```html 1 IN THE GRAND COURT OF THE CAYMAN ISLANDS 2 HOLDEN AT GEORGE TOWN, GRAND CAYMAN 3 FAMILY DIVISION 4 5 6 CAUSE NO. FAM. 53 OF 2014 7 8 BETWEEN: 9 ANDREW NICOL MILLER 10 PETITIONER/RESPONDENT 11 AND: 12 AMANDA LEANNE MILLER 13 RESPONDENT/APPLICANT 14 15 BEFORE: 16 Hon. Justice Hall (Actg.) 17 Appearances: 18 ner reprey David Itrusted by McGrat 19 Petitio sented b McGrath ih/Tonner 20 Law. 21 22 ``` ```latex \documentclass{article} \usepackage{geometry} \usepackage{graphicx} \usepackage{hyperref} \begin{center} \textbf{IN THE GRAND COURT OF THE CAYMAN ISLANDS} \\ \textbf{HOLDEN AT GEORGE TOWN, GRAND CAYMAN} \\ \textbf{FAMILY DIVISION} \\ \includegraphics[width=0.5\textwidth]{caymanislands-court-seal} \\ \textbf{CAUSE NO. FAM. 53 OF 2014} \\ \textbf{BETWEEN:} \\ \textbf{ANDREW NICOL MILLER} \\ \textbf{PETITIONER/RESPONDENT} \\ \textbf{AND:} \\ \textbf{AMANDA LEANNE MILLER} \\ \textbf{RESPONDENT/APPLICANT} \\ \textbf{BEFORE:} \\ \textbf{Hon. Justice Hall (Actg.)} \\ \textbf{Appearances:} \\ \textbf{ner reprey David Itrusted by McGrat} \\ \textbf{Petitio sented b McGrath ih/Tonner} \\ \textbf{Law.} \\ \end{center} \begin{flushright} \textbf{19-12-30- Miller & Miller - Cause# FAM53 /2014 - Judgment - Justice Nova Hall (Actg.) - FM} \\ \textbf{Page 1 of 52} \end{flushright} ```
```html 23 JUDGMENT 24 1. The divorce between the parties hereto was finalized on 9th 25 February 2016. However for ease of reference throughout, and 26 with no lack of respect to the parties, the former husband will be 27 denoted as "H" and the former wife will be denoted as "W". 28 29 2. On September 21, 2015, following a trial, a Decision was issued as 30 to ancillary matters. It was formalized on 5th January 2016 as 31 follows: 32 33 34 35 GRAND COURT 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 100 101 102 103 104 105 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 147 148 149 150 151 152 153 154 155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 215 216 217 218 219 220 221 222 223 224 225 226 227 228 229 230 231 232 233 234 235 236 237 238 239 240 241 242 243 244 245 246 247 248 249 250 251 252 253 254 255 256 257 258 259 260 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 280 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 301 302 303 304 305 306 307 308 309 310 311 312 313 314 315 316 317 318 319 320 321 322 323 324 325 326 327 328 329 330 331 332 333 334 335 336 337 338 339 340 341 342 343 344 345 346 347 348 349 350 351 352 353 354 355 356 357 358 359 360 361 362 363 364 365 366 367 368 369 370 371 372 373 374 375 376 377 378 379 380 381 382 383 384 385 386 387 388 389 390 391 392 393 394 395 396 397 398 399 400 401 402 403 404 405 406 407 408 409 410 411 412 413 414 415 416 417 418 419 420 421 422 423 424 425 426 427 428 429 430 431 432 433 434 435 436 437 438 439 440 441 442 443 444 445 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 474 475 476 477 478 479 480 481 482 483 484 485 486 487 488 489 490 491 492 493 494 495 496 497 498 499 500 501 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744 745 746 747 748 749 750 751 752 753 754 755 756 757 758 759 760 761 762 763 764 765 766 767 768 769 770 771 772 773 774 775 776 777 778 779 780 781 782 783 784 785 786 787 788 789 790 791 792 793 794 795 796 797 798 799 800 801 802
The Petitioner/Husband shall pay the school fees and agreed extracurricular activities of each child until the child ceases full-time education or reaches the age of 21 years whichever is the later;
The Petitioner/Husband shall pay the health insurance and additional medical/dental/article expenses for each child until the child ceases full-time education or reaches the age of 21 years whichever is the later;
The Petitioner/Husband shall contribute an additional sum of CI $3,500.00 per month towards the housing needs of the children of the marriage. Such payments to continue until the last child ceases to reside with the Respondent/Wife, ceases full-time education or attains the age of 21 years whichever is the earlier;
The Petitioner/Husband shall pay spousal support to the Respondent/Wife in the sum of CI $3,000.00 per month for a period of three (3) years commencing 1 st October 2015;
The 50/50 ratio of the proceeds of sale of the estate owned by the parties to the marriage is noted and approved; 19-12-30- Miller & Miller – Cause# FAM53 /2014 - Judgment – Justice Nova Hall (Actg.) – FM Page 3 of 52
The Respondent/Wife shall retain ownership of the Mazda motor vehicle and the Petitioner/Husband shall retain ownership of the Porsche and Toyota motor vehicles outright."
The eldest child of the marriage, R, is now 19 years of age. She attends University in Australia, the birthplace of W. R and her mother W currently reside in Australia with W's parents. The two younger children are residing in the Cayman Islands with H and his wife Paola.
W originally filed an application to relocate to Australia with the two younger children of the marriage, J and I. The application in respect of J was withdrawn at the start of these proceedings because he turned 16 years of age on 12th November 2019 and, therefore, the Court did not have jurisdiction to make the order which had been sought. Given J's age and his expressed desire to remain in the Cayman Islands and do his GCSE examinations in June 2020 the current application before the Court only relates to the youngest child, I, who is seven years of age.
W's Summons filed on the 15th day of June 2018 also seeks the following Orders:
That I have such contact with the children as the Court deems appropriate, both in the Cayman Islands and Australia;
That the duration of W's spousal maintenance be extended for a further period of three years. 19-12-30- Miller & Miller – Cause# FAM53 /2014 - Judgment – Justice Nova Hall (Actg.) – FM Page 4 of 52
These applications are opposed by H.
W’s Summons had previously included the request for a legal costs allowance, however that application was dealt with in September 2018 and was unsuccessful.
Also before the Court was H’s application dated August 15, 2018. That Summons sought a variation of the Order for final ancillaries in the following terms:
That there be a Sole Residence Order in respect of H with respect to the two youngest children of the marriage;
That W be granted generous contact with the two youngest children of the marriage;
That the Order for child maintenance be varied;
That the Order for the housing needs of the children be varied;
That the applications for Cayman Islands passport for the two youngest children be signed by W or alternatively, the Court.
