Anthea Thomas v Charles Thomas

THE EASTERN CARIBBEAN SUPREME COURT ANTIGUA AND BARBUDA IN THE HIGH COURT OF JUSTICE CLAIM NO: ANUHMT2014/0012 BETWEEN: ANTHEA S. THOMAS NEE DANIEL Petitioner AND CHARLES THOMAS Respondent Appearances: Ms. E. Deniscia Thomas for the Petitioner Mr. D. Raimon Hamilton for the Respondent 2014 June 19 July 30 August 08 September 15 JUDGEMENT

[1]Cottle, J.: This matter concerns an application by the petitioner for ancillary relief pursuant to the Divorce Act 1997 of Antigua and Barbuda. lnit'1ally the petif1oner sought an order for the maintenance of the two minor children of the marriage and a property adjustment order relating to the matrimon'1al home which is registered in the name of the respondent [2[ At the hearing of the application the petitioner accepted that the application for a property adjustment order was not properly made. That aspect of the ancillary relief proceedings was withdrawn. The matter proceeded to consider only the application for maintenance for the two children. [31 Under the Divorce Act at section 10, the duty is imposed on the court to satisfy itself that reasonable arrangements have been made for the support of children of a marriage. In the present case there is already an order in place for the support of the children from a court of competent jurisdiction. It is a consent order dated 22nd October, 2012. In the order the respondent is required to pay $325.00 per month towards the mamtenance of each child The petitioner now seeks a variation of that order to increase the amount to $500.00 per month for each child. The relevant statutory provision is section 15 (4) of the Divorce Act which reads as follows:- "(4) Before the court makes a variation order in respect of a support order the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of either spouse or of any child of the marriage for whom support is or was being sought occurring since the making of the support order or the last variation order made in respect of that order as the case may be, and in making the var'1ation order the court shall take into consideration that change." The Evidence [41 The petitioner filed an affidavit on 17th February, 2014. In it she did not detail any change in circumstances. She merely swore at paragraph 4 that" the amount of the maintenance award is not sufficient" She also added that she had been lead to believe by her legal practitioner that the order would have been an interim order. In his affidavit 1n response filed on 16th May, 2014, the respondent swore that the consent order was not intended to be interim and it represented the agreement between the parties who were both legally represented. He added that. given the level of hiS present expenses. he could not afford any increase. [6[ Counsel for the petitioner filed helpful written submissions outlining the poSition of her client. She lists the following changes in the circumstances of the petitioner as changes which merit a variation of the consent order:- 1. At the time the order was made, the respondent resided at the matrimonial home and contnbuted to the expenses of the household. 2. Since the order, the petitioner had purchased a new vehicle to transport herself and the children since no public transportation is available in the neighborhood of the matrimonial home. [7[ Counsel for the petitioner does not mention the fact that the respondent having moved out of the matrimonial home, now has to meet the expenses of accommodation for himself. [8[ Before thiS court Will intertere with the order for support which the parties entered into with the advice of counsel on both sides, there must be shown a change in the circumstances. It is for the petitioner to adduce evidence of such a change. On the state of the evidence before the court, I find that she has failed to do so. She has filed a petition for divorce. It was obvious that the parties would cease to live together. She w·rll have been aware of this at the time the consent order was entered.

[9]The evidence revealed that the respondent owns vehicles. The petitioner could have negotiated for the use of one of those vehicles or even for an order transferr'rng a vehicle to her for the use of the family. Instead she chose to purchase a new vehicle. She knew of her income and obligations at the time of the purchase. Th'rs voluntary ·rncurring of an additional expense is not a change in her circumstances as would merit a variation of the maintenance order.

[10]I also accept the evidence of the respondent that he is unable to afford an increase in the amount he pays for the maintenance of the children.

[11]I therefore decline to grant the petitioner the relief she seeks. The application IS refused. I make no order as to costs.

