Levers J
IN THE GRAND COURT OF THE CAYMAN ISLANDS HOLDEN AT GEORGE TOWN, GRAND CAYMAN MATRIMONIAL CAUSES REGISTRY CAUSE NO. D6 OF 2002 BETWEEN: WADSWORTH COOLDIDGE CONOLLY PETITIONER AND: DAWN MARIE CONNOLLY RESPONDENT Appearances: Sheridan Brooks of Brooks & Brooks for the Petitioner Alexander Horsbrugh-Porter of Ritch & Conolly for the Respondent Before: The Hon. Justice Levers Heard: August 9, 2004 JUDGMENT Levers, J. The Petitioner Wadsworth Coolidge Connolly has taken out a summons to vary an order of this court made as recently as June 20, 2003. He wishes the court to consider a variation in the following terms: (a) in paragraph 2 to allow care and control of the minor child Louis Wiseman Connolly to himself; (b) in paragraph 3 to define the access that the Respondent should have to the said child; (c) to delete paragraph 4 of the original order; (d) that the word Respondent be deleted where it appears in paragraph 6 and replaced by the word Petitioner and that the word Petitioner be deleted where it appears and be replaced by the word Respondent; (e) that the content of paragraph 8 be varied to take into account that the child would no longer be living with the Respondent; 2. That the costs of this application be borne by the Respondent and; 3. Such further or other relief as this Honourable court shall deem appropriate. The Respondent, Dawn Marie Connolly has taken out a summons subsequent to the Petitioner’s summons to vary the order made on June 20, 2003 as follows: (i) To have sole custody. (ii) In paragraph 2 the words as long as she resides in the Cayman Islands to be deleted. (iii) Paragraph 3 to be deleted completely. (iv) Paragraph 4 to be amended to read to pay the sum of $1,052.00 per month as maintenance for the child. (v) The Respondent will pay the costs of this application. The summons is headed with Dawn Marie Connolly being named as Petitioner and Wadsworth Coolidge Connolly being named as a Respondent in her summons. This is inaccurate. In Cause No. D6 of 2003, the Petitioner is Wadsworth Coolidge Connolly. The Respondent is Dawn Marie Connolly. I therefore will refer to the parties as in cause no. 6 of 2003. The original order read as follows: ORDER UPON THIS MATTER coming before a Judge of the Grand Court in chambers on the 7th, 8th, 9th, 14th, 15th, 16th, 19th, 21st, 23rd and 26th May, 2003 AND UPON hearing counsel for the Petitioner and Counsel for the Respondent AND UPON reading the affidavits filed on behalf of the Petitioner and the Respondent AND UPON hearing oral evidence of the Petitioner, the Respondent and witnesses for both parties IT IS HEREBY ORDERED as follows:-
that joint custody of the child namely, Lewis Wiseman Connolly born on the 20th March, 1996 to the Petitioner and the Respondent.
That care and control of the said child to the Respondent as long as she lives in the Cayman Islands.
That access to the Petitioner are as follows:- (i) Fortnightly Thursday evening to Monday morning. (ii) Non overnight access weeks – every Tuesday and Wednesday afternoon between 2:00 p.m. to 6:00 p.m. (iii) Half Easter; half summer and half Christmas holidays. (iv) Every other public holiday. (v) Every other Christmas day. (vi) Every Father’s Day.
The Petitioner to pay the sum of CI$400.00 per month as maintenance for the said child into the Respondent’s Royal Bank of Canada Account # 702-063-9.
The Petitioner to pay all medical, educational, and extra curricular expenses for the child.
That the Respondent to consult the Petitioner as to the educational, religious and medical decisions for the child;
The Respondent not to take the child out of the jurisdiction without the Petitioner’s written consent or the leave of the Court.
The Respondent to be permitted to reside at #983 Northside Drive, North Side, Grand Cayman, Cayman Islands until the child reaches seventeen (17) years or she remarries. The Petitioner to pay the taxes and insure the premises.
The Petitioner to pay the sum of CI $400.00 per month for maintenance to the Respondent for two years from the date hereof into the Respondent’s Royal Bank of Canada Account # 702-063-9.
The Petitioner to pay one half of the Respondent’s medical bills incurred in treatment associated with Hepatitis-C only for a period of one year.
the Petitioner to permit the Respondent use of the motor vehicle presently being used by the Respondent. The Respondent to insure and license the same.
The distribution of chattels to be as follows:- a) To the Respondent:- i) Gold Seiko watch, if found; ii) Disney books; and iii) Toys from grandmother b) To the Petitioner:- i) All other chattels, including but not limited to:- a) Silk rug; b) Four Chinese lamps; and c) Two silver coins (if found).