It mated from that a great deal of evidence must be sth the out of evidence addthis case had particular since w was testi from w, H and the two Social Workers: Ms Amelia McDermott (Australia) and Ms. Kernita Bailey (the Cayman Islands). There was affidavit evidence from H’s wife and W’s father and also a Report speaking to R’s issues from Dr. Marc Lockhart. 19-12-30- Miller & Miller – Cause# FAM53 /2014 - Judgment – Justice Nova Hall (Actg.) – FM Page 5 of 52
```html 123 124 125 126 Background 127 18. The following matters are not disputed and are relevant to the 128 applications before the Court. 129 1. W obtained a work permit and started to work at a 130 Montessori school in the Cayman Islands in September 131 2017. 132 2. It was the desire of R to pursue university studies in 133 Australia. 134 3. There was no dispute that R had had struggles with anxiety 135 and mental health issues for some time. 136 4. W and R moved to Australia at the end of July 2018, W 137 having left her job to do so. R started University in 2019. 138 5. The youngest children, J and I remained in the Cayman 139 Islands living with H and his wife Paola. 140 6. Throughout the marriage to H and prior to moving to 141 Australia, W had been the primary caregiver for the three 142 children of the marriage. 143 7. The youngest child, I reacted very badly when told of the 144 W and H had a strained relationship. 145 8. For the two years, 146 W her with her at all. 147 9. R and H have a strained relationship. 148 ```
```html 149 19. H, a prominent attorney-at-law, had been on “gardening leave” 150 from his old law firm for six months when J and I came to reside 151 with him. 152 10. Obtained employment with another law firm. 153 11. W’s application for relocation was originally scheduled to 154 be heard in early November 2019 but in August 2019, H 155 successfully obtained an Order to vacate those dates on 156 the basis of his extensive work commitments. 157 158 Welfare Reports 159 20. Two Welfare Reports each were prepared by Social Worker Ms. 160 Kernita-Rose Bailey of the Department of Children and Family 161 Services (DCFS) in the Cayman Islands and Social Worker Ms. 162 Amelia McDermott of International Social Service (ISS) in 163 Australia. 164 165 21. In Ms. Bailey’s Report dated September 28, 2018 she reported that 166 it was J’s desire to reside in the Cayman Islands with H while I who 167 was 5 years of age desired to go to W in Australia. Ms. Bailey 168 recommended that Orders be made to that effect. 169 17022. Ms. also stated a request for a report from International Social Service in Australia. That report was requested 171 to address: 173 1. Details about the home and neighbourhood in which W 174 intended to reside; ```
```html 175 2. Information about the schools that the children would 176 attend, if the Court were to approve their relocation, 177 including school population, average class size and 178 curriculum; 179 3. Available social support systems, including family 180 support and wider social support; 181 4. Training and employment opportunities for W. 182 183 23. In Ms. Bailey’s Second Report dated September 18, 2019 she 184 flagged certain issues. 185 186 24. She referred to listening to a taped recording between I and W 187 provided to her by H. It involved a discussion between W and I 188 about I going to live in Australia. Ms. Bailey considered the 189 recording to be a matter for concern because she believed that I 190 was being pushed to make a choice between her parents. H was 191 present during the conversation and W was present via the 192 internet. Ms. Bailey submitted that such conversations can have a 193 significant negative emotional effect on a child. 194 19525. Ms. ade refer referrals 196 Mul Safeguard 197 BAIY mence to tere made 198 which w 199 had the problem (MAsp were the 200 allegedly been hit some years previously. Nothing came of 201 this. In the second, J had apparently videotaped an inappropriate 202 video of one of his young friends. H dealt with J. This is still being 203 investigated but the particular relevance of this matter is that W ```
```html 201 202 was later to complain that H did not inform her about the second incident and H admitted that he had not done so. 203 204 26. Ms. Bailey reported that J informed her that he wanted to remain 205 in the Cayman Islands and do his GCSE exams there in May/June 206 2020. He stated that after completing his exams he wished to 207 travel to Australia. He stated that if he enjoyed Australia he would 208 be interested in staying there; otherwise he would return to the 209 Cayman Islands and pursue his Advance Level exams. Ms. Bailey 210 flagged the fact that J would attain the age of 16 years in 211 November 2019. Under the Children Law (2012 Revision) the Court 212 could not make an Order affecting Residence/Contact in relation to 213 214 27. Ms. Bailey reported that I, who was now 7 years of age had told 215 her that she wanted to remain in the Cayman Islands with H. Ms. 216 Bailey recommended that an Order be made to that effect. 217 218 219 28. Having been requested to do so by the DCFS in the Cayman Islands a Home Study Report was prepared by Ms. Amelia McDermott and 220 Ms. Aga Duc of International Social Service (ISS) in Australia and 221 it won Octob. The Socu Cn 2019 recomnPh of brt prepath 222 facty had not ha 223 as ried er 1, 20ers flagg 224 Thenendationhe Repth 225 that they met H 226 relocation to Australia to live with W and R. While the Report 227 recommended that J be relocated to Australia, it was felt that given his age and maturity, weight was to be given to his own views.
Ms. McDermott also provided an updated Home Study Report dated September 18, 2019, as requested by DCFS. The new Report stated that the mandate for the second assessment was to find out if anything had changed for W and her plans for the relocation of I and J and what impact the intervening year between the two assessments had had on those plans.
Once again Ms. McDermott flagged the fact that she had not communicated with H. She reported that W’s plans for housing, schooling, daily living etc remained unchanged and that there existed no concerns relating to the logistics of the move to Australia. Once again the age and maturity of J was referenced with a recommendation that his opinion be given weight in determining where he should reside. Ms. McDermott speculated on the possible effect on I were she to be separated from J now or in the future. She also stated that she had no concerns about W’s ability to be a full time parent for both I and J. She indicated however that due to the restrictions of the assessment process she could not recommend a final outcome for the case but expressed confidence that if relocation took place it would be it would be into a welcoming and loving environment.
During cross-examination Ms. McDermott was challenged by Counsel for H for her failure to speak to H, I or J. She explained that her remit from DCFS just required her to do a report in relation to W. She testified that she requested an opportunity to speak to
```html 255 the persons in the Cayman Islands but this request was refused by 256 DCFS. 257 258 Additional Matters 259 32. It was W’s expressed belief that it was in R’s best interests that 260 her mother remain close to her to provide ongoing emotional and 261 parental support. While this belief was not disputed, H challenged 262 it as being the sole reason for W going to Australia. Reference was 263 made to earlier expressions by W about moving to Australia. 264 265 33. The timing of the move was also challenged as being particularly 266 early given the date that the University school year began. It was 267 submitted on behalf of W that the expiration of W’s lease at the 268 end of July 2018 coincided with the period in which R had to leave 269 in order to settle in Australia. It was W’s testimony that the 270 decision to leave her two youngest children behind was an 271 agonizing one for her to make. 272 273 34. H has not paid any of the Court Ordered housing allowance to W 274 since she left the Cayman Islands. He pays her $1,500.00 per 275 month for R and $350.00 per month each as 276 for T and K month each as 277 278 35. While not denying that W had been the primary caregiver for the 279 three children of the marriage, H contended that there had been 280 occasions in the past when he had been the sole carer for the 19-12-30- Miller & Miller Cause# FAM53 /2014 - Judgment Justice Nova Hall (Actg.) FM Page 11 of 52 ```
