tr>
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<td>14</td>
<td>13.</td>
<td>order as to the costs of any proceedings, the court shall order the</td>
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<td>15</td>
<td>costs to follow the event, except where it appears to the court that</td>
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<td>16</td>
<td>17</td>
<td>18</td>
<td>19</td>
<td>in the circumstances of the case some other order should be made</td>
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<td>20</td>
<td>21</td>
<td>22</td>
<td>23</td>
<td>as to the whole or any part of the costs.’...</td>
</tr>
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<td>24</td>
</tr>
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<td>25</td>
</tr>
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<td>26</td>
<td>14.</td>
<td>In DJ v. BJ and RK4 Williams J. further summarized the applicable principles.</td>
</tr>
<tr>
<td>27</td>
<td>28</td>
</tr>
</table>

<sup>2</sup> CICA 14 of 2010; [2011] (2) CILR 417

<sup>3</sup>GCR 1995 (Revised)/Amended 01.01.02

<sup>4</sup>FAM 66 of 2014, (unreported) at paragraphs 23-27

<sup>5</sup>Judgment. N R v A R. FAM 0169/2015.Corum： Carter J. (Actg.). Date： 28th February 2018

<table>
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<td>1</td>
<td>COURT'S CONCLUSIONS</td>
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<td>2</td>
<td>15.</td>
<td>It is the very sentiments expressed by the Respondent at paragraph 10 of the filed</td>
</tr>
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<td>3</td>
<td>submissions that most concern this Court. At paragraph 10 it was stated as follows:</td>
</tr>
<tr>
<td>4</td>
<td>“In recent years, this Court5, and the Court of Appeal6, have regularly</td>
</tr>
<tr>
<td>5</td>
<td>expressed concern at the level of costs incurred litigating unnecessarily</td>
</tr>
<tr>
<td>6</td>
<td>and thereby decreasing the matrimonial assets in circumstances where the</td>
</tr>
<tr>
<td>7</td>
<td>parties can ill-afford it.”</td>
</tr>
<tr>
<td>8</td>
<td>16.</td>
<td>On the present application it was evident to the Court that both parties were deeply</td>
</tr>
<tr>
<td>9</td>
<td>interested in their children’s welfare and wanted to spend quality time with them.</td>
</tr>
<tr>
<td>10</td>
<td>However, this does not take away from the principles set out above.</td>
</tr>
<tr>
<td>11</td>
<td>17.</td>
<td>The Respondent was unable to demonstrate that there was anything that had changed</td>
</tr>
<tr>
<td>12</td>
<td>significantly or otherwise which would have necessitated his application for a Shared</td>
</tr>
<tr>
<td>13</td>
<td>Residence Order where a Sole Residence Order had been agreed and ordered just some</td>
</tr>
<tr>
<td>14</td>
<td>6 months prior to his summons being issued.</td>
</tr>
<tr>
<td>15</td>
<td>18.</td>
<td>As counsel for the Petitioner pointed out in her submissions, the Respondent has been</td>
</tr>
<tr>
<td>16</td>
<td>represented by competent counsel throughout and took the advice of his counsel when</td>
</tr>
<tr>
<td>17</td>
<td>he agreed the consent order.</td>
</tr>
</table>

<footer>
<p>5 DJ v. BJ and RK FAM 66 of 2014, (unreported)</p>
<p>6 B v. B 2014 (2) CILR 234</p>
<p>Judgment. N R v A R. FAM 0169/2015. Coram: Carter J. (Actg.). Date: 28th February 2018</p>
<p>Page 6 of 7</p>
</footer>

