Levers J
IN CHAMBERS IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN AT GEORGE TOWN, GRAND CAYMAN CAUSE NO. D129 OF 2003 BETWEEN: ANDREW CROWE Petitioner AND: SHERENE CROWE Respondent Appearances: Counsel for the Petitioner: David McGrath of Quin & Hampson Counsel for the Respondent: Alan Turner of Turner & Roulstone Before: The Hon. Justice Levers Heard: 1st & 2nd September, 2004 JUDGMENT Levers, J. Before this Court are three applications.
The Respondent’s application dated 14th July, 2004 for access to her children both in person and over the telephone.
The Petitioner’s application dated 14th July, 2004 to vary the terms of the Consent Order which constituted a clean break order between the parties in order to revisit the question of the disposition of the matrimonial property and other ancillary orders; and
The Respondent's application dated 16th July, 2004 for leave to appeal out of time against the above mentioned Consent Order dated 4th February, 2004. It would I think be convenient to deal with the question of custody and access, initially. Custody and Access At the commencement of this matter counsel for the Respondent, Mr. Turner conceded that the Petitioner Andrew Crowe should have custody of the children. The question of access therefore remained outstanding. All the parties involved readily conceded that the children at some time must have access to the mother. In view of the facts outlined below, bearing it was felt that the children at this stage should only have telephone access and not have access in person. The Facts The parties Andrew Crowe and Sherene Crowe had been married for ten years and two months when the Petitioner moved out of the former matrimonial home and petitioned for divorce. The divorce was made absolute and the parties agreed the arrangements relating to the children of the marriage and matrimonial assets. This agreement was embodied in a Consent Order before Justice Henderson on 4th February 2004. On 8th February 2004, the Respondent attacked the Petitioner with a knife at the former matrimonial home. She was charged and subsequently pleaded guilty to attempted murder. On the 28th July 2004, she was sentenced to 12 years imprisonment, in respect of this offence. Shortly, after the attack the Petitioner applied to vary the arrangements in relation to the children. On 11th February, 2004, Mr. Justice Henderson ruled that the Petitioner should have interim sole custody, care and control of the children. The Respondent has been in custody since the incident in February 2004. In the seven months since that time, she had not seen her children. She has only been able to speak to them by telephone. The Respondent has been diagnosed as having Bi-polar disorder. At the time of the attack on her ex-husband on 8th February, 2004, she had been on medication and reports to the Court opine that it was her lack of compliance in taking her medication that may have led her to this attack. The allegations against the Respondent all pertain to acts of violence against the Petitioner and do not impact on her relationship with her children. In view of the opinion expressed by the expert Cathy Alberga, this Court decided to speak to both parties and to see the children. As stated previously both parties agreed that the children must at sometime have access to their mother. The question therefore, to be decided was how and when was the best time, as it were to break the ice and permit the Respondent to see the children in prison. Both children were brought to the court and in the presence of counsel for the Petitioner and the Respondent, the Court interviewed the children. It was agreed prior to the children visiting the court that should they then wish to see their mother in the Court's presence, it would be permitted (as the mother was present in Court) in order for the Court to assess the interaction between mother and the children. The children were duly brought before the Court in an informal atmosphere and it was abundantly clear that the children still loved their mother and wished to have some form of communication with her. Accordingly, the Court requested the mother to be brought in and the interaction between mother and children was to say the least "revealing". The children clung to their mother, the children had no fear or gave no indication of fear of seeing their mother. The children indicated to the Court that they would wish to see their mother albeit in prison. In all cases, the paramount consideration is the welfare of the children and the court must look at the background and all the circumstances of the case when deciding on these matters. This is a particularly unique case. The Court is not faced frequently with having to make decisions such as this. It is difficult to decide when and in what circumstances access should be commenced. However, considering that the welfare of the children is of paramount importance and the fact that the children are of tender years and need the continuation of that special relationship and bond with their mother, I believe that permitting regular telephone access to the mother on a weekly basis and subsequently commencing prison visits in or about the first week in November 2004, would be in the best interest of the children. These visits should be conducted with either the Respondent’s brother Rex Ebanks or her sister