```html 281 children due to W’s absences or dereliction. He suggested that he 282 had reluctantly agreed to the Sole Residence Order being granted 283 to W at the end of the marriage because he himself had no settled 284 residence. 285 286. According to H, the coincidence of I and J coming to reside with 287 him while he was on required “gardening leave” resulted in him 288 having an epiphany. He re-prioritised his relationship with his 289 children and vowed to work for less hours and reduce his work 290 related travel. 291 292 37. As expressed throughout his evidence and as indicated to Ms. 293 Kernita-Rose Bailey, H holds W responsible for his estrangement 294 from R. He has expressed fears that if they lived in Australia with 295 her, she would similarly influence J and I. Reference was made to 296 his request that W satisfy certain conditions prior to him sending 297 the younger children to visit her in Australia for holidays. This 298 included the signing of a declaration that she would return the 299 children at the end of the visit and a declaration that the Cayman 300 Islands had sole jurisdiction over the issue of custody. He 301 referenced her refusal to do these things as evincing an intention 302 of preventing them from returning. While testifying H 303 dend strong towards 304 W. 305 38. Currently, I and J communicate with W via Skype/phone/etcetera. 306 There is some dispute about the frequency. W accused H of 307 monitoring these “visits” and not allowing the children to speak 19-12-30- Miller & Miller - Cause# FAM53 /2014 - Judgment - Justice Nova Hall (Actg.) - FM Page 12 of 52 ```
```html 308 freely with her at all times. She referred to the tape recorded 309 conversation of herself and I as evidence of this. This incident, she 310 said was taken out of context and that if she truly attempted to 311 influence I, H would have been able to provide more than one tape 312 recording as evidence of this. H denied the accusation stating that 313 J as a teenager communicated with his mother when he was alone 314 in his room. He also stated that he could not help overhearing I’s 315 conversations because of the openness of the area in his condo 316 where she usually conducted her conversations. 317 318 Counsel’s Submissions on behalf of W 319 Counsel for W submitted that the domestic background to the case 320 was of vital importance. He put forward the following as facts which 321 were confirmed by oral evidence: 322 1. H is a father who (by choice) for the first two years of I’s 323 life had no overnight contact with her at all; 324 2. For the next almost four years of I’s young life, she resided 325 primarily with her mother, her big sister (R) and her brother 326 (J); 327 3. During those almost four years, H only had contact with I 328 for a few hours on a Wednesday evening and overnight on 329 Saturdays and at no point prior to these proceedings did H 330 to vary tct arrangements, did not imply to :00 p.m.it 331 return time, T days to 332 seek those corsave to c 333 not even a days to 334 4. H has always travelled significantly for business purposes 335 and continues to do so. ```
```html 336 40. Counsel submitted that the delay in getting this matter to trial 337 strengthened H’s position. Essentially, the longer that I remained 338 in the physical custody of H and his wife, the greater the bond 339 between H and I became. He asserted that if the matter had 340 proceeded in October 2018, both social worker reports had been 341 firmly in favour of I relocating to Melbourne, Australia with W. 342 343 41. Counsel referred to the stance taken by Ms. McDermott when her 344 recommendation was challenged during cross-examination. He 345 submitted that she strongly stood by her original Report 346 recommendation pointing to the fact that I’s primary caregiver for 347 the first six (6) years of her life had been her mother. 348 349 42. She pointed to the strength of I’s attachment to her mother as a 350 primary caregiving figure and suggested that there was ample 351 empirical evidence in support of the recommendation she made. 352 Counsel also referred to Ms. Bailey’s initial conclusion about the 353 relocation of I. 354 355 43. Counsel argued that the Court should consider whether things had 356 changed so significantly that relocation was no longer in I’s best 357 interests. 358 359 44. Counsel submitted that all the evidence in the case suggested that 360 I still had a significant and important attachment to her mother 361 and big sister. Further, there was some uncertainty about where J 362 would be in the future which had not been there in October 2018. ``` ```latex \begin{table} \begin{tabular}{|c|c|p{12cm}|} \hline 336 & 40. & Counsel submitted that the delay in getting this matter to trial strengthened H’s position. Essentially, the longer that I remained in the physical custody of H and his wife, the greater the bond between H and I became. He asserted that if the matter had proceeded in October 2018, both social worker reports had been firmly in favour of I relocating to Melbourne, Australia with W. \\ \hline 343 & 41. & Counsel referred to the stance taken by Ms. McDermott when her recommendation was challenged during cross-examination. He submitted that she strongly stood by her original Report recommendation pointing to the fact that I’s primary caregiver for the first six (6) years of her life had been her mother. \\ \hline 349 & 42. & She pointed to the strength of I’s attachment to her mother as a primary caregiving figure and suggested that there was ample empirical evidence in support of the recommendation she made. Counsel also referred to Ms. Bailey’s initial conclusion about the relocation of I. \\ \hline 355 & 43. & Counsel argued that the Court should consider whether things had changed so significantly that relocation was no longer in I’s best interests. \\ \hline 359 & 44. & Counsel submitted that all the evidence in the case suggested that I still had a significant and important attachment to her mother and big sister. Further, there was some uncertainty about where J would be in the future which had not been there in October 2018. \\ \hline \end{tabular} \end{table} ``` ```latex \begin{flushleft} 19-12-30- Miller & Miller Cause# FAM53 /2014 - Judgment - Justice Nova Hall (Actg.) - FM Page 14 of 52 \end{flushleft} ```
```html 363 45. Counsel asserted that H was still a busy lawyer with significant 364 business development and business travel commitments. Counsel 365 also submitted that H’s reluctance to readily facilitate direct 366 contact to W over the past year posed a risk to I’s attachment to 367 her mother and to her emotional welfare generally. 368 369 46. Counsel pointed out that both Social Workers asserted that I still 370 had a very significant primary attachment to her mother by virtue 371 of her being her main caregiver for the first 6 years of her life. The 372 change in circumstances is that H has now strengthened his 373 attachment with I. 374 375 47. Counsel submitted that it should provide reassurance to H and the 376 Court that I’s bond with her father is now secure even if she were 377 to relocate. This would limit the risk of any future loss of 378 relationship between the two. In so submitting, Counsel 379 acknowledged that despite his work commitments, H has managed 380 to strengthen his bond with I. 381 382 48. Counsel submitted however, that the attachment to a primary care 383 giving stay at home mother over a six year period is somewhat 384 different to the attachment with a father who spent a couple of 385 hours with n week 386 buselopment 387 business development 388 49. Counsel for W emphasized that Ms. Bailey gave evidence that her 389 latest recommendation was made “with caution”. The Court was ```
```html 390 urged to approach her recommendation cautiously. Counsel 391 argued that Ms. Bailey’s second Report is the only expert evidence 392 before the Court that is not supportive of I relocating to Australia 393 with her mother. 394 50. Counsel noted that Counsel for H placed a great deal of weight on 395 this second Report. Counsel for W criticized the evidence of H in 396 relation to the Report. He argued that conveniently, when it suited 397 his argument H promoted Ms. Bailey’s recommendation to the 398 Court. Otherwise, he criticized Ms. Bailey’s evidence. In relation to 399 Ms. Bailey’s opinion that she felt that W would promote the 400 relationship between I and her father, H described her as being “a 401 little bit naive”. 402 403 51. In comparing the Reports and testimony of the Social Workers, 404 Counsel for W submitted that it was hypocritical of H to argue that 405 the Reports and testimony of Ms. McDermott were effectively 406 useless to the Court as she did not speak with H. He pointed out 407 that the Report that H sought to rely on, was prepared by Ms. 408 Bailey on the same basis. 409 410 41152. Ms. d not spet all wh 412 Repas noted that Ms. Bailey had spoken with W in relation to her 413 first report and she had not been operating under the same 414 imposed restrictions as ISS Australia. It was argued that Ms. Bailey 415 could have reached out to W at any point and that she should have 416 done so “in her function as the eyes and ears of the Court”. ```