No order as to costs.
Liberty to apply. In short, Wadsworth Coolidge Connolly, the Petitioner, wants an amendment to give him care and control of the child and if that were given the deletion of the consequential orders in the original order to be made. The Respondent, Dawn Marie Connolly, however, wishes to vary the order to have sole custody of the child and be permitted to leave the jurisdiction and to deny the father access completely. Although counsel for the Respondent Mr. Horsbrugh-Porter in his submissions indicates that the denial of access is not the relief sought, the Summons does not put forward any proposals for access, but asks for the access clause to be completely deleted in the original order. Both Summonses can conveniently be dealt with together. Background In June 2003, the question of custody, care and control and access was thoroughly aired in these courts and after hearing the matter for several days, judgment was delivered giving joint custody, care and control to the mother and access to the father. At that time the Court was informed by the Respondent Dawn Marie Connolly that she intended to stay here in the Cayman Islands, permanently if she could, commence working here and therefore wished the Petitioner to buy her a home. The Judgment stated: - "I wish to make it clear that this order for care and control is given to the Respondent (mother) only on the basis that she resides in the Cayman Islands. If the Respondent wishes to leave the island or has to leave the island, the question of care and control must be revisited. It is imperative that this child is not removed from this jurisdiction without the written consent of the Respondent or without the permission of the court. The Respondent is to consult the Petitioner as to educational, religious, medical decisions to be made on behalf of the child. I only make this care and control order on the clear understanding that the Petitioner, Mr. Connolly, can monitor the situation by frequent contact." The Court is now being asked to vary that order made nearly some 12 months ago, on the basis that the child of the family does not wish to visit the Petitioner father. Access has been denied from April 2004 and evidence has been placed before this court by both parties in support of the summonses for variation. The Petitioner Mr. Connolly's Evidence Mr. Connolly wishes to get care and control because he is of the view that the child is not being brought up in the proper manner. He alleges that the child swears and is allowed to watch adult programs on Television and more importantly is being cared for three days a week by the mother's boyfriend who in previous testimony has already admitted that he is still a married man and has no intention of re-marrying. He is fearful that especially in circumstances where he has been denied access since April 2004, the boyfriend of the mother is a substitute father figure. His fears are to an extent endorsed by Mr. Roland Schoefer’s affidavit (the boyfriend). He himself in his affidavit states: “although I get on extremely well, Louis I always stress to him, but I am not his father but his friend. I state that his father is Mr. Connolly.” This court is of the view that that would be an unnecessary exchange to have with a child who understands and who lived with his father and mother 12 months ago if in fact the child was not now substituting Mr. Schoefer as the father figure. Mr. Connolly has also asked the court to ensure that the Respondent does not take the child out of the jurisdiction as he always feared that she was not telling the truth when she said that she wished to live in Cayman permanently in the previous proceedings. The Respondent’s Evidence The Respondent, Dawn Marie Connolly, states that the child does not wish to go to his father. That he is particularly disturbed when he visits the father. She wishes to deny him access except for one day a week and if she says she is allowed to go abroad longer periods of access during the school holidays would be agreed to. She says that she wishes to go abroad, that she may have a job there and that she can live with her great aunt. In my previous judgment I addressed the instability of the Respondent but felt that as a mother this would not impact on the relationship with her son. However, my concern now is that the Respondent has flagrantly flouted the court order. She continues to alienate the father by permitting association with her boyfriend and the child on a very frequent basis, endeavours to displace the father in the child’s life and appears to be using the child to suit her own purpose. An example of this is that she has taken the child to Antonio Hawkins for assessment and Mrs. Hawkins in February of this year recommended that both parents go for mediation. Despite a written report being obtained by her attorney’s and despite the obvious need for the child to have the loving care of both parents, Mrs. Connolly did nothing about the report but kept it close to her chest. She was not apparently concerned about the welfare of her child sufficiently to apply for a variation to the Courts, to speak to Mr. Connolly or insist on an order that both parties attend mediation. The application made by her in this instance is in response to the application made by Mr. Connolly for care and control. It is highly regretted that counsel for Mrs. Connolly actually stated in court “well we did this summons in response to Mr. Connolly’s Summons.” That in this court’s view is not a reason for asking for such a fundamental variation in an order. Persons coming to these courts must come in good faith and if in fact Mrs. Connolly felt that the welfare of the child was at risk by the access order made or by the continuation of living in Cayman or by the father’s behaviour the best course