Sharon or the Respondent’s mother or father being in attendance during the visits to the prison. The frequency of these visits would have to be determined after the children’s first visit and their reaction thereto. Subject to any unforeseen adverse reactions, the Court would order that the visits are conducted on a monthly basis. The Petitioner’s summons in asking for the terms of the Consent Order to be varied does not specify the relief that subsequently was asked for by counsel Mr. McGrath. However, it is perhaps convenient as the court heard submissions thereon to deal with all the aspects of variation pertaining to the children at this stage. Leave to take the children out of this jurisdiction. Mr. McGrath submitted that the Court should grant leave to the Petitioner Andrew Crowe to take the children out of the jurisdiction as he intends to live abroad permanently. He submits that in view of the stabbing incident and in view of the safety concerns that Mr. Crowe has for his children and himself, the Court should grant him permission to live out of the jurisdiction. It is conceded that in these circumstances where the mother is in prison for a considerable number of years it would be unreasonable to deny the Petitioner permission to relocate. He has custody of the children. There is no indication that he is not the most appropriate person to have custody and in circumstances where the mother could not care for the children, the Court would find it difficult to deny Mr. Crowe permission to relocate. However, counsel for the Respondent has quite rightly indicated that the court is not fully apprised of the details of such relocation. I agree with him. It is therefore difficult to make an order at this stage but in order to assist Mr. Crowe in the decision making process of his relocation, this Court is willing to make an order that consent is granted to relocate with the children to Connecticut subject to Mr. Crowe applying to the Court when he is ready to do so and providing the court with the details of such relocation. The Court has readily agreed to this relocation for another reason and that is that Mr. Crowe has agreed that he would organize access to the Respondent in Cayman at least three times a year. Bearing in mind that the Respondent will have a conviction and therefore will be unable to travel to visit the children in Connecticut should they permanently relocate there, the question of access to the Respondent must be addressed in specific terms at the time when a final order is made granting Mr. Crowe permission to relocate. Mr. Crowe in addressing the court indicated that he was concerned for the safety of the children at certain times when the Respondent was going through an attack of bi-polar disorder and/or personality disorder. His proposals to bring the children himself would be the most appropriate in the circumstance. However at the time of the formal order, the details proposed by the Petitioner should be submitted to the Court for its approval. The main question at the hearing was whether the Court had power to vary or set aside the Consent Order of the 4th February, 2004 vis a vi the matrimonial property settlement. It was conceded by all parties that the Court could revisit the question of custody and access, but it was disputed by Mr. Turner that the court had jurisdiction to vary the terms of the matrimonial settlement as far as the property issue was concerned. I held that the Matrimonial Causes Law, Section 24 gives me the power to vary any order made under section 22. I therefore, held that I had jurisdiction. The Summons for leave to appeal out of time was therefore made redundant. Mr. McGrath submitted that if I held that I did not have the jurisdiction to revisit the matter then he would require leave to appeal out of time. Having held that I had jurisdiction, the next step that the Court considered was whether it wished to exercise its discretion in varying the order. The law is remarkable not only for the extent of the powers which it gives the court over the income and assets of divorcing spouses but for the fact that the discretion is almost unfettered. It is now being said that the judicial objective is to do that which "is fair just and reasonable between the parties". See *White v White* [1998] 2 FLR 310, CA. Thorpe L. J. When should the court therefore intervene in this way. Leave to intervene should be given or considered if four conditions are satisfied: (1) the basis or fundamental assumption underlying the order had been falsified by a change of circumstances; (2) such change had occurred within a relatively short time (usually no more then one year) from the making of the original order; (3) the application for leave had been made reasonably promptly; and (4) the granting of the leave would not prejudice unfairly third parties who had acquired interests for value in the property effected. It seems to me that the principles to be applied are not dissimilar to those in deciding whether a contract is to be set aside by reason of mutual mistake or frustration. The English authorities are governed by statute, for example in *Barder v Caluori* [1988] A.C. 20, House of Lords, the court by consent made a "clean break" order under which H was to transfer the matrimonial home to the W within 28 days. Four weeks later, W killed her children and committed suicide. All her property would go under her will to her mother. The House of Lords held that the husband should be given leave to appeal out of time; and, on the appeal, that the order should be set aside. In that case, there was a question of a third party inheriting because of a fundamental change of circumstances. Mr. McGrath argues that when the Petitioner agreed to the order he did so on a number of fundamental factual premises and they were: 1. That the Respondent and he would share custody of the children; 2. That the children's time would be divided 60:40 between himself and the Respondent; 3. That the children would require a suitable home in which to live when with their mother consistent with the division of their time;