```html 417 53. Counsel argued that as she testified, this was Ms. Bailey’s first 418 relocation case. He argued that she placed disproportionate weight 419 on I’s latest expressed wishes when making her second 420 recommendation. Further, she failed to give sufficient (or any) 421 weight at all to the direct contact difficulties that W has suffered 422 and the uncertainty surrounding J’s future in Cayman. He further 423 submitted that while she testified that she had read the B v B_case, 424 there was no evidence of this in her reports; and she did not 425 address the relevant questions set out in B v B. 426 427 54. Counsel submitted that Ms. Bailey’s final recommendation should 428 be disregarded by the Court, or at the very least, treated with a 429 great deal of caution. 430 431 55. Counsel for W argued that Ms. McDermott was by far the more 432 impressive social worker witness despite the limitations of her 433 Report. He submitted that in contrast to Ms. Bailey’s guarded 434 responses; she was forthcoming in her opinions and clear and 435 balanced in her responses. He also commended her experience of 436 dealing with one or two relocation cases every three or four 437 months. 438 439 56. Counsel further argued that the criticism of Ms. McDermott’s 440 Rep unfair. He that al 441 Stun she was 442 Reports dealt with the plans and arrangements in place for I in 443 Australia in some detail and provided assurance to the Court that 444 W had put in place appropriate arrangements. It was asserted that 445 Ms. Bailey also ultimately relied on Ms. McDermott’s Reports for ```
```html 446 447 448 449 450 451 452 453 454 455 456 457 458 459 460 461 462 463 464 465 466 467 468 469 470 471 472 473 ``` ```latex \begin{enumerate} \item Counsel for W addressed the issue of where J will be after June 2020 and the effect that that would have on I. \item Counsel took the view that J has clearly indicated that he intends to visit Australia after his GCSE exams in June 2020 and that it was a possibility that he may decide to stay there permanently. Counsel argued that the evidence clearly established that even if J returned to the Cayman Islands after the summer of 2020, he would be leaving in two and a half years to attend university. Under either scenario, I would be the only sibling left in the Cayman Islands. \item Counsel argued that I could find herself living a lonely existence in the Cayman Islands. Her mother, sister and maternal family would be in Australia. Her brother would be away at university, possibly in Australia and her paternal family would be in London and New Zealand. I would be in the care of her father and his wife. It was argued that despite his love for I, the reality is that H would be unable to spend significant quality time with her given his work commitment. \item Counsel referred to Ms. McDermott's evidence that I being in such a position was not a good idea. He cited Ms. McDermott at page 122 of her second Report stating that for I, there seemed to be "some undeniable benefits to relocation to Melbourne, the most \end{enumerate} ```
```html 474 evident of those being support from a wider extended family 475 network....in particular, having more people around her as she 476 grows up would be beneficial." 477 478 61. During cross-examination on this point Ms. McDermott stated that 479 it was important to have a long term plan in place for children. 480 481 62. Counsel argued that Ms. Bailey in her second Report, recognised 482 that I’s situation may have to be revisited in June 2020 depending 483 on what J decided. He submitted that a further waiting game would 484 not provide any certainty for I. He pointed to the fact that the 485 experts agreed that if I relocated now, she would adjust given 486 her young age. 487 488 63. Counsel submitted that given all the circumstances of this case a 489 decision for I to remain in the Cayman Islands at this juncture 490 would not provide her with any certainty for the long term and this 491 would be contrary to her best interests. 492 493 Contact & Co-Parenting 494 64. Counsel for W pointed out that in their Reports and viva voce 495 evith of the Social Workers would So 496 opinW would So 497 if the latter was to be relocated. 498 499 500 19-12-30- Miller & Miller Cause# FAM53 /2014 - Judgment Justice Nova Hall (Actg.) - FM Page 19 of 52 ```
```html 501 65. Quoting Ms. Bailey: 502 503 504 505 506 507 508 509 510 511 512 513 514 515 516 517 518 519 520 521 522 523 524 525 526 527 528 529 530 531 532 533 534 535 536 537 538 539 540 541 542 543 544 545 546 547 548 549 550 551 552 553 554 555 556 557 558 559 560 561 562 563 564 565 566 567 568 569 570 571 572 573 574 575 576 577 578 579 580 581 582 583 584 585 586 587 588 589 590 591 592 593 594 595 596 597 598 599 600 601 602 603 604 605 606 607 608 609 610 611 612 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 641 642 643 644 645 646 647 648 649 650 651 652 653 654 655 656 657 658 659 660 661 662 663 664 665 666 667 668 669 670 671 672 673 674 675 676 677 678 679 680 681 682 683 684 685 686 687 688 689 690 691 692 693 694 695 696 697 698 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 722 723 724 725 726 727 728 729 730 731 732 733 734 735 736 737 738 739 740 741 742 743 744 745 746 747 748 749 750 751 752 753 754 755 756 757 758 759 760 761 762 763 764 765 766 767 768 769 770 771 772 773 774 775 776 777 778 779 780 781 782 783 784 785 786 787 788 789 790 791 792 793 794 795 796 797 798 799 800 801 802 803 804 805 806 807 808 809 810 811 812 813 814 815 816 817 818 819 820 821 822 823 824 825 826 827 828 829 830 831 832 833 834 835 836 837 838 839 840 841 842 843 844 845 846 847 848 849 850 851 852 853 854 855 856 857 858 859 860 861 862 863 864 865 866 867 868 869 870 871 872 873 874 875 876 877 878 879 880 881 882 883 884 885 886 887 888 889 890 891 892 893 894 895 896 897 898 899 900 901 902 903 904 905 906 907 908 909 910 911 912 913 914 915 916 917 918 919 920 921 922 923 924 925 926 927 928 929 930 931 932 933 934 935 936 937 938 939 940 941 942 943 944 945 946 947 948 949 950 951 952 953 954 955 956 957 958 959 960 961 962 963 964 965 966 967 968 969 970 971 972 973 974 975 976 977 978 979 980 981 982 983 984 985 986 987 988 989 990 991 992 993 994 995 996 997 998 999 1000 1001 1002 1003 1004 1005 1006 1007 1008 1009 1010 1011 1012 1013 1014 1015 1016 1017 1018 1019 1020 1021 1022 1023 1024 1025 1026 1027 1028 1029 1030 1031 1032 1033 1034 1035 1036 1037 1038 1039 1040 1041 1042 1043 1044 1045 1046 1047 1048 1049 1050 1051 1052 1053 1054 1055 1056 1057 1058 1059 1060 1061 1062 1063 1064 1065 1066 1067 1068 1069 1070 1071 1072 1073 1074 1075 1076 1077 1078 1079 1080 1081 1082 1083 1084 1085 1086 1087 1088 1089 1090 1091 1092 1093 1094 1095 1096 1097 1098 1099 1100 1101 1102 1103 1104 1105 1106 1107 1108 1109 1110 1111 1112 1113 1114 1115 1116 1117 1118 1119 1120 1121 1122 1123 1124 1125 1126 1127 1128 1129 1130 1131 1132 1133 1134 1135 1136 1137 1138 1139 1140 1141 1142 1143 1144 1145 1146 1147 1148 1149 1150 1151 1152 1153 1154 1155 1156 1157 1158 1159 1160 1161 1162 1163 1164 1165 1166 1167 1168 1169 1170 1171 1172 1173 1174 1175 1176 1177 1178 1179 1180 1181 1182 1183 1184 1185 1186 1187 1188 1189 1190 1191 1192 1193 1194 1195 1196 1197 1198 1199 1200 1201 1202 1203 1204 1205 1206 1207 1208 1209 1210 1211 1212 1213 1214 1215 1216 1217 1218 1219 1220 1221 1222 1223 1224 1225 1226 1227 1228 1229 1230 1231 1232 1233 1234 1235 1236 1237 1238 1239 1240 1241 1242 1243 1244 1245 1246 1247 1248 1249 1250 1251 1252 1253 1254 1255 1256 1257 1258 1259 1260 1261 1262 1263 1264 1265 1266 1267
R. He stated that H appeared to harbour a great deal of resentment towards W as a result and that this came across during H’s oral evidence which it was submitted was often adversarial in nature. It was submitted that the evidence showed that H has been the author of his own destiny when it comes to his relationship with R and that W could not be blamed.
Counsel made reference to a message exhibited by W which was from H to I’s godmother. In it he refused to allow I’s godmother to see her and stated of W: ``` "my ex who has taken legal proceedings with the vengeful intent of adding" (I) "to the list of children I will never have any contact with ever again I will have to maintain a degree of distance until after the conclusion of those proceedings."