of action would have been to take out a Summons as early as in February 2004 or April 2004 when she denied access flouting the Court Order. Mrs. Connolly was represented by counsel at the time and a Summons should have been taken out with a view to getting a variation. Mrs. Connolly’s Summons is supported by an affidavit from her boyfriend Mr. Shoefer and the Petitioner Mr. Connolly’ daughter Cheryl Miller. It is also supported by two reports from a clinical psychologist, Mrs. Hawkins. I will deal with that at a later stage. Neither Mr. Shoefer nor Miss. Miller say anything to make this court believe that the child’s welfare is at risk. Both witnesses do not say anything more than what the child is alleged to have said about the father and endorse the fact that he is reticent in visiting with the father. It is important, however, for me to review the evidence of the mother and my concerns are in context of the following happenings. The mother alleges that she never denied the Petitioner access to Louis. That Louis, the son, has just stated he has no desire to see his father. This apparently took place in April 2004 against the background of a situation nearly 12 months ago when Louis was very happy with the father on the farm and enjoyed visiting with him. The Social Inquiry Report ordered in the first trial makes it abundantly clear that Louis and the father loved each other and had an excellent relationship. Indeed the father called the child in June 2004 to see him and when he drove up to the house the child voluntarily went out to see the father. The description of the child’s reaction given by the mother appears to be that after he was speaking to the father for a few minutes his body language showed that he was upset and she intervened. The court was concerned when reading the affidavit evidence and hearing the submissions by Mr. Horsbrugh-Porter. An intervening event permitted the court to see firsthand the interaction between father, son and mother. As the court order stood, the father was due to have the child for some time during the summer holidays. At the end of the submissions on August 9, 2004 Counsel for the Petitioner requested the court to order the Respondent to hand the child over to the father for a few days. The attorney for the Respondent agreed that the court order was still in place and arrangements were made to hand over the child at 1:30 that afternoon. For some reason the handover did not take place smoothly and Counsel, their respective clients and the child appeared at the Chambers door and I was asked by counsel to speak with the child. This Court had no intention of seeing the child for the second time having seen the child for the first time during the substantive trial of this matter in June 2003. As the child was here I saw the child. Initially he was agitated and crying. I saw the child with both Counsel in my chamber and all the child kept saying was: "I don't want to go to daddy. I want to stay with mummy." Having calmed him down and spoken with him he could give me no reason why he did not wish to go to Daddy. Subsequently, I took him outside and advised him that he has to go to his father for a few days because his father loves him. He went out with counsel and his mother made him sit on her lap. When it was time for the father to take him she clung to him and refused to let him go. This court saw the transformation of a calm child into a hysterical child by the mother's behaviour. Her attorney spoke with her and told her that she must release the child. She refused to do so and eventually several words were spoken and she was asked to leave the premises and leave the child. I must commend Mr. Horsbrugh-Porter for his actions at that time. The mother left the premises with her boyfriend who was waiting downstairs for her and the child eventually calmed down, sat on the father's lap, spoke with him and agreed to go with the father on condition that he can go and stay with his mother on a more permanent basis. I have no doubt in my mind that this child has been brainwashed. He could not give me a reason why he did not wish to see his father but kept repeating "I want to stay with my mother, I want to stay with my mother." On being questioned by me whether anybody had told him to say this he became more agitated and I therefore did not pursue that line of questioning. If I was ever in doubt before that that the mother was influencing the child, I was left in no doubt whatsoever after that incident. A mother who wishes interaction between father and son would have not clung to the child in that fashion. One would have thought that the child was migrating for the rest of his life the way she behaved. It is a sad indictment on adults that they use children as a pawn to achieve their ends. As I indicated previously there are two reports from Mrs. Hawkins who is a clinical psychologist under whose care Louis is presently. In February 2004 in response to questions raised by Mrs. Connolly's then attorney, questions which are not known to this court she responds as follows: - "this additional unnecessary stress on top of Louis' ongoing distress, emphasizes the importance of amicable, co-operative parenting to first meet his needs. In light of these observations, I recommend that efforts be made to reduce the impact of the adult's conflicts on Louis. For example his parents should work co-operatively as far as possible regarding parenting issues and be careful not to expose Louis to any derogatory, angry views about each other. Mr. and Mrs. Connolly may find it helpful to work with a mediator (e.g. Mrs. Nelson in Social Services) in order to facilitate a co-operative parenting approach." When this court made the original order I insisted that Mr. Connolly be consulted about schooling, medical and other