That the Respondent would be able to pay for the mortgage of the former matrimonial home;
That the Respondent and he would respectively share cost and expenses of bringing up the children and that he would continue to live and work in the Cayman Islands for the foreseeable future. Having agreed to the consent on that basis, he now submits that because of the change of circumstances and as a result of the stabbing incident, the Petitioner will be forced to live elsewhere and that the circumstances have changed so fundamentally since the making of the consent order, that the court should exercise its discretion and revisit the order. Mr. McGrath submits that if the court was to take the factors that the court should consider in making a court order then and bearing in mind that the welfare of the children is of paramount importance, the court would vary this order. He seeks an order for the sale of the former matrimonial home and the division of net proceeds of sale taking into account all section 19 factors. He submits that the Petitioner had intended to remain living in Cayman in his present employment and share the children's time and associated child care responsibilities and financial obligations with the Respondent. That in view of the stabbing this is now no longer the case and he submits that a sale and division of the net proceeds of sale is the appropriate means by which to do justice to the facts of this case because as he submits: "The Respondent proposes that she will rent the house whilst she is in prison. Because the liability against the house is relatively small and it is a significant and attractive family home in a family community in Red Bay, the house will now attract a good rent. This will result in the Petitioner collecting and amassing an ongoing rental profit from the former family home while she is in prison for attempting to kill her husband. Meanwhile the Petitioner and the 2 children are the parties to whose detriment this financial arrangement will act because they are living in a smallish 2 bedroom rented apartment. The grotesque injustice and iniquity of this situation is self-evident. If the Court is not minded to exercise it discretion and vary the order then the factual scenario outlined above is the status quo. The Court is, therefore, respectfully urged to undo the injustice." I now turn to Mr. Turner's submissions to see if in fact the court order should be varied and whether there is a fundamental change of circumstances. Mr. Turner submits on behalf of the Respondent that there is no fundamental change of circumstances. He submits that a consent order especially giving a clean break should not readily be revisited by a Grand Court judge. A re-visitation, he say flies in the face of public policy. I disagreed with Mr. Turner on the question of jurisdiction, and held that I could revisit the order. Does that mean that in this particular case there has been such a fundamental change that when one considers all the relevant factors the present court order is not a fair one? To decide this, the Court has to look at the consent order and go through the exercise of analyzing the clauses that deal with the matrimonial property. The Consent Order Clause 1: (1) The Petitioner do transfer his interest in the former matrimonial home situated at 5 Lord's Way to the Respondent simultaneous with the Petitioner's removal from the mortgage at 2 below. Clause 2: The Respondent do assume sole liability for the mortgage against the above property, presently held with the First Caribbean Bank and the parties do forthwith execute the necessary documentation for the removal of the Petitioner from such liability. Mr. McGrath argues that the stabbing has fundamentally changed the circumstances because the welfare of the children would now require the matrimonial home to be sold. He submits, the fact that the Petitioner is the unimpeachable parent gives him the right to custody and gives him the obligations and responsibilities of looking after the children. He urges that when the Consent Order was made, the Petitioner was to have at least 20% more time with the children and was to share the obligations of the children with the Respondent. It appears to me the only thing that has changed is not the Respondent's condition, nor the Respondent's health, but the fact that she is now in prison and will not be able to undertake the sharing of the responsibility because she is prison. This is all that has changed. However, the Respondent's premises will be rented and from the rental she will be able to undertake some of the obligations for the children. Further, Mr. McGrath