Counsel submitted that H worryingly still viewed W’s application as simply being driven by ‘the vengeful intent’ to exclude I from his life. This was despite the fact that W was originally from Australia, had all of her extended family living in Australia and had previously raised the issue of relocating, including a court application. Further, R was presently attending university in Australia. It was submitted that H’s view was completely misguided and according to the experts, wrong. It was strongly submitted that H’s reticence to allow W to see I and J should cause concern for the Court if I was to remain in the Cayman Islands. It was argued that H had made it difficult for W to have direct contact with I and J for the past 16 months. It was suggested that if anyone was at risk of parental alienation, it was W. 19-12-30- Miller & Miller – Cause# FAM53 /2014 – Judgment – Justice Nova Hall (Actg.) – FM Page 21 of 52
```html 557 73. It was also submitted that any concerns on H's part that W would 558 not properly promote the relationship between I and H if she were 559 in Australia, were completely unfounded. 560 561 74. It was submitted that all of the witnesses, including the parties 562 themselves, acknowledged the differing parenting styles and 563 characteristics of the parties. W was described as being more 564 flexible. 565 566 75. It was submitted that where a child had parents residing in two 567 different jurisdictions, a flexible approach such as W's would 568 ultimately be in I's best interests. It was argued that it would not 569 be in I's best interests to be in the care of a father who holds 570 resentment towards her mother and who takes a rigid and often 571 difficult approach to contact arrangements. 572 573 76. The Court was asked to consider this background when assessing 574 the weight to attach to the email sent by W to H in which she 575 invited his proposals as to what the contact arrangements would 576 be if she were to be in Australia without the children. It was argued 577 that at trial, H sought to place great emphasis on this email which 578 was one line in length, amongst thousands of pages of paper in 579 580 581 582 583 584 19-12-30- Miller & Miller - Cause# FAM53 /2014 - Judgment - Justice Nova Hall (Actg.) - FM Page 22 of 52 ```
```html 585 77. Counsel made reference to the incident involving the MASH unit which was the second one involving J. H did not inform W about this second incident. Additionally, on the evidence, safety concerns were raised by neighbours regarding I being left unsupervised at the pool of H's condo complex. H suggested that there had been mistaken identity regarding I at the pool. However, despite requests for evidence of any strata complaints (including videos) H and his advisors did not provide this. 593 78. Counsel submitted that these were examples of H's unwillingness to co-parent with W. The Court was invited to draw adverse inferences. 599 Financial Orders 600 79. Counsel for W submitted that the child maintenance orders will be impacted by the outcome of the relocation application. It was argued that W requires some form of ongoing maintenance regardless of where the children are located. It was submitted that W will still have to care for the children during significant periods in school holidays. It was argued that given H's high income level, it would be reasonable that he pay for all of the children's travel expenses. 609 80. It is not disputed that H has not paid to W the court ordered housing allowance of CI$3,500 per month since she left the Cayman Islands. It was submitted that H is now indebted to W in the sum of CI$56,000 in housing allowance and the Court was ```
```html 613 614 615 616 617 618 619 620 621 622 623 624 625 626 627 628 629 630 631 632 633 634 635 636 637 638 639 640 invited to require H to remedy his breach of the final ancillary order and make payment to W of either all or some portion of the outstanding housing allowance. H’s contention that the housing allowance was for the benefit of the children and the youngest two children are not presently residing with W was noted. However it was argued that regardless of the Court’s decision on relocation, W required appropriate accommodation to house all three children when they are with her. The funds would greatly assist W in establishing a home for her and the children in Australia. It was further submitted that W still had one of the children residing with her who was still subject to that aspect of the final ancillary order. It was argued that H should have been contributing something towards housing for the past 15 months rather than unilaterally deciding that there was no need for him to comply with the Court Order. It was submitted that regardless of the decision on relocation the Court should continue the Order for housing allowance. It was argued that this was in the children’s best interests regardless of their country’s primary of residence. With regard to the application for the extension of spousal maintenance, citing authorities, Counsel for W submitted that no exceptional justification was required for an extension. The reasoning behind the original final ancillary order is a relevant ```
```markdown circumstance to be considered as well as whether the purpose of that original Order had been fulfilled. This was the transition to independence, and based on W’s current financial position, it was submitted that it had not.
Counsel for W submitted that there had been undeniable uncertainties surrounding W’s immigration status in the Cayman Islands post-divorce. She incurred additional time and costs dealing with her legal proceedings and moving countries. She had been unable to update her qualifications as was envisaged by the Court.
Ms. McDermott’s observations regarding W were commended to the Court. Counsel submitted that she is on the ground in Australia and has had the most contact with W in recent months. Both W and Ms. McDermott gave evidence regarding W’s efforts to have her Montessori qualification recognised in Australia with Ms. McDermott commenting that the process was not quick. Ms McDermott also commented on how W kept herself busy.
Counsel submitted that it was unfair to suggest that W had not mac to find he the final ancillary effortser feet sir hearing. It had been a difficult
Counsel for W commented on opposing Counsel’s comments about W’s Butterfield bank account which had a balance of CI$20k ```
```html 668 (equivalent to AUD$36k). It was submitted that this was indicative 669 of the fact that W did not need any ongoing support from H. 670 671 89. Counsel for W pointed out that W’s oral evidence and her Counsel’s 672 explanation upon disclosure; had established that a significant 673 portion of those funds (CI$14k) represented months of 674 accumulated child maintenance for I and J. These were funds that 675 W has deliberately kept aside to fund travel, accommodation and 676 general expenses when the children are with her. It was submitted 677 that just prior to the Trial an updated statement was disclosed 678 showing a balance in that account of CI$14，202.35 as at 29th 679 November 2019. 680 681 90. It was submitted that W did not have sufficient funds at her 682 disposal to update her qualifications which would open up new job 683 prospects for her. She had been living with her parents out of 684 necessity and had to conserve such maintenance funds that she 685 received from H for when she has direct contact with the children. 686 687 91. It was argued that as a result of moving countries, long distance 688 travel expenses and significant legal fees, W had not yet been able 689 to tto indepem H. 690 ransition endence f 691 92. It was argued that the disparity in the parties’ financial positions 692 was clear. H earned a significant income from his employment, 693 resided in a luxurious condo, had a second home in Miami and 694 travelled frequently. While H was criticized for not making timely ```
```html 695 disclosure of his true financial position, it was argued that his ability to pay any of the orders sought should not be in dispute. 696 697 698 93. Counsel submitted that the fact that the original Order was not 699 700 701 702 703 704 705 706 707 708 709 710 711 712 713 714 715 716 717 718 719 720 721 717 weeks ev 718 719 720 721 722 ```
```html d) For 4 weeks during school Christmas holidays (incorporating Christmas Eve and Christmas Day on alternating years); e) The above arrangements can be facilitated in Cayman, Australia, New Zealand or any other location that is convenient for H; f) Regular indirect Facetime/Telephone contact (daily if H wishes) at 4:00 p.m. Cayman time or such other time as can be agreed and anytime between 5:00 and 11:00 p.m. on weekends; g) H should be responsible for the travel costs of facilitating contact regardless of the court's decision. That H shall pay to W child maintenance in the sum of CI$1,500 per month each for I and R and CI$350 per month in respect of J (pending his own decision on relocation); That H shall pay to W a housing allowance in the sum of CI$3,500 per month for her and the children of the marriage (regardless of the decision on I’s relocation); That H shall repay the housing allowance arrears (or at least some portion of same) that have been accrued in the past 16 months; That there shall be an extension of W's spousal maintenance in such quantum and for such period as the Court may deem appropriate; ```
```markdown **Counsel’s Submissions on behalf of H**
Counsel for H opened his closing submissions by stating that it was a fact that J will be staying with his father. It was argued that this fact was not open for debate or speculation. As such the Court must proceed on the basis that this will impact substantially on the Court’s determination concerning I. The Court was referred to the evidence of Ms. Bailey that despite the age difference, the two children were close and that the preservation of this unit should be carefully contemplated.
Counsel commented on the evidence that J had expressed to W and to Ms. Bailey that he may, at some point in the future consider the possibility of living in Australia. In contrast it was H’s evidence that J had expressed unequivocally to him that he will be staying in the Cayman Islands at least until after his A levels in 3 years’ time.
Counsel submitted that the evidence from W and Ms. McDermott abomight have sibling hand in decave was vill eculatise ture II submited that Ms. McDermott’s opinion that if this occurred I may live a solitary life was baseless and inappropriate. He submitted this demonstrated an entirely inappropriate bias on the part of Ms. McDermott. Instead he commended the approach of Ms. Bailey, ``` This transcription accurately reflects the content of the provided text, using Markdown for headings and paragraph structure, HTML for tables (if any were present, which they are not in this case), and LaTeX for math (which is not present in the text).
```html 777 that if J relocated, a new application may be necessary given the 778 separation of the sibling unit. 779 780 99. He submitted that the Court should not accept the speculative 781 factual premise put forward on behalf of W. The Court should not 782 assume that J will be leaving the Cayman Islands and acquiesce to 783 the relocation of I from now as a result. Instead the Court should 784 consider that J will reside in the Cayman Islands for the foreseeable 785 future. If the factual circumstances changed in the future, then 786 that would be the time for an application to consider the effect of 787 the new circumstances. 788 789 100. Counsel for H greatly commended the evidence of Ms. Bailey to the 790 effect that J and I were being well cared for in the Cayman Islands 791 by parents who loved them. They were settled and doing well in 792 school and had many friends. They had adjusted well since the 793 departure of W from the Cayman Islands and enjoyed significant 794 contact with her via telephone/Facetime/WhatsApp. 795 796 101. Counsel for H submitted that the Court would have to find the most 797 ovegely com 798 recations so is 799 the Cayman Islands and to live in Australia. It was argued that 800 such reasons do not exist. 801 ```
```html 802 102. Counsel argued that Ms. Bailey’s reports were full and that her oral 803 evidence was relatively fresh. When cross-examined, she accepted 804 none of the critical propositions which were put to her. 805 806 103. The Court was invited to conclude that her evidence was 807 measured, mature, astute, professional, objective and that she 808 reached her conclusion after fairly exhaustive and considered 809 research. It was submitted that the fact that she recognized the 810 “altered domestic and welfare dynamics in the year between her 811 first and second reports” was testament to the fact that 812 she recognised the need to assess a new status quo and how that 813 impacted upon I. 814 815 816 104. In contrast, Counsel for H urged the Court to reject the Reports of 817 Ms. McDermott. She had recommended that I be granted 818 relocation to Australia to live full time with W and R. 819 820 105. Her work was criticized on the basis that she made that 821 recommendation without: 822 1. Meeting with or speaking with either J or I; 823 2. Meeting or speaking with H; 824 3. Meeting or speaking with the children’s school’s 825 4. Meeting or speaking to either or the children’s 826 school’s 827 5. Knowing anything about the children’s lives in the 828 Cayman Islands except as reported by W; 829 19-12-30- Miller & Miller - Cause# FAM53 /2014 - Judgment - Justice Nova Hall (Actg.) - FM Page 31 of 52 ```
```html 830 6. Knowing anything about the statutory or jurisprudential 831 criteria that the Court must apply; 832 7. Ever having been asked to make any such 833 recommendation. 834 835 106. Counsel conceded that Ms. McDermott provided some useful 836 background corroboration about W’s life in Melbourne, her family 837 there, her employment and attempts to find work, the Melbourne 838 school system, and the infrastructure that a big city like Melbourne 839 offered. However it was submitted that in terms of actually 840 assisting the Court on the core issue about where and with whom 841 I should live, her Report and her opinion were of marginal utility. 842 The Evidence of W 843 107. Counsel for H highlighted certain elements of W’s evidence. 844 845 108. Counsel criticized W’s evidence that she could see absolutely no 846 downside whatsoever to J relocating to Melbourne. He pointed out 847 that in October 2019, when J was 15 years and 11 months old, he 848 had expressed on several occasions to Ms. Bailey and W that he 849 wanted to stay in the Cayman Islands. Further, W had insisted that 850 J undertake a video interview with a Melbourne school and she still 851 intepursuit against the application side to ‘personally, issue a wheth 852 accnot having his wis 853 W c 854 the fact that the Court had no jurisdiction over J was the only 855 reason she was not pursuing the application, she had said ‘yes’. 856 ```
```html 857 109. Counsel submitted that the foregoing were symptomatic of "(a) an inability properly to take into account the wishes and feelings of others, (b) an inability to approach question(s) from a child-centric perspective, and (c) an unassailable belief that she is the only person equipped to make decisions about" J's future. 862 863 110. It was accepted that it is of benefit to R to have her mother around as she settled into a new life in a new country. However it was submitted the high-water mark of Dr. Lockhart's report is that he speaks of M's presence being of benefit to R as opposed to crucial, essential or a necessity. 868 869 111. It was argued that R's move to Australia is not the sole basis for W wishing to move there. Her own case is that she mentioned it to H as long ago as 2013, she filed but did not pursue a Grand Court application in 2015 and in January 2017. W also wrote to H enquiring: 874 875 876 877 878 879 880 881 882 112. Acc Counsel ...... Could I please have your proposal on if the kids lived with you and I went back to Australia. Thanks" Ass Counsel count any into this Austral back tia nevenanced bo move that sh without the children. The one-line e mail to H, was referenced in making the submission that W's answer was demonstrably untrue. ```
```html 883 113. Counsel submitted that relocation to Australia was a choice which 884 W made for her own reasons. In 2018, she was employed, had 885 resolved her immigration issues, was the beneficiary of income 886 provision and a housing allowance but she elected to move to 887 Australia. This was partly for R but partly, according to W, in the 888 hope for a better life and better opportunities for herself. 889 890 114. The Court was invited to consider whether the ensuing 16 months 891 have proven successful for W in her pursuit of a better life. 892 893 115. It was asserted that while R had some introductory university 894 administration in mid-February 2019, she did not actually start 895 university until March 2019. As this was seven or eight months 896 after W’s departure from the Cayman Islands, Counsel questioned 897 her rationale for departing when she did. 898 899 116. On the evidence, her hopes for a Montessori teaching position 900 were not realized because her qualification was not recognised. Further, 901 between August 2018 and April 2019 it appeared that W was not 902 employed. Counsel reviewed W’s evidence about her employment. 903 Taken together, Counsel submitted that W had “a tendency to 904 make plans without the ability to follow them through, to make 905 stand assent backing 906 search or r 907 exercise 908 117. Counsel questioned her ability to properly, sensibly and 909 appropriately to plan for all of the aspects of her and I’s life in 19-12-30- Miller & Miller Cause# FAM53 /2014 - Judgment - Justice Nova Hall (Actg.) - FM Page 34 of 52 ```
Melbourne. It was conceded that W was a loving, devoted and nurturing parent. However it was argued that these qualities alone cannot substitute for the essential ability to plan for, organize and finance the logistics and stability in a child’s life. ### The Evidence of H
Counsel for H commended the findings of Ms. Bailey concerning the home that H and Paola had made for J and I and her recommendations in relation to I. Where there were any factual dispute between the evidence of W, H and Ms. Bailey, the Court was invited to prefer the evidence of H and Ms. Bailey.
Counsel submitted that the children have transitioned extremely well to living with H and Paola who have put in place an enviable quality of life for them. H proposes and intends a continuation of the status quo with respect to maintenance, housing, school and extracurricular activities which are working well for the children.
According to the plan, Paola will continue to be responsible for transporting the children to their after-school activities. H and Paola will jointly care for the children in the mornings and continue to wait for the children in the evenings. The family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
H will continue to participate in the family unit's activities. At the conclusion of the proceedings, the family unit will continue to engage in its normal array of activities.
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It is proposed that the children will continue to have liberal and generous Facetime/WhatsApp contact with W. It was submitted that in I's case, the Court may feel inclined to fix the time of such contact.
H proposed that W has physical contact with I, and J if that is his wish, for up to 7 weeks in the summer and alternative Christmases in Australia. Given that the children have largely been with W for the better part of the last two months, H proposed that the first such Christmas contact in Australia be in 2020. W could however, visit the children in the Cayman Islands.
It was submitted that H has adjusted his professional life and, with the assistance of Paola, has put in place a desirable life and routine for J and I.