matters. That clearly has not been done. Mrs. Hawkin’s second report speaks of what Louis says about his father but interestingly although she says he spontaneously came out with complaints about his father, the mother seems to have initiated it by asking whether his father had or played with him during visits. That shows a degree of questioning of the child after visiting the father which to this Court is unnecessary if parents are co-operating with each other. Although Mrs. Hawkins has made it clear that she is not experienced or professionally qualified to conduct a child custody evaluation and that it is in fact unethical for her to do so, she has given this report without ever speaking to Mr. Connolly and reviewing the relationship with Mr. Connolly and the child. Despite this she states that it is in Louis’ best interest to reduce the amount of parental conflict to which he is exposed and to emphasize the quality of his relationship with his parents – (parents does not mean mother alone). Mrs. Connolly offers access for one day a week. Clearly this is not what even this expert with her limited experience has recognized as in the best interest of Louis. She further states that Louis’s resistance is “not uncommon among school age children exposed to high conflict divorces”. Indeed when the Court spoke to Louis and I asked him what he would really like he said he wanted his parents to get back together and live together. If he was not brain washed, if he was not adversely influenced against his father, this would not have been his response to me. Even more disturbing in Mrs. Hawkin’s report is this statement: “Louis seems generally responsive to parental conflict describing his mother as nervous or his father as angry increased behaviour problems during the custody hearings. He is no doubt of Mrs. Connolly’s concerns about his visitation.e.g. her statements in session during a period of difficult behaviour that he often has outbursts following visits with his father.” That attitude of Mrs. Connolly’s has attributed, according to the expert, to having a negative influence regarding Louis’ decision to see his father. Mrs. Hawkins goes on, “However, I have never heard her tell Louis not to visit his father”. That to my mind is a statement which really cannot be taken seriously by this Court. Mrs. Hawkins does not live with Mrs. Connolly and Louis to hear what Mrs. Connolly says to Louis. Unfortunately, Mrs. Hawkins has not seen or asked to see or felt it necessary to see Mr. Connolly. It is regrettable that this report has been filed in this court without the benefit of that interaction. However, despite that, on a careful reading of this report, it is clear that Mrs. Connolly’s attitude and questioning may result and could have influenced the negative attitude of Louis against his father. An order made 12 month previously should only be revisited if circumstances have changed to such an extent that the welfare of the child requires the court to revisit the order and vary it. There is no evidence whatsoever before me from the Respondent Dawn Marie Connolly to grant her the reliefs that she has sought. Indeed the only evidence that comes out of the affidavit is that she has given this court greater concern than before, that she has influenced the child against the father. She has flagrantly flouted the court order and denied access. The court is hesitant to take a child away from his mother. Her desire, it would appear, is to keep the child away from the father. If that were not the case, when she got this report from Dr. Hawkins in February 2004, she would have taken some positive steps to encourage mediation and further interaction and better interaction between father and son. Her behaviour in this court confirmed in my mind that I am accurate in my assessment that this child is being kept away from the father. In those circumstances her Summons is dismissed, I do not order an increase in maintenance. However, I do believe that to change the child’s residence at this time would perhaps not be the best for his welfare. If Mrs. Connolly continues to flout the court order then the court must be asked to revisit the question of care and control. Mr. Connolly’s Summons also is dismissed. As although I am concerned and I am aware of his anxieties, if in fact access is permitted as previously ordered, I believe his influence over the child will be sufficient to ensure that Dr. Hawkin’s recommendation that parental love and calm prevails in the child’s life. There is one other matter that I need to address and that is a Summons for Contempt that was brought against Mrs. Connolly. As I indicated to counsel for the Petitioner, I intend to adjourn that matter sine die as it perhaps is not prudent to take the mother away from the child at this stage in his disturbed state. It is imperative that children have an ongoing relationship with both parents and an ideal co-parenting arrangement should result in a child feeling comfortable in both parents’ home. The child should not be dragged into parent’s dispute and it is of grave concern to this Court that this child may well be a pawn in the ongoing battle of mother and father. Counsel should therefore ensure that a penal notice is placed on the orders and that both parties are made aware what joint custody means, and emphasize the importance of compliance. The child should not be dragged into court unnecessarily. The fact that the father or a mother delivers the child half an hour later than the scheduled time is not necessarily an actionable contempt and Summonses should not be taken out unnecessarily. I therefore make the following order: The Petitioner’s Summons dismissed. The Defendant’s Summons dismissed. No order as to costs. Dated this 13th day of August, 2004 Levers, J. Judge of the Grand Court