says that the Respondent wishes to go abroad and therefore if the house is sold, he will have some capital with which to start life. He does not touch on the question of the Clause 3 of the Order which is: "That the Respondent do transfer her interest in Block 68A Parcel 63 to the Petitioner simultaneous with her removal from the mortgage at 4 below." The Petitioner has property which he can sell and convert into capital towards the purchase of a home abroad, if he should so desire. Section 24 of the Matrimonial Causes Law gives me the power to undertake such a variation, however, section 19 gives me the right to exercise my discretion having regard to the best interest of any children of a marriage and thereafter that the responsibilities, needs, financial and other resources, actual and potential earning power and the deserts of the party. As I am of the view that the interest of the children are not affected by either the Petitioner selling the matrimonial home or the Respondent retaining it, then I have to look at the responsibilities, needs, financial and other resources, actual and potential earning power and the deserts of the parties. If, I were to accede to Mr. McGrath's request to sell the property, I would then have to visit the question of the piece of land that was given to the Petitioner by the Respondent which is free and clear of a mortgage and valued at approximately $150,000. I would then also have to look at the responsibilities, the needs, the financial and other resources and the actual and potential earning power and the deserts of the parties and undertake "a division exercise". Mr. McGrath submits that the division should be 75:25 split. I disagree. Whatever the proportion, I need to consider first whether I need to now revisit this consent order because of a fundamental change of circumstances. It can be assumed that the parties must have addressed all questions before coming to an agreement on "consent order with a clean break". The only factor since then is the stabbing incident. How has that stabbing incident fundamentally changed the matters so that the court will be concerned for the welfare of the children and wish to (considering all other factors) intervene and set it aside. The evidence before me is that the fundamental change is that the Petitioner wishes to live abroad and no longer live here and that because of the incarceration of the Respondent, it is submitted that she will be unable to share the expenses for the children. It is said that she should not be permitted to benefit from the matrimonial home. The Respondent has been punished under the due process of the law for the incident and I must be careful and mindful that I do not punish the Respondent twice. The welfare of the children does not require the property to be sold. The fact that the Petitioner is living in a small home was a decision he made when he left the matrimonial home long before the incident. This, therefore, is not a fundamental change due to the stabbing. Therefore, the only question is why should the matrimonial home be sold now and what are the fundamental changes that have taken place to make the sale a fair one. I do not see any, save and except for the fact that the Petitioner wishes to live abroad and needs capital to relocate. But as indicated previously he has the piece of land that he can sell. Therefore, I do not think that considering the matters that I have to take into account, the responsibilities remain the same, the needs remain the same, save and except for the relocation expenses, the financial and other resources remain the same because any rental that the Petitioner collects can help to defray some expenses. The actual and potential earning power does not remain the same. The Respondent's actual earning power when she gets released from prison will be far less and I have to bear that in mind when I consider all the circumstances of this case. The Petitioner is the unimpeachable parent and therefore gets custody of the children. The Respondent is the impeachable parent, her conduct has contributed to the detriment of the family, but I believe that she has been punished and whilst the conduct of the parties is a factor that must be considered, it is not the sole factor. I do not believe that I should exercise my discretion and vary this Order. I cannot complete this judgment without commenting on the value of seeing the children in circumstances such as this. Had I just had the benefit of the professionals report alone, I would have received no guidance or benefit as to the question of commencing personal access. Seeing the children assisted me greatly. Not only the children, but hearing from both parents was beneficial/ As I indicated to counsel during the hearing, it is hoped that the Respondent will avail herself of the Anger Management Counseling that is provided for in the prisons. The Order therefore is: 1. Sole custody to the Petitioner; 2. Weekly telephone access and monthly supervised personal access to the Respondent; such monthly access to commence on 1st November, 2004; and 3. The Petitioner will be permitted to remove the children from the jurisdiction on condition that the Court is apprised of the conditions of relocation and is satisfied with the proposed access arrangements. Dated this 15th day of October, 2004 Judge of the Grand Court