Counsel commended the aspects of H's live evidence wherein he testified that while on six months gardening leave he bonded closely with J and I and re-evaluated his priorities. It was his evidence that while he continues to work at his new law firm, it is not in the same way that he worked at his previous firm. It was submitted that H has undertaken responsibility for financial and other responsibilities for the children. And above all, he has three children to solely provide for. 19-12-30- Miller & Miller – Cause# FAM53 /2014 - Judgment – Justice Nova Hall (Actg.) – FM Page 36 of 52
```html 962 125. Counsel for H submitted that W had not established a case for the 963 extension of spousal support. 964 965 126. It was argued that the starting point was the rationale behind the 966 three-year term of spousal maintenance in the final ancillary order. 967 This was so that W could “find her bearings”. 968 969 127. H did not accept any of W’s evidence about the immigration issues 970 which she alleged prevented her from working and even after she 971 had been granted a full work permit, left her in a state of 972 immigration confusion. 973 974 128. During the currency of the spousal support W secured employment 975 as a Montessori teacher. It was argued that for reasons which do 976 not hold up to scrutiny, W resigned from that position. She then 977 undertook no gainful employment for nine months. Thereafter, she 978 took up an ad hoc 2 day a week baby-sitting job. 979 980 981 129. On the evidence, several months later, W found another ad hoc 982 job which involved babysitting and caring for/sponsoring a 983 recdcoholic. n has con 984 overing aThis positend. 985 130. While testifying, W advised the Court that she had an interview for 986 the Court was not advised of the 987 outcome of that interview. She further advised the Court that she ```
```html 988 989 990 is embarking upon an on-line business which may involve also teaching yoga. 991 131. On behalf of H it was submitted that W had done nothing to help herself, had not properly tried to find her feet, and has purported to make plans which are flakey and opaque. W had not tried and that could not be a basis for exercising a discretion in her favour. 992 993 994 995 996 132. It was submitted that the term could not be extended based on the hopeless and elusive state of W’s evidence. It was submitted that relevant questions were: has W “obtained another job? Is she likely to? What became of the teaching interview? If she gets it, how much will she make? How much will she make from the online business and yoga teaching which is about to go ahead? Will she retain the babysitting job indefinitely? What is a reasonable budget for herself? Can it be said that she has maximized her earning potential during the three-year term?” 997 998 999 1000 1001 1002 1003 1004 1005 133. Counsel argued that W requested the same level of spousal support for three more years, without referencing how she quantified it at that level or the reason for requiring it for that long. She was asserting, without more, that she needed the equivalent of AUS$6.231 per month or AUS$74.780 per annum to meet her needs. 1006 1007 1008 1009 1010 1011 1012 1013 134. It was submitted that the application was wholly without merit. It was further argued that extending spousal support at the requested rate and for the requested term in circumstances where W has not demonstrated any attempt to cut financial ties from H 1014 1015 1016 ```
would be wrong and would send a message that the Court will be inclined to exercise a discretion in favour of parties who ignore the rationale behind the order and simply do not get on with their own lives. Submissions on finances were made by H based on the possible outcomes of the relocation application. If I remained in the Cayman Islands, the following was submitted:
As recommended by Ms. Bailey, H would be responsible for the cost of I’s flights to and from Australia each summer and every other Christmas. The flights should be organised and booked not less than three months before I travels.
During the time that I is with W in Australia, H pays to W child maintenance at the weekly rate of CI$250. This equates to AUS$445 per week or AUS$1,929 per month.
The same principles and figures should apply equally to James.
The monthly child maintenance payments would cease on the basis that there is no logical reason for H to pay child maintenance to W when the children are living with him and he is meeting every expense in their lives. In relation to the housing allowance the following submissions were made by H:
This provision is expressly for the children, not for W. H recognised that R is still technically a child for the purposes
```markdown of the Matrimonial Causes Law until 3 January 2021 when she will turn 21. If/when R is living in rented accommodation, presumably living with W, H proposes that the housing allowance payable in respect of R only is at the rate of CI$1,200 per month (equates to AUS$2,137) and such allowance would expire as a child related periodic payment on or about 31 December 2020.
Were the Court to accede to H’s proposal, it would mean that H would be paying ‘child maintenance’ in respect of R at the rate of CI$2,700 per month (AUS$4,807 per month) or AUS$57,688. This is in addition to her university fees and would be fair and reasonable, if not generous.
If I left the Cayman Islands, the following was submitted:
Child maintenance should be reduced to approximately two thirds of its current rate on the basis that the literature provided in W’s affidavit tends to suggest that the cost of living/basket of goods in Melbourne versus Cayman is at about 65%. H therefore proposes child maintenance at the rate of CI$1,000 per month (AUS1,781) or AUS$21,366 per annum. In making this proposal, the Court would also bear in mind that H would be funding the significant additional cost of travel to Australia. That figure has been agreed to be AUS$1,000 per month. Likewise, were J to elect to leave, H proposes the same figure. ``` This text is a transcription of the content visible in the image, formatted according to the specified guidelines.
In relation to the housing allowance the following submissions were made by H.
This would obviously depend upon how many children were living with M. H worked on the basis that J would definitely be in Cayman and that any housing allowance in respect of R would expire as a matter of law in a year from now (technically on 2 January 2021). H does not pretend that there is any arithmetic formula to his proposal but on the basis that W would require a three bedroom property during the calendar year 2020, H proposed a housing allowance in the sum of CI$2,200 per month (AUS$3,917). This figure would, as a matter of law, have to reduce from 1 January 2021 because R would be an adult and beyond the age where a Court can make provision under the Matrimonial Causes Law by way of periodic payments.
It was submitted that it would, be far easier to address these matters once the parties are aware of the decision on relocation. As such, if the Court preferred to deal with the child maintenance and housing allowance parts of the application after its substantive decision, H was happy to do so. He would also be able to address the economics with a bit more certainty. The Law Revision) sets out the welfare checklist. The factors for consideration will be set out hereafter. 19-12-30- Miller & Miller – Cause# FAM53 /2014 - Judgment – Justice Nova Hall (Actg.) – FM Page 41 of 52
The leading permanent removal authority in this jurisdiction is the decision of **B v. B [2013] (1) CILR 271**. This is the decision of Mr. Justice Williams, who summarized the English authorities on the subject. The Court of Appeal approved this decision in **B v. B [2014] (2) CILR 234**.
I have set out both the Welfare checklist and the **B v B** principles and indicated my responses thereto.
Applying the principles in **B v B**:
Is the mother’s application genuine, in the sense that it is not motivated by some selfish desire to exclude the father from the child’s life? I am satisfied that W does not have a desire to exclude H from I’s life. She genuinely wants her youngest child to live with her and given that for the first several years of I’s life she had been her primary carer she wishes to maintain that bond. I am satisfied, based on the evidence that W would take all steps to ensure that I maintained contact with H, if I relocated to Australia.
Is the father’s opposition motivated by a genuine concern for the future of the child’s welfare or is it driven by some ulterior motive? 19-12-30- Miller & Miller – Cause# FAM53 /2014 - Judgment – Justice Nova Hall (Actg.) – FM Page 42 of 52
I am satisfied that H has come to form a stronger relationship with I than he had previously. I do not doubt that he genuinely wants her to remain in the Cayman Islands with him. It is troubling however that H strongly blames W for his strained relationship with his eldest child, R. He repeatedly expressed the view that if I relocated to Australia, W would cause an alienation between himself and I. It is concluded that some element of his motivation to oppose the application, is to prevent this suspected alienation by the use of limited physical contact and Orders of the Court. However, the evidence does not support the premise that W is the source of the problems between he and R and there is no requirement for tactics to prevent W from alienating him from his other children. On the evidence, H in the past has taken a rigid attitude to contact between the younger children and W. It is of concern that based on H’s views on alienation and past behaviour, he could seek to obstruct W’s contact with I.
What would be the extent of the detriment to the father and his relationship with the children were the application granted? It is accepted that H would be devastated if I relocated to Australia. However, the evidence has established that he and I now have a much closer bond than they had when I was younger. Such a bond is not easily fractured. This close bond taken together with the
```html 1153 contact that W will facilitate electronically, as well as in-person 1154 visits would ensure that there was limited detriment to H’s 1155 relationship with I. 1156 1157 To what extent would the detriment to the father, if the application 1158 were granted, be offset by extension of the child’s relationship with 1159 the maternal family and, if applicable, homeland? 1160 1161 There can be no suggestion that a relationship with her maternal 1162 family can replace I’s relationship with her father. I has spent 1163 quality time with her Australian family in the past but regular 1164 contact with her extended maternal family including the maternal 1165 grandparents can only be a positive thing. It is noted that I already 1166 has an existing good relationship with her older sister R who is in 1167 Australia. The extension of these relationships would be of benefit 1168 to I. 1169 1170 147. Is the mother’s application realistic and founded on practical 1171 proposals well researched and investigated? 1172 1173 This question is answered in the affirmative based on the two 1174 Home Study Reports prepared by Ms. McDermott of ISS, Australia. 1175 It inat the sl’s plans require t 1176 of fission 1177 1178 148. What would be the impact on the mother of a refusal of her realistic 1179 proposal? The weight placed on this will increase if the child resides 1180 with the mother. 19-12-30- Miller & Miller Cause# FAM53 /2014 - Judgment Justice Nova Hall (Actg.) - FM Page 44 of 52 ```
```html 1181 As is the case with H, W would be devastated if the relocation 1182 application is refused. It cannot be overlooked that I resides with 1183 her father and that this must be given weight. However the fact 1184 that for several years I resided with and was cared for by W, with 1185 significantly less contact with H must also be a factor for 1186 consideration. This was no doubt the reason that I had such a 1187 strong reaction when told that her mother was moving to Australia 1188 without her. She did however, eventually adapt to the change in 1189 her circumstances. 1190 1191 It would be extremely detrimental to W and I, should H, as 1192 been previously mooted, place any obstacles between contact 1193 between W and I. 1194 1195 149. The Court must next consider the Welfare Checklist. 1196 1197 A. The ascertainable wishes and feelings of the child concerned 1198 (considered in the light of her age and understanding); 1199 1200 In her first Welfare Report, the Social Worker, Ms. Bailey placed 1201 weight on I's expressed desire to go to live with her mother in 1202 Australia. I was then five years of age. In her second Report Ms. 1203 Bailey has placed significant weight on I's expressed desire to 1204 re Cayman in the Cayman Islands with her father. I is now seven years 1205 old 1206 1207 It is considered that either age is too young for the Court to place 1208 much weight on the expressed views. 1209
A. `The child's physical, emotional and educational needs;` I’s physical, emotional and educational needs are currently being met. However, despite his testimony, given the nature of H’s work commitments, there is some doubt that he can provide the same level of one-to-one attention to I that W has provided in the past and can still provide in the future. The Reports establish that were she to relocate to Australia, I’s physical, emotional and educational needs would continue to be met, particularly given her young age. All Reports asserted that given her age, she would swiftly adapt to change. It must be stated however that I requires contact with both of her parents in order for her emotional needs to be met.