<table>
<tr>
<td>1</td>
<td>19.</td>
<td>This court is unable to agree with the Respondent's submissions that the parties could</td>
</tr>
<tr>
<td>2</td>
<td>not agree on various matters. It was apparent that the parties and their attorneys had</td>
</tr>
<tr>
<td>3</td>
<td>been engaged in meaningful and somewhat successful discussions to resolve other</td>
</tr>
<tr>
<td>4</td>
<td>outstanding issues between them concerning the children. The result of these</td>
</tr>
<tr>
<td>5</td>
<td>discussions was the formal draft Consent order to which the Respondent ultimately</td>
</tr>
<tr>
<td>6</td>
<td>agreed in the main.</td>
</tr>
<tr>
<td>7</td>
<td>20.</td>
<td>The Respondent filed this summons and sought, in practical terms, just a few more</td>
</tr>
<tr>
<td>8</td>
<td>hours with the children on one of the days when he already had agreed access until</td>
</tr>
<tr>
<td>9</td>
<td>early-evening. Apart from this, the summons was concerned with working through</td>
</tr>
<tr>
<td>10</td>
<td>what were relatively trivial matters surrounding summer contact with the children.</td>
</tr>
<tr>
<td>11</td>
<td>21.</td>
<td>The result is that, this Court, having dismissed both applications sought on the</td>
</tr>
<tr>
<td>12</td>
<td>summons, there is no reason to deviate from the provisions of GCR O.62 r.4(3), costs</td>
</tr>
<tr>
<td>13</td>
<td>shall follow the event. There are no circumstances upon this application which</td>
</tr>
<tr>
<td>14</td>
<td>necessitate that any other order be made. The fact that this is an interim application</td>
</tr>
<tr>
<td>15</td>
<td>touching upon the welfare of the children is no reason to condone unnecessary</td>
</tr>
<tr>
<td>16</td>
<td>litigation between parties in family proceedings.</td>
</tr>
<tr>
<td>17</td>
<td>22.</td>
<td>Costs to the Petitioner.</td>
</tr>
<tr>
<td>18</td>
<td>19.</td>
<td>Dated this the 28th February 2018</td>
</tr>
<tr>
<td>20</td>
<td>21</td>
<td>Cart</td>
</tr>
<tr>
<td>22</td>
<td>Acting Judge of the Grand Court</td>
</tr>
</table>

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\section*{Judgment. N R v A R. FAM 0169/2015. Coram: Carter J. (Actg.). Date: 28th February 2018}

\begin{table}[h]
\centering
\begin{tabular}{|c|c|p{12cm}|}
\hline
1 & 19. & This court is unable to agree with the Respondent's submissions that the parties could not agree on various matters. It was apparent that the parties and their attorneys had been engaged in meaningful and somewhat successful discussions to resolve other outstanding issues between them concerning the children. The result of these discussions was the formal draft Consent order to which the Respondent ultimately agreed in the main. \\
\hline
7 & 20. & The Respondent filed this summons and sought, in practical terms, just a few more hours with the children on one of the days when he already had agreed access until early-evening. Apart from this, the summons was concerned with working through what were relatively trivial matters surrounding summer contact with the children. \\
\hline
11 & 21. & The result is that, this Court, having dismissed both applications sought on the summons, there is no reason to deviate from the provisions of GCR O.62 r.4(3), costs shall follow the event. There are no circumstances upon this application which necessitate that any other order be made. The fact that this is an interim application touching upon the welfare of the children is no reason to condone unnecessary litigation between parties in family proceedings. \\
\hline
17 & 22. & Costs to the Petitioner. \\
\hline
18 & 19. & Dated this the 28th February 2018 \\
\hline
20 & 21 & \includegraphics[width=0.5\textwidth]{stamp} \\
\hline
22 & Acting Judge of the Grand Court & \\
\hline
\end{tabular}
\end{table}

Neutral Citation	[2018] CIGC (FAM) 16
Cause Number	FAM 0619/2015
Court	CIGC (Fam)
Judge	Carter J
Parties	NR v AR - Judgment
Judgment Date	2018-02-28
Subject	GCR O.62 r.4(3) - Costs argued following Summons to vary Residence Order.
Filename (current)	18-02-28_nr_v_ar.pdf
File MD5	86689703c76241981dbe779fec54784f
Source pipeline	pdb
PDB record ID	1394
PDB URL	https://judicial.ky/n0c-storage/judgments-repository/18-02-28_nr_v_ar.pdf

NR v AR - Judgment

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