Brian Cottle

High Court Judge

THE EASTERN CARIBBEAN SUPREME COURT ANTIGUA AND BARBUDA IN THE HIGH COURT OF JUSTICE CLAIM NO: ANUHMT2014/0012 BETWEEN: ANTHEA S. THOMAS NEE DANIEL AND CHARLES THOMAS Appearances: Ms. E. Deniscia Thomas for the Petitioner Mr. D. Raimon Hamilton for the Respondent 2014 June 19 July 30 August 08 September 15 JUDGEMENT Petitioner Respondent

[1]Cottle, J.: This matter concerns an application by the petitioner for ancillary relief pursuant to the Divorce Act 1997 of Antigua and Barbuda. lnit’1ally the petif1oner sought an order for the maintenance of the two minor children of the marriage and a property adjustment order relating to the matrimon’1al home which is registered in the name of the respondent [2[ At the hearing of the application the petitioner accepted that the application for a property adjustment order was not properly made. That aspect of the ancillary relief proceedings was withdrawn. The matter proceeded to consider only the application for maintenance for the two children. [31 Under the Divorce Act at section 10, the duty is imposed on the court to satisfy itself that reasonable arrangements have been made for the support of children of a marriage. In the present case there is already an order in place for the support of the children from a court of competent jurisdiction. It is a consent order dated 22nd October, 2012. In the order the respondent is required to pay $325.00 per month towards the mamtenance of each child The petitioner now seeks a variation of that order to increase the amount to $500.00 per month for each child. The relevant statutory provision is section 15 (4) of the Divorce Act which reads as follows:- The Evidence “(4) Before the court makes a variation order in respect of a support order the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of either spouse or of any child of the marriage for whom support is or was being sought occurring since the making of the support order or the last variation order made in respect of that order as the case may be, and in making the var’1ation order the court shall take into consideration that change.” [41 The petitioner filed an affidavit on 17th February, 2014. In it she did not detail any change in circumstances. She merely swore at paragraph 4 that” the amount of the maintenance award is not sufficient” She also added that she had been lead to believe by her legal practitioner that the order would have been an interim order. 151 In his affidavit 1n response filed on 16th May, 2014, the respondent swore that the consent order was not intended to be interim and it represented the agreement between the parties who were both legally represented. He added that. given the level of hiS present expenses. he could not afford any increase. [6[ Counsel for the petitioner filed helpful written submissions outlining the poSition of her client. She lists the following changes in the circumstances of the petitioner as changes which merit a variation of the consent order:-

[9]The evidence revealed that the respondent owns vehicles. The petitioner could have negotiated for the use of one of those vehicles or even for an order transferr’rng a vehicle to her for the use of the family. Instead she chose to purchase a new vehicle. She knew of her income and obligations at the time of the purchase. Th’rs voluntary ·rncurring of an additional expense is not a change in her circumstances as would merit a variation of the maintenance order.

[10]I also accept the evidence of the respondent that he is unable to afford an increase in the amount he pays for the maintenance of the children.

[11]I therefore decline to grant the petitioner the relief she seeks. The application IS refused. I make no order as to costs. Brian Cottle High Court Judge

1.At the time the order was made, the respondent resided at the matrimonial home and contnbuted to the expenses of the household.

2.Since the order, the petitioner had purchased a new vehicle to transport herself and the children since no public transportation is available in the neighborhood of the matrimonial home. [7[ Counsel for the petitioner does not mention the fact that the respondent having moved out of the matrimonial home, now has to meet the expenses of accommodation for himself. [8[ Before thiS court Will intertere with the order for support which the parties entered into with the advice of counsel on both sides, there must be shown a change in the circumstances. It is for the petitioner to adduce evidence of such a change. On the state of the evidence before the court, I find that she has failed to do so. She has filed a petition for divorce. It was obvious that the parties would cease to live together. She w·rll have been aware of this at the time the consent order was entered.