The likely effect on her of any change in her circumstances; The importance of stability is recognized. However the greatest factor that favours change for I is her extremely young age. I has only been living in her present circumstance for about eighteen months. As testament to how well she has been cared for, she adapted well to the change in her previous circumstances. It has already been stated that she will adapt speedily to change giving age.
Her age, sex, background and any characteristics of hers which the court considers relevant; Again, I’s age suggests that the present is ideal, should any change be made. As a young female, I would benefit from the presence of her mother and sister as she grows up. This observation however does not in any way overlook the benefits that I has had due to her physical proximity to her father’s wife. I has lived all her life in the Cayman Islands, however she is aware and has had contact with many of her extended family who live outside the jurisdiction. Her upbringing as a Caymanian does not pose a barrier to her living elsewhere. Especially in circumstances where it would be possible for her to visit the Cayman Islands.
Any harm which she has suffered or is at risk of suffering; Despite flagging her concern about the recorded conversation which she heard between I and W, Ms. Bailey’s Reports raised no concern about any harm that I has suffered or could suffer at the hands of either parent. The Social Workers and the desirability of maintaining this bond. However while this was considered, that issue was approached with caution. The possibility of J moving to Australia is a matter for speculation and it is not considered appropriate to relocate I to
Australia at this time solely to meet that future circumstance. That speculative possibility was not given any weight. Counsel for W raised the issue of H’s lack of disclosure in relation to the second MASH incident and the complaint about I’s safety at the condo pool. Communication about all relevant details is key in co-parenting. Allowing a child to speak freely and openly to the other parent is also key and the facts suggest that H monitors I’s electronic conversations with W. A continuation of such behaviours could inflict future emotional harm on I. It is felt that there is further greater risk of emotional harm to I as elaborated upon below.
How capable each of her parents, and any other person in relation to whom the court considers the question to be relevant, is of meeting her needs; It is considered that H does and can continue to meet I’s physical needs. W has met I’s physical needs in the past and if she is put in the financial position to do so, she will continue to meet I’s needs in the future. Whaccepted d his wife’s love. While it is that H has an important role in the maintenance of I’s emotional needs, it is then important to maintain contact with both parents. It is a matter of great concern that H’s strongly expressed resentment towards W and his past behaviour showing a rigid
###判决书 ####1296-1301 这种处理方式，特别是在涉及W与年幼子女的接触方面，可能会导致他如果保留监护权，会阻碍我与她母亲之间的接触，尤其是直接的身体接触。这无疑会对I的的情感需求和整体发展产生负面影响。 ####1302-1305 根据证据，如果我搬迁，W不会寻求禁止I与她父亲的接触。这对于I的情感发展至关重要。 ####1306-1310 鉴于W在I出生后很长一段时间内一直是I的主要照顾者，再加上对H如果保留监护权可能会限制孩子与母亲之间的接触的担忧，可以得出结论，允许I与母亲一起搬迁到澳大利亚符合I的最佳利益。 ####1311-1312
根据本法在本案中可用的法院权力范围。 ####1313-1317 鉴于搬迁申请的批准，法院进一步作出以下命令。 ####1318-1323 ####赡养费 根据法院关于搬迁的判决，H必须恢复支付给W的赡养费，金额为每月1,500.00美元。作为附带条件，只要J与他的父亲在开曼群岛居住，H无需向W支付赡养费。无论J何时由W照顾，
```html 1324 whether in the Cayman Islands or Australia, H must pay the 1325 previously Court Ordered Maintenance of $1,500.00 per month for 1326 him, pro-rated based on the period of custody, for example: one 1327 week or two weeks. 1328 1329 Housing Allowance 1330 157. Rather than unilaterally ceasing to pay the housing allowance, H 1331 should have presented the facts to the Court and sought a variation 1332 of the Order. As worded, W was entitled to expect those monthly 1333 payments in order to set up a new home for herself and the 1334 children. However, this Order would have been adjusted had the 1335 Court been advised that she and the eldest child were living rent- 1336 free with her parents. 1337 1338 158. W is entitled to arrears but using its discretion, the Court will remit 1339 a portion of this. H is ordered to pay the equivalent of four months 1340 arrears at the Court Ordered rate of $3,500.00 per month. 1341 1342 159. Once a home in Australia is found for the children, H is to resume 1343 the payment of the housing allowance of $3,500.00 per month to 1344 W, to the original Court Order. 1345 according terms of the 1346 1347 Spousal Support 1348 160. W has not established a case for the extension of Spousal Support. 1349 It is accepted that she has no money of her own and obviously H ```
```html 1350 1351 1352 1353 has funds. However, the Spousal Support had been specifically ordered so as to allow her to get back on her feet. No evidence has been adduced of concrete plans which commenced but were not concluded, requiring further funds. That application fails. Contact Orders 161. Both sides have requested that the Court make specific Orders concerning contact. I will adopt the submissions made on behalf of W and do so make orders incorporating same. They are: W is permitted to relocate with I to Melbourne, Australia; I will have physical contact with H as follows: For 2 weeks every Easter; For 2 weeks during the last week June/first week July school holiday every year; For 2 weeks during the late September school holiday every year; Starting 2020, for 4 weeks during school Christmas holidays (incorporating Christmas Eve and Christmas Day on alternating years); The above arrangements can be facilitated in the Cayman Islands, Australia, New Zealand or any other location that is convenient for H. I will have regular indirect Facetime/Telephone contact daily at 4:00 p.m. Cayman time or such other time as can be agreed and anytime between 5:00 and 11:00 p.m. on weekends; 19-12-30- Miller & Miller - Cause# FAM53 /2014 - Judgment - Justice Nova Hall (Actg.) - FM Page 51 of 52 ```
```html 1377 4. H is responsible for the travel costs of facilitating physical 1378 contact. 1379 1380 Supplementary Orders 1381 162. It was considered important to make the foregoing Orders with 1382 some urgency. However, in recognition that the change in 1383 jurisdiction means that there is a change in currency and details 1384 on living costs, both sides have leave to return and make 1385 applications for variations to the financial Orders as it relates to 1386 the change in currency. 1387 1388 Costs 1389 163. H is ordered to repay the Legal Aid Fund in respect of the costs 1390 incurred under W's Legal Aid certificate. 1391 1392 Hall Nova 1393 Judge of the Grand Court (Acting) 1394 30th December 2019. 19-12-30- Miller & Miller - Cause# FAM53 /2014 - Judgment - Justice Nova Hall (Actg.) - FM